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When a government is confronted with an inconvenient court
judgment, there are three commonways in which it tries to dodge the
blow. The risk is indeed high, but the gamble must be played tosave
face.
The first is to ignore the order, as in several public interest
cases. However, the Supreme Courthas long arms and memory. It can
press on and call chief secretaries of states who do notimplement
its directions. For instance, the court has called some of them in
person this month toexplain why primary schools in their states do
not provide drinking water to children as directed.
Another stratagem is to invoke legal technicalities by filing a
review petition, which is normallydismissed in minutes in chambers
before the judges concerned take their quick lunch. After thatthere
is a provision for filing a curative petition that also meets a
similar fate. The diehardlitigants and lawyers then clothe the same
issue in a new writ petition and brave a third time, withthe same
probability rating. In between, they move applications for
clarifications ormodifications of the earlier orders, which are
guises for review by other names. The governmentis currently trying
a combination of all these in its bid to sidestep the knock of the
recent blackmoney probe order.
When the governments stakes are very high, it resorts to
legislative powers. The latest instancewas the political row over
the Tamil Nadu textbooks allegedly glorifying the DMK supremo. It
was
given the euphemistic garb of a legal issue involving the
uniform system of education. TheMadras High Court and the Supreme
Court had approved the old law. However, the newgovernment passed
an amendment to undo the judgment (State of Tamil Nadu vs K
ShyamSunder). The amendment was struck down last month.
The court stated that a judicial pronouncement of a competent
court cannot be annulled by thelegislature in exercise of its
legislative powers for any reason whatsoever. The legislature,
inorder to revalidate the law, can re-frame the conditions existing
prior to the judgment on the basisof which certain statutory
provisions had been declared ultra vires and unconstitutional.
The court was following the dictum of a seven-judge Bench in the
famous case, Madan MohanPathak vs Union of India, that bringing
legislation in order to nullify the courts judgment wouldamount to
trenching on judicial power. No legislation that is meant to set
aside the result of the
courts mandamus is permissible. Even if the amending statute may
not mention such anobjective. The rights embodied in a judgment
could not be taken away by the legislatureindirectly.
Though this declaration is 35 years old, governments
consistently breach the barrier. There areseveral other instances
in the recent past in which even the central government tried
tocircumvent court pronouncements. Some time ago, aquaculture farms
were being set up alongthe eastern coast, violating coastal-zone
regulations. Writ petitions were moved alleging violationof the
rules and destruction of ecological balance. The Supreme Court
ruled that industrialactivity could not be carried on along the
coast. The government then brought a law declaring thataquafarming
units were not industries, but agricultural enterprises. The move
failed.
In another case, the Orissa government lost its case in
arbitration and had to pay a huge sum to a
contractor. Instead of paying it, the state legislature passed a
law to get over it. The SupremeCourt struck it down (G C Kanungo vs
State of Orissa).
Sometimes those who opposed a government action in court would
find themselves in powerafter an election. In MRF Ltd vs State of
Goa, the electricity rebate given to some industries werechallenged
in a public interest litigation. The court ruled against it, and a
law was passed toovercome the judgment. The government changed
meanwhile but the court stood constant in itsorder.
Some time ago, the Supreme Court declared in the Peoples Union
for Civil Liberties case that
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voters have a right to know the antecedents of candidates. The
political class ran like a headlesschicken and got an ordinance
promulgated, and later passed a law with few nays to cancel outthe
judgment. However, the issue was back in the court and it stood its
ground. A similar dramawas enacted on the question of the infamous
single directive for protecting senior babus fromcorruption charges
(Vineet Narain vs Union of India).
When the Karnataka government perceived the Supreme Court
judgment in the Cauvery waterdispute as against its interest, it
passed a law that gave overriding effect to its decision over
thatof any court or tribunal. The court struck it down observing
that such an act of the legislatureamounted to exercising judicial
power of the state.
The urge to rise from a judicial defeat, whichever way, is
irresistible. When the governmentclambers up with a new-fangled law
with the same warts, it usually returns from the court with abloody
nose.
