When a law is struck down as unconstitutional, there are very few options before the government. For one thing, it can grin and bear it. Or it can file a review petition; or move an application for “clarification”, which is usually a veiled attempt for review. Both have little chance of success. An honourable course is to mend the defective parts of the law and launch it again, as the government did in the case of the Competition Commission, and should do in the case of the Company Law Tribunal.
Sometimes the government passes a new law merely to erase the effect of the judgment. This is risky, because if the new-fangled law carries the same warts as before, it will again be dragged to the court and tested for its constitutionality. There was such an instance this month in the writ petition in the MRF Ltd vs State of Goa case. The state government originally issued notifications granting 25 per cent rebate in electricity tariff to industrial consumers. This was challenged by a group of persons in the Bombay High Court, which partly allowed the petition, leading to further appeals to the Supreme Court.
Meanwhile, the state government passed the Goa (Prohibition of Further Payment and Recovery of Rebate Benefits) Act. This was done as the new government found that its financial position did not justify the largesse to the industries. Another reason was political, as the government changed and the former petitioners apparently found themselves in power. Whatever it might be, the main challenge to the new law was that it sought to nullify earlier judgments of the high court and the Supreme Court.
The state government argued that there was no intention to cancel out the effect of the judgments. It claimed that it had the power to enact a law, which might reverse the judgment or order passed by courts if public interest and public welfare demanded such exercise of legislative power within the constitutional parameters. This law was intended to save the state exchequer from getting denuded of its coffers. Ultimately, the Supreme Court dismissed the petitions of the industries.
One of the earliest cases dealing with this question was the Madan Mohan Pathak vs Union of India case. The Calcutta High Court ordered LIC to pay cash bonus to its subordinate staff in terms of a labour agreement. Instead of implementing the order, the government passed the LIC (Modification of Settlement) Act. A Constitution bench struck it down stating that legislation could not be used to usurp the role of the judiciary. Quoting the famous Indira Gandhi vs Raj Narain case, it emphasised that even a constitutional amendment could not authorise assumption of judicial power by the legislature.
Some years ago, Parliament passed a law with near unanimity to overcome the Supreme Court ruling that a voter has a right to know the antecedents of the candidates contesting elections. It was struck down in the PUCL vs Union of India case. A similar fate awaited the “single directive”, meant to overcome a judicial decision, which required the prior permission of the government to start investigation against the top brass in the bureaucracy (Vineet Narain case). Other similar instances of recent times are the rules on “office of profit” and regularisation of unauthorised buildings.
It is not Parliament alone that attempts to turn the tables on the judiciary. State governments have also tried it in several instances. In the Cauvery water dispute, the Karnataka government passed a law that gave overriding effect to its decision over that of any court or tribunal. Quashing it, the Supreme Court said: “It would be unfair to adopt a legislative procedure to undo a settlement which had become the basis of a decision of the court.... The object of the Act was in effect to take away the force of the judgment. Such an act on the part of the legislature amounts to exercising judicial power.”
When the award of a special tribunal went against the Orissa government and it had to pay a heavy amount to one of its contractors, the government’s reaction was to pass a law to abrogate the liability. When it was challenged, the Supreme Court struck down the legislation, asserting that the legislature has no power to render ineffective judicial decisions by passing another law of the same kind.
However, the courts adopt extreme caution before quashing such laws. Mere allegation of intention to bypass an inconvenient judgment would not be enough. In the Bakhtawar Trust vs MD Narayan case, the Karnataka High Court had ordered demolition of a skyscraper for blatantly violating building laws. Before the cranes came, the government straightened the law to prop the structure. When it was challenged, the Supreme Court thoughtfully proclaimed that “the intention of the legislature in passing a particular statute is beyond the pale of judicial review.”