The Doctrine of Separation of Powers II

The Kerala Revocation of Arbitration Clauses and Reopening of Awards Act, 1998 (‘State Act’) was reserved for consideration of President of India and Presidential assent has been obtained. Recently, G. Mohan Rao v. State of Tamil Nadu, 2021 SCC OnLine SC 440 has observed, whole exercise of pointing out any repugnancy, after receiving assent of President, is otiose. In view of Presidential assent under Article 254(2), State Act would prevail within State of Kerala.

However, State Act interferes with judicial functions and is violative of Doctrine of Separation of Powers. State Act is liable to be declared unconstitutional on this count. A law, enacted by Legislature, may apparently seem to be within its competence. But, in substance, if shown as an attempt to interfere with judicial process, such law may be invalidated being in breach of Doctrine of Separation of Powers.

Hon’ble Justice B.R. Gavai, Government of Kerala v. James Varghese, [Civil Appeal No. 6258 of 2014].