Hon'ble Governor's void ordinance: A non political legal opinion

L Ibomcha Singh *

The joy we had on hearing the news of the promulgation of an ordinance by the Hon'ble Governor of Manipur to contain mob violence in the State, was shattered and short-lived on seeing the text of "The Manipur Protection From Mob Violence Ordinance, 2018" notified in the official Gazette on 20-11-2018. There are many legal flaws in the ordinance making it un-Constitutional and void. It is a great pain and sorrow to see such legal flaws in this ordinance.

It seems that the State Government is not aware of how to promulgate an ordinance and when it shall come into force. This forced us to take the pen as the State Government has failed to learn from its earlier mistakes. For matters where the Hon'ble Governor has to exercise the legislative powers under the Constitution, such casualness should not be shown by the State Government. It is beyond imagination that a State Government can function without obtaining appropriate and proper legal advice. To point out such legal flaws in the ordinance are not with a mala-fide intention to tarnish the image of the Hon'ble Governor and the State Government, but to protect and to uphold the highest constitutional office of the State.

Is it due to the State Government dealing the matter in a hasty and casual manner without consulting and seeking proper legal advice from the appropriate legal experts? Does the State Government take the legislation (making of law) as a secondary function? Is it due to non-availability of competent legal expert in the State Government to advise the State Government in the matter? The State Government is now in an embarrassing situation. It is the general expectation that the State Government shall act diligently in every matter involving the office of the Governor.

The fact is that the Manipur Protection from Mob Violence Ordinance, 2018 was promulgated by the Hon'ble Governor of Manipur on 08-11-2018. The promulgation of the ordinance by the Hon'ble Governor took about a month from the date it was approved by the State Cabinet on 04-10-2018. It was notified by the Hon'ble Governor of Manipur herself on 19-11-2018 in the file of Law Department, Government of Manipur as if there was no officer of the State Government in the Law Department to sign the notification. This is quite evident from the said notification of Law Department, Government of Manipur as published in the Official Gazette on 20-11-2018.

There was also a delay of 12 days in issuing the notification by the Hon,ble Governor from the date of its promulgation and also a delay of 1(one) day to publish it in the official gazette. The ordinance number of the year of its promulgation was also found missing. The delay in notifying the Manipur Protection from Mob Violence Ordinance, 2018 clearly shows that there are no compelling circumstances for the Hon'ble Governor to take immediate necessary action by promulgating the ordinance. Why did a delay of 12 days in notifying the ordinance occurred if there is a need to take immediate necessary action?

It is for the State Government to explain it to the general public. It may be kept in mind for future reference that, so far as an ordinance is concerned, it shall come into force at once from the moment the Governor signs it. It is to be notified immediately for general information in the official gazette on the day itself of its promulgation by the Governor as the promulgation of the ordinance is in consideration of the existence of the circumstances which render it necessary for the Governor to take immediate action.

Further it may also be noted that an ordinance containing provisions which are repugnant to any law made by Parliament cannot be promulgated by the Governor without the instructions from the President of India. This is what the Constitution mandates. In an earlier instance relating to the Manipur International University Ordinance, 2018, it was pointed out, in an article under the title "A Non-political and Unbiased Opinion on the Controversial Bill" recently published by some local dailies, the seriousness of the lapses on the part of the State Government relating to delay in notification of the ordinance. The Hon,ble Governor promulgated the Manipur International University Ordinance, 2018 by signing it on 19-6-2018.

It was notified by the Law Department, Government of Manipur on 26-6-2018. Furthermore the commencement date of the ordinance was left at the wisdom of the State Government as it has to come into force from the date of its publication in the official gazette. This defeats the urgency and necessity of promulgating the ordinance. It was pointed out that, in promulgating the ordinance, the Hon,ble Governor had abused the Constitutional provisions because of the delay in notifying it. In the Manipur International University Bill, 2018, as introduced in the State Assembly, there was no mention for repealing the Manipur International University Ordinance, 2018. Now the ordinance ceased to operate due to expiration of six weeks from the first sitting of the 5th Session of Manipur Assembly.

There is no information of giving the Hon'ble Governor's assent to the Manipur International University Bill, 2018. As such, there is no university known as the Manipur International University in the State of Manipur from the date of expiry of the said six weeks. Anything done in the name of the Manipur International University is, therefore, illegal and void. This is the present state of affairs relating to the Manipur International University.

In the Manipur Protection From Mob Violence Ordinance, 2018″, there is no mention of the mandatory conditions required for its promulgation i.e. the State Assembly is not in session, the Honb'le Governor's satisfaction of the existence of the circumstances which render it necessary for him to take immediate action, and the instructions received from the President to promulgate the ordinance. From a reading of the ordinance, it is apparent that the ordinance is basically a modified form of the Private Member's Bill, namely, "The Protection from Lynching Bill, 2017" as introduced in the Rajya Sabha on 29-12-2017.

In the "The Protection from Lynching Bill, 2017", there are many provisions which override the provisions of the Cr.P.C. Parliament has the inherent power to make laws to override the provisions of the Cr.P.C. The legal flows occurred in the ordinance is due to ignorance of the legislative competence in making laws by Parliament and the Legislature of a State. How the State Government can function without having proper understanding of the constitutional mandate in making laws?

In the Manipur Protection from Mob Violence Ordinance, 2018, all offences are made as cognizable, non-bailable, non-compoundable, and are trial able by a Designated Judge. Section 31 overrides other laws which are inconsistent with the provisions of the ordinance. It also made a mere suspicion of commission of a cognizable crime not amounting to a heinous crime as an act of lynching.

It is an act of making a new offence outside the ambit of Indian Penal Code It should be remember that for an offence, under any other law except the Indian Penal Code, which is punishable with – (a) an imprisonment for more than 7 years, for 3 years and upward but not more than 7 years, and for less than 3 years is triable by a Court of Session, a Magistrate of the first class, and any Magistrate respectively; (b) an imprisonment for less than 3 years shall be bailable.

The following provisions, amongst others, in the Ordinance are found repugnant with the Cr.P.C:
(a) all the offences under the Ordinance are made triable by the Designated Judge by ousting the jurisdictions of the different Courts under the Cr.P.C;
(b) sections 11and 12 overrides all laws made by Parliament;
(c) the offences under sections 14(1) & (4) and section 17 which are punishable with imprisonment less than 3 years as non-bailable;
(d) section 21 overrides sections 196 and 197 of the Cr.P.C;
(e) section 22 overrides the Cr.P.C;
(f) section 23(1) overrides the Cr.P.C;
(g) section 24 overrides the Cr.P.C;
(h) for prescribing procedure for trial as warrant case under section 24(1) for offences under sections 14(1) and 17;
(i) for conferring power on the designated Judge under section 24(4) beyond the offences under the Ordinance;
(j) for empowering adjournment of trial under the control of the parties under section 24(5);
(k) for empowering the Designated Judge to grant permit to conduct prosecution by an advocate recommended by the victim under section 25(6) & (7);
(l) interference in the investigative power of the police and for setting time limit of filing charge sheet under section 26;
(m) section 30 for giving overriding effect to the Cr.P.C.

In view of the above illustrated repugnant provisions of the Ordinance with the Cr.P.C, the Hon’ble Governor should not promulgate this Ordinance without instructions from the President.

The ordinance was promulgated by the Hon’ble Governor in violation of the constitutional mandate to obtain instructions of the President before its promulgation. The mandate of the Constitution of India is that the Governor shall not, without instructions from the President, promulgate an ordinance if an Act of the Legislature of the State containing the same provisions would under the Constitution have been invalid unless, having been reserved for the consideration of the President and it had received the assent of the President.

Further, an ordinance shall be void if it makes any provision which would not be valid if enacted in an Act of the Legislature of assented to by the Governor. But for a law made by the State Legislature which contains a provision or provisions repugnant to any provision of a law made by Parliament, the mandate of the Constitution is that such law made by the State Legislature shall be reserved for consideration of the President and receive his assent to prevail in the State. Otherwise such law made by the State Legislature shall, to the extent of repugnancy, be void.

It may be argued that the Ordinance being a special law overrides the Cr.P.C. It may also be argued that until and unless a competent court of law declares it as void, it overrides the Cr.P.C. Such an argument is a face saving argument without any legal basis. It is important to note that in order to override the Cr.P.C by the ordinance, the ordinance should be a validly promulgated ordinance after due observance of the constitutional mandate i.e. after obtaining instructions from the President.

As the ordinance was promulgated, without instructions from the President, by the Hon’ble Governor in violation of the constitutional mandate, the Manipur Protection from Mob Violence Ordinance, 2018 is, therefore, unconstitutional and void, and has no force of law.

God may save Manipur.