Legislative Overruling of the judgments of the Supreme Court
An analysis of the legislative overruling of the judgment of Hon'ble Supreme
Court in the case of Dr. Subhash Kashinath Mahajan Vs State of Maharasthra and
the insertion of Section 18A to the Scheduled Caste/ Scheduled Tribe [Prevention
of Atrocities] Act, 1989
In 2019, the Hon'ble Supreme Court while acknowledging the fact that provisions of the SC/ST Atrocities Act are being misused, held that there is a need for balancing the social objective sought to be achieved by the said Act and the need for individual liberty, freedom and adequate guidelines with regard to registration of FIR and arrest of an person accused of an offence under this Act. A two Judge bench in the case of Dr.Subhash Kashinath Mahajan [i] directed that before the arrest of any person, prior approval of the superior officers is required. The Court also laid down guidelines regarding pre-enquiry and remand of the accused persons.
This judgment of the Supreme Court was met with wide spread criticism, resulting in the amendment of the SC/ST Act and the amendment in essence nullified the precautionary and protective directions, for avoiding misuse, issued by the Supreme Court. The constitutional validity of these amendments was challenged and at the very same time, the Union of India moved a review petition, for reconsideration of the said directions in Subhash Kashinath Mahajan case.
The review petition was allowed and the directions in para 83 of the judgment were withdrawn.
When the challenge to the amendment of the SC/ST act was heard by the Court, the vires of the amendment were also challenged on the ground that it amounted to legislative overruling, and the said ground was rejected, by holding that as in the review petition, the said directions have been withdrawn, therefore, there is no need to consider the validity of amendments from the said perspective.
The present article examines the various instances of the legislature passing amendments to nullify the effects of the judgments pronounced by the Supreme Court and the stand of the supreme court regarding these amendments.
Legislative overruling is the act of the legislature using power conferred upon it under Article 368 of the Constitution of India for addition, variation or repeal of any provision of the Constitution in accordance with the procedure laid down in the said article. The very first instance of legislature overruling was the passing of an amendment to nullify the effects of a judgment of the Supreme Court arose in 1951, in Champakam Dorairajan [ii], when sub clause (4) was added to Article 15, to circumvent the judgment of the Court. Prior to the judgment of the Court in Dorairajan (supra), the Supreme Court had held that right to property is a constitutional right under Article 19 (f). To circumvent this, the Government inserted Article 31A and 31B in the ninth schedule of the Constitution.
This was challenged in the case of Shankari Prasad [iii] as Article 31A provided the government blanket powers in respect of land reforms laws and Article 31B provided protection to those laws from judicial review. The Court proceeded to hold that 'law' under article 13 refers to ordinary laws made under legislative powers and not amendments carried out under Article 368. It went on to hold that since under Article 368, no limit has been prescribed, therefore, even the fundamental rights could be amended.
The trend of passing amendments to nullify judgments of supreme court continued after the decision of the Supreme Court in the case of State of West Bengal Vs Bela Banerjee [iv] where the Court had held that although the legislature had powers to determine compensation to be paid in respect of property acquired by the State, however, the said compensation must be equivalent to the value of property that had been acquired.
This resulted in the fourth constitutional amendment act in 1953, whereby the legislature added clause 2 and clause 2A to Article 31A, which provided that 'a court could question no law on grounds that the compensation paid for acquired property is inadequate'.
However, the Supreme Court again nullified the effects of this amendment by holding in the case of K.K. Kochuni [v] that any law causing deprivation of property must stand the test of Article 19(5) which permitted only reasonable restriction to be imposed on the right to hold and dispose property.
Then in Vajravelu [vi] the court held that although adequacy of compensation was not justifiable according to fourth amendment, however, since the word compensation has been retained meant that an equivalent in the value of property must be given. The legislature however, enacted the 25th Constitutional amendment and the word compensation was substituted by the word amount.
Later on, in the Keshvananada [vii] case the court again persisted with the view that the word amount meant a fair return of the property acquired. The legislature then, by passing the 44th Constitutional amendment, deleted the said right from the chapter on fundamental rights in 1978.
The enactment of the 17th Constitutional amendment was challenged in the case of Sajjan Singh [viii] and the Court proceeded to hold that an amendment to the Constitution, meant, an amendment to all the provisions of the Constitution. This stand continued for about 13 years, till the case of Golaknath [ix] whereby, the Court overruled its earlier decisions in Shankari prasad (supra) and Sajjan Singh (supra) and proceeded to hold that the legislature does not have the power to amend part III of the Constitution to take away fundamental rights and the doctrine of prospective overruling was laid down by Justice Subba Rao.
Although the earlier judgments in Shankari Prasad (supra) and Sajjan Singh (supra) were over ruled, by the doctrine of prospective overruling, these amendments continued to remain valid. To overcome the law laid down by the Court in Golaknath (supra) the 24th Constitutional amendment was passed by the Legislature and clause 13 (3) was added to the Constitution, which stated that Article 13 of the Constitution will not apply to amendments made by the parliament under Article 368. A clause was added in Article 368, providing that nothing in Article 13 shall apply to amendment made under Article 368. The marginal note of article 368 was changed from 'procedure to amendment' to 'Power of Parliament to amend Constitution and procedure thereof.
Thereafter, the Court passed its decisions in the case of Rustom Cavasjee Cooper[x] (Bank Nationalization Case) wherein it was held that the constitution guarantees the right to compensation which is equivalent money of the property compulsorily acquired. The legislature enacted the 25th Constitutional amendment, to over come this judgment. By this amendment, the government had the power to acquire property for public use, on payment of compensation which would be determined by the government and not the courts.
After the landmark judgment in Kesavananda Bharathi (Supra), the Legislature enacted the 42nd Constitutional amendment which added clause (4) and (5) to Article 368 to nullify the ruling in the said case. The new clauses stated that there shall not be any limitation on the constituent powers of the parliament to amend by way of addition, variation or repeal of provisions of the Constitution under this Article. It was asserted that the parliament represents the will of the people and the limitation imposed in the Kesavananda Bharathi case was nullified. The basic structure doctrine, devised by the Court was held to be vague.
However, in the case of Minerva Mills[xi] when the 42nd Constitutional amendment was challenged, the Court held that additions of clause (4) and (5) to Article 368 destroyed the essential features of the basic structure of the Constitution.
The Court went on to hold that limited amending power, itself, was a basic feature of the Constitution. The Court held that the amendment made to Article 31C by the 42nd amendment is invalid because it damaged the essential features of the Constitution and that the court cannot be deprived of its powers of judicial review.
The next instance of a constitutional amendment being enacted to nullify a judgment arose in the case of Indira Nehru Gandhi Vs Raj Narain[xii], wherein, the order of the Allahabad High Court, setting aside the election of Indira Gandhi was challenged. During the pendency of the appeal before the Supreme Court, the legislature enacted the 39th Constitutional amendment (valid retrospectively) which added Article 392A to the Constitution and stated that the elections of the President, Vice President, Prime Minister and the Lok Sabha Speaker cannot be challenged in any court in the country, and it can be done only before a parliamentary committee.
Though subsequently, the election of Ms. Gandhi was upheld by the Supreme Court, however, the 39th amendment was held to be unconstitutional, since it was violative of the basic structure of the Constitution.
Similarly, when in the case of Shah Bano Begum[xiii], the Hon'ble Court had held that a Muslim wife was also entitled to be paid alimony, the Legislature, to dilute the effects of the judgment of the Hon'ble Supreme Court passed the Muslim Women (Protection of Rights on Divorce) Act, 1986 which denied Muslim women their right to alimony. In the subsequent judgments however, i.e. Daniel Latifi and Shamima Farooqui, the Court interpreted the Act in order to reassure the validity of the Shah Bano decision and the effects of the Muslim Women (Protection of Rights on Divorce) Act, 1986 were nullified.
The Hon'ble Supreme Court has been consistently holding that enacting amendments, which nullify the law declared by the Supreme Court would amount to encroaching upon the domain of the judiciary. Once any law has been declared by the Supreme Court, the same cannot be set at naught by the legislature, by enacting an amendment which would nullify the effects of the judgment of the Court.
In essence, it is conclusive that the amendment to the Atrocities Act, 1989 was merely done to nullify the judgment of the Hon'ble Supreme Court. It can be further ascertained that the said practice of the legislature, to bring in an amendment, to nullify the effect of the judgment of supreme court, is a classic example of the legislature encroaching upon the domain of the judiciary.
Lastly, the amendment and insertion of Section 18A should have been struck down by the Hon'ble Court. The reason for not striking it down, was that the review petition of the Union of India had been allowed, and the directions issued by the Hon'ble Court, for ensuring that the personal liberty of citizens were recalled.
End-Notes:
In 2019, the Hon'ble Supreme Court while acknowledging the fact that provisions of the SC/ST Atrocities Act are being misused, held that there is a need for balancing the social objective sought to be achieved by the said Act and the need for individual liberty, freedom and adequate guidelines with regard to registration of FIR and arrest of an person accused of an offence under this Act. A two Judge bench in the case of Dr.Subhash Kashinath Mahajan [i] directed that before the arrest of any person, prior approval of the superior officers is required. The Court also laid down guidelines regarding pre-enquiry and remand of the accused persons.
This judgment of the Supreme Court was met with wide spread criticism, resulting in the amendment of the SC/ST Act and the amendment in essence nullified the precautionary and protective directions, for avoiding misuse, issued by the Supreme Court. The constitutional validity of these amendments was challenged and at the very same time, the Union of India moved a review petition, for reconsideration of the said directions in Subhash Kashinath Mahajan case.
The review petition was allowed and the directions in para 83 of the judgment were withdrawn.
When the challenge to the amendment of the SC/ST act was heard by the Court, the vires of the amendment were also challenged on the ground that it amounted to legislative overruling, and the said ground was rejected, by holding that as in the review petition, the said directions have been withdrawn, therefore, there is no need to consider the validity of amendments from the said perspective.
The present article examines the various instances of the legislature passing amendments to nullify the effects of the judgments pronounced by the Supreme Court and the stand of the supreme court regarding these amendments.
Legislative overruling is the act of the legislature using power conferred upon it under Article 368 of the Constitution of India for addition, variation or repeal of any provision of the Constitution in accordance with the procedure laid down in the said article. The very first instance of legislature overruling was the passing of an amendment to nullify the effects of a judgment of the Supreme Court arose in 1951, in Champakam Dorairajan [ii], when sub clause (4) was added to Article 15, to circumvent the judgment of the Court. Prior to the judgment of the Court in Dorairajan (supra), the Supreme Court had held that right to property is a constitutional right under Article 19 (f). To circumvent this, the Government inserted Article 31A and 31B in the ninth schedule of the Constitution.
This was challenged in the case of Shankari Prasad [iii] as Article 31A provided the government blanket powers in respect of land reforms laws and Article 31B provided protection to those laws from judicial review. The Court proceeded to hold that 'law' under article 13 refers to ordinary laws made under legislative powers and not amendments carried out under Article 368. It went on to hold that since under Article 368, no limit has been prescribed, therefore, even the fundamental rights could be amended.
The trend of passing amendments to nullify judgments of supreme court continued after the decision of the Supreme Court in the case of State of West Bengal Vs Bela Banerjee [iv] where the Court had held that although the legislature had powers to determine compensation to be paid in respect of property acquired by the State, however, the said compensation must be equivalent to the value of property that had been acquired.
This resulted in the fourth constitutional amendment act in 1953, whereby the legislature added clause 2 and clause 2A to Article 31A, which provided that 'a court could question no law on grounds that the compensation paid for acquired property is inadequate'.
However, the Supreme Court again nullified the effects of this amendment by holding in the case of K.K. Kochuni [v] that any law causing deprivation of property must stand the test of Article 19(5) which permitted only reasonable restriction to be imposed on the right to hold and dispose property.
Then in Vajravelu [vi] the court held that although adequacy of compensation was not justifiable according to fourth amendment, however, since the word compensation has been retained meant that an equivalent in the value of property must be given. The legislature however, enacted the 25th Constitutional amendment and the word compensation was substituted by the word amount.
Later on, in the Keshvananada [vii] case the court again persisted with the view that the word amount meant a fair return of the property acquired. The legislature then, by passing the 44th Constitutional amendment, deleted the said right from the chapter on fundamental rights in 1978.
The enactment of the 17th Constitutional amendment was challenged in the case of Sajjan Singh [viii] and the Court proceeded to hold that an amendment to the Constitution, meant, an amendment to all the provisions of the Constitution. This stand continued for about 13 years, till the case of Golaknath [ix] whereby, the Court overruled its earlier decisions in Shankari prasad (supra) and Sajjan Singh (supra) and proceeded to hold that the legislature does not have the power to amend part III of the Constitution to take away fundamental rights and the doctrine of prospective overruling was laid down by Justice Subba Rao.
Although the earlier judgments in Shankari Prasad (supra) and Sajjan Singh (supra) were over ruled, by the doctrine of prospective overruling, these amendments continued to remain valid. To overcome the law laid down by the Court in Golaknath (supra) the 24th Constitutional amendment was passed by the Legislature and clause 13 (3) was added to the Constitution, which stated that Article 13 of the Constitution will not apply to amendments made by the parliament under Article 368. A clause was added in Article 368, providing that nothing in Article 13 shall apply to amendment made under Article 368. The marginal note of article 368 was changed from 'procedure to amendment' to 'Power of Parliament to amend Constitution and procedure thereof.
Thereafter, the Court passed its decisions in the case of Rustom Cavasjee Cooper[x] (Bank Nationalization Case) wherein it was held that the constitution guarantees the right to compensation which is equivalent money of the property compulsorily acquired. The legislature enacted the 25th Constitutional amendment, to over come this judgment. By this amendment, the government had the power to acquire property for public use, on payment of compensation which would be determined by the government and not the courts.
After the landmark judgment in Kesavananda Bharathi (Supra), the Legislature enacted the 42nd Constitutional amendment which added clause (4) and (5) to Article 368 to nullify the ruling in the said case. The new clauses stated that there shall not be any limitation on the constituent powers of the parliament to amend by way of addition, variation or repeal of provisions of the Constitution under this Article. It was asserted that the parliament represents the will of the people and the limitation imposed in the Kesavananda Bharathi case was nullified. The basic structure doctrine, devised by the Court was held to be vague.
However, in the case of Minerva Mills[xi] when the 42nd Constitutional amendment was challenged, the Court held that additions of clause (4) and (5) to Article 368 destroyed the essential features of the basic structure of the Constitution.
The Court went on to hold that limited amending power, itself, was a basic feature of the Constitution. The Court held that the amendment made to Article 31C by the 42nd amendment is invalid because it damaged the essential features of the Constitution and that the court cannot be deprived of its powers of judicial review.
The next instance of a constitutional amendment being enacted to nullify a judgment arose in the case of Indira Nehru Gandhi Vs Raj Narain[xii], wherein, the order of the Allahabad High Court, setting aside the election of Indira Gandhi was challenged. During the pendency of the appeal before the Supreme Court, the legislature enacted the 39th Constitutional amendment (valid retrospectively) which added Article 392A to the Constitution and stated that the elections of the President, Vice President, Prime Minister and the Lok Sabha Speaker cannot be challenged in any court in the country, and it can be done only before a parliamentary committee.
Though subsequently, the election of Ms. Gandhi was upheld by the Supreme Court, however, the 39th amendment was held to be unconstitutional, since it was violative of the basic structure of the Constitution.
Similarly, when in the case of Shah Bano Begum[xiii], the Hon'ble Court had held that a Muslim wife was also entitled to be paid alimony, the Legislature, to dilute the effects of the judgment of the Hon'ble Supreme Court passed the Muslim Women (Protection of Rights on Divorce) Act, 1986 which denied Muslim women their right to alimony. In the subsequent judgments however, i.e. Daniel Latifi and Shamima Farooqui, the Court interpreted the Act in order to reassure the validity of the Shah Bano decision and the effects of the Muslim Women (Protection of Rights on Divorce) Act, 1986 were nullified.
The Hon'ble Supreme Court has been consistently holding that enacting amendments, which nullify the law declared by the Supreme Court would amount to encroaching upon the domain of the judiciary. Once any law has been declared by the Supreme Court, the same cannot be set at naught by the legislature, by enacting an amendment which would nullify the effects of the judgment of the Court.
In essence, it is conclusive that the amendment to the Atrocities Act, 1989 was merely done to nullify the judgment of the Hon'ble Supreme Court. It can be further ascertained that the said practice of the legislature, to bring in an amendment, to nullify the effect of the judgment of supreme court, is a classic example of the legislature encroaching upon the domain of the judiciary.
Lastly, the amendment and insertion of Section 18A should have been struck down by the Hon'ble Court. The reason for not striking it down, was that the review petition of the Union of India had been allowed, and the directions issued by the Hon'ble Court, for ensuring that the personal liberty of citizens were recalled.
End-Notes:
- 2018 (6) SCC 450
- AIR 1951 SC 226
- 1951 AIR 458
- AIR 1954 SC 170
- AIR 1960 SC 1080
- AIR 1965 SC 1017
- AIR 1973 SC 1461
- 1965 AIR 845
- 1967 AIR 1643
- 1970 AIR 564
- AIR 1980 SC 1789
- 1975 AIR 865
- AIR 1985 SC 945
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