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Union of India v. Preeti Agarwal

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Union of India v. Preeti Agarwal

This case deals with the question of whether Ordinances introduced during emergency can continue after the cessation of emergency.

Petitioners Arguments
Ordinances introduced during the emergency period were equated with acts of federal legislature and therefore continue to be in force till they are repealed. Hence, for all purposes, they must be considered as enacted legislations and the time period of six months used for ordinances should not be applicable. Since the ordinance was included in the Adaptation of Laws Order, 1950 , issued under Article 372(2) of the Constitution , the ordinance continues to be a valid law. On merits, the confiscation and forfeiture of property by the District Judge is merely a more efficient way of returning the property to the Government than filing a suit for the same. ‘Penalty’ under Article 20(1) includes only punishments prescribed under Section 53 of the Indian Penal Code . Confiscation and forfeiture under the Ordinance falls outside the ambit of punishments under Section 53. Therefore, there is no violation of Article 20(1) in accordance with the holding of State of West Bengal v. S.K. Ghosh .
Responders Arguments
At the end of the emergency, the original position of law was restored and the ordinance should be deemed to have been in effect only for the period of the emergency. At the end of the emergency, ordinance making powers were back to being governed by the Government of India Act, 1935 and therefore ordinances should be tested against its terms. Ordinances are temporary by their very nature, despite the particular time limit having been removed. Ordinances are introduced through special powers to meet an emergency and have to be treated as such as per the law laid down in Krishna Kumar Singh v. State of Bihar and D.C. Wadhwa v. State of Bihar . Equating laws made by the executive with laws made by the legislature violates separation of powers. Permanent ordinances go against the scheme of the Constitution under Article 123 and cease to operate six weeks after the re-convening of the parliament. If they are to continue as laws they should be introduced as statutes.
Last Listed On
2019-07-17
Review Petition No
Crl. A. No 375/2006
Case Status
Pending
Bench Status
Not Constituted
Subject Matter
Constitution
Pendency
6 years, 11 months, 13 days

5 Judge Bench

Reference to larger bench

Consider As Stage Of Pendency
true

Date of institution of case

Date of reference to larger Bench

Pre-independence, under the Government of India Act, 1935 ordinances could be promulgated by the Governor-General only for a period of six months. During this time period, they were to be treated at par with the Acts of the legislature. Their operation would cease after the six months unless passed by the parliament or extended through another ordinance. During World War II, given the exceptional circumstances and to centralize control, the British Empire enacted the India and Burma (Emergency provisions) Act, 1940 . Under the Act, all ordinances made during the emergency were exempted from the six-month limitation. In 1944, the Government introduced the Criminal Law Amendment Ordinance, 1944 . This Ordinance gave the Government the power to seize or attach those properties which individuals had allegedly acquired by committing certain offences listed under the Act. These include acts of corruption, embezzlement, and other offences that caused losses to the Government. Under the law, a District Judge could make the attachment permanent and direct the forfeiture of the amount allegedly gained by the commission of the offence. Even though the emergency was declared to have ended in 1946, the Criminal Law Amendment Ordinance was never repealed, thereby effectively becoming a permanent statute . The present case challenges the applicability of the ordinance and the seizure of property under it.

Will the Criminal Law Amendment Ordinance, 1944 and its continuance ad infinitum as a law made by the Executive, be contrary to the basic features of separation of powers and the scheme of checks and balances inscribed in the polity of the Constitution has adopted? What is the status of these laws in light of Articles 123 and 372 of the Constitution of India?

Criminal Law (Amendment) Ordinance, 1944

India and Burma (Emergency provisions) Act, 1940

Articles 123 and 372 of the Constitution of India, 1950

Since the holding in the present case will have possible ramifications on other permanent and obsolete ordinances passed during the time and the court might need to potentially re-consider the law laid down by a 5-judge bench in Hansraj Moolji v. State of Bombay present case is now before a constitution bench.

State of West Bengal v. S.K. Ghosh [(1963) 2 SCR 111]

Hansraj Moolji v. The State of Bombay [1957 SCR 634]

Junk 11 World War II ordinances: Law Panel

Junk 11 World War II ordinances: Law Panel
Source Of Info
The Times of India
Date Of Fr
15-10-2014