The Nature of Judicial Power: V. Niranjan

There are always those who you emulate. If V. Niranjan had not written as copiously as he has already written, there would never have been a need for the last word. New Year is all about hope. And I hope to meet you on the Bench.

Here is what he wrote in 2006 as a 2nd Year Law Student.

He argued that “an amending body is competent to render Judgments of Courts void by making the laws on which they were based retrospectively non-applicable” and “relied principally on the Doctrine of Separation of Powers, and examined the opinions in Indira Gandhi v. Raj Narain to that end”.[1]


Art. 329A (4) provided that no law relating the election of the PM or the Speaker, enacted before the 39th Amendment shall be deemed ever to have applied to the election of a PM or Speaker, and that such election ‘shall not be deemed void’ or ‘ever to have become void’ and any finding to that effect by any Court at any time was ‘void’ and had ‘no effect’.

The argument that the declaration in Clause (4) was actually an exercise of ‘judicial’ and not ‘constituent power’, as required by Art. 368,[2] was accepted by Ray CJ, and Mathew and Beg JJ. Khanna J. declined to decide the question and Chandrachud J. rejected the contention.

Before analyzing this issue, it is interesting to note an argument as to the nature of constituent power. It was argued that “the power of amendment under Art. 368 is the very original power of the people which is ‘unbroken’ into the legislative and the executive and the judicial”,[3] and is unlimited. This is clearly misconceived, since the term ‘constituent power’ in Art. 368 merely connotes that the power to amend a rigid Constitution is subject to at least the procedure prescribed therein.[4] It is not the power to frame a Constitution and is a derivative power.[5]


Three arguments support the contention that the amending body can retrospectively make laws non-applicable and Judgments void.

  • Declaring a Judgment void constitutes a judicial function, and requires the judicial process.
  • However, it is permissible under current law to retrospectively remove the applicability of the law under which the Judgments were based, thereby making them non est. Voidness does not stem from the declaration but from the retrospective non-applicability of laws.
  • Such an action is consistent with the separation of powers and is democratic.
  1. Was Art. 329A an exercise of judicial power?

1.1. Opinion of Mathew J. – The Principle

Mathew J. held that a Judgment or Sentence is the exercise of judicial power and not law, as it lacks the generality of law. Further, while the amending body can exercise judicial power, it must do so by the adjudicative process and follow the principles of natural justice. The amending body then has to ascertain the facts of the case. A contested election cannot be validated without an authority applying the new law. Further, adjudicative facts of an election dispute can only be gathered by the judicial process.

1.2. Opinions of Mathew and Chandrachud JJ. – Application of the Principle

Mathew J. compared Art. 329(4A) to a Bill of Attainder, and termed it a legislative Judgment.[6] Mathew J. accepted the Privy Council’s opinion in Liyanage v. R,[7] and held “I cannot regard the resolution of an election dispute by the amending body as law”. It is submitted that Mathew J. made two errors:

  • First, the decision in Liyanage, on closer examination is actually inapplicable. The Privy Council held, “the true nature and purpose of these enactments are revealed by their conjoint impact on the specific proceedings in respect of which they were designed, and they take their colour, in particular, from the alterations they purported to make as to their ultimate objective”. This is an inappropriate test to apply. It is well-settled that motive is irrelevant even to a statute in exercise of legislative power.[8] Also, if an amendment purports to be general, it cannot be assumed to be specific and hence colorable, since the presumption of constitutionality and competence extended to a statute[9] applies with even more force to a constitutional amendment.
  • Secondly, Art. 329A(4) does not purport to resolve ‘an election dispute’. It purports to and retrospectively removes the basis on which any election of a PM or Speaker has been challenged, of which the appellant’s was one. Hence, the amendment does not lack generality.[10]

Thus, an act of a legislature, akin to Art. 329(A4), which removes the basis of a Judgment, does not represent the exercise of judicial power.[11]

 1.3. Does the declaration constitute a judicial function?

The last part of Clause (4) declared that any such Judgment shall be deemed void, which is normally a judicial function.[12] However, the question is whether a Judgment is automatically void and non est because the law which applied is retrospectively repealed, or whether a Court has to apply the new law and declare the earlier Judgment void.

A legal fiction must be carried to its logical conclusion, and the ‘imagination must not boggle at the consequences’.[13] Art. 329A creates a fiction that no election law ever applied to the election of a PM/Speaker. The logical consequence of this fiction is that a Judgment could not have been delivered under that law, since the law is deemed never to have existed in the eyes of law. Hence, the Judgment is non est. The omission of the declaration of voidness would not have altered the status of the Judgments, which would have been void anyway.[14]

However, it may be argued that due weight must be attached to the fact that the law existed at the time the decision was given.[15] As to this, while it is true that the law did exist, it is deemed never to have existed and a fiction is created to that effect, which overrides the fact of existence. Secondly, when the legislature specifically seeks to change, with retrospective effect, the position of law, effect must be given to that intention, subject to the Doctrine of Basic Structure.

  1. Separation of powers and democracy

India only adopts a functional separation of powers. The principle as applied in America is irrelevant to Indian jurisprudence.[16] Even with such a functional separation, the power to remove the basis of a Judgment clearly rests with the legislative body. “The legislative function is broadly the function of framing general rules applicable to a potentially unlimited range of circumstances.”[17] Prescribing the law applicable or making it inapplicable clearly belongs to the function of framing ‘general rules’. Retrospective application of law is a settled principle of constitutional law, and in Kanta Kathuria v. Manak Chand Surana,[18] it was held that the retrospective non-applicability of a law renders the Judgment ineffective.

Further, it is not as though conceding this power to the legislature has disturbing implications for democracy – since an arbitrary or egregious exercise of this power will violate principles of rule of law, equality or democracy, all part of the Basic Structure of the Constitution. On the other hand, by not conceding this power, the Court, to quote Brennan J. “arrogates to the judiciary an authority committed by the Constitution exclusively to the [legislature].”[19] Changing the basis of a Judgment is committed by the Constitution exclusively to the legislature, not the Courts, and Chandrachud J. respects this.


In sum, it is evident that the power to remove the basis of Judgments by making the laws under which they were delivered retrospectively inapplicable vests exclusively with the legislative and amending body.

[1] Indira Gandhi v. Raj Narain, 1975 (Supp) SCC 1.

[2] Supra Note 1, Para. 662.

[3] Supra Note 1, Para, 521.

[4] Per Ray J in Kesavananda v. State of Kerala, AIR 1973 SC 1461. In an apparent contradiction, Ray CJ in Indira accepted the in principle that the constituent power is unlimited.

[5] H.M.SEERVAI, Constitutional Law of India Vol. III 3120 (4th edn., Bombay: N. M. Tripathi Pvt. Ltd, 1996).

[6] Supra Note 1, Para. 299.

[7] Liyanage v. R, [1966] 2 W.L.R. 682.

[8] A.K. Roy v. Union, (1982) 1 SCC 271.

[9] R. K. Dalmia v. Justice S.R. Tendolkar, AIR 1958 SC 538.

[10] Chandrachud J. offers a convincing analogy – Is there any bar on the Constitution being amended to declare wagering contracts void, or to prescribe a higher penalty for economic offenders? There is none, just as there is no bar on prescribing that no law before 1975 ever applied to an election.

[11] Janapada Sabha, Chhindwara v. The Central Provinces Syndicate Ltd., (1970) 1 SCC 509.

[12] Per Khanna J., Supra Note 1.

[13] Supra Note 1, Para. 517; Gurupad v. Hirabai, (1978) 3 SCC 383; East End Dwellings Co. Ltd. v. Finsbury Borough Council [1951] 2 All ER 587.

[14] Per Khanna J, Supra Note 1, Para. 193.

[15] For example, if tax is wrongly levied and paid, the owner of the revenue is still the department. The revenue is later refunded, and the second transaction is not void. See, C. Forsyth, “The Metaphysic of Nullity- Invalidity, Conceptual Reasoning and the Rule of Law” in C. Forsyth and I. Hare, The Golden Metwand and the Crooked Cord: Essays on Public Law in Honour of Sir William Wade QC 160 (Oxford: Clarendon Press, 2001).

[16] In Re Delhi Laws Act, [1951] 2 SCR 747; Jayantilal Amritlal Sodhan v. F.N. Rana, AIR 1964 SC 648; Chandra Mohan v. UP, [1967] 1 SCR 77; Udai Ram Sharma v. Union, [1968] 3 SCR 41.

[17] E. Barendt, “Separation of Powers and Constitutional Government”, P.L. 1995 WIN 599.

[18] Kanta Kathuria v. Manak Chand Surana, [1970] 2 SCR 835.

[19] US v. Brewster, 33 L. Ed. 2d 507.