The re-promulgation of the land acquisition ordinance by the Narendra Modi government may or may not suffer disability on grounds of constitutionality but experts have raised questions about the action's propriety and constitutional morality.
"I don't think that it is violative of the constitution or law but it may be questioned on the grounds of propriety and morality of the government action" constitutional expert Subhash Kashyap told IANS.
But the propriety and constitutional morality of the government action is subjective depending on the government's politics and perception of the government, said Kashyap, stressing the constitutionality of the re-promulgation of an ordinance and propriety and morality of the action are two different things and can't be mixed up.
However, activist lawyer Prashant Bhushan believes that it totally an unconstitutional use of the ordinance power as an ordinance can only be promulgated to meet an emergency situation and can't be used to get over the lack of majority in parliament.
Describing it as totally illegal and unconstitutional, he said the action was an assault on the rights of the land-holding farmers.
The view taken by both Kashyap and Bhushan finds support in the Supreme Court's five-judge bench judgment of December 20, 1986 wherein speaking for bench, Justice P.N.Bhagwati had said: "The power to promulgate an ordinance is essentially a power to be used to meet an extra-ordinary situation and it cannot be allowed to be perverted to serve political ends. It is contrary to all democratic norms that the executive should have the power to make a law ..."
It said that if the "executive were permitted to continue the provisions of an ordinance in force by adopting the methodology of re-promulgation without submitting to the voice of the legislature, it would be nothing short of usurpation by the executive of the law-making function of the legislature".
This would be "clearly subverting the democratic process which lies at the core of our constitutional scheme", said the bench while quashing an ordinance that was repromulgated by the Bihar government.
President Pranab Mukherjee on Friday gave assent to re-promulgation of the ordinance to amend the 2013 land acquisition act, a day before it lapsed.
