This post explains that legislature may change a basis of a decision but cannot reverse it.
- There was a dispute between State of TN (Tamilnadu) and State of Kerala (Kerala) regarding height of full reservoir level (FRL) of Mullaperiyar Dam (the Dam). Kerala wanted to keep it at 132 feet whereas Tamilnadu wanted it to increase to provide irrigation to its farmers.
- In Mullaperiyar Environment Protection Forum Vs Union of India 2006 (3) SCC 643 (the Mullaperiyar-Forum Case), the Supreme Court (SC) permitted the water level to be raised to 142 feet and after strengthening the work to the satisfaction of Central Water commission to (CWC); independent expert to the level of 152 feet (para 12).
- After the Mullaperiyar-Forum Case was decided, Kerala enacted the Kerala Irrigation and water Conservation (Amendment) Act 2006 (the 2006 Amendment) restricting the height of full reservoir level (FRL) of the Dam to 136 feet (para 14, 15). The question in the Mullaperiyar-Dam Case was whether the 2006 amendment was valid.
After analysing the decisions of the Indian and foreign Courts the Mullaperiyar-Dam Case, the Constitutional bench summed up the Law as to when a legislation can nullify a Judgement of the competent Court in para 126 to 126.7. The relevant part is as follows:
“126.5. The doctrine of separation of powers applies to the final judgments of the courts. The legislature cannot declare any decision of a court of law to be void or of no effect. It can, however, pass an amending Act to remedy the defects pointed out by a court of law or on coming to know of it aliunde. In other words, a court's decision must always bind unless the conditions on which it is based are so fundamentally altered that the decision could not have been given in the altered circumstances.
126.6. If the legislature has the power over the subject-matter and competence to make a validating law, it can at any time make such a validating law and make it retrospective. The validity of a validating law, therefore, depends upon whether the legislature possesses the competence which it claims over the subject-matter and whether in making the validation law it removes the defect which the courts had found in the existing law.”
In paras 149 to 151 155 and 157 of the Mullaperiyar-Dam Case, the Court observed that in Mullaperiyar-Forum Case, it was recorded a finding of fact that height could be increased to 142 Feet and after strengthening it to 152 feet. This could not be set at naught by the legislature. It could only be altered by the Court on fresh facts regarding safety being brought to the knowledge of the court. The Court (para 228) restrained Kerala from interfering with Tamilnadu from increasing the level to 142 feet. In paragraph 157 the court observes:
“The question whether or not the legislature has usurped the judicial power or enacted a law in breach of separation of powers principle would depend on facts of each case after considering the real effect of law on a judgment or a judicial proceeding. One of the tests for determining whether a judgment is nullified is to see whether the law and the judgment are inconsistent and irreconcilable so that both cannot stand together. In what we have already discussed above, it is abundantly clear that on the one hand there is a finding of fact determined by this Court on hearing the parties on the basis of the evidence/materials placed on record in the judgment of this Court in Mullaperiyar Environmental Protection Forum [Mullaperiyar Environmental Protection Forum v. Union of India, (2006) 3 SCC 643] and on the other in the 2006 (Amendment) Act, the Kerala Legislature has declared the Dam being an endangered one and fixed the water level in the Dam at 136 ft. If the judgment of this Court in Mullaperiyar Environmental Protection Forum v. Union of India, (2006) 3 SCC 643 and the 2006 (Amendment) Act are placed side by side in so far as safety of the Mullaperiyar Dam for raising the water level from 136 ft to 142 ft is concerned, it is obvious that the judgment of this Court and the law enacted by the Kerala State Legislature cannot stand together and they are irreconcilable and inconsistent. The impugned law is a classic case of nullification of a judgment simpliciter, as in the judgment of this Court the question of the safety of the Dam was determined on the basis of materials placed before it and not on the interpretation of any existing law and there was no occasion for the legislature to amend the law by altering the basis on which the judgment was founded. When the impugned law is not a validation law, there is no question of the legislature removing the defect, as the Court has not found any vice in the existing law and declared such law to be bad.”
The aforesaid Case was followed by another constitution bench decision of this Court In re Punjab Termination Agreement Act 2004 2017 (1) SCC 121. The Court (para 39) held:
“Looking at the afore-stated legal position, in our opinion, the State of Punjab had exceeded its legislative power in proceeding to nullify the decree of this Court and therefore, the Punjab Act cannot be said to be a validly enacted legislation, as held by this Court in terms of the afore stated judgments.”
In concurring Judgement, it was observed (para 48):
“From the above mentioned set-up under our Constitution, there is no difficulty in concluding that no Government, whether Central or State, can usurp the power of adjudicating disputes vested in the judiciary including High Courts and the Supreme Court. Further, as a corollary, the judgments and decrees which are the end product of exercise of judicial power cannot be set at naught by the process of legislative declaration in respect of facts and circumstances. As explained already in the main judgment, the situation is somewhat different when a competent legislature engages itself in the exercise of validating a law declared defective or invalid for reasons which are curable.”
The Case in hand is similar. In the Basha Case, a constitutional bench recorded a finding of fact that the university was not established by the minority (para 22, 23 25, 26). This was not on the interpretation of any provision of the Act but on the facts and circumstances of the case that the University came into existence by legislation. This is clear from the the following observations:
“23. It is true, as is clear from the 1920 Act, that the nucleus of the Aligarh University was the M.A.O. College, which was till then a teaching institution under the Allahabad University. The conversion of that college (if we may use that expression) into a university was however not by the Muslim minority; it took place by virtue of the 1920 Act which was passed by the Central legislature. There was no Aligarh University existing till the 1920 Act was passed. It was brought into being by the 1920 Act and must therefore be held to have been established by the Central Legislature which by passing the 1920 Act incorporated it. The fact that it was based on the M.A.O. College, would make no difference to the question as to who established the Aligarh University. The answer to our mind as to who established the Aligarh University is clear and that is that it was the Central Legislature by enacting the 1920 Act that established the said University. As we have said already, the Muslim minority could not establish a university whose degrees were bound to be recognised by Government as provided by Section 6 of 1920 Act: that one circumstance along with the fact that without the 1920 Act the University in the form that it had, could not come into existence shows clearly that the Aligarh University when it came into existence in 1920 was established by the Central Legislature by the 1920 Act. It may be that the 1920 Act was passed as a result of the efforts of the Muslim minority. But that does not mean that the Aligarh University when it came into being under the 1920 Act was established by the Muslim minority.”
This is finding on the circumstances and the fact that the University came into existence by an enactment. There is no change on this account. The Parliament cannot set at naught a valid decision of this court. The amendments to the preamble and section 2(l) of the Act are invalid.
#AMU #AligarhMuslimUniversity #MuslimReservation #Legislature
No comments:
Post a Comment