When a government is confronted with an inconvenient court judgment, there are three common ways in which it tries to dodge the blow. The risk is indeed high, but the gamble must be played to save face.
The first is to ignore the order, as in several public interest cases. However, the Supreme Court has long arms and memory. It can press on and call chief secretaries of states who do not implement its directions. For instance, the court has called some of them in person this month to explain why primary schools in their states do not provide drinking water to children as directed.
Another stratagem is to invoke legal technicalities by filing a review petition, which is normally dismissed in minutes in chambers before the judges concerned take their quick lunch. After that there is a provision for filing a “curative petition” that also meets a similar fate. The diehard litigants and lawyers then clothe the same issue in a new writ petition and brave a third time, with the same probability rating. In between, they move applications for “clarifications” or “modifications” of the earlier orders, which are guises for review by other names. The government is currently trying a combination of all these in its bid to sidestep the knock of the recent black money probe order.
When the government’s stakes are very high, it resorts to legislative powers. The latest instance was the political row over the Tamil Nadu textbooks allegedly glorifying the DMK supremo. It was given the euphemistic garb of a legal issue involving the “uniform system of education”. The Madras High Court and the Supreme Court had approved the old law. However, the new government passed an amendment to undo the judgment (State of Tamil Nadu vs K Shyam Sunder). The amendment was struck down last month.
The court stated that “a judicial pronouncement of a competent court cannot be annulled by the legislature in exercise of its legislative powers for any reason whatsoever. The legislature, in order to revalidate the law, can re-frame the conditions existing prior to the judgment on the basis of which certain statutory provisions had been declared ultra vires and unconstitutional.”
The court was following the dictum of a seven-judge Bench in the famous case, Madan Mohan Pathak vs Union of India, that bringing legislation in order to nullify the court’s judgment would amount to trenching on judicial power. No legislation that is meant to set aside the result of the court’s mandamus is permissible. Even if the amending statute may not mention such an objective. The rights embodied in a judgment could not be taken away by the legislature indirectly.
Though this declaration is 35 years old, governments consistently breach the barrier. There are several other instances in the recent past in which even the central government tried to circumvent court pronouncements. Some time ago, aquaculture farms were being set up along the eastern coast, violating coastal-zone regulations. Writ petitions were moved alleging violation of the rules and destruction of ecological balance. The Supreme Court ruled that “industrial” activity could not be carried on along the coast. The government then brought a law declaring that aquafarming units were not industries, but “agricultural enterprises”. The move failed.
In another case, the Orissa government lost its case in arbitration and had to pay a huge sum to a contractor. Instead of paying it, the state legislature passed a law to get over it. The Supreme Court struck it down (G C Kanungo vs State of Orissa).
Sometimes those who opposed a government action in court would find themselves in power after an election. In MRF Ltd vs State of Goa, the electricity rebate given to some industries were challenged in a public interest litigation. The court ruled against it, and a law was passed to overcome the judgment. The government changed meanwhile but the court stood constant in its order.
Some time ago, the Supreme Court declared in the People’s Union for Civil Liberties case that voters have a right to know the antecedents of candidates. The political class ran like a headless chicken and got an ordinance promulgated, and later passed a law with few nays to cancel out the judgment. However, the issue was back in the court and it stood its ground. A similar drama was enacted on the question of the infamous “single directive” for protecting senior babus from corruption charges (Vineet Narain vs Union of India).
When the Karnataka government perceived the Supreme Court judgment in the Cauvery water dispute as against its interest, it passed a law that gave overriding effect to its decision over that of any court or tribunal. The court struck it down observing that “such an act of the legislature amounted to exercising judicial power of the state.”
The urge to rise from a judicial defeat, whichever way, is irresistible. When the government clambers up with a new-fangled law with the same warts, it usually returns from the court with a bloody nose.
