What is Doctrine of Abrogation? - Views of the Supreme Court

 

Recently, the Hon’ble Supreme Court passed a very interesting judgment in the case of NHPC Ltd. v. State of Himachal Pradesh and Others, 2023 SCC OnLine SC 1137.

 

The Court discussed many important constitutional and legal principles to understand the extent of power that the legislature enjoys while nullifying or bypassing or overcoming a judicial decision.

 

Suppose there is a law that imposes a tax, and such tax has been levied upon certain individuals. Now, those individuals decide to challenge the validity of that taxation law and the Court passes a judgment holding such taxation law to be invalid. Thereafter the legislature frames a new law with retrospective effect validating the imposition of tax on those individuals. Is such a law valid? Can it be said that the legislature has framed a new law merely to bypass the effects of the judgment that had held the earlier law to be invalid? Just because the legislature has the power to frame laws, does it mean that it can overrule the judicial decisions by exercising such power? Those were the questions that were answered by the Court in the present case.

 

We know that the legislature has the power to frame laws with retrospective effect. However, such power of the legislature is not unbridled and must be exercised in a reasonable manner. In the present case, the Court was not concerned with the power of the legislature to frame laws with retrospective effect. Let us assume that the legislature has framed the law with retrospective effect in a just and proper manner. If that is the case, can it overrule a decision of the Court?

 

Here we need to understand the difference between encroachment on the judicial power and nullification of the effect of a judicial decision [Tirath Ram Rajendra Nath, Lucknow v. State of Uttar Pradesh, (1973) 3 SCC 585]. And this is what the Doctrine of Abrogation is all about.

 

Basically, the Doctrine of Abrogation seems to be a confluence of the following constitutional doctrines and principles: -

 

1. Separation of Power – It provides for division of power and functions between legislature, executive and the judiciary, which are three co-equal organs of the State. The legislature has the power to enact laws within the powers set out in Article 245, Article 246, Schedule VII and other allied provisions of the Constitution of India. This power also includes power to enact laws with retrospective effect within permissible limits. Whereas the job of the judiciary is to adjudicate upon the rights of the parties provided under different laws made by the legislature and the Constitution.

 

2. Checks and Balances – This is an offshoot of the Doctrine of Separation of Power that postulates that each organ of the state has some power to regulate the function of others. Here the role of the judiciary is to check and balance any unconstitutional or arbitrary exercise of power by either the legislature or the executive.

 

3. Judicial Review – Though it has been characterized as a separate doctrine in itself but in essence, it too is an offshoot of the Doctrine of Separation of Powers and the Principle of Rule of Law. As stated before, it checks and balances the actions of the legislature and the executive.

 

4. Rule of Law – Experts have written treatises on this legal principle, and it would be a sheer travesty to constrict this principle into few words. Be that as it may, in essence, it simply denotes that law reigns supreme and nobody is above it. What is law is again a matter of perennial debate but let us not get into it and simply understand it as a valid rule that follows certain elementary principles.

 

5. Legislative Competence – A law made by a legislature is valid only when that legislature has sufficient power that could be traced to relevant constitutional entries. Again, this principle is an offshoot of the Principle of Rule of Law and Doctrine of Separation of Powers. The point is that no exercise of power should be arbitrary or unreasonable.

 

Now, coming back to the Doctrine of Abrogation, it is a tool of limited utility in the hands of the Court that is used when there is a law that purportedly seems to nullify the effects of an earlier judicial decision. The Courts try to understand whether the legislature has nullified the effects of a judicial decision in a proper manner or not, or in the name of framing of a law, the legislature seeks to overrule a judicial decision.

 

Essentially, the Doctrine of Abrogation outlines the power of the legislature to validate an otherwise invalid law. It is interesting to note that the power to validate an otherwise invalid law is vested only with the legislature and not the judiciary. However, the judiciary can use this doctrine as a tool to understand whether such validation by the legislature encroaches upon the power of the judiciary to overrule its decision. Just in the way that an invalid law can only be validated by the legislature, in the same manner, the judiciary also has the power to overrule its own decisions. Nevertheless, the power to overrule or the power to validate an invalid law is not an unguided power. So, let us now understand the principles that need to be followed by the legislature while validating an otherwise invalid law or a law that has been expressly declared as invalid by the judiciary.

 

First and foremost, the legislature making the law must be competent to make that law. If there is no legislative competence, then on that count alone, any validation of an invalid law would be illegal and struck down.

 

Secondly, if there is legislative competence, then the Courts see whether the validation is in form of a mere declaration, or in the process of validation, the legislature has changed or altered the conditions in which the Court had earlier struck down that law. If the conditions are changed fundamentally, then the abrogation of judicial decision by a subsequent law would be treated as just and proper.

 

Thirdly, the Courts also need to see that while validating the invalid law, whether the legislature has made the earlier judicial decision ineffective by removing the basis on which the decision was rendered. If such removal of basis is constitutionally sound, then also the abrogation of judicial decision by a subsequent law would be treated as just and proper.

 

Fourthly, the legislature cannot directly, by enacting a law, pronounce a judicial decision as erroneous or a nullity. If that is the case, then it cannot be said that the abrogation of judicial decision is proper as it would be simply statutory overruling of a judicial decision that is anyways impermissible since it would be a violation of Doctrine of Separation of Power, Rule of Law and Judicial Review.

 

Fifthly, if the legislature seeks to invalidate an invalid law retrospectively, then the principles governing the law of retrospectivity must be meticulously adhered to and the purpose should be to rectify the defect in law so as to provide a curative and neutralizing effect. “In this manner, the earlier decision of the court becomes nonexistent and unenforceable for interpretation of the new legislation. No doubt, the new legislation can be tested and challenged on its own merits and on the question whether the legislature possesses the competence to legislate on the subject matter in question, but not on the ground of over-reach or colourable legislation.” [State of Tamil Nadu v. Arooran Sugars Ltd., (1997) 1 SCC 326]

 

Sixthly, a judicial decision is always considered to be binding “unless the conditions on which it is based are so fundamentally altered that the decision could not have been given in the altered circumstances.” [Shri Prithvi Cotton Mills Ltd. v. Broach Borough Municipality, (1969) 2 SCC 283]

 

Seventhly, even if there is legislative competence and even if the basis of the earlier judicial decision has been removed, yet if the new law is violative of Part III or any other provision of the Constitution, then also such law would be invalid. [Bakhtawar Trust v. M.D. Narayan, (2003) 5 SCC 298]

 

Eighthly, abrogation of a judicial decision is nothing but legislative override, and such override cannot nullify a mandamus. For example, interim directions passed by the Court cannot be reversed by a legislative veto. [In Re Cauvery Water Disputes Tribunal, 1993 Supp (1) SCC 96 (2)]

 

Ninthly, specific directions/mandamus by the Court applicable inter se the parties cannot be nullified by a subsequent legislation. Suppose the Court has pronounced that Person X should be removed from a post because his manner of appointment was declared as illegal as per the then prevailing law. The legislature and the executive cannot simply ignore such judicial decision by framing a new law/guideline that retrospectively changes the conditions necessary for making an appointment. [Dr. Jaya Thakur v. Union of India, 2023 SCC OnLine SC 813]

 

Tenthly, any such retrospective amendment or framing of a law should be reasonable and not arbitrary. Unless the vice in the earlier legislation is removed, it would be held as transgression of constitutional limitations and intrusion into judicial power by the legislature by a legislative fiat.

 

Eleventhly, the legislature must be “under the bonafide belief that a defect that crept into the legislation as it initially stood, may be remedied by abrogation. An act of abrogation is permissible only in the interests of justice, effectiveness and good governance, and not to serve the oblique agenda of defying a court's order, or stripping it of its binding nature.”

 

I would end this article with a quote of Lon L. Fuller in his famous work, The Morality of Law (1960), cited by the Court while beginning its discussion on the Doctrine of Abrogation: -

 

“It is when things go wrong that the retroactive validating statute often becomes indispensable as a curative measure; though the proper movement of law is forward in time, we sometimes have to stop and turn about and pick up the pieces.”