New Delhi: A Delhi-based lawyer has questioned if the gazette notification for the death penalty ordinance for child rapists was issued even before it had been formally approved by President Ram Nath Kovind. Going by all news reports, it appears a major faux pas might have occurred, affecting the legality of the ordinance.Basing his query on the fact that the cabinet approved the proposal on Saturday, April 21, and the gazette notification was also issued the very same day, while the Press Trust of India news agency and several media outlets all reported that the Kovind had promulgated the ordinance the following day, i.e. Sunday, April 22, the lawyer, Arvind Jain, has challenged the legal sanctity of the ordinance.In its story on April 22, PTI had stated Indian President Ram Nath Kovind promulgated the criminal law amendment ordinance on Sunday, paving the way for providing stringent punishment, including the death penalty, for those convicted of raping girls below the age of 12 years. The story had noted that “the president’s nod to the ordinance came after the Union Cabinet’s approval on Saturday for tightening the law…”Speaking to The Wire, Jain said, “The law clearly lays down that the president would promulgate an ordinance on the recommendation of the cabinet. If the parliament is not in session, then this is an alternative for the government to bring in a law.”Notification of ordinance can only take place after president’s approvalHowever, he said, the sequence to be followed demands that “first the cabinet would meet, then the recommendation should be approved by it and sent to the president, who should sign it and then the gazette notification takes place.”“As per the General Clauses Act, it is a basic rule that any law commences from 00:00 hours of the day which has been mentioned on that Act. So as this notification on death for rape is dated April 21, 2018, it comes into effect from midnight on the intervening night of April 20-21. This has been the practice since 1860, to do away with confusion over what time what law came into being or came into force,” he pointed out.The ordinance issued on April 21, 2018.But in the case of the new rape law, he said, while it came into force at 00:00 hours on April 21, the president appears to have signed it on Sunday, April 22, going by all media reports. “So in effect, it had not been approved of by the president when it was notified.”Who authorised the notification?“The question,” Jain asked, “is who authorised the Government of India press or the manager or the director thereof to issue the gazette notification on the site? The site says that on April 21 they had issued two ordinances, one pertaining to this death for rape issue and another one on a fugitive who left India. The law provides that they would only issue a notification once it would come to them from the concerned ministry, which in this case is the Ministry of Law and Justice.”“The last page of the gazette notification mentions that it has been uploaded by the general manager of the Government of India Press, Minto Road, New Delhi. So technically there is something wrong that they have issued a gazette notification which has come a day prior to the president actually signing it,” he added.Legality impacted, would be challenged in courtThe senior advocate said “this would impact the legality of the ordinance too because when it was approved, it was not authorised as the president was yet to pass it. So it can be challenged in court”.In fact, Jain said that since the Delhi high court is already seized of the matter in a writ petition challenging the imposition of death sentence on rape accused – and the acting chief justice has asked the government what data it had and whether there was a study before the ordinance was passed – so it could be challenged in that appeal too.‘No provision for rectification, fresh notification would be needed’Jain said he has not heard of a similar faux pas barring the issuance of an ordinance proclaiming the imposition of the Emergency in 1975. “That ordinance was issued by the president only on the recommendation of the prime minister and there was no cabinet approval. So there was an uproar in the political circles and media about it. Subsequently, a cabinet meeting was called to “rectify” it. But that was also wrong since no such provision of rectification exists.”“The law does not provide for rectifying a gazette notification. Ideally, the notification should be withdrawn and a fresh one issued,” he insisted.Response of president’s secretary soughtUnusually, the Rashtrapati Bhavan media office did not issue a press release for the signing of the ordinance. The Wire emailed President Kovind’s secretary, Sanjay Kothari, to confirm the date the said ordinance – the Criminal Law (Amendment) Ordinance, 2018, No. 2 of 2018 – was signed. His response will be incorporated as and when he replies.