Thursday, September 13, 2018

‘The Day Is Not Far Off When Every Judgment Can Be ‘Annulled’ By Governments’: SC (Read Judgment)

It is nothing but an attempt to nullify the judgment which the legislature cannot do, as we have a well-defined field of separation of powers of the judiciary, legislature and the executive.’
While setting aside Kerala Professional Colleges (Regularization of Admission in Medical Colleges) Ordinance 2017, the Supreme Court made scathing observations about the Kerala Government’s blatant attempt to nullify the judgment of the High court and the Supreme Court.
In case such a power of covering up illegal action is given to the State Government in individual cases of two colleges, the day is not far off when every judgment can be annulled, remarked Justice Arun Mishra observing that the State Government has exceeded its powers and has entrenched upon the field reserved for the judiciary.
The Judgments
Admission Supervisory Committee of the professional colleges found that admission of 180 students in the Kannur Medical College and Karuna Medical College were illegal. The decision was upheld by the High Court of Kerala. The Apex court, upholding the High court order, had further directed that the 30 students who were found eligible but were deprived of the admissions in Karuna Medical College, shall be adjusted in the next academic session i.e. 2017-18 and the corresponding number of seats shall be reduced for the said session for admissions.
The Ordinance
Pursuant to this judgment, the State promulgated Ordinance for regularizing the admission of 180 students who were illegally admitted in the Kannur Medical College and Karuna Medical College run by Prestige Educational Trust and Safe Development Alms Trust respectively.
The Challenge
Medical Council of India then challenged the validity of the ordinance before the Supreme Court contending that it was brought in to nullify judgments and orders of the Apex Court and encroaches upon the power of the judiciary.
State Cannot Sit Over The Judgment
In a 51 page judgment, the bench comprising of Justice Arun Mishra and Justice Indira Banerjee observed that effort has been made by the state to cover up the arbitrariness and illegality in an illegal and impermissible manner.
 “The provision of any existing law framed by legislation has not been changed by the State Government by the impugned Ordinance but illegalities found in the admissions were sought to be got rid of. What was laid down in the judgment for ensuring the fair procedure which was required to be followed was sought to be undone, it was nothing but the wholly impermissible act of the State Government of sitting over the judgment and it could not have promulgated the Ordinance setting at naught the effect of the judgment.”, the bench said.
The SC Order Was On Merits
The bench also rejected the submission made on behalf of the state that the Supreme Court order was not on merits. It said: “The SLPs. against the order passed by the High Court were also dismissed and this Court had directed that 30 students be admitted in the next session. Independent directions were issued which were not ordered by the High Court. This Court directed that they are to be admitted to the academic session 2017¬18. Thus, it does not lie in the mouth of the respondents to contend at all that it was not a decision on merits by this Court. Submission is startling and in the negation of stupendous effort made and time given by this Court while hearing the matters before deciding them by the aforesaid order.”
Implications Of Speaking Order Dismissing SLPs
The court also explained the implications of a speaking order refusing to grant leave to appeal giving reasons for refusing the grant of leave. The bench said: Firstly the statement of law contained in the order is a declaration of law by this Court within the meaning of 46 Article 141 of the Constitution; secondly, other than the declaration of law, whatever is stated in the order are the findings recorded by this Court which would bind the parties thereto and also the court, tribunal or authority.
The Court further said: “It is apparent from the order passed by this Court as well as by the High Court of Kerala that receiving online applications was mandatory and it was laid down in the judgment for ensuring the fair process of admissions, transparency as well as identities of the applicants. The condition was the outcome of the judgment on the power of judicial review passed by the Kerala High Court and affirmed by this Court also. Thus, the very same judgment is sought to be nullified by the impugned Ordinance by making a provision to the contrary. Admissions as per the Ordinance are to be regularised dehors the mode of submitting the applications. It is not removing the defect in any existing law. The Ordinance has clearly annulled a judgment of Court which was laid down in order to ensure fair procedure.”
Other observations
The judgment also refers to various decisions and makes the following observations on the issue of bringing in legislations related to a judgment rendered by Constitutional courts. The bench observed:
  • The rule of law would be meaningless as it would be open to the State Government to defy the law and yet get away with it.
  • The legislature can make a law retrospectively which may alter the law as it stood when a decision was arrived at. It is in this limited sphere, the legislature may alter the very basis of an earlier decision given by the court. It cannot directly annul that final judgment by a subsequent legislation. If its purpose is to annul a final judgment, such act of legislature must be declared to be unconstitutional.
  • The legislature has the power to legislate including the power to retrospectively amend the laws and thereby removing causes of ineffectiveness or invalidity. Further, when such correction is made, the purpose behind the same is not to overrule the decision of the court or encroach upon the judicial turf, but simply enact a fresh law with retrospective effect to alter the foundation and meaning of the legislation and to remove the base on which the judgment is founded.
  • Judicial pronouncement, either declaratory or conferring rights on the citizens cannot be set at naught by a subsequent legislative act. However, the legislature shall 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 by amending the law.
  • It is open to the Legislature within certain limits to amend the provisions of an Act retrospectively and to declare what the law shall be deemed to have been, but it is not open to the legislature to say that the interpretation of the law shall be otherwise than as declared by the Court.

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