The Nature of Judicial Power: Sir John Fenwick

“It is settled law by a catena of decisions of this Court, 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 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, 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, 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, Fenwick is a man of interest to Justice Nariman. He has resisted sharing the perfect anecdotal note. 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“. It is curious to my eye, 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.