A group of farmers' organisations moved the Supreme Court on Thursday seeking the re-promulgated land ordinance to be quashed on the grounds of its being ultra vires of the Constitution and devoid of constitutional morality. They sought the government be restrained from enforcing it.
The Bharatiya Kishan Union, Delhi Grameen Samaj, Gram Sewa Samiti and Chogama Vikas Avam said, "The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement (Amendment) Ordinance, 2015, is unconstitutional, null and void and ultra vires Articles 14 and 123 of the Constitution of India and hence void ab initio".
Describing it as a "colourful exercise of power" by the government, the petitioner organisations also sought the apex court's direction to the government restraining it from "acting upon" the ordinance.
Describing the re-promulgation of the ordinance "as arbitrary as violative of Article 14 of the constitution", the farmers organisations said it was a "fraud on the Constitution itself".
Pointing at holes in the re-promulgation of the land ordinance, the petitioner organisations 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 de'etre underlying Article 123 of the Constitution".
The petitioners contended that the action of the government in re-promulgating the ordinance was malafide and thus open to challenge.
Asserting that the government has "abandoned all principles of Constitutional morality" by re-promulgating the ordinances, the petition settled by counsel Indira Jaising said "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 with in the strict paradigm of the circumstances, circumscribing the exercise of such discretion under Article 123", the organisations said.
The law-making function under the Constitution was vested in parliament, the petitioner organisations 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 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 ordinance making power under Article 123 was never meant to be a substitute to overcome lack of numbers of the executive in one house," the organisations contended.
"Neither the letter of the Article nor the relevant Constituent Assembly Debates indicate that the device of Article 123 could be resorted to by the executive to make laws to overcome its difficulty in passing the legislation in one house due to lack of majority/political will or consensus", the petitioners said.
The government was "evolving a dangerous precedent for the exercise of Article 123 which is not at all envisaged by the Constitution".
The petitioners said the "issuance of the impugned ordinance goes against the very purpose, intent and spirit underlying under Article 123".
