M J Antony: Dodging judgements

OUT OF COURT

The executive and legislature cannot pass laws to overcome inconvenient orders.

Almost every political, economic or civic issue tends to turn into a legal one these days. Therefore, the judiciary has acquired enormous power. When it passes orders that go against the government's policy, the law-makers squirm and try to find out ways to undo the damage. The knee-jerk reaction is to pass a new law or amendment to cancel the impact of the court decision. This is happening again in the case of the "office of profit" controversy and the orders to demolish unauthorised buildings in metropolitan cities. But past decisions of the Supreme Court indicate that Parliamentarians cannot neutralise the impact of judicial decisions by merely passing another law. The vice pointed out in the judgements has to be cured if the new law is not to be shot down once again.

The temptation to bypass judicial verdicts is not new. As early as in 1978, the Supreme Court had dealt with such a challenge from the executive and the legislature to the judiciary. In that case (Madan Mohan Pathak vs Union of India), the Calcutta High Court directed Life Insurance Corporation to pay cash bonus to its subordinate staff in terms of a labour agreement. Instead of filing an appeal in the Supreme Court against it, the Central government passed the LIC (Modification of Settlement) Act. A seven-judge bench quashed the law on several grounds. The judgement stated that though the preamble to the law did not explicitly declare that it was meant to overcome the high court's judgement, there was no doubt about its objective. Legislation could not be used to usurp the role of the judiciary, the Constitution bench emphasised. Quoting an earlier case, Indira Gandhi vs Raj Narain, it stressed that even a constitutional amendment could not authorise the assumption of judicial power by Parliament.

However, the politicians never abandoned their attempts to outwit judiciary. In 1987, the Supreme Court again had to underline that "if the exercise of the power of judicial review can be set at naught by the state government by overriding the decisions given against it, it would sound the death knell of the rule of law."(P Sambamurthy vs State of AP).

In the Cauvery Water Disputes Tribunal judgement of 1993, the Supreme Court dealt with a law passed by the Karnataka government which gave overriding effect to the state decision over that of any court or tribunal. The court set aside the law, observing: "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 judgement. Such an act on the part of the legislature amounts to exercising judicial power of the state and to functioning as an appellate court or tribunal."

In 1995, the Supreme Court quashed an amendment to a law made by the Orissa government as it was passed to "nullify or abrogate the awards of the special arbitration tribunals." The award went against the government and it had to pay huge amounts to the contractors. Therefore, the government tried to pass a law to get over the liability. The Supreme Court struck down the amendment, stating that the legislature had encroached upon the judicial powers, resulting in the infringement of a basic tenet of the Constitution "" the rule of law. The court asserted that the legislature had no power to render ineffective judicial decisions by passing another law of the same kind. "For such powers, if exercised, would not be legislative power exercised by it, but judicial power vested in the judicial tribunal," the Supreme Court said.

The government recently issued an ordinance to overcome the Supreme Court decision that a voter has a right to know the antecedents of the candidates. It was struck down in PUCL vs Union of India. The government faced a similar situation in the "single directive" case (Vineet Narain vs Union of India), which required the prior permission of the government to start investigation against top bureaucrats. The law was declared invalid.

However, the court has slightly deviated from this approach in certain cases like Bakhtawar Trust vs M D Narayan, delivered in 2003. In this case, a builder raised an eight-story building in Bangalore. A neighbour challenged the permission granted to the builder as it violated the town planning laws. The Karnataka High Court ordered the demolition of the building. The state legislature then passed a law raising the permissible height of buildings. This was challenged as a device to bypass the judgement. The Supreme Court dismissed the appeal 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 of a particular statute is beyond the pale of judicial review."

In view of the overwhelming view of the court, the government should be circumspect in passing laws assuring disgruntled people that amendments would take care of the judiciary. It might complicate the issue further and delay positive steps to cure the evil sought to be removed.