When there is a chicken-or-egg legal question, jurists can cite case law for both sides. Precedents and counsel who quote them are like the warrior races of old that are found on both sides of the battle, with the invaders as well as the defending satraps
The conundrum raised by the Union Budget, in which some 17 retroactive amendments have been introduced, is one such situation. Can Parliament pass a law to undo the impact of a Supreme Court judgment? Ordinarily, the government ignores an irksome verdict or grins widely and bears it. But when pressure and prestige become insurmountable, the government takes the desperate course of changing the goalposts.
A survey of Supreme Court case law on this issue will yield a rich harvest of judgments that apparently cancel each other. There are enough passages that could be read out to judges by the arguing counsel, if only they take care to skip, or make themselves inaudible, at some inconvenient passages that go against what they argue.
The earliest Constitution Bench judgment that is often quoted is Madan Mohan Pathak vs Union of India (1978). When the Calcutta High Court directed LIC to pay cash bonus to its lower staff, the government passed an amendment to the LIC Act to sidestep the order. A seven-judge Bench struck it down. It said that though the “aims and objectives” of the amending Act did not confess its motivation, the legislation could not usurp the role of the judiciary. Citizens’ right could not be taken away indirectly, quoting another leading case, Indira Gandhi vs Raj Narain.
This is the refrain in several later judgments. Since the rulers cannot stomach the power of the judiciary, the point has been asserted in a catena of decisions. For instance, in P Sambamurthy vs State of AP, the court said, “If the exercise of the power of judicial review can be set at naught by the government overriding the decision given against it, it would sound the death knell of rule of law.”
In the Cauvery Water Disputes Tribunal judgment of 1993, the court dealt with a law that gave primacy to the Karnataka government decision over that of the judicial direction. Striking down the law, the Supreme Court emphasised that “such an act of the legislature amounts to exercising the judicial power of the state and to functioning as an appellate court.”
Just a few more decisions on this line: in PUCL vs Union of India, the court declared that the voter has a right to know the antecedents of candidates. Politicians hastened to pass an ordinance to nullify the ruling. The court struck down the ordinance. The infamous “single directive” to protect top babus also met with a similar fate in Vineet Narain vs Union of India. The latest decision was about the Tamil Nadu text books that lionised the aged Dravida Munnetra Kazhagam, or DMK, supremo. The amendment was struck down last August (State of TN vs K Shyam Sunder).
Now, guess which cases would the other side quote? A cursory search on the online law library brings out the following. In the case, Bhaktawar Trust vs M D Narayan, the court allowed the Karnataka government to overcome its difficult situation. A builder raised an eight-story building against the regulations. A neighbour complained. The high court ordered its demolition. The government passed a law bending the rules. When it was challenged, the Supreme Court dismissed the petition stating that “the supposedly nebulous intention of the legislature to defeat the judicial process is outside the bounds of our consideration. The intention of the legislature in passing a particular statute is beyond the pale of judicial review”.
In the case, Vijay Mills vs State of Gujarat (1993), the Supreme Court stated that it was open to a legislature to change the very basis of a provision retrospectively and to validate the state actions on the changed basis. In another case, Shri Prithvi Cottom Mills vs Broach Municipality (1970), the court explained that the legality of a validating law depended on whether, in making the validation, it removed the defect the court had found in the existing law.
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In the judgment, Govt of AP vs HMT (1975), the Supreme Court approved the amendment since it removed the basis of the decision rendered by the high court “so that the decision could not have been given in the altered circumstances”.
All these decisions open a rich field for cherry-picking case law to their taste. In any case, most counsel use citations, like inebriated people use lamp posts to get support rather than receiving light. As Richard Nixon said in the political context, the jawbone is as powerful a weapon as it was in the biblical days when David fought the Philistines with it.