SC to hear plea challenging land ordinance on Monday

The apex court bench of Chief Justice H.L. Dattu and Justice Arun Mishra said on Tuesday last week that the matter would be taken up for hearing after senior counsel Indira Jaisinh urged an early hearing of the plea.

The Bharatiya Kishan Union, Delhi Grameen Samaj, Gram Sewa Samiti and Chogama Vikas Avam moved the apex court contending that "the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement (Amendment) Ordinance, 2015, is unconstitutional, null, void and ultra vires Articles 14 and 123 of the constitution and hence void ab initio".

The petitioner organisations, while describing the ordinance as a "colourful exercise of power" by the government, have sought direction to restrain the government from "acting upon" the measure.

Describing the re-promulgation of the ordinance as "arbitrary and violative of Article 14 of the constitution", the farmers organisations have said that it was a "fraud on the constitution itself".

Pointing holes in the re-promulgation of the land ordinance, the petitioner organisations have said that "deliberately proroguing the Rajya Sabha on March 28, 2015 whilst it was in budget session only for the oblique and malafide purpose of re-promulgating the impugned ordinance goes against the very spirit and raison d'etre underlying Article 123 of the constitution".

The petitioners have contended that the action of the government in re-promulgating the ordinance was malafide amounting to Ordinance Raj and thus open to challenge.

Asserting that the government has "abandoned all principles of constitutional morality" by re-promulgating the ordinances, the petition said that "adherence to the principles of constitutional morality by the different organs of government is as much a mandate to be enforced strictly like the letter of the written constitution".

The discretionary power of the president to promulgate ordinances has to be "exercised judiciously and within the strict paradigm of the circumstances, circumscribing the exercise of such discretion under Article 123", the organisations have contended.

The law-making function under the constitution is vested in parliament and the same can not be usurped by the executive, the petitioner organisations have contended.

They said: "If the executive was permitted to continue the provisions of an ordinance by issuing successive ordinances without submitting the same to the voice of parliament, it is nothing but usurpation by the executive of the law-making powers of the legislature."

"Merely because it does not have numbers in the Rajya Sabha, the executive cannot be permitted to continue the law-making exercise by way of an ordinance" and "the life and liberty of citizens cannot be regulated by ordinances", the petition said.

The government "deliberately" did not move the 2015 bill for discussion in the Rajya Sabha after its passage in the Lok Sabha between March 10 and 20 "due to lack of its numbers, political will or consensus".

The petitioners have argued that the "issuance of the impugned ordinance goes against the very purpose, intent, and spirit underlying Article 123".