Over the period of last few days, the chorus to opt the ordinance route for resolving the Ayodhya dispute has gathered steam. This has resulted in a debate on the legality of such an action if it is opted by the Union government.
The ordinance making power is a special power vested in the President of India under Article 123 of the Constitution of India. These ordinances ‘have the same force and effect as an Act of Parliament’. But this power can only be exercised when the Parliament is not in session. Also, the president has to be satisfied that such circumstances exist, which demand immediate action.
Under the scheme of the Indian Constitution, the president is the head of the executive and hence the exercise of a legislative power like that of making an ordinance is slightly unusual. However, it is a constitutional power, nevertheless.
Therefore, if there is a question on whether there should be an exercise of the ordinance making power or not, then the same can only be answered by the office of the President of India. Such is the constitutional mandate. The satisfaction of the president is the only check which the Constitution places over the exercise of such power.
As per the mandate of Article 74 of the Constitution, the president has to always act on the aid and advice of the council of ministers. Hence, in effect, if the council of ministers are convinced that there is a need to exercise the ordinance making power, then there is no constitutional restriction on the same.
The Ayodhya dispute is trickier because the matter is currently under adjudication in the Supreme Court of India. The court, however, has not shown any sense of urgency in deciding this matter, which essentially is a title dispute. To the contrary, there appears to be a deliberate policy of deflection being practised by the court, so as to save itself of the ensuing political liability which might be antecedent to such a verdict.
In addition to the legality, it is also democratically expedient for the government to take a call on this issue. As the dispute includes the contestation based on faiths, the stake of millions of Indians, is also involved. The government being the direct representative of the people of India, has a direct responsibility to intervene in the matter.
The responsibility of now deciding upon the matter quite naturally falls upon some other constitutional authority which in this instant case is the president. It has been argued that this would amount to the scuttling of the judicial process. Though there can’t be any challenge to the validity of raising such an argument, it falls flat on the merits.
The Parliament and the State Legislative Assemblies on numerous occasions have resorted to the legislative route to overturn a judicial mandate. The most famous of such instances is the reversal of Shah Bano verdict by the then Rajiv Gandhi government. The government, therefore, has enough precedents to act now. In the instant case, there is not even a verdict, instead, there is manifested judicial inaction to resolve the dispute.
On merits, the disputed site was acquired by the government through Acquisition of Certain Area at Ayodhya Act, 1993. By the mandate of this law, the land is now vested with the government and it can legally divest in any manner it likes, till this law remain in force and is not declared unconstitutional, which is currently not the case.
It can also be jurisprudentially argued, that the government is by default, the owner of the entire land of the country. This has been a longstanding position of the doctrine of eminent domain, which makes the government the ultimate owner of all properties. The use of this doctrine also has a constitutional precedent in our contemporary history. The Fundamental Right to Property was abolished and was downgraded to a constitutional right. It was then used to strip the erstwhile ‘Zamindars’, to acquire their large scores of lands.
Therefore, the government can legally divest the disputed site, which in this case is also directly owned by the government, to anyone it deems fit, through an ordinance or otherwise.
An argument against such an assertion can be based on morality or constitutional morality (which is in vogue these days) but will certainly not be legal.
The Central government has all such constitutional remedies at its disposal, which empowers it to bring an ordinance to resolve the dispute. The only constitutional impediment in the exercise of such a power, is its own desire, to not exercise it.
The author is an assistant professor of Law at the Maharashtra National Law University, Mumbai. He can be reached at firstname.lastname@example.org. He tweets @raghavpandeyy
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Updated Date: Nov 26, 2018 11:45:48 IST