Parliament vs Judiciary : Tale Of Two Bills Nullifying Judgments
The bills in question are the Constitution (127th Amendment) Bill 2021 and the Tribunals Reforms Bill 2021.
Whether Parliament or the Judiciary enjoys supremacy over each other has been a never-ending debate. As per the Constitutional scheme, none of the organs - executive, legislature or judiciary- are afforded supremacy over each other, and they are to function on the basis of the principles of separation of powers and mutual checks and balances, within their respective demarcated areas. Yet,...
Whether Parliament or the Judiciary enjoys supremacy over each other has been a never-ending debate. As per the Constitutional scheme, none of the organs - executive, legislature or judiciary- are afforded supremacy over each other, and they are to function on the basis of the principles of separation of powers and mutual checks and balances, within their respective demarcated areas. Yet, in practice, frictions do arise between these organs, with arguments and counter-arguments regarding transgression of boundaries.
The stage is now set for a confrontation between the Supreme Court and the Parliament with the recent passage of two bills which seek to nullify the effect of two judgments. The bills in question are the Constitution (127th Amendment) Bill 2021 and the Tribunals Reforms Bill 2021.
The Constitution(127th Amendment) Bill seeks to amend the Constitution to restore to States the power to identify and specify Socially and Economically Backward Classes(SEBCs) by neutralizing the effect of the Constitution Bench judgment of the Supreme Court in the quotacase. In that case, the Supreme Court, by 3:2 majority, had interpreted the 102nd Constitutional Amendment as taking away the power of States to specify SEBCs.
The Tribunal Reforms Bill 2021 nullifies the effect of the recent judgment of the Supreme Court in the Madras Bar Association case which had struck down certain provisions relating to the term, selection process and minimum age qualification of members of Tribunals. The Bill, in effect, re-enacts the provisions invalidated by the Supreme Court.
Can Parliament pass law to get over a judgment?
Now the moot question is whether legislature can nullify the effects of a judgment. The judicial precedents state that the legislature cannot by a bare declaration, without anything more, directly overrule, reverse or override a judicial decision(State of Tamil Nadu v. M Rayappa Gounder, AIR 1971 SC 231,Madan Mohan Pathak vs. Union of India AIR 1978 SC 803)
It means that if the court says that a particular action 'A' cannot be done, then the legislature is not competent to state in a subsequent legislation that 'A' can be done.
But at the same time, it does not mean that the legislature is totally powerless to overcome a judicial decision. It is always open to the legislature to re-enact a law, by removing or curing the vice or defect originally existed, which led to the law being invalidated by the court.
So, the legislature can neutralize the effect of a judgment by altering the legal basis of the judgment, or by curing the defect in the law. For example, if a judgment strikes down an order on the ground that the authority which passed it lacked the statutory power to do so, the legislature can validate the said order by subsequently conferring the authority with the statutory power with retrospective effect(Refer :Parthiv Cotton Mills vs. Broach Borough Municipality AIR 1970 SC 172)
But, the legislature cannot directly invalidate a judgment by declaring that the judgment is not applicable.
The judgment in the case State of Kerala v. State of Tamil Nadu AIR 2014 SC 2407 is a good reference on this point. In this case, the Kerala Legislature enacted the Kerala Irrigation and Water Conservation (Amendment) Act 2003, in order to nullify an earlier Supreme Court order which permitted the water level of Mullaperiyar dam to be maintained at 142 feet. The amendment Act stated that water level should not be raised above 136 feet. The court invalidated the amendment for violating the doctrine of separation of powers and interfering with judicial process.
Now let us look at the said two bills in the light of these principles.
Constitution (127th) Amendment Bill
It is pertinent to note that in the Maratha quota case, the Supreme Court did not strike down any provisions of the Constitution. Rather, the Court gave an interpretation to the Constitutional Provisions to hold that only the President has the power to notify SEBCs and States have mere recommendatory powers.
The amendment bill adds clauses to clarify that the power of the President's power to specify the socially and educationally backward classes is with respect to the Central List for the purposes of the Central Government. It also adds a clarification that states and union territories will have the power to identify and specify SEBCs for their own purposes and that they can prepare their own SEBC lists differing from the Central list.
These amendments are thus seeking to render ineffective an interpretation given by the Court by adding certain clarificatory clauses to the Constitution. Had these clauses been there earlier, the Supreme Court would not have given the interpretation it gave for 102nd Constitution Amendment. In this context, it is apposite to quote the following observations from Madan Mohan Pathak vs. Union of India AIR 1978 SC 803:
"In exercising legislative power, the Legislature by mere declaration, without anything more, cannot directly overrule, revise or override a judicial decision. It can render judicial decision ineffective by enacting valid law on the topic within its legislative field fundamentally altering or changing its character retrospectively. The changed or altered conditions are such that the previous decision would not have been rendered by the Court, if those conditions had existed at the time of declaring the law as invalid".
Tribunals Reforms Bill 2021
In the Madras Bar Association decision, the Supreme Court by 2:1 majority struck down the following conditions in the Tribunals Reforms Ordinance :
- The minimum age requirement of 50 years for appointment as Tribunal Members. The Court said advocates having 10 years experience must be made eligible for such appointments.
- The fixing of term of Tribunal Members as 4 years.
- That the Search cum Selection Committee should recommend a panel of two names for each post. The Court held that only one name should be recommended.
The very same provisions have been re-enacted through the Tribunals Reforms Bill. In contrast with the Constitution (127th) Amendment Bill, the Tribunals Bill is not dealing with a mere interpretation given by the Court; rather, it is seeking to nullify the invalidations made by the Court.
The Bill also adds a "non-obstante" clause by stating that its provisions will apply "Notwithstanding anything contained in any judgment, order or decree of any court, or in any law for the time being in force"
If a legislation is shown as an attempt to interfere with the judicial process, it can be invalidated being in breach of doctrine of separation of powers, a Constitution Bench of the Supreme Court held in the case State of Kerala v. State of Tamil Nadu.
Some of the principles stated in the said judgment are :
1. The breach of separation of judicial power may amount to negation of equality under Art.14. Stated thus, a legislation can be invalidated on the basis of breach of the separation of powers since such breach is negation of equality under Art.14 of the Constitution.Post Script
To add an interesting development, the Parliament in the same session passed a bill, which brought life back to a judgment. The Finance Act 2012 had nullified the effect of the judgment of the Supreme Court in the Vodafone tax dispute case by bringing a retrospective tax demand provision. Now, the Parliament has passed the Taxation Laws( Amendment) Bill 2021 to revoke the retrospective demand clause. Thus, the Vodafone case judgment stand resurrected.