24. Validation Act- whether transgression on judicial power?

In Civil Appeal 1668/2002 State of HP v. Narayan Singh decided on 8/7/2009 by the apex Court the question was whether the State can in exercise of its sovereign legislative power enact an amendment Act seeking to remove and cure the defects in the previous law despite there being a judgment on the previous law?

It was nobody's case that the State legislature is incompetent to enact the said amended Act. There is also no finding in the impugned judgment that the amendment Act in any way infringes or abridges any fundamental right of the petitioner. Learned High Court did not find that the impugned amendment Act transgresses either of these limitations in any way. But the High Count found that the impugned amendment Act is ultra vires the Constitution as it seeks to nullify the previous judgment. Setting aside the high courts’ decision the apex Court held that in the instant case the amending Act read with its validation clause correctly passed the tests laid down by the Supreme Court in various earlier decisions. Ratio decidedi discussed by the Apex Court is being sumarised hereunder:.

In Rai Ramkrishna and others etc. Vs. State of Bihar - AIR 1963 SC 1667, a Constitution Bench of this Court speaking through Justice Gajendragadkar, as His Lordship then was, explained the principle thus:

Where the Legislature can make a valid law, it may provide not only for the prospective operation of the material provisions of the said law but it can also provide for the retrospective operation of the said provisions. Similarly, there is no doubt that the legislative power in question includes the subsidiary or the auxiliary power to validate laws which have been found to be invalid. If a law passed by a legislature is struck down by the Courts as being invalid for one infirmity or another, it would be competent to the appropriate Legislature to cure the said infirmity and pass a validating law so as to make the provisions of the said earlier law effective from the date when it was passed. This position is treated as firmly established since the decision of the Federal Court in the case of United Provinces v. Mst. Atiqa Begum, 1940 FCR 110: (AIR 1941 FC 16)."

A three-Judge Bench in Meerut Development Authority etc. Vs. Satbir Singh and others AIR 1997 SC 1467, summed up the position in as follows:- "10. It is well settled by catena of decisions of this Court that when this Court in exercise of power of judicial review, has declared a particular statute to be invalid, the Legislature has no power to overrule the judgment; however, it has the power to suitably amend the law by use of appropriate phraseology removing the defects pointed out by the Court and by amending the law inconsistent with the law declared by the Court so that the defects which were pointed out were never on statute for effective enforcement of the law. This Court has considered in extenso the case law in a recent judgment in Indian Aluminium Co. V. State of Kerala (1996) 2 JT (SC) 85: (1996 AIR SCW 1051) had held that such an exercise of power to amend a statute is not an incursion on the judicial power of the Court but is a statutory exercise of the constituent power to suitably amend the law and to validate the actions which have been declared to be invalid..."

A Constitution Bench of the Supreme Court in the case of State of Tamil Nadu Vs. M/s. Arooran Sugars Limited - AIR 1997 SC 1815, reiterated the same principle after analyzing several cases on the point. The Court has summed up the position as follows:-

"16. ...It is open to the legislature to remove the defect pointed out by the court or to amend the definition or any other provision of the Act in question retrospectively. In this process it cannot be said that there has been an encroachment by the legislature over the power of the judiciary. A court's directive must always bind unless the conditions on which it is based are so fundamentally altered that under altered circumstances such decisions could not have been given. This will include removal of the defect in a statute pointed out in the judgment in question, as well as alteration or substitution of provisions of the enactment on which such judgment is based, with retrospective effect..."

In Indra Sawhney Vs. Union of India – AIR 2000 SC 498, Justice Jagannadha Rao speaking for a three-Judge Bench explained the position by saying that it would be permissible for the legislature to remove the defect which is the cause for discrimination and which defect was pointed out by the Court. The learned Judge made it very clear that this defect can be removed both retrospectively and prospectively by legislative action and the previous actions can be validated. But where there is a mere validation without the defect being legislatively removed the legislative action will amount to overruling the judgment by a legislative fiat and that will be invalid.