The Nature of Judicial Power: Sir John Fenwick

It is settled law by a catena of decisions of this Court that the legislature cannot directly annul a judgment of a court. The legislative function consists in “making” law [See, Article 245 of the Constitution] and not in “declaring” what the law shall be [See, Article 141 of the Constitution]. If the legislature were at liberty to annul judgments of courts, the ghost of bills of attainder will revisit us to enable legislatures to pass legislative judgments on matters, which are inter-parties. Interestingly, in England, the last such bill of attainder passing a legislative judgment against a man called Fenwick was passed as far back as in 1696.

A century later, the US Constitution expressly outlawed bills of attainder [See, Article 1 Section 9]. It is for this reason that our Constitution permits a legislature to make laws retrospectively, which may alter the law as it stood when a decision was arrived at. It is in this limited circumstance that a legislature may alter the very basis of a decision given by a court, and if an appeal or other proceeding be pending, enable the Court to apply the law retrospectively so made which would then change the very basis of the earlier decision so that it would no longer hold good.

However, if such is not the case then legislation which trenches upon the judicial power must necessarily be declared to be unconstitutional. This Court has struck down such legislation in a number of judgments.”

Hon’ble Justice Nariman, S.T. Sadiq v. State of Kerala, [Civil Appeal No. 3962-3963 of 2007].

It is of interest that Fenwick is a man of interest to Justice Nariman. He has resisted sharing the perfect anecdotal note though. In Indira Nehru Gandhi v. Raj Narain, 1975 (Supp) SCC 1, Hon’ble Justice Kuttyil Kurien Mathew quoted Macaulay and described his account of the attainder of John Fenwick in 1696 as “particularly vivid“. Justice Mathew’s decision was however incorrect on two counts – an opinion I have brought forth earlier and which has its fair share of advocates. It is curious to my eye, that Justice Nariman had nothing to say of the Fenwick incident except term it as “interesting“. There was enough scope for a Narimanesque brush. But then, saying nothing is also saying much. Especially when it is Justice Nariman keeping mum.

 Sir John Fenwick, Beheaded on Tower Hill 1697

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