Can the Legislature supplant the Judiciary ?

Can the government pass any law which nullifies judgement(s)/order(s) of the Hon’ble Court. ?

The answer to this question is NO! The Hon’ble Supreme Court in an array of judgements has reiterated that the legislature cannot encroach upon the powers of Judiciary. Some of them have been discussed below:

  1. State of Tamil Nadu v. State of Kerala and Anr. (2014) 12 SCC 696

A Constitution Bench of the Hon’ble Court in the matter of State of Tamil Nadu v. State of Kerala and Anr. (2014) 12 SCC 696 while expounding the constitutional principles in the context of Indian Constitution relating to separation of powers between legislature, executive and judiciary observed:

Even without express provision of the separation of powers, the doctrine of separation of powers is an entrenched principle in the Constitution of India. The doctrine of separation of powers informs the Indian constitutional structure and it is an essential constituent of rule of law. In other words, the doctrine of separation of power though not expressly engrafted in the Constitution, its sweep, operation, and visibility are apparent from the scheme of Indian Constitution. Constitution has made demarcation, without drawing formal lines between the three organs- legislature, executive, and judiciary. In that sense, even in the absence of express provision for separation of powers, the separation of powers between legislature, executive and judiciary is not different from the Constitutions of the countries which contain express provision for separation of powers. (Para 126.1)

Independence of courts from the executive and legislature is fundamental to the rule of law and one of the basic tenets of Indian Constitution. Separation of judicial power is a significant constitutional principle under the Constitution of India.(Para 126.2)

Separation of powers between three organs – the legislature, executive, and judiciary – is also nothing but a consequence of principles of equality enshrined in Article 14 of the Constitution of India. Accordingly, breach of separation of judicial power may amount to negation of equality under Article 14. Stated thus, a legislation can be invalidated on the basis of breach of the separation of powers since such breach is negation of equality under Article 14 of the Constitution. (Para 126.3)

The superior judiciary (High Courts and Supreme Court) is empowered by the Constitution to declare a law made by the legislature (Parliament and State Legislatures) void if it is found to have transgressed the constitutional limitations or if it infringed the rights enshrined in Part III of the Constitution. (Para 126.4)

The doctrine of separation of powers applies to the final judgments of the courts. The legislature cannot declare any decision of a court of law to be void or of no effect. It can, however, pass an amending Act to remedy the defects pointed out by a court of law or on coming to know of it aliunde. In other words, a court’s decision must always bind unless the conditions on which it is based are so fundamentally altered that the decision could not have been given in the altered circumstances. (Para 126.5)

If the legislature has the power over the subject-matter and competence to make a validating law, it can at any time make such a validating law and make it retrospective. The validity of a validating law, therefore, depends upon whether the legislature possesses the competence which it claims over the subject-matter and whether in making the validation law it removes the defect which the courts had found in the existing law. (Para 126.6)

The law enacted by the legislature may apparently seem to be within its competence but yet in substance, if it is shown as an attempt to interfere with the judicial process, such law may be invalidated being in breach of doctrine of separation of powers. In such situation, the legal effect of the law on a judgment or a judicial proceeding must be examined closely, having regard to legislative prescription or direction. The questions to be asked are:

(i) Does the legislative prescription or legislative direction interfere with the judicial functions?

(ii) Is the legislation targeted at the decided case or whether impugned law requires its application to a case already finally decided?

(iii) What are the terms of law; the issues with which it deals and the nature of the judgment that has attained finality?

If the answer to Questions (i) and (ii) is in the affirmative and the consideration of aspects noted in Question (iii) sufficiently establishes that the impugned law interferes with the judicial functions, the Court may declare the law unconstitutional.” (Para 126.7)

  1. Medical Council of India vs. State of Kerala and ors.

In the matter of Medical Council of India vs. State of Kerala and ors.,the Apex Court expressed that:

The State has no legislative power to nullify a judgment in view of the Constitution Bench judgments of this Court. (Para 16)

The ordinance was declared to be ultra vires and entrenching upon the field earmarked for the judiciary as it sought to nullify the judgment and order passed by the Hon’ble High Court and the Hon’ble Supreme Court. (Para 40)

  1. Janapada Sabha Chhindwara vs. The Central Provinces Syndicate Ltd. and Anr. 1970 (1) SCC 509

In the matter of Janapada Sabha Chhindwara vs. The Central Provinces Syndicate Ltd. and Anr. 1970 (1) SCC 509, a Constitution Bench of the Hon’ble Supreme Court observed that it is not open to legislation to render a judgment ineffective. It is open to the Legislature within certain limits to amend the provisions of an Act retrospectively and to declare what the law shall be deemed to have been, but it is not open to the legislature to say that the interpretation of the law shall be otherwise than as declared by the Court. (Para 10)

  1. Cauvery Water Disputes Tribunal (1993) Supp. 1 SCC 96 (II)

In the matter of Cauvery Water Disputes Tribunal (1993) Supp. 1 SCC 96 (II), a Constitution Bench of the Hon’ble Supreme Court pronounced that:

It is open to change the law in general by changing the basis but it is not open to set aside an individual decision inter­partes(between the parties) and thus affect their rights and liabilities alone. Such an act on the part of the legislature amounts to exercising the judicial power.(Para 76)

This Court quashed the Ordinance and observed that by issuing the Ordinance the State has sought to take the law in its own hands and tried to be above the law. Such an act is an open invitation to lawlessness and anarchy. There cannot be defiance to the decision of the judicial authorities. (Para 79)

  1. S.R. Bhagwat and Ors. vs. State of Mysore (1995) 6 SCC 16

In S.R. Bhagwat and Ors. vs. State of Mysore (1995) 6 SCC 16, the The Hon’ble Apex Court observed that the Court observed that court’s judgments cannot be nullified by the legislature, once the judgment has attained finality and was binding against the State, it cannot be overruled by any legislative measure. (Para 18)

Provisions which are inconsistent with the final orders containing  directions of judicial authorities and competent courts, these impugned provisions have to give way and to the extent of such inconsistency must be treated to be inoperative and ineffective. The inconsistent provisions were struck down as unconstitutional, illegal and void.(Para 20)

-Tushar Kaushik

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