Tuesday 7 February 2017

Two Judge Bench of the Supreme Court fails to follow recent seven Judge ruling on repromulgation of ordinances

A two Judge Bench of the Supreme Court headed by Chief Justice Khehar has elected not to follow the seven Judge Bench decision in Krishna Kumar Singh on re-promulgation of ordinances. 

See https://thewire.in/106422/chief-justice-khehar-ordinance-enemy-property-supreme-court/

Is there a judicial remedy for this - which could be described as a breach of law. It also undoes all that the seven Judge Bench achieved toward restoring parliamentary supremacy in our democracy. 

The news report on what the Judges said during the hearing is startling. Again the deference to the mere invocation of national security, and the refusal to even look into whether it was a national security issue at all. And even then, does the Supreme Court not believe that the executive needs to trust Parliament by laying the ordinance before Parliament and by moving a bill before Parliament. The Judges asked the MP-Petitioner to raise the issue before Parliament when his very grievance was that the executive was avoiding Parliament. 

Unfortunately, lawyer Anand Grover who appeared for the Petitioner made it easier for the Bench by withdrawing the petition and thereby obviating the need for a reasoned dismissal order which would have been very interesting. Why would Anand Grover want to withdraw this and prevent a reasoned order. 

Also should the Khehar Division Bench not have referred the matter to the seven Judge Bench, if the former was inclined to differ from or to qualify the ruling of the seven Judge Bench? 

It appears as if the same national security exception might get invoked for the demonetization ordinance which also runs foul of the Seven Judge Bench decision. 

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