Is latest decision shreya singhal vs uoi of removing sec 66a it act has retrospective effect
Mithun Sharma
(Querist) 04 April 2015
This query is : Resolved
is this decision has retrospective effect for old cases.
JUDGEMENT is in Attachment File
Guest
(Expert) 04 April 2015
Nowhere mentioned in the judgment for retrospective effect.
Devajyoti Barman
(Expert) 04 April 2015
When the particular section is declared then all the pending litigations on this section will be deemed to have quashed making it virtually an order having retrospective effect.
Dr V. Nageswara Rao
(Expert) 05 April 2015
1. All judicial decisions are retrospective in operation with regard to the facts of that case as well as the new principle they lay down.
2. Such retrospective effect can be prevented only when the Court expressly states that the decision will have prospective effect only.
3. But retrospective effect does not reopen matters that are finally adjudicated already.
4. Pending matters will have to be decided as per the new decision.
ajay sethi
(Expert) 05 April 2015
agree with Mr barman
SAINATH DEVALLA
(Expert) 05 April 2015
Dhingraji is correct, not applicable from a retrospective date.
Guest
(Expert) 06 April 2015
Barman ji & Rao ji,
Hope you would like to agree with m that there is a vast difference between perception and proof. The judgment is silent about retrospective effect or the pending litigations u/s 66A to be treated as quashed.
The present judgment indicates that only the following writ petitions filed under Article 32 of the Constitution of India and pending with the SC have been disposed of in the terms specified in the judgment.
WRIT PETITION (CIVIL) NO.21 OF 2013
WRIT PETITION (CIVIL) NO.23 OF 2013
WRIT PETITION (CIVIL) NO. 97 OF 2013
WRIT PETITION (CRIMINAL) NO.199 OF 2013
WRIT PETITION (CIVIL) NO. 217 OF 2013
WRIT PETITION (CRIMINAL) NO.222 OF 2013
WRIT PETITION (CRIMINAL) NO.225 OF 2013
WRIT PETITION (CIVIL) NO.758 OF 2014
WRIT PETITION (CRIMINAL) NO.196 OF 2014
In the aforesaid judgment there is no reference of the pending litigations in various courts of India.
So, you may like to quote any section or any act, which may confirm that the judgment would have the retrospective effect or the cases pending in all court os India pertaining to past offences be treated as closed after a section of law is struck down. This would definitely help to enhance my knowledge also.
Also, you may please like to indicate, if the the Central Government has in priciple accepted the verdict and issued any notification to the effect of removal of the concerned section, or the Government is barred by the judgment from preferring any appeal to the competent bench against the judgment, or any part of an existing Act can be deemed to have been abrogated automatically without notification through official Gazette of the Government of India?
Dr V. Nageswara Rao
(Expert) 06 April 2015
1. The Court held: "We therefore hold that no part of Section 66A is severable and the provision as a whole must be declared unconstitutional."
2. Once S. 66A is "struck down" by the Court as unconstitutional, the section is erased out of the statute book, and it is a non est.
3. In jurisprudence, the main criticism against a precedent is that it is ex post facto in two senses: it applies to facts of that case that have already occurred and 2. The new precedent supersedes all the earlier decisions.
4. So, inherently, a precedent is retrospective. That is why in Golaknath case the Court had to expressly state that the decision prospectively over-ruled the earlier decisions in Shankari Prasad and Sajan Singh etc.
5. Precedent will have the same effect even whether it strikes down an earlier decision or earlier enactment. But the matters that were already decided by a competent Court and have become final will not be reopened.
6. But the prosecutions pending in the Courts under a section that is now struck down will abate if the prosecution stands solely under that section.
7. Once the judgment is delivered by a Bench of 2 judges, it is a judgment of the entire Court and there is no further appeal. The aggrieved party can only ask for review.
Guest
(Expert) 06 April 2015
Dear Dr. Rao,
I have already pointed out that there is a vast difference in the precedent and a proof. I requested you to quote some specific section of any specific law, not an individual's case law pertained to some personal petition, under which the legislation can be supposed to have retrospective effect.
Insted of quoting any specific section of any Act, you have simply tried to quote a precedent of some decision is some individual's case. Needless to emphasize, precedent of any court decision in some individual person's routine petition has no relevance for the purpose of wiping out a specific legislation passed by both the houses of the Parliament with specific assent of the President of India.
About your perception, "precedent will have the same effect even whether it strikes down an earlier decision or earlier enactment," it merely your personal opinion, not supported by any specific section of any statute. So, you are once again requested to quote any specific section of any specific Act in support of your opinion. Otherwise individual opinion cannot be supposed to have any statutory the effect to change the set principles and procedures by the mother of all laws, the Constitution of India.
A pertinent question arises, do you believe that the whole of the set system and the prescribed process of enactments and modifications thereto can be smashed by a judgment of the SC without adopting the prescribed legislation process for wiping out of the controversial section? Further, do you believe that the Government is not competent to bring the same legislation in the modified enactment by removing the infirmity of the existing section.
You have already stated that the judgment states, "the provision as a whole must BE DECLARED unconstitutional," which means the SC has found the section unconstitutional and delivered their judgment, but has desired some other competent authority should (formally) declare the provision to be unconstitutional. In your views, who has been asked through the judgment to declare and who would declare the provision as unconstitutional? Even according to you, the judgment makes clear that the provision BE Declared, but not so declared on the part of the SC. SC has to judge the constitutionality, not to undertake the whole of the process to amend the statute for and on behalf of the Executive (Parliament & the concerned Ministry) to finally remove the section from out of the main Act.
So, the constitutionally set up system and the process of enactment and amendments cannot be dispensed with on any judgment. That has to take place in due course and through the prescribed authorities only.
I don't know whether you would like to agree or not that the power to legislate includes the power to validate a law which has been held invalid by the courts by making retrospective amendments, even if the section is considered to to have been striked down with retrospective effect. This can be done by removing the infirmities in the law or by filling the lacuna therein.
A retrospective amendment to overcome a judgment does not, by itself, render the amendment invalid or unconstitutional, even if it has the effect of neutralizing the judgment of a court, making the judgment virtually ineffective. Such amendments do not amount to the statutory overruling of judicial decisions, as held in I.N. Saxena vs State of M.P (1976).
Dr V. Nageswara Rao
(Expert) 07 April 2015
Mr Dhingra: You say: About your perception, "precedent will have the same effect even whether it strikes down an earlier decision or earlier enactment," it merely your personal opinion, not supported by any specific section of any statute.
This is the elementary principle of jurisprudence and not my view. Please go through any standard work on Jurisprudence or Neil Duxbury, The Nature and Authority of Precedent.
Is there any section or article which says that Courts have the power of judicial review in India?
T. Kalaiselvan, Advocate
(Expert) 09 April 2015
A very useful discussion and valuable information, courtesy the subject query which provided an opportunity to update knowledge on such sensitive issues. Thank you experts.
Dr V. Nageswara Rao
(Expert) 10 April 2015
When the Supreme Court says that S. 66A be declared as unconstitutional, it means that the Court is declaring it as void.
Guest
(Expert) 11 April 2015
Dear Dr. Rao
Amazingly, you have recommended “Neil Duxbury,” who has not so far written even a single line on Indian legal system established under the Constitution of India during his academic career! However, it seems, as if you had been teaching English and US laws to the Indian students in the capacity of a professor of law of the Osmania University, Hyderabad, while those students were supposed to practise the Indian legal system in the Indian courts.
So, would you please like to clarify –
1) Whether Neil Duxbury is/was vested with any authority to override the provisions of the Constitution of India without even making a review of the Indian legal system or the Constitution of India?
2) (i) Whether any of the written word in any of the book of Neil Duxbury on English or US law has the authority to supersede the authority of the Constitution of India or the powers of the Government of India to suitably modify any provision of any enactment, which the SC held as void?
(ii) Also, do you feel that the works on English laws would prevail on Indian legal system even after 68 years of independence of India?
3) Do you consider Professor Neil Duxbury to be supreme power over and above the provisions of the Indian legal system set up by the Constitution of India, even if he would have taken up any academic project on Indian system of law?
4) While recommending Neil Duxbury, did you consider the Indian legal system, set up by and under the Constitution of India, as farce or inappropriate, as compared to the legal system of UK or US, or no Indian author would have written on jurisprudence with particular reference to the Indian legal system?
5) Can you please quote the title of any book of Neil Duxbury, if any he would have authored based on any of the four primary schools of thought in general jurisprudence with specific reference to the Indian legal system set up under the provisions of the Constitution of India?
6) Also, can you please quote any reference on the work of jurisprudence by any author, which can authoritatively nullify the Indian legal system set up by the Constitution of India?
You very well know that Jurisprudence is the study of theory of law. Scholars in jurisprudence, also known as legal THEORISTS, as well as those who hope to obtain a deeper understanding of the nature of law, of legal reasoning, legal systems and of legal institutions. In other words, jurisprudence is a collection of views, opinions and ideas of various authors that can be taken only for the guidance of any one to take care of or practice the natural justice, but cannot be taken as an arbitrary authority to override the already set systems and processes of law by the Constitution of any country.
I am unable to understand, why you preferred to give evasive reply, rather than replying my specific queries, as in my previous post, which still stand un-replied on your part. The same are repeated below, if you like to reply with the support of any section of any Act or the Article of the Constitution of India:
7) Do you believe that the whole of the set system and the prescribed process of enactments and modifications thereto can be smashed by a judgment of the SC without adopting the prescribed legislation process for wiping out of the controversial section (without any Gazette notification)?
8) Do you believe that the Government is not competent to bring the same legislation in the modified enactment by removing the infirmity of the existing section?
9) In your views, who has been asked through the judgment to declare and who would declare the provision as unconstitutional? Even according to you, the judgment makes clear that the provision BE Declared, but not so declared on the part of the SC.
10) Besides the SC having judged about the constitutionality, do you believe that the SC would undertake the whole of the process to amend the original statute for and on behalf of the Executive (Parliament & the concerned Ministry) to finally remove the section from out of the main IT Act.
Now about your query, “is there any section or article which says that Courts have the power of judicial review in India,” needless to point out that the question was aimed just to evade reply on my above mentioned questions. However, I wonder, if holder of a doctorate degree and ex professor of law is unaware about the provisions of judicial review, which are available in Order XLVII, Rule 1 of the Code of Civil Procedure and the provision of judicial review by the SC under Article 137 of the Constitution of India, read with the aforesaid Order XLVII, supra, which lays down as under:
“Review of judgments or orders by the Supreme Court Subject to the provisions of any law made by Parliament or any rules made under Article 145, the Supreme Court shall have power to review any judgment pronounced or order made by it.”
Needless to emphasize, any judgment is subject to judicial review on the grounds mentioned in Order XLVII, Rule 1 of the Code of Civil Procedure and under Order XL of the Supreme Court Rules, that have been framed under its powers under Article 145 of the Constitution, the Supreme Court may also review its judgment or order on the grounds mentioned in said Order XLVII, Rule 1 of the CPC.
Judicial review is adopted in the Constitution of India and is dealt with under Article 13. Judicial Review refers that the Constitution is the supreme power of the nation and all laws are under its supremacy. In addition to article 13, articles 32, 226 and 227 provide a constitutional basis to judicial review in India.
About your latest post, “when the Supreme Court says that S. 66A be declared as unconstitutional, it means that the Court is declaring it as void,” that represents merely your unsupported contention/ opinion for which my question #10 above still holds good, which you have not replied so far with the support of any section of any law or the article of the Constitution of India.
Dr V. Nageswara Rao
(Expert) 12 April 2015
1.I referred to Neil Duxbury regarding the nature of function of a precedent as a common law concept.
2. I am sorry to point out that the Doctrine of Judicial Review is different from review of judgments by the higher judiciary. All the provisions you referred to In CPC and Art. 137 refer to review of judgments and not to the doctrine of judicial review. Supreme Court Rules also refer to review of judgments given by Supreme Court by that Court itself.
3. Even Art. 13 does not expressly say that doctrine of judicial review applies. That doctrine is the basic concept that applies to written federal Constitutions as held by Marbury vs. Madison. It is no where mentioned in the Constitution. That is the inherent power of the higher judiciary.
4. Please understand that you have to read a basic book on the doctrine of Judicial Review and the doctrine of precedent. Please understand this. You have to get over lot of conceptual confusion.
Anirudh
(Expert) 12 April 2015
As rightly stated by Mr.Kalaiselvan, a very useful discussion is taking place in this thread.
The clarity with which Dr. Rao is elucidating the legal nuances is quite amazing.
Even though Mr. Dhingra is not a lawyer, yet his probing mind/questions deserve to be appreciated (he will surely see the correct legal position which Dr. Rao is stating). I wish every law student is as probing and inquisitive as Mr. Dhingra is, which will help in knowing the clear concept.
Now, some of the points, I think I can answer.
1. Article 13 is concerned about the laws that existed prior to the introduction of the Constitution. Art.13 says that those laws which are inconsistent with the Fundamental rights enshrined in the Constitution would be void.
DOCTRINE OF ECLIPSE: In this situation the doctrine of eclipse applies. According to that doctrine, though the law existing in the statute book does not get erased, yet it is inoperable as it stood overshadowed by the fundamental rights contained in the Constitution. If any subsequent amendment to the Constitution removes the inconsistency or the conflict of the existing law with the fundamental rights, then the Eclipse vanishes and that particular law again becomes active again. It is to be understood that Art. 13 applies only to pre-constitutional laws and not to the post-constitutional laws.
2. The Judiciary has power to invalidate the entire Act, or a particular section or sections of the Act, or a particular part within a Section (applying the Doctrine of severability).
If any Act, Section or part of a Section is held invalid, then though the same would remain in the Statute book, it is inoperable. If anything has been already done in pursuance of the said Act, Section or part of that Section and such matter has attained finality, the same cannot be reversed (this is because, the persons affected did not agitate in time before the judiciary challenging the validity of the provision). However, if anything is still pending, then due to the declaration by the judiciary as invalid, the Act, Section, part of the Section cannot be invoked, and any action pending solely on the basis of invocation of that provision will abate.
I am sure the debate would continue and we will benefit from the elucidation by Dr.Rao,
Dr V. Nageswara Rao
(Expert) 12 April 2015
Art. 13, clause (1)says : " All laws in force in the territory of India immediately before the
commencement of this Constitution...." and deals with pre-Constitution laws and
Clause (2)says: "The State shall not make any law...") and deals with post-Constitution laws.
The power of the Supreme Court and of the High Courts to declare any law as unconstitutional and void is an inherent power of the Higher judiciary. The instruments and tools to be used for the purpose are given under Art. 32 for SC and Art. 226 for HCs read with Art. 13.
Guest
(Expert) 14 April 2015
Dear Dr Rao,
You very well know that I have not raised any dispute on the powers of the SC, but have raised questions on the authenticity of your assumption for retrospective effect of the SC judgment under any statute and the prescribed statutory process to amend the law, while you have tried to wrongly mix-up the functions of the judiciary and the executive every time.
However, your art of sidetracking the issues is quite interesting. You have been and even now are trying to sidetrack the main issue of the retrospective effect of the section 66A having been treated as void by the SC and also whether the judiciary has also to take over the role & functions of the executive to publish about amendment of the main law through Gazette Notification. Your first opinion/answer was neither supported by the judgment of the SC, itself, nor any statute of India.
But, one thing is clear that there is a strong ideological difference between both of us, as I believe in relying on the Constitution of India and the Indian Statutes patronized by the Constitution, while you try to rely only on the personal views and opinions of various private authors expressed in their books with attractive book titles, like, jurisprudence or doctrine, etc.
Every time you tried to evade from the main issue and tried to raise controversy by side tracking the main issue under discussion, but without support of the provisions contained in the Indian Constitution or the statutes made or patronized by that. From your unsupported opinions and views, every time some new questions of specific nature arose, but you never gave any answer with the support of the laws of the land. You have not replied any of my several questions with due support of the Constitutional provisions or the statutes made or being patronized by the Constitution of India. Instead of that you tried to side track the issue by expressing your personal opinion or the opinions of the book writers in the name of the jurisprudence, as if the jurisprudence written by private individuals only have the prime role by sidelining the Constitution of India or the official statutes.
You recommended about Neil Duxbury, who had even no remote concern with the Indian legal system under the Constitution of India. Can you please quote, if Professor Neil Duxbury had had even a single day’s experience in practicing law in UK, US, or India. I hope, you very well know that imparting theoretical teachings to students and practicing law are quite distinct from each other.
Even now you have raised another controversy by stating, “Doctrine of Judicial Review is different from review of judgments by the higher judiciary.” Since your views have raised curiosity in me to make myself aware of what are the points of distinction between the doctrine of judicial review and review of judgment by the higher judiciary, you may please like make the issue clear by answering following questions:
1) What is the official legal definition of judicial review and on what specific points that differs from review of judgments by higher judiciary?
2) What exactly falls within the purview of judicial review?
3) If review of judgments is made by higher judiciary, who is the prescribed Constitutional Authority to make judicial Review and what aspects are taken in to account for making a judicial review other than that required in review of judgments?
4) Does review of judgments is made by higher judiciary falls within the purview of non-judicial review?
5) How such judicial review is given effect to and notified amongst the legal community in specific and masses of India in general for making best use of such reviews by the Indian public?
BUT, PLEASE DON’T FORGET TO QUOTE the related Article of Constitution or the section of concerned statute to enable me to go through that for better understanding and to help me help in enhancing my knowledge.
Besides, you are requested to authenticate your answer about retrospective effect of the judgment on Sec. 66A with reference to the Constitution/statutes of India.
Hope, besides the satisfaction of the querist, you won’t mind to help me in enhancing my own knowledge by dint of your knowledge in jurisprudence or the doctrine of judicial review!
Anirudh
(Expert) 14 April 2015
Dear Mr. Dhingra,
I think you won't mind if I could answer the queries raised by you.
1.Whether the judiciary has also to take over the role & functions of the executive to publish about amendment of the main law through Gazette Notification.
Once the judiciary holds a particular provision as constitutionally invalid that is enough. The role of the judiciary does not extend further and it has no authority to publish any amendment in the official gazette - it is just because it is not making any amendment whatsoever - it is either upholding or invalidating the provision. Once any provision has been invalidated, then there is no requirement that the Govt. must take steps to erase the said provision from the statute book. But, having been invalidated, the said provision though may remain in the statute book, is inoperable.
2) What is the official legal definition of judicial review and on what specific points that differs from review of judgments by higher judiciary?
Judicial review relates to the review of the actions of the Executive - about its constitutional validity.
Review of judgments - relates to review of the decisions rendered by the courts themselves - Section 114 of the Civil Procedure Code provides for Review.
3) What exactly falls within the purview of judicial review?
As already pointed out herein above constitution is the supreme law of the land and any challenge is laid to the same as being inconsistent therewith would be examined by the High Court/Supreme Court, which is termed as judicial review.
4) If review of judgments is made by higher judiciary, who is the prescribed Constitutional Authority to make judicial Review and what aspects are taken in to account for making a judicial review other than that required in review of judgments?
There are some courts who have the powers to review their own orders/decisions (upon being pointed out of any inaccuracies therein). This comes under 'Review' (i.e 114 CPC) and not 'Judicial review'. If one is not satisfied with the outcome of the 'Review'orders, then he can approach the higher Forum through Appeal.
5) Does review of judgments is made by higher judiciary falls within the purview of non-judicial review?
As pointed out at serial no.4 above, the higher judiciary only sits in appeal over such review orders and not review the orders passed by lower judiciary.
6) How such judicial review is given effect to and notified amongst the legal community in specific and masses of India in general for making best use of such reviews by the Indian public?
From the above it can be seen that the review of a decision is confined to a particular case and has no application/impact to the masses.
Whereas, the decision of the judicial review - whether the provision is upheld or invalidated - will have impact to the entire country. The SC does not notify the validation or invalidation - but the legal fraternity keeps itself abreast of the happenings and developments.
prabhakar singh
(Expert) 14 April 2015
All judgments which declare the law, are retrospective in operation and take effect from the date on which the provision itself came into force.
If the court feels that this retrospectivity will result in inequitable consequences, the court has option to adopt the doctrine of prospective overruling, so that past judgments, which are affected by the new declaration of law are left undisturbed.
Guest
(Expert) 14 April 2015
Dear Anirudh,
I appreciate your venture to come forward in support of Dr Rao to salvage his position, who has not so far given reply to any of my queries with specific reference to the Constitution of India or the statutes there under. However, leaving aside other questions, when you have touched the issue in support of Dr. Rao, I hope, you would not hesitate to quote the relevant OFFICIAL definition (My Q.2) and name of the code book/legal document in which the definition or distinction is found with particular reference to that only the executive actions fall within the scope of judicial review but not the decision of the judiciary, itself. In fact, your reply about judicial review that "Judicial review relates to the review of the actions of the Executive - about its constitutional validity," also seems to be your personal view/opinion, as is not supported by any Constitutional /Statutory provision prescribed by any OFFICIAL document of the Government/ Supreme Court. If you kindly re-read my query, you will find that I asked for "OFFICIAL LEGAL definition of judicial review," but not the personal view/ opinion.
Further, your reply to my Q.#(4), I don't think your answer has touched the spirit of my question, "Does review of judgments made by higher judiciary falls within the purview of NON-judicial review?” I don’t think there is any need to emphasize much, as review can only be of two categories, (i) judicial review; or (ii) non-judicial review. So, would you kindly like to review your own reply with specific reference to my question and give some official version of the specific category of review under which the review of decisions of the judiciary falls, irrespective of whether reviewed by the deciding courts or higher courts?
Even, your contention, as reproduced below, seems to be of controversial nature with half truth:
“Once the judiciary holds a particular provision as constitutionally invalid that is enough. The role of the judiciary does not extend further and it has no authority to publish any amendment in the official gazette - it is just because it is not making any amendment whatsoever - it is either upholding or invalidating the provision. Once any provision has been invalidated, then there is no requirement that the Govt. must take steps to erase the said provision from the statute book. But, having been invalidated, the said provision though may remain in the statute book, is inoperable.”
At least, as against Dr. Rao’s contention, you have agreed that the judiciary’s functions do not extend beyond upholding or invalidating a provision. But the other part of your reply is not supported by any valid ground/ Constitutional or Statutory provisions. Particularly, “once the judiciary holds a particular provision as constitutionally invalid” that is NOT enough.” Any effect to the statutes has to be communicated appropriately to the ranks and files to be further communicated down below to reach the general public at large in the democratic set up through official channels. Otherwise the conflicting situation would remain intact to further make the task of the courts more complex to identify whether the un-amended statute is correct or not.
WE SHOULD NOT FORGET, TO ERR IS HUMAN, AND EVEN JUDGES ARE NOT IMMUNE FROM MAKING ERRORS. No lawyer or judge can be expected to keep the whole of the laws and amendments at his tips.
Dr V. Nageswara Rao
(Expert) 14 April 2015
Lawyers Club of India cannot be converted into LL.B. 1st year class to teach basic whatever be the provocation. No, chance.
Guest
(Expert) 14 April 2015
Dr. Rao,
Your response, "Lawyers Club of India cannot be converted into LL.B. 1st year class to teach basic whatever be the provocation. No, chance" is nothing, except a lame excuse, when you find no authentic answers based on statutes on my strategical questions. my questions arose only out of your own response to the query of the individual querist, as your response was merely your views not supported by any law of the land.
If you think all of my strategic questions as basic and you don't have answer even to a single one on your assumed basic, my contention proves true that you could so far rely only on the guide books of individuals rather than the Constitution of India and the law of the land.
For your kind information, I am NOT a student, as you assume. I have also made some contribution in US, UK and European Union laws, but I don't quote anywhere in the context of Indian law.
Anirudh
(Expert) 14 April 2015
Dear Mr. Dhingra,
It seems you are of the view that the decision of the SC is prospective and not retrospective.
Can you please indicate as to what is the basis for your view?
Guest
(Expert) 14 April 2015
Dear Shri Anirudh,
I shall reply your question provided you reply my questions first. I raised my questions first to be replied by Dr. Rao to which he never responded with some authentic version of his views. Since you entered in to the arena in his support and replied on his behalf, so I raised a few questions with reference to your own contentiosn, as the same were also not supported by any official legal document.
However, now if you contend that the SC judgment has retrospective effect that must also be based on some official version of law.
Anirudh
(Expert) 14 April 2015
Dear Mr.Dhingra,
We have answered you enough, but you refuse to accept. Dr.Rao has already told that there is nothing in the constitution about 'judicial review'.
When we pointed out the difference between 'judicial review' and 'review of decisions', you again refuse to accept but put an illogical question whether review of decisions come under non-judicial review.
If you are bent upon not accepting the answers, but would accept the answers only if it is based on particular provision in the Constitution or Statute, one is surely helpless. In fact, I am helpless how to convince you. Be sure, that what we have indicated to you is not our personal view/opinion. But that you will realise slowly and surely.
Therefore, now please indicate the basis of your view. (After knowing from you, I will surely give the basis for my answer).
Guest
(Expert) 30 April 2015
Still waiting for kind response of Dr.V Nageswara Rao on my queries to have the opportunity to enhance my knowledge by virtue of his teaching experience on law!
Dr V. Nageswara Rao
(Expert) 30 April 2015
Mr Dhingra:
1. The powers of the Higher judiciary of review of its own decision and revision of the lower Court's decision are not called Judicial Review.
2. Judicial Review operates at 4 levels:
(a) The higher judiciary can review the legality of an Executive decision in terms of the Act or Rule or Regulation under which the decision is taken.
(b)The Higher judiciary can strike down any rule or regulation made by the Executive under ant Act if it is ultra vires the Act,
(c) The Higher Judiciary can strike down any Act made by the Legislature if it is ultra views the Constitution.
(d) The Higher judiciary can strike down even a Constitutional amendment if it violates the "basic structure" of the Constitution.
Please go through Chandra Kumar's case decided by the Supreme Court which deals with all the questions raised by you.
Guest
(Expert) 03 May 2015
Dr. Rao,
Thanks for reverting back after 16 days, but still you preferred to use your theoretical concepts, rather than quoting any any Article of Constitution in support of your contention.
With your statement, "revision of the lower Court's decision are not called Judicial Review," the basic questions remains the same, (1) on the basis of which Article of the Constitution or Section of any Statute, the judgment about Sec. 66A would take effect from retrospective date; and (2) whether revision/review of court's decisions are called Non-Judicial Reviews, if these don't fall within the purview of Judicial Review and under which section of any Statute or the Article of the Constitution?
Moreover, by not giving full reference to Chandra Kumar's case, you have probably tried to test my knowledge, by still considering me a student (probably your own 1st year law student), even though I have already clarified that I am not a student. I don't know under what impression you have treated me a student, while my age can be guessed from my appearance in my pic.
Anyway, as you stated, "Judicial Review operates at 4 levels", can you be pleased to refer which specific para of the stated judgment (Chandra Kumar's case) discusses about the so called 4 levels of judicial review?
Although I have never disputed about Constitutional Powers of higher judiciary to review legality of an Executive decision; or Higher judiciary's power to strike down any rule or regulation made by the Executive; or the Higher Judiciary's power to strike down any Act made by the Legislature if it is ultra views the Constitution; or the Higher judiciary's pwer to strike down even a Constitutional amendment if it violates the "basic structure" of the Constitution, but since you have referred Chandra Kumar's case, that is why, I have asked you to quote the relevant para of the said judgment in support of your contention.
By virtue of your teaching experience, please be specific about the relevant sections of law or Articles of Constitution, instead of stressing upon theoretical concepts or perceptions of your own or of other individual authors.
Anirudh
(Expert) 03 May 2015
Dear Mr.Dhingra,
Please do not forget that my query to you 18 days ago is still pending.
Dr V. Nageswara Rao
(Expert) 04 May 2015
Mr Dhingra:
Out of consideration for your age, I have taken the trouble of explaining the concepts.
Obviously, you do not care to read a basic book on Constitutional Law like Seervai or Judicial Review and understand the concepts which are centuries old.
You still use a language unbecoming of a senior lawyer.
I do not wish to waste any more of my time on this.
Guest
(Expert) 04 May 2015
Dear Anirudh,
I fully remember about your query and I have reply also, which you will get. But, I wanted clear references of the constitutional provisions on the concepts of Dr. Rao, which so far have proved, merely theoretical concepts, not being supported by any Constitutional provisions.
Anirudh
(Expert) 04 May 2015
Dear Mr. Dhingra,
Thanks.
I would like to know your views, which you can give without waiting for further reply/clarification from Dr.Rao.
Guest
(Expert) 06 May 2015
Dear Shri Anirudh,
Since I was preoccupied in my own priority routines, thanks for your patience to bear with me.
However, since more and more controversies appear in Dr. Rao's replies each time, I would like to first reply his recent posts. After that you can expect to get appropriate response on some issues to the best of my knowledge.
Guest
(Expert) 06 May 2015
Dr Rao,
My questions were quite simple and straight with the purpose to know how far your concepts are based on Constitutional provisions. But, as usual, you did not prefer to give replies to those simple questions. Instead, you preferred to evade replies, while those were expected to be based on the provisions of the Constitution of India or any other statute. Instead of quoting totally incomplete and faulty references from the Articles of Constitution, even now you have asked me to read perceptions of individuals, as if you are advising your class students to read literature of such & such author.
Anyway, now since you have recommended “Seervai” or Judicial Review written by some other individual, you may also please make it convenient to indicate on which specific page of which of the three bulky volumes of “Seervai” or on which specific page of jurisprudence written by some specific author (with name), can find answers to my questions or to get your perceptions to be confirmed. If not preferred to make the references clear that evidently would indicate that you merely wanted to sidetrack the issue just to create confusions. If you did not have your own answer duly supported by law, you should not have tried to create puzzles by referring others.
I hope you very well know that all these books on jurisprudences are neither written officially by the Law Commission or collectively by the Members of Constitutional Bench or by any committee specially set up by the Government of India to write such jurisprudences to be followed by one and all compulsorily. These are written by individual authors, like me, and such books are merely guide books meant only to be taught to the law students, as you would have been teaching. You may be following the concepts of other such individual authors, but cannot compel me to unconvincingly follow those individual authors, as their concepts cannot be binding on me. I follow the real law of the land and I can think and analyse well what is what of law. None of them are or were super-humans to be followed blindly. They were just like me, who penned down their individual thoughts, but not any extra-constitutional authorities to be treated above the provisions of the Constitution, other statutes or the Honourable Supreme Court of Law.
ABOUT CHANDRA KUMAR's CASE: Even when you referred the Chandra Kumar's case, you have given totally incomplete reference of the case law even by omitting even the initials of the litigant shown in the judgment. That, itself, seems to be not only an evasive tactic to avoid reply to my questions, but also to waste my time by intentionally misleading me with faulty references, whereas, there was no compulsion for you to reply in case you were not sure about the answer to my questions. At least, you could have pointed out which judgment of the SC, dated 02.12.1994, or dated 18.03.1997, or the decision of the Division Bench, you recommended me for reference. I have gone through both the judgments, but could not find your perception to have been corroborated in any of the two judgments that Judicial Review operates at 4 levels or WHETHER OR NOT THE REVIEW OF JUDGMENTS falls within the purview of judicial review. However, if you think my eyes would have missed to notice any such of your averments in the judgments, you may kindly like to point out the specific paragraph of any of the two judgments, which may confirm your perception. Even the judgment, dated 18.03.1997, made clear, “ALL THESE MATTERS MAY NOW BE LISTED BEFORE A DIVISION BENCH TO ENABLE THEM TO BE DECIDED UPON THEIR INDIVIDUAL FACTS IN THE LIGHT OF THE OBSERVATIONS CONTAINED IN THIS JUDGMENT.” So, would you kindly make clear, what was the decision of the Division Bench and when pronounced (clear reference required)?
However, I hope, you would have noticed that the judgment pertained to the issue of set up of the Tribunals and its powers of review and on the constitutional validity of Sub-clause (d) of Clause (2) of Article 323A and Sub-clause (d) of Clause (3) of Article 323B of the Constitution. But even after the latest judgment, dated 18.03.1997, both the provisions still stand in the Constitution of India even after 18 years of judgment, seemingly without any amendment.
Since the Law Commission of India, through its Report No. 215 of December 2008, recommended, “to the Government of India to request the Hon’ble Supreme Court to reconsider L. Chandra Kumar’s case, would you please like to enlighten me what was the final outcome of the matter through any subsequent judgment of the SC, as would have been based on review petition by the Government of India?
In fact, you have been raising controversies time and again through your unsupported replies. For example, even now if you consider views of “SEERVAI” or other writers of Judicial Review or Jurisprudence, do you consider “Seervai” or other individuals to have been vested with extra-constitutional powers, over and above the provisions of the Constitution or the Powers of the Supreme Court to review and declare what is right or what is wrong of the Constitution or the other statutes?
I hope, now instead of creating any more controversy, you would like to base your reply only on specific provisions of the law, not on any individual’s perceptions. You would like to appreciate that it is not compulsory for me to follow some individual’s perception, if you follow that, when I also have my own perceptions, like you and other individual authors.
Guest
(Expert) 07 May 2015
Dear Shri Anirudh,
I wonder, at first Dr. Rao had resigned without replies on any of my specific strategical questions, but when he responded 3 days back, he again resorted to tactical sidetracking from the issues by unduly referring voluminous books containing personal concepts of individual authors, like a teacher asking his students to refer so & so volume, when he is unable to answer in definite terms.
Of course, he has also not fulfilled your cherished desire when you said “I am sure the debate would continue and we will benefit from the elucidation by Dr.Rao.” But, his no-response suggests as if he was not motivated even on your encouragement. Probably he did not like us to get benefitted by his long time academic experience till retirement from his employer university and thereafter by dint of his practice, as a lawyer. He did not also try to make your belief true, when you expected of me that I “will surely see the correct legal position which Dr. Rao is stating.” But regretfully, he again desired me to go through “Seervai” and jurisprudence of others, besides Chandra Kumar’s case with totally faulty reference. There are three volumes of Seervai’s book on Constitutional Law. There are several books on jurisprudence by individual authors to contain views of individual authors on multifarious aspects of law. My questions were quite simple and straight, which he did not prefer to reply in simple terms duly supported by law and preferred to take for a ride to suggest me to go through several volumes of different authors, as if he was advising his first year law students to buy so & so volumes of authors to start with their studies in law. It is not understood with what intention Dr. Rao preferred to quote a very faulty reference of the case of Chandra Kumar. He did not give an exact reference of the case law of Shri Chandra Kumar, when even two judgments of SC exist in the same case and the case still was pending for the final decision of the Division Bench, as the following text can be found in Para 101 of the Judgment, dated 18.03.1997:
“ALL THESE MATTERS MAY NOW BE LISTED BEFORE A DIVISION BENCH TO ENABLE THEM TO BE DECIDED UPON THEIR INDIVIDUAL FACTS IN THE LIGHT OF THE OBSERVATIONS CONTAINED IN THIS JUDGMENT.”
Even the 72 pages’ Report No. 215 of December 2008 of the Law Commission submitted to the then Law Minister of the Government of India reveals that the Commission recommended for making request to the Hon’ble Supreme Court to reconsider L. Chandra Kumar’s case, as the Law Commission felt that the judgment of the Hon’ble Supreme Court in L. Chandra Kumar’s case required “reconsideration by a larger Bench of the Supreme Court in the interest of the government servants, both Central and the State, to achieve the object of the Act, namely, speedy and less expensive justice.”
Sub-clause (d) of Clause (2) of Article 323A and Sub-clause (d) of Clause (3) of Article 323B of the Constitution were under cloud for the constitutional validity. But even after the latest judgment, dated 18.03.1997, both the provisions still stand in the Constitution of India even after 18 years of judgment, seemingly without any amendment since the year of inception (03.01.1977) of the clauses. The judgment pertained to the issue of set up of the Tribunals and its powers of review, but the Tribunals are still exercising the power of review under the aegis of the HCs or SC, even after 18 years of the judgment having considered the sub-clauses of the aforesaid Articles of the Constitution as unconstitutional.
The purpose of Dr. Rao is not understood, why he tried to mislead me, you and other readers, as neither any of the judgments of Chandra Kumar confirmed his own beliefs/ views, nor he referred any specific page of any specific book, where according to him, his concepts or replies to my questions could be found.
PROBABLY, DR. RAO STILL MISTAKES ME AS A FIRST YEAR LAW STUDENT on your articulation “I wish every law student is as probing and inquisitive as Mr. Dhingra is, which will help in knowing the clear concept.” Even my assurance/ clarification that I am not a student could not evoke any response from him till I reminded seven days ago. Although, I am not a student, but still, I was ready to get benefitted of his teaching based experience, like a student. But, alas! Even that plan did not materialize.
Anyway, both of us got deprived of his legal knowledge due to some misunderstandings or his deep involvement in further research or even with the intention not to accept your support!
ABOUT YOUR STATEMENT, “we have answered you enough,” although Dr. Rao and you tried your level best to clarify the issues, but none of the answers was based on the Constitution or other statutes of the land. Due to that reason only, additional supplementary questions used to arise out of replies of both of you.
I very well knew that there was no official legal term, like “JUDICIAL review”. It was not me, but Dr. Rao, who raised the issue of “judicial” review. But when question about distinction between “judicial” and “non-judicial” review arose, he preferred to resign or to sidetrack the issue very cleverly.
Even the terms, “JURISPRUDENCE” and “Doctrine of JUDICIAL Review” were referred only by Dr Rao, which I believe have no statutory base. Obviously, even if we prefer to call a review by judiciary, as “Judicial Review”, BUT in legal parlance, the Constitutional/ legal term is only the “review”, which is a process under which a court in certain circumstances can reconsider its own judgment, a retrospective survey of past actions, etc.
So, as against your contention, “Judicial review relates to the review of the actions of the Executive,” I may have to differ with you, as the term “judicial” review is not found in the Constitution of India and thus has no relevance merely about executive decisions. So far, I could not find any of the two terms, “JURISPRUDENCE” and “JUDICIAL REVIEW” in any of the statutes, as against the views of Dr. Rao. According to my belief, such attractive terms have been devised only by some individual academic researchers & writers for their works on analysis of contemporary laws and judgments just for the purpose of discussion within the classrooms of law colleges merely for teaching purposes or to some extent by the lawyers to follow the views of the individual writers.
Naturally, if judges start following assumptions and perceptions of such individuals available in such private books, like jurisprudence and judicial reviews, their own judgments would become prone to be influenced by just a few individuals, which is quite undesirable for the sake of natural justice. HOWEVER, IF YOU HAVE SO FAR SEEN ANY REFERENCE TO JURISPRUDENCE OR JUDICIAL REVIEW in any of Indian statute or even in any judgment, you may like to quote that to enable me to enhance my knowledge.
So far as your contention that “Article 13 is concerned about the laws that existed prior to the introduction of the Constitution,” that does not mean that the said article is stale and existed to be applicable only during the year 1950 or so after promulgation of the Constitution of India. It is still alive and its function never ends as every law has to be scrutinized under this very section. Of course, “doctrine of eclipse” applied on all the British Rule laws in force prior to enforcement of the Constitution of India, but that eclipse vanished, when the same Acts were used to be kept in force after promulgation of the Constitution of India. You very well know that “The Civil Procedure Code of 1908”, “the Indian Penal Code of 1886”, and “the Indian Evidence Act of 1872,” etc., are the prominent pre-independence laws that are still being used in the judicial system to decide the cases after a short spell of virtual (not real) eclipse after removal of inconsistencies in accordance with the provisions of the Constitution of India. Article 13(2) very clearly prescribes about its future implication, when it provides that, “the State SHALL NOT make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void.”
So, it was only on account of such ideological differences between me and Dr. Rao, I requested him to base his replies on the provisions of the Constitution or the related Statutes. But, instead of waiting for his replies, you preferred to come forward in support of Dr Rao’s contentions, which were not based on the provisions of either of the Constitution of India or any of the Statutes. But your replies were also short of the provision of the law of the land. For example, in your post, dated 14.04.2015, you stated, “Once any provision has been invalidated, then there is no requirement that the Govt. must take steps to erase the said provision from the statute book. But, having been invalidated, the said provision THOUGH MAY REMAIN IN THE STATUTE BOOK, is inoperable.”
I fully understand that you have much more understanding about the law of the land as compared to several of your contemporaries and I have great regard for you and your knowledge. But, here your aforesaid views did not also have any statutory base. If that be the state of affairs, as you stated, that can tend to raising of more confusions and even anarchy than equitable justice to all concerned and can also become the major cause of open conflict between the Judiciary and the Executive.
Hope you would like to appreciate that your stated position of law can –
(1) Tend to keep the affected part of law in orphan or crippled state that is never provided in the Constitution of India;
(2) Attract Contempt of Court leading to arrest of the dignitaries out of the Executive class, e.g., Secretaries of the Department of Legal Affairs and the Department of Justice or other concerned of the Ministry of Law for not taking any action in accordance with the judgment of the SC or not coming forward with duly passed legitimate constitutionally amended law in replacement of the existing controversial section of the statute;
(3) Cause an undesirable open conflict between the Executive and the Judiciary on account of different versions of the Executive and the Judiciary due to non-amendment of the statute in view of the SC judgment;
(4) Tend to cause mixed results of justice on the basis of the provisions available either in the main Statute or in the judgment of the SC, as every law man, including judges, cannot be expected to keep on finger tips the decision of the SC for very long. Needless to mention, a part of the section of lawyers and judges depend solely on the provisions of the statutes, while the other section prefers to depend more upon case laws; and
(5) Tend to cause unbelievable and unbearable workload on the courts through petitions for reopening of the Pandora box of already decided cases leading to causing confusion amongst the classes of the judiciary as well other lawmen.
Needless to overemphasize, the Executive and judiciary has to work in close coordination with each other. While the enactment or amendment of law falls within the jurisdiction of the Executive, to implement or review falls within the purview of the SC/HC and their subordinate courts. Any law cannot be kept in the form of an impaired, crippled or orphan law or a parallel/rival law separately on the part of both the Executive and the Judiciary. If on review any law is held unconstitutional by the SC/HC that becomes the liability of the Ministry of Law to take a due note of that. The Law Commission, Attorney General of India, and Solicitor General of India, the Ministry of Law and other specified authorities, being the parts of the Executive act as conduits to apprise the Parliament of India about the judgments and reviews made by the SC/HC to take necessary action to avoid any conflicting state of affairs between the Judiciary and the Executive. Even in Chandra Kumar case, as referred to by Dr. Rao, the Law Commission submitted its aforesaid report for consideration of the Ministry of Law for appropriate action.
Once a law is treated as constitutionally invalid that is a must for the Executive either to notify exactly, as per the decision of the SC/HC or get that reviewed & modified by an Act of the Parliament and notified through the Gazette of India for the awareness of one and all of the Indian Republic.
If you kindly refer the Allocation of business Rules of the Government of India, besides several other duties, the following are the prominent duties of the Legislative Department and the Department of Justice of the Ministry of Law:
1) The drafting of Bills, including the business of the Draftsmen in Select Committees, drafting and promulgation of Ordinances and Regulations; enactment of State Acts as President’s Acts, whenever required; scrutiny of Statutory Rules and Orders;
2) Administration of Justice; and
3) Access to Justice, Justice Delivery and Legal Reforms
So far as the judgment is concerned, as in paragraphs 95 & 96 thereof, that stipulates –
(1) Sec. 66A “must, therefore, BE HELD TO BE wholly unconstitutional and void.”
(2) “We therefore hold that no part of Section 66A is severable and the provision as a whole must BE declared unconstitutional.”
To the extent of my knowledge, I have already explained about the process of declaration (formal) and you have also agreed that “The SC does not notify the validation or invalidation”. So, as per the Allocation of Business of Rules, you can imagine very well, who is saddled with the responsibility of notifying the constitutional invalidity for the knowledge and use of all concerned.
Further, no part of the decision above contains the word “AB INITIO” or any specific date of effect of the decision. So also, you can imagine, the date of effect would be specified when formally declared through Gazette of India on passing of the necessary bill by both the Houses of the Parliament duly assented by the President of India to give due effect Section 66A in the statute. The due official/ legal formalities cannot be dispensed with in any case.
Plethora of review cases in the past judgments can arise due to non declaration of the date of effect of the judgment. Had the SC desired to give effect from the very initial date of insertion of the section 66A, the SC judgment would definitely have contained a single word, “AB INITIO” as added along with the verdict of treating the section as void. Evidently that word is missing only due to the fear of cropping up of a huge number of revision petitions or appeals
So, on thorough examination, the disputed Section 66A of the IT Act has to be brought before the Parliament of India by the Law Commission through the Minister of Law. Necessary amendment to the Act, either to delete the controversial section or in the shape of amended form will have to be brought for consideration before both the Houses of the Parliament through Draft Bills prepared by the Ministry of Law. If passed by both the Houses of Parliament and assented by the President of India only that has to be notified through the Gazette of India in whatever form that is enacted, i.e., deletion of the section or amendment there to, as the case may be.
Hope, at least now, you would like to agree with my views.
