In this article I intend to discuss and deliberate upon two questions of constitutional and public importance. Firstly what is the scope of power of judicial review of legislations by the Apex court and High courts. Secondly, whether the legislations by the exercise of its legislative powers can pass a new law or amend an existing law in order to render ineffective a judgment or order of the court.
Before discussing the afore-mentioned issues, it is necessary to make a brief reference to the nature of the Indian constitution.
NATURE OF INDIAN CONSTITUTION
The Indian constitution is basically a federal constitution and is marked by the traditional characteristics of a federal system, namely supremacy of the constitution, division of powers between the union and the states, existence of an independent judiciary and a rigid procedure for amendment of the constitution.
The Indian constitution interestingly does not refer to the term judicial review or its limits. However the power of judicial review has been time and again interpreted by the apex court to include review of legislations, executive decisions has been even extended to judicial review of the exercise of the power of the president to issue a proclamation under Art. 356 of the constitution.
JUDICIAL REVIEW OF LEGISLATIONS:-
As mentioned herein before the power to ensure that a law passed by the legislature is in accordance with the provisions of the constitution, is vested only with the high courts and the supreme court and for this reason the judicial review of legislations becomes very relevant and it is further relevant so far conformity of the legislations with the provisions contained in part iii of the constitution is concerned.
The legal position in this respect was highlighted by the apex court in state of madras v. G.Row, AIR 1952 SC 196 in express terms. It was held “our constitution contains express provisions for judicial review of legislations as to its conformity with the constitution like as America, where the supreme court has assumed extensive powers of reviewing legislative acts under cover of the widely interpreted “due process” clause in the fifth and fourteenth amendments. As rightly held in G.Rows case the apex court has been conferred by the constitution the duty to act as the protector of the fundamental rights of the citizens and this power too is an inbuilt of the power of the judicial review.
Re-affirming its power to test the validity of legislations, the apex court in special reference no.1 of 1964 AIR 1965 SC 745 held “whether or not there is distinct and rigid separation of powers, there is no doubt that the constitution has entrusted the judiciary in the country the task of construing the provisions of the constitution and for the safeguarding the fundamental rights of the citizens. when a statute is challenged on the ground that it has been passed by legislature without authority or rights. It is for the courts to decide whether the law passed by the legislature is valid or not”.
Further pointing out the relevancy of the power of the judiciary to pronounce upon the validity of laws, the apex court in Minerva mills v. Union of india, AIR 1981 SC 1787 held that “our constitution is founded on a nice balance of power amongst the three organs of the state namely the executive, legislature and judiciary. It is the function of the judges nay their duty to pronounce upon the validity of laws. If the courts are totally deprived of that power the fundamental rights conferred upon the people will become a mere a document because rights without remedies is a writ in water.
A controlled constitution will become uncontrolled. The legal position regarding the power of supreme court and high courts to the judicial review the legislative actions was well decided with the decision of the 7 judges constitution bench of the apex court in L.Chandra kumar v. union of india, AIR 1997 SC 1925. In this case, the question arose regarding the constitutional validity of Art. 323(2)(d) and Art. 323(b)(3)(d) of the constitution, which exclude the jurisdiction of all courts except that of the supreme court under Art. 136 of the constitution, in respect of disputes and complaints referred in Art. 323 A(1) or 323 B (2) of the constitution.
On a perusal of the decisions referred herein before ,it becomes clear that the supreme court and the high courts have been vested with the power to test the constitutional validity of the legislations and this power is a part of the basic structure of the constitution. The courts not only see as to whether the legislative competence of the legislature concerned or not but also see whether impugned legislation has contravened any provision of the constitution or not.
OVERRULING A JUDICIAL DECISION BY A NEW LEGISLATION:-
The second question. As referred herein before, arise as to whether the legislature has the competence to enact a new law or amend an existing law so as to nullify or render ineffective a judgment of the court. Article 141 of the constitution provides that the law declared by the supreme court shall be binding on all courts within the territory of India. Article 141 therefore incorporates the principle of stare decisis. Further Article 144 of the constitution declares that all authorities civil and judicial in the territory of india shall act in aid of the supreme court.
By virtue of art. 144, the authorities have to act in the aid of the supreme court and not to disobey or overrule the decisions of the supreme court. Though art. 144 does not use the words executive or the legislature, however the term “authorities” referred to in the art. 144 is enough to point out the intention of the constitution framers that the organs of the state have to work in harmony with the supreme court and as such abide by its decisions.
In Keshvananda bharti v. state of kerala, AIR 1973 SC 1461 rule of law was held to be a part of basic structure of the constitution. The concept of rule of law has been interpreted by various authors in different concepts. But in my opinion, it means that everyone is bound by the constitution. The govt. or its instrumentalities cannot do anything which is either against the constitution or violates its basic structure.
In Municipal corporation of the city of Ahmedabad v. New shrock spg and wvg co. limited AIR 1970 SC 1292. Apex court observed that “no legislature in this country has the power to ask instrumentalities of the state to disobey or disregard the decisions given by courts”
The consistent thread that runs through all the decisions of the court is that the legislature cannot directly overrule the decision or make a direction as not binding on it but has power to make the decision was rendered, consistent with the law of the constitution and the legislature must have competence to do the same.
The case of People’s union for civil liberties v. union of india, AIR 2003 SC 2363 is one of the later cases which depict the zeal of the legislature to overrule and nullify the judgment delivered by the apex court. The brief facts were that the apex court in union of india v. association for democratic reforms AIR 2002 SC 2112 had given certain directions to the election commission to call for the information on affidavit from each candidate seeking to the parliament or a state legislature regarding the past antecedents of the candidate, pendency of criminal cases including convictions. Charges if any, educational qualifications of the candidate etc.
In order to render ineffective the aforesaid directions given by the apex court, the central govt, brought the Representation of peoples(amendment) ordinance 2002 which was later on repealed by the Representation of the people(third amendment) act 2002. Section 33b of the act in particular provided that notwithstanding anything contained in any judgment decree or order of any court or any direction issued by the election commission no candidate shall be liable to disclose or furnish any information in respect of his election, which is not required to be disclosed or furnished under this act or rules made.
A perusal of the decisions of the apex court referred hereinbefore leave no doubt that the legislature cannot overrule a decision of the court or render it ineffective or even direct its instrumentalities not to obey the order of the court. It can only completely alter the law on the basis of which the previous decision was given but it is also subject to two limitations. Firstly, it should be within the legislative competence of the legislature and secondly it should not infringe the provisions of the constitution and the fundamental rights in particular.
Lets take an example. A court of law passes an order directing the tenant to handover possession of the premises in question to the landlord within two months from the date of the order. In the meanwhile, the legislature in order to render ineffective the order of the court, amends the rent control act on the basis of which the order in question was by the court. Here the question arises in such a situation what will happen to the rule of law, which is one of the basic foundation of our democratic and constitutional setup.
Perhaps there can be no end to such legislation. However the judiciary being the protector of the rights of the people will continue to perform its obligations in spirit as people of our country has great regard for the judiciary.