A group of farmers’ organisations moved the Supreme Court on Thursday seeking the repromulgated land ordinance to be quashed on the grounds of its being ultra vires of the Constitution and restraining the government from enforcing it.
The petitioner organisations also sought the apex court’s direction restraining the government from "acting upon" the ordinance.
The petitioners contended that the action of the government in re-promulgating the ordinance was malafide and thus open to challenge.
The discretionary power of the president to promulgate ordinances has to be "exercised judiciously and with in the strict paradigm of the circumstances, circumscribing the exercise of such discretion under Article 123", the organisations said.
The law making function under the Constitution was vested in parliament, the petitioner organisations contended.
They said, "If the executive was permitted to continue the provisions of an ordinance by issuing successive ordinances without submitting the same to the voice of parliament, it is nothing but usurpation by the executive of the law making powers of the legislature".
"Merely because it does not have numbers in the Rajya Sabha, the executive cannot be permitted to continue the law making exercise by way of an ordinance" and "the life and liberty of citizens cannot be regulated by ordinances…"
The government "deliberately" did not move the 2015 bill for discussion in the Rajya Sabha after its passage in the Lok Sabha between March 10 and 20, "due to lack of its numbers, political will or consensus".
"The ordinance making power under Article 123 was never meant to be a substitute to overcome lack of numbers of the executive in one house," the organisations contended.
"Neither the letter of the Article nor the relevant Constituent Assembly Debates indicate that the device of Article 123 could be resorted to by the executive to make laws to overcome its difficulty in passing the legislation in one house due to lack of majority/political wlll or consensus", the petitioners said.
The government was "evolving a dangerous precedent for the exercise of Article 123 which is not at all envisaged by the Constitution".
The petitioners said the "issuance of the impugned ordinance goes against the very purpose, intent and spirit underlying under Article 123".