The Nature of Judicial Power: Hon’ble Justice Ranjan Gogoi

The power to invalidate a legislative or executive act lies with the Court. A judicial pronouncement, either declaratory or conferring rights on the citizens cannot be set at naught by a subsequent legislative act for that would amount to an encroachment on the judicial powers. However, the legislature would be competent to pass an amending or a validating act, if deemed fit, with retrospective effect removing the basis of the decision of the Court. Even in such a situation the courts may not approve a retrospective deprivation of accrued rights arising from a judgment by means of a subsequent legislation [Madan Mohan Pathak, (1978) 2 SCC 50]. However, where the Court’s judgment is purely declaratory, the Courts will lean in support of the legislative power to remove the basis of a Court judgment even retrospectively, paving the way for a restoration of the status quo ante. Though the consequence may appear to be an exercise to overcome the judicial pronouncement it is so only at first blush; a closer scrutiny would confer legitimacy on such an exercise as the same is a normal adjunct of the legislative power. The whole exercise is one of viewing the different spheres of jurisdiction exercised by the two bodies i.e. the judiciary and the legislature. The balancing act, delicate as it is, to the constitutional scheme is guided by well defined values which have found succinct manifestation in the views of this Court in Bhaktwar Trust and Ors., (2003) 5 SCC 298.”

Hon’ble Justice Ranjan Gogoi, Goa Foundation v. State of Goa, [Writ Petition (Civil) No. 131 of 2009].

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