Citing 'Sensitive Matters', Chief Justice Khehar Upends Bar on Repromulgation of Ordinances

Supreme Court rebuffs challenge to repeated promulgation of Enemy Property ordinance, says national security considerations are involved.

New Delhi: Inverting a recent judgment of the Supreme Court’s constitution bench with a direct bearing on the matter, Chief Justice J.S. Khehar and Justice N.V. Ramana on Monday dismissed a PIL filed by a Member of Parliament challenging the repeated re-promulgation of the Enemy Property (Amendment and Validation) Ordinance by the Centre.

On December 22 last year, President Pranab Mukherjee promulgated the ordinance for the fifth time.

The PIL filed by Husain Dalwai – a Rajya Sabha Member from Maharashtra who is with the Congress party – was a test case, as a seven-judge bench of the Supreme Court had held last month in Krishna Kumar Singh vs State of Bihar that re-promulgation of ordinances is a fraud on the Constitution, and is unconstitutional.

So how did a two-judge bench refuse to consider the challenge to the re-promulgation of the Enemy Property Ordinance? How come the decision of the seven-judge bench was not binding on it?

Both the CJI and Justice Ramana were not members of the bench, which unanimously held that re-promulgation was unconstitutional. Although the seven-judge bench’s judgment is binding on the two-judge bench,  Chief Justice Khehar made it appear as if it cannot apply to matters which appear “sensitive”, or anything related to “national security”.

In paragraph 44, the seven-judge bench held thus:

“Re-promulgation of ordinances is constitutionally impermissible since it represents an effort to overreach the legislative body which is a primary source of law-making authority in a parliamentary democracy. Re-promulgation defeats the constitutional scheme under which a limited power to frame ordinances has been conferred upon the President and the Governors. The danger of re-promulgation lies in the threat which it poses to the sovereignty of Parliament and the state legislatures which have been constituted as primary law givers under the Constitution.   Open legislative debate and discussion provides sunshine which separates secrecy of ordinance making from transparent and accountable governance through law making.”

During the hearing of the Dalwai’s writ petition on Monday, his senior counsel, Anand Grover reminded the two-judge bench, about the recent judgment of the seven-judge bench in Krishna Kumar Singh.

To this Chief Justice Khehar said: “Yes, we have read it. It was a different kind of legislation, in Krishna Kumar Singh. There is a distinction between legislation which affects individuals adversely and the laws which protect the rights of the citizens.”

Grover explained that the ordinance treated the successors of migrants to other countries, with which India was at war in the past, as enemies. “How can I continue to be an enemy, if I am a citizen of this country, but because of accident of birth, related to a former migrant?”, he asked the bench.

The CJI replied that enemy property shall go to the government.

When Grover sought to further explain the prayer of his client, the CJI said: “Security of the nation is involved. You are an MP. Debate it in parliament. You must be sensitive to the needs of the nation”.

Grover responded saying the CJI’s sensitivity is understood, but they (the successors of the migrants) too are citizens, and have their rights.

The CJI responded saying the bench was aware of it, but the issue should be debated in Parliament.

Sensing the mood of the bench, Grover sought its permission to withdraw the petition, “at this stage”, so that he could file it again at some later stage, to which the bench agreed.

The reason the government keeps repromulgating the ordinance is because it is not confident of getting amended law passed in the Rajya Sabha.

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