M J Antony: Dumping judgements

OUT OF COURT

Once again, the judiciary faces the challenge of its ruling being nullified by legislation.

Whenever the judiciary interprets or declares a law which goes against the political thinking of the government, a cry goes up in Parliament and outside for taking the legislative route to nullify the judgement.

Thus, the current demand for overcoming the Supreme Court judgement on autonomy for private professional colleges (P A Inamdar vs State of Maharashtra) is a knee-jerk reaction expected of the ruling class which has done nothing to pass a law on this thorny subject.

This is not the first time either that the judiciary has dealt with this challenge from the executive and the legislature. One of the earliest instances was recorded in 1978 in Madan Mohan Pathak vs Union of India.

The Calcutta High Court directed Life Insurance Corporation (LIC) to pay cash bonus to its lower staff in terms of a labour agreement. Instead of LIC filing an appeal in the Supreme Court, the Central government passed the LIC (Modification of Settlement) Act.

A seven-judge bench of the Supreme Court quashed the law on several grounds.

The then Chief Justice M H Beg wrote that though the Bill did not set out in its objective that it was meant to overcome the high court judgement, legislation could not usurp the role of judiciary.

The interpretation of citizens' rights, as embodied in the judgement, could not be taken away in an indirect fashion. He approvingly cited from Indira Gandhi vs Raj Narain to emphasise that even a constitutional amendment could not authorise the assumption of judicial power by Parliament.

However, the politicians did not abandon their attempts to supersede inconvenient verdicts. Therefore, the court had to reassert its stand every now and then.

In 1987, it observed in P Sambamurthy vs State of AP that "if the exercise of the power of judicial review can be set at naught by the state government by overriding the decision given against it, it would sound the death knell of the rule of law."

In the Cauvery Water Disputes Tribunal judgement of 1993, the Supreme Court dealt with the Karnataka law which gave overriding effect to the state decision over that of any court or tribunal.

Striking down the Act, the 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 high 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 the judicial power of the state and to functioning as an appellate court or tribunal."

Since there is hardly any major economic or political question which does not turn into a legal question in this country, the Supreme Court has asserted two years ago in People's Union for Civil Liberties vs Union of India that in conflicts between the different arms of the state, the Constitution must be held to be supreme.

In this case, the court declared that a voter has a right to know the antecedents of the candidates. However, the politicians rose as one man against the judgement.

An ordinance was passed with extreme urgency and a law was passed with hardly any nays, to undo the judgement. This law was struck down by the court. The government faced a similar situation in the controversial "single directive" case (Vineet Narain vs Union of India), which required prior permission of the government to start investigation against top bureaucrats.

However, there is another set of judgements too, which allows laws to overcome legal difficulties. In Bakhtawar Trust vs M D Narayan, a builder raised an eight-story building in Bangalore. A neighbour contested the permission granted to the construction as it violated the town planning laws.

The Karnataka High Court ordered its demolition. Meanwhile, the state legislature passed a law raising the permissible height of buildings. This law was challenged as a device to bypass the judicial verdict.

However, 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 of a particular statute is beyond the pale of judicial review."

In the professional colleges judgement, the Supreme Court has urged the government to pass a comprehensive law on the subject. However, such legislation has to conform to the basic principles declared by the court.

Therefore, it cannot be a simple case of the court proposes, the government disposes. Egos have no place in this exercise. Otherwise, it would go the way of the still-born Competition Commission of India, where the bureaucrats have displayed the same hang-up as the politicians.