Ordinance on Sub-Judice Matter? Never Done Before But Not Barred, Say Legal Experts on Ayodhya Issue

New Delhi: A dispute over a 15th century structure awaited closure in 2018 and has now been pushed to 2019.

The Supreme Court’s decision to adjourn the Ram Janmabhoomi-Babri Masjid land dispute cases till January next year has led to renewed demands from certain quarters to bring in an ordinance for the construction of Ram Temple in Ayodhya. While RSS chief Mohan Bhagwat had called for a mandir legislation in his Vijayadashami speech, Union minister Giriraj Singh has said that “Hindus are losing patience”.

But can the government bring an ordinance while the matter is pending in the Supreme Court, something that has never been done before in the country? Let’s take a look.

Under the Constitution, the power to make laws rests with the legislature. However, when Parliament is not in session and ‘immediate action’ is needed, an ordinance can be promulgated to make legislative changes. However, this ordinance needs to be ratified by Parliament within six months of its promulgation or else it lapses. The Supreme Court had in January 2016 ruled that “re-promulgation of an ordinance is a fraud on the Constitution”.

According to top legal experts, there is no bar on bringing an ordinance or law on a matter which is sub-judice.

“Law making is a plenary power and an ordinance can be brought in notwithstanding matters pending in the court,” said senior Advocate and jurist KM Vijayan.

“The legislature can always bring an ordinance even if the matter is sub-judice. The legislature is not affected by this because it acts within the executive domain. The role of the court begins only when the law comes into force and then it can rule whether it’s ultra-vires to the Constitution or not,” Vijayan.

Constitutional expert Subhash C Kahyap, however, says it is not the norm to bring an ordinance on a sub-judice matter.

“It is usually not done. When the matter is sub-judice, ordinances cannot be promulgated. Courts usually do not intervene when Parliament is considering the matter. Similarly, even Parliament does not legislate while a matter is pending,” said Kashyap. He, however, added that there is no legal bar.

Agreeing with Kashyap, senior advocate KTS Tulsi said, “An ordinance on a sub-judice matter has not been passed till now due to propriety, but there is no bar. This has not been dealt with by the Constitution.”

Constitutional expert and former Lok Sabha secretary general, PDT Achary, raised a red flag on the issue and said the Centre cannot intervene in a personal land dispute.

“Ram Janmabhoomi dispute is a land dispute. What kind of a law can be made in that case? It’s about private ownership of the land. The government cannot issue an ordinance when it’s a private property dispute. Private land doesn’t come under either union or state list. It can only be done if the government wants to acquire that land. But again for what? To build a temple for a community? It’s not permitted,” said Achary.

The three-judge Allahabad high court bench, in a majority ruling of 2:1, had ordered that the 2.77 acres of land be divided equally among three parties — the Sunni Waqf Board, the Nirmohi Akhara and Ram Lalla. At least 14 appeals have been filed against the judgment.