The Constitution Bench of the Supreme Court, in Krishna Kumar Singh’s case, has reiterated the principle that re-promulgation of ordinances is a fraud on the Constitution and a subversion of the democratic legislative processes. The raison d’être for this dictum is that re-promulgation represents an effort to overreach the legislative process which is the primary source of law-making in a parliamentary democracy. The Enemy Property (Amendment and Validation) Ordinance was first promulgated on January 7, 2016, with the ostensible objective of plugging loopholes in the principal act and to ensure that the enemy properties worth thousands of crore do not revert to the legal heirs. A concomitant effort has been made to frustrate the judgment of the Supreme Court in the case of Raja Amir Mohammad Khan of Mahmudabad who won a long and arduous legal battle for his properties.
An ordinance under Article 123 of the Constitution shall cease to operate at the expiry of six weeks from the reassembly of the Parliament. It may also cease to operate before the expiry of the period of six weeks if a resolution disapproving it is passed by Parliament. The fifth Enemy Property ordinance has been promulgated on the December 22, 2016, to give continued effect to the provisions of the fourth ordinance. The said ordinance has inserted a saving provision vide Section 22(2) of the fifth ordinance to ensure continuity. The aspect that requires thoughtful consideration is an attempt by the government to nullify the judgment, decree or order of any Court by inserting Section 8A (1) in the ordinance. Section 8A (1) empowers the custodian to dispose of “enemy properties” whether by sale or otherwise notwithstanding any judgment, decree or order of any court, tribunal or authority.
The failure of the government to ensure the passing of the Enemy Property Bill, 2016 and using the back door of re-promulgation is a practice emphatically deprecated by the Supreme Court. Re-promulgation is fundamentally at odds with the principal of parliamentary supremacy. Article 123 of the Constitution spells out requirements before resorting to the extraordinary measure of promulgating an ordinance. The government, by re-promulgating the Enemy Property ordinance for a record fifth time, has converted the emergent power under Article 123 into a source of parallel law-making that is antithetical to the scheme of the Constitution.