You can pass any number of orders but Parliament can overturn it: Attorney General KK Venugopal tells SC

The Parliament is empowered to enact laws overturning Supreme Court judgments, the Central government through Attorney General KK Venugopal told the top court on Thursday.

The submission came on a plea by Madras Bar Association challenging Sections 12 and 13 of the Tribunal Reforms (Rationalisation and Conditions of Service) Ordinance, 2021 (Ordinance) and Sections 184 and 186(2) of the Finance Act, 2017 as amended by the Ordinance.

One of the moot point of the hearing was whether the retrospective effect given to Section 184(11) of Finance Act would override the judgments of the Supreme Court.

Justice Hemant Gupta, who was on the Bench, asked Central government, "If you are enacting legislation then are you not nullifying the judgment of this court?"

"I am sorry to say but Your Lordships can pass any number of orders but the Parliament can say it is not in interest of the country and enact a law," replied Venugopal, as per a report carried by Bar & Bench.

Justice Ravindra Bhat, however, said the Parliament cannot decide which order passed by the Court should be implemented and which need not be.

"If you say that Parliament takes a call through standing committees and courts cannot strike down a law then we go to the pre-Marbury days. Sometimes we read down a law or uphold it or strike it down. Each wing is interpreting the Constitution. If the court says that law is violative of the Constitution then it is. But when you say when Parliament says which is an implementable order etc are you saying they will call which is a valid law. Frankly I don't think so," he said.

Justice L Nageswara Rao also voiced similar concerns stating that the Central government losing a case cannot be a subject matter of legislation.

"How is it you have knocked down the basis of our order? Union of India losing a case will become a subject matter of legislation. Then this will become the order of the day," observed Justice Rao.

Senior Advocate Datar pointed out that his association with the petitioner, Madras Bar Association started this battle (to safeguard independence of Tribunals) in 1986 and it has been 36 years and that he is "still fighting for the association".

"A widow of an armed force officer does not care about US Court's Marbury principle, she wants justice from the tribunal in 12 to 18 months. Why this confrontation?" said Datar.

The Court eventually proceeded to reserve its verdict.

In its plea before the Supreme Court, the Madras Bar Association submitted that the challenged provisions are in "contravention of the

principles of separation of powers, independence of the judiciary (both being part of the basic structure of our Constitution), and are against efficient and effective administration of justice".

Datar, representing the petitioner, argued that Section 184 of the Finance Act, 2017 contravenes the previous decision of the Supreme Court in Union of India v R. Gandhi [(2010) 11 SCC 1], Madras Bar Association v Union of India, [(2014) 10 SCC 1], Rojer Mathew v South Indian Bank Ltd, [(2020) 6 SCC 1] and Madras Bar Association v Union of India (2020).

After the 2020 judgment of the Supreme Court in Madras Bar Association case, the ordinance was promulgated in April 2021, whereby nine central legislations were amended, thereby abolishing four tribunals.

With respect to Finance Act, 2017, Section 12 of the ordinance substituted Section 184, Section 13 of the ordinance inserted Section 186(2) and the Eighth Schedule was amended so as to omit the aforesaid four tribunals and to substitute the item relating to the National Consumer Disputes Redressal Commission.

"In the 2010 judgment, Justice Raveendran had said lets not make tribunals a haven for retired people. Then Justice Deepak Gupta had said ‘bring in younger people’. Advocate who has finished 15 years and at 45, why cannot they come? If the ultimate aim to bring good people to the tribunals, 50 age limit would act in detriment. If I am a 50 year old lawyer and a family man, how will I join a tribunal, where my future and housing is not assured. Kindly declare the ordinance as unconstitutional and by the doctrine of severability nothing survives and ordinance has to go and is only a defiance of the judgment of this court," argued Datar.