INTRODUCTION

Whether Parliament or the Judiciary enjoys supremacy over each other has been

a never-ending debate. As per the Constitutional scheme, none of the organs -

executive, legislature or judiciary- are afforded supremacy over each other, and

they are to function on the basis of the principles of separation of powers and

mutual checks and balances, within their respective demarcated areas. Yet, in

practice, frictions do arise between these organs, with arguments and counter-

arguments regarding transgression of boundaries.

Now the moot question is whether legislature can nullify the

effects of a judgment.

The judicial precedents state that the legislature cannot by a bare declaration,

without anything more, directly overrule, reverse or override a judicial decision.

(State of Tamil Nadu v. M Rayappa Gounder, AIR 1971 SC 231,Madan

Mohan Pathak vs. Union of India AIR 1978 SC 803)

But at the same time, it does not mean that the legislature is totally powerless to

overcome a judicial decision. It is always open to the legislature to re-enact a

law, by removing or curing the vice or defect originally existed, which led to

the law being invalidated by the court. [Indra Gandhi v. Raj Narain]

[Example] So, the legislature can neutralize the effect of a judgment by

altering the legal basis of the judgment, or by curing the defect in the law. For
example, if a judgment strikes down an order on the ground that the authority

which passed it lacked the statutory power to do so, the legislature can validate

the said order by subsequently conferring the authority with the statutory power

with retrospective effect. (Refer :Parthiv Cotton Mills vs. Broach Borough

Municipality AIR 1970 SC 172).

[validating act and retrospective efect] validating act can be given

retrospective effect if it is not penal. It cannot restore situation, it cannot reopen

cases that were decided on basis of previous law. A judgement cannot be

overrules by validating an act retrospectively.

[Validating act and arbitrary retrospective date ] validating Act cannot be

challenged on ground of fixing arbitrary retrospective date or discriminatory

procedure.

[Validating act and article 255] parliament can even validate an Act that has

been failed for non compliance with Article 255, but it cannot validate with

retrospective effect an earlier Act which had failed for want of the President’s

assent under Article 255 so as to validate act done under the invalid stature

because it would amount toa a declaration that non-compliance with article 255

was of no consequence. [Abdul Kadir v. State of Kerala 1976]

While validating a law, it cannot bar judicial review power of the HC and SC

under Article 226 and Article 32 to review that law.[Indra Gandhi v. raj

narain]

[State legislature and validating act] an Act passed by state legislature was

declared invalid on ground because of its incompetence to legislate on subject

matter cannot be validated by Parliament. What can be done is that Parliament

itself can pass a law o which it has competence to pass and can give it

retrospective effect.

TESTS FOR JUDGING THE VALIDITY

1. Whether legislature enacting validating act has competence over subject

matter or not?

2. Whether by validation, legislature has removed the defect that was found by

court in previous law?

3. Whether validating law is in consistence with provision of article of the

constitution?

If these tests are fulfilled, state legislature/ parliament has power to pass a law

to override a judgement.

INSTANCES OF LEGISLATIVE OVERRULING SINCE 1950

The very first instance of legislature overruling was the passing of an first

constitution amendment to nullify the effects of a judgment of the Supreme

Court arose in 1951, in state of madras v. Champakam Dorairajan when sub

clause (4) was added to Article 15, to circumvent the judgment of the Court.

The trend of passing amendments to nullify judgments of supreme court

continued after the decision of the Supreme Court in the case of State of West

Bengal Vs Bela Banerjee [iv] where the Court had held that although the

legislature had powers to determine compensation to be paid in respect of

property acquired by the State, however, the said compensation must be

equivalent to the value of property that had been acquired. This resulted in the

fourth constitutional amendment act in 1953, whereby the legislature added

clause 2 and clause 2A to Article 31A, which provided that 'a court could

question no law on grounds that the compensation paid for acquired property is

inadequate'.

However, the Supreme Court again nullified the effects of this amendment by

holding in the case of K.K. Kochuni [v] that any law causing deprivation of

property must stand the test of Article 19(5) which permitted only reasonable

restriction to be imposed on the right to hold and dispose property.

Then in Vajravelu v. Special deputy collector the court held that although

adequacy of compensation was not justifiable according to fourth amendment,

however, since the word compensation has been retained meant that an
equivalent in the value of property must be given.

Thereafter, the Court passed its decisions in the case of Rustom Cavasjee

Cooper v. Union of India (Bank Nationalization Case) wherein it was held

that the constitution guarantees the right to compensation which is equivalent

money of the property compulsorily acquired.

The legislature however, enacted the 25th Constitutional amendment and the

word compensation was substituted by the word amount.

Later on, in the Keshvananada bharti v. State of Kerala case the court again

persisted with the view that the word amount meant a fair return of the property

acquired.

The legislature then, by passing the 44th Constitutional amendment, deleted

the said right from the chapter on fundamental rights in 1978.

In the case of Golaknath v. State of punjab whereby, the Court overruled its

earlier decisions in Shankari prasad case and Sajjan Singh case and proceeded

to hold that the legislature does not have the power to amend part III of the

Constitution to take away fundamental rights and the doctrine of prospective

overruling was laid down by Justice Subba Rao.

To overcome the law laid down by the Court in Golaknath (supra) the 24th

Constitutional amendment was passed by the Legislature and clause 13 (3)

was added to the Constitution, which stated that Article 13 of the Constitution
will not apply to amendments made by the parliament under Article 368. A

clause was added in Article 368, providing that nothing in Article 13 shall apply

to amendment made under Article 368. The marginal note of article 368 was

changed from 'procedure to amendment' to 'Power of Parliament to amend

Constitution and procedure thereof.

After the landmark judgment in Kesavananda Bharathi (Supra), the 24th CAA

was upheld. Doctrine of basic structure was laid down.

To undo the effects of kesavand bharti case, the Legislature enacted the 42nd

Constitutional amendment which added clause (4) and (5) to Article 368 to

nullify the ruling in the said case. The new clauses stated that there shall not be

any limitation on the constituent powers of the parliament to amend by way of

addition, variation or repeal of provisions of the Constitution under this Article.

It was asserted that the parliament represents the will of the people and the

limitation imposed in the Kesavananda Bharathi case was nullified. The basic

structure doctrine, devised by the Court was held to be vague.

However, in the case of Minerva Mills v. Union of india when the 42nd

Constitutional amendment was challenged, the Court held that additions of

clause (4) and (5) to Article 368 destroyed the essential features of the basic

structure of the Constitution.

The next instance of a constitutional amendment being enacted to nullify a

judgment arose in the case of Indira Nehru Gandhi Vs Raj Narain, wherein,

the order of the Allahabad High Court, setting aside the election of Indira

Gandhi was challenged. During the pendency of the appeal before the Supreme

Court, the legislature enacted the 39th Constitutional amendment (valid

retrospectively) which added Article 392A to the Constitution and stated that

the elections of the President, Vice President, Prime Minister and the Lok Sabha

Speaker cannot be challenged in any court in the country, and it can be done

only before a parliamentary committee.

Though subsequently, the election of Ms. Gandhi was upheld by the Supreme

Court, however, the 39th amendment was held to be unconstitutional, since it

was violative of the basic structure of the Constitution.

Similarly, when in the case of mohd ahmad khan v. Shah Bano Begum, the

Hon'ble Court had held that a Muslim wife was also entitled to be paid alimony,

the Legislature, to dilute the effects of the judgment of the Hon'ble Supreme

Court passed the Muslim Women (Protection of Rights on Divorce) Act,

1986 which denied Muslim women their right to alimony.

In the subsequent judgments however, i.e. Daniel Latifi v. UOI and Shamima

Farooqui v. Shahid khan, the Court interpreted the Act in order to reassure the
validity of the Shah Bano decision and the effects of the Muslim Women

(Protection of Rights on Divorce) Act, 1986 were nullified.

The judgment in the case State of Kerala v. State of Tamil Nadu AIR 2014

SC 2407 is a good reference on this point. In this case, the Kerala Legislature

enacted the Kerala Irrigation and Water Conservation (Amendment) Act

2003, in order to nullify an earlier Supreme Court order which permitted the

water level of Mullaperiyar dam to be maintained at 142 feet. The amendment

Act stated that water level should not be raised above 136 feet. The

court invalidated the amendment in 2014 for violating the doctrine of separation

of powers and interfering with judicial process.

It can be seen that the legislature resorted to legislative overruling to circumvent

judicial review or to have the control back whenever that control is taken away

by the courts. The legislature doesnot like separation of powers or a watchdog

sitting on its head. It resorts to dictatorship driven by lust for power.

RECENT CONFRONTATION OF SC AND PARLIAMENT: A TALE

OF TWO BILLS

The stage is now set for a confrontation between the Supreme Court and the

Parliament with the recent passage of two bills which seek to nullify the effect

of two judgments. The bills in question are the Constitution (127th

Amendment) Bill 2021 and the Tribunals Reforms Bill 2021.

  Constitution (127th Amendment) Bill 2021 :-

The Constitution(127th Amendment) Bill seeks to amend the Constitution to

restore to States the power to identify and specify Socially and Economically

Backward Classes(SEBCs) by neutralizing the effect of the Constitution Bench

judgment of the Supreme Court in the quotacase (Dr Jaishree Laxmanrao

Patil v Chief Minister 2020). In that case, the Supreme Court, by 3:2

majority, had interpreted the 102nd Constitutional Amendment as taking away

the power of States to specify SEBCs. It is pertinent to note that in the Maratha

quota case, the Supreme Court did not strike down any provisions of the

Constitution. Rather, the Court gave an interpretation to the Constitutional

Provisions to hold that only the President has the power to notify SEBCs and

States have mere recommendatory powers.

The amendment bill adds clauses to clarify that the power of the President's

power to specify the socially and educationally backward classes is with respect

to the Central List for the purposes of the Central Government. It also adds a

clarification that states and union territories will have the power to identify and

specify SEBCs for their own purposes and that they can prepare their own

SEBC lists differing from the Central list.

These amendments are thus seeking to render ineffective an interpretation given

by the Court by adding certain clarificatory clauses to the Constitution. Had

these clauses been there earlier, the Supreme Court would not have given the

interpretation it gave for 102nd Constitution Amendment.

In this context, it is apposite to quote the following observations from Madan

Mohan Pathak vs. Union of India AIR 1978 SC 803:

"In exercising legislative power, the Legislature by mere declaration, without

anything more, cannot directly overrule, revise or override a judicial decision.

It can render judicial decision ineffective by enacting valid law on the topic

within its legislative field fundamentally altering or changing its character

retrospectively. The changed or altered conditions are such that the previous

decision would not have been rendered by the Court, if those conditions had

existed at the time of declaring the law as invalid".

Tribunals Reforms Bill 2021.

The Tribunal Reforms Bill 2021 nullifies the effect of the recent judgment of

the Supreme Court in the Madras Bar Association case which had struck down

certain provisions relating to the term, selection process and minimum age

qualification of members of Tribunals. The Bill, in effect, re-enacts the

provisions invalidated by the Supreme Court.

In the MADRAS BAR ASSN V. UOI, the Supreme Court by 2:1 majority

struck down the following conditions in the Tribunals Reforms Ordinance :

 1. The minimum age requirement of 50 years for appointment as Tribunal

Members. The Court said advocates having 10 years experience must be

made eligible for such appointments.

2. The fixing of term of Tribunal Members as 4 years.

3. That the Search cum Selection Committee should recommend a panel of

two names for each post. The Court held that only one name should be

recommended.

The very same provisions have been re-enacted through the Tribunals Reforms

Bill. In contrast with the Constitution (127th) Amendment Bill, the Tribunals

Bill is not dealing with a mere interpretation given by the Court; rather, it is

seeking to nullify the invalidations made by the Court.

The Bill also adds a "non-obstante" clause by stating that its provisions will

apply "Notwithstanding anything contained in any judgment, order or decree of

any court, or in any law for the time being in force".

If a legislation is shown as an attempt to interfere with the judicial process, it

can be invalidated being in breach of doctrine of separation of powers, a

Constitution Bench of the Supreme Court held in the case State of Kerala v.

State of Tamil Nadu. Some of the principles stated in the said

judgment are :
1. The breach of separation of judicial power may amount to negation of

equality under Art.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 Art.14 of the Constitution.

2. The doctrine of separation of powers applies to the final judgments of the

Courts. 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.

3. 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.

LEGISLATIVE OVERRULING IS ALSO USED TO BRING

LIFE BACK TO A JUDGEMENT.

To add an interesting development, the Parliament in the same session passed a

bill, which brought life back to a judgment. The Finance Act 2012 had nullified

the effect of the judgment of the Supreme Court in the Vodafone tax dispute

case by bringing a retrospective tax demand provision. Now, the Parliament has

passed the Taxation Laws( Amendment) Bill 2021 to revoke the

retrospective demand clause. Thus, the Vodafone case judgment stand

resurrected.