Apropos the edit “Not-backward looking” (March 18), the issue of retrospective legislation needs to be viewed from a contextual perspective. The legislature’s sovereign right to make statutory amendments with retrospective effect going back to five decades cannot be questioned. What assumes significance is the context in which such an attempt is made. Here it is important to stress that when it comes to fiscal laws, the executive often finds it hard to digest the judiciary’s negative view on a particular piece of law . Law-making is, to be fair, not the function of the legislature alone, unless the proposed law is brought to it by the executive. Thus, it is initiated by the executive wing of the government (that comprises babus) and formalised by the legislative wing. There’s nothing surprising or wrong in that. But problem arises when babus in the executive wing try to get even with the judiciary in the name of law making.
Indeed the Supreme Court held that the issue has scope for clarification. However, the court didn’t say it could be achieved by retrospective amendment. The law could have been made clear by a prospective amendment that would have gone down well with tax payers. This raises a fundamental jurisprudential question and the issue of the relationship between the subject and the state. In this case, the litigants are private citizens and the omnipotent state. By virtue of its sovereign authority, the state can take any action but such a draconian measure would invite general opprobrium if it is devoid of ethical considerations. The state needs to be an example of rectitude for its subjects. And laws are not mere words; they also carry substance that is fortified by morality. In this case, it seems the leviathan is exercising its power by dismissing the time-honoured principles of governance.
The fact that similar exercises have been undertaken in the past is no justification. The earlier instances have also not been accepted without criticism. The late Nani Palkhivala had, time and again, severely criticised similar amendments. Also, the fact that the Mumbai High Court decided in favour of the state is of no relevance. As for the concern that foreign investors would label India a Banana Republic, indeed apart from such legal misadventures, there are enough other instances that would hardly save the country from such a predicament.
G R Saha Kolkata
Letters can be mailed, faxed or e-mailed to:
The Editor, Business Standard
Nehru House, 4 Bahadur Shah Zafar Marg
New Delhi 110 002
Fax: (011) 23720201
E-mail: letters@bsmail.in
All letters must have a postal address and telephone number