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'Propriety, morality of land ordinance's re-promulgation questionable'
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 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 such questions are subjective
depending on the perception about the government, said Kashyap,
stressing that constitutionality and propriety or morality were two
different things and they shouldn't be mixed up.
However,
activist lawyer Prashant Bhushan said that it was "totally an
unconstitutional use of the ordinance power" as such a law can only be
promulgated to meet an emergency situation and cannot be used to get
over the lack of majority in parliament.
Prashant said the government's 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 the bench, Justice P.N.Bhagwati had said: "The power to
promulgate an ordinance is essentially a power to be used to meet an
extraordinary 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 re-promulgated by the Bihar
government.
President Pranab Mukherjee on Friday gave assent to
the re-promulgation of the ordinance to amend the 2013 land acquisition
act, a day before it lapsed.