Can Parliament just overrule the courts?

DEBATE

In the context of the Delhi demolition Act, the issue is whether Parliament can circumvent the courts' judgements by passing new laws.

Arun Jaitley,
General Secretary and Spokesperson, BJP

In view of the separation of powers envisaged in the Constitution, a court judgement cannot be made inoperative by a legislature.

It is logical for a government to ask for some breathing time in order to clear up the mess in which the city has landed. However, the government has been searching for knee-jerk solutions. It first asked the Supreme Court for six months to resolve the issue. When the Court's indulgence was not forthcoming, the government chose to withdraw its application and instead introduced a hurriedly drafted legislation in Parliament.

The legislation does not suspend or make inoperative the Master Plan of Delhi or the municipal laws of Delhi. It does not suspend the power of the municipal authorities either to demolish or seal unauthorised structures. Second, it provides for the government to undertake a review of all laws and rules dealing with the planned development of Delhi. Third, it declares that any judgement or decree of a court that alters the status quo of a property as on January 1, 2006, would be inoperative for a period of one year.

It is a settled principle of law that in view of the separation of powers envisaged in the Constitution, a judgement of a court cannot be made inoperative by a legislature or even overruled simply by a one-sentence declaration. What the legislature can do as a law-making authority is to change the basis or alter foundations on which the judgement is based. Once this change takes place, the judgement itself becomes inoperative.

The present legislation merely declares that orders of the court in relation to demolition or sealing will remain inoperative for a period of one year. It does not change the basis or foundation on which the judgements are based. It merely suspends the operation of the judgement. This course is not legally permissible.

Article 226 dealing with writ jurisdiction of high courts and Article 32 dealing with the writ jurisdiction of Supreme Court are part of the basic structure of the Constitution of India. Dr B R Ambedkar, in the Constituent Assembly, described them as the very soul of the Constitution without which other articles would become unenforceable. Even a Constitution amendment cannot whittle down the jurisdiction of a court under these provisions. The Supreme Court and the high courts are constitutional courts. The effect of the present law is that if directions have been issued by these constitutional courts in relation to demolition or sealing, or if any directions are issued in this regard in the course of next one year, the same shall remain inoperative. Has the writ jurisdiction of the high court or the Supreme Court been sliced away and whittled down in relation to the municipal affairs of Delhi? Can this be done either by Constitution amendment or by ordinary legislation? The answer to me appears to be in the negative. This law will always run the danger of running foul of the Constitution.

Abhishek M Singhvi,
National Spokesperson, Congress Party

The Act seeks to remove the basis of the court order, and that is a permissible and well-known technique.

The BJP and other constituents of the NDA cannot ride two horses at the same time, or run with the hare and hunt with the hound. The BJP is, on the one hand, clamouring for legislative intervention in respect of the Delhi demolition and sealing and, on the other, it is being critical of a bill that seeks to achieve that avowed objective. It is ultimately the UPA government that has taken concrete legislative action based on across-the-board demand for such intervention. Its initiative, therefore, deserves to be lauded.

The object of the Act must be understood. Its motive is not to permanently legitimise illegal construction or obstruct court action. The objective is to provide a moratorium for approximately one year on such activity, during which time a comprehensive survey will be conducted.

This survey is vital because the state of affairs prevailing in an area like Chandni Chowk cannot be treated as the same as that prevailing in Lajpat Nagar, and that prevailing in Lajpat Nagar cannot be treated as the same prevailing in Mehrauli. No blanket approach is possible within the diversity of Delhi. It is an open secret that zonal plans that would have involved such a survey have not been conducted for decades.

It is only after such a survey that a detailed policy mix will be designed and this will be fine-tuned and focused on the different realities within Delhi. Until such time that this survey and policy mix is designed, sealing and demolition would make the whole process irreversible and the damage irreparable.

The Act follows the well-known legislative technique of not reversing or nullifying a court order or directive "" which is constitutionally impermissible "" but instead seeks to remove the basis of the court order and directions. That is a permissible and well-known technique.

Whether that is fully achieved or not is not for any of us to say theoretically in advance. We have to abide by a court verdict. But the intention is good, the text is clear and there is no inhibition in Parliament doing what it has done. The future is not for us to speculate about but for the courts to decide.

A careful scrutiny of the Act shows that it clearly seeks to override several states municipal acts, such as the DDA Act, and so on, and also seeks to override contrary court orders and judgements based on such law. Hence, the legislature rightly believes that it has removed the basis on which the earlier courts order were passed.