Were ordinances notified without Presidential assent?

Did the Government notify an ordinance last week even before it received Presidential assent? It did, claims a lawyer, who plans to move the court with the prayer to declare the ordinance null and void.

The procedural and Constitutional lapse, claims senior advocate Arvind Jain, occurred when the Government notified an ordinance providing for a maximum punishment of death by hanging for rapists of children below 12.

Jain claims that the ordinance was apparently approved by the Union cabinet on Saturday, April 21 and notified the same evening. The ordinance, however, received Presidential assent the next day, Sunday, on April 22.

“It’s unprecedented in the history of independent India,” Jain told National Herald, and added, “even when the state of Emergency was declared, the President’s assent was sought.” It was around 11 pm at night when the President signed it before it was notified. The signature of the President was a Constitutional necessity then and remains so even now.

But in the ordinance notified and uploaded online on April 21 by the Government, there is no signature by President Kovind, although it is in his name.

Jain says he has heard that no agenda was circulated either for the cabinet meeting on April 21 and that some quarters had expressed doubts whether any meeting had been held at all. But not waiting for the President’s assent would not only be a Constitutional impropriety but indicate that the Government is taking the President of India for granted.

While news portal The Wire had sought a clarification on April 25 from the Secretary to the President, Sanjay Kothari, till Saturday afternoon on April 28 it had not heard from the Rashtrapati Bhavan. National Herald too has sent a mail to the Secretary seeking to know when the ordinance was actually signed by the President. This report will be updated as and when we hear from Rashtrapati Bhavan.

“Either the President’s signature did not matter or there was some exceptional miscommunication,” says Jain.

Ordinances can be promulgated and notified only after Presidential assent and in this case the ordinance does not appear to have been approved by the President.

Another interesting point is that the President is normally expected to consult Constitutional and subject experts before putting his signature to an ordinance. In view of the knee-jerk reaction of the Government in notifying the death penalty, which many experts believe will lead to rapists killing the victims, questions are being raised whether the President was given sufficient time to hold consultations and apply his mind.

If the Ordinance was indeed uploaded before the President put his signatures on the ordinance, it makes the ordinance null and void, Jain told NH. “Because since the ordinance was already uploaded, it had already come into force even before the President’s nod,” Jain said, adding, “but it is no law then under the Constitution if it is not authorised by the President .”

On the same day (April 21), another gazette notification on Fugitive Law Ordinance was passed, which too did not have the President’s signature, Jain claimed.

The government, however, can still withdraw the notification and issue a fresh one, “because they are responsible for providing accurate information to the public,” Jain added.