Wednesday, November 23rd, 2016

Misuse of ordinances under SC’s lens

R Venkataraman | November 23, 2016 12:03 pm Print
Chief Justice (CJI) Tirath Singh Thakur has reserved the judgment in the case of Krishna Kumar Singh, who sought nullification of all the ordinances promulgated by the state of Bihar which were not tabled in the legislative assembly. The case assumes significance as in the case of “Office of Profit,” Jaya Bachchan was disqualified but not Sonia Gandhi.
Supreme Court of India

 

An awaited judgment of the Supreme Court of India can be expected to rein in mindless and politically-motivated ordinances in the country. Chief Justice (CJI) Tirath Singh Thakur has reserved the judgment in the case of Krishna Kumar Singh, who sought nullification of all the ordinances promulgated by the state of Bihar which were not tabled in the legislative assembly.
The case assumes significance as in the case of “Office of Profit,” Jaya Bachchan was disqualified but not Sonia Gandhi. However, Ms. Gandhi was forced to resign as an ordinance was promulgated when parliament was in session. An ordinance is an emergency provisions under Article 123(2) (a) of the Constitution of India and promulgated when Parliament or a state assembly is not in session.
It shall have to be promulgated when Parliament or a state assembly is not in session and shall cease to operate at the expiration of six months from the reassembly of Parliament or a state legislative assembly. However, before the expiration of that period, if resolutions approving it are passed by both Houses, it becomes law of the country. If disapproved, it is obituary for that Ordinance.

Article 213(2) (a) has a similar provision with regard to the validity of ordinances promulgated by the Governor of a State, during the recess of state legislature.

In the instant case of Krishna Kumar Singh Vs. State of Bihar, former union minister and senior advocate, Salman Khurshid, contended that the case pertained to re-promulgation of ordinances. But CJI T.S.Thakur observed that “power can’t be exercised without concomitant obligation.” Khurshid wanted the Apex Bench to lay down guidelines which would ensure that certain effects of an ordinance would endure, even after expiry. But the Constitution is clear: the Government concerned should place an Ordinance in the House.

The case pertained to many retired Sanskrit teachers of the state of Bihar whom the government earlier granted the status of government employees vide an ordinance but turned a blind eye till the Ordinance lapsed and became time-barred. However, the state government re-promulgated it a few times. If it is reversed, their status as government employees could be reversed, with the expiry of the Ordinance. Whatever could be the decision, this would have a huge bearing on politically-motivated ordinances like the ones on “office of profit” “Bihar press Bill” etc

R Venkataraman
R Venkataraman
(The writer is ex-accredited correspondent of Supreme Court of India, Parliament of India, Central Government (PIB) and ex-member Press Council of India.)
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