Rakesh Bhatnagar: Judge judges without malice

If judicial overreach has been felt as an anathema to well-intentioned governance, enactment of a law or promulgating an ordinance to subvert the effects of a judicial pronouncement is no less a fatal fallacy by the legislature.

In this miasmic atmosphere where personal and political relationships are as much contaminated as the governance across the board, there’re all the plausible reasons for a government to overturn the legislative acts of the rival rule. No wonder then, there have been attempts made by the different states to treat the judicial rulings on par with the adverse political actions.

Can a judgment be made to succumb to an enactment by a legislative assembly whose intentions can’t b be questioned on the ground of malice or ill intention. There is a law in place saying legislative intent can’t be put to a judicial scrutiny, except where a law or an executive order violates any of the fundamental rights such right to equality, life and liberty, profession and free speech and expression.

There are certain remarkable judgments in the past – recalled in the Tamil Nadu school syllabus case verdict last week – that cover what’s going on in the country.

Bringing in a legislation in order to nullify a court judgment would amount to trenching upon the judicial power. No legislation is permissible which is meant to set aside the result of the mandamus issued by a court even though the amending law may not mention such an objection. “The rights embodied in a judgment could not be taken away by the legislature indirectly,” it has been ruled.

Seeing the case law on the power to enact a law by the legislature and judiciary’s power to assess its validity are interconnected.

The only time when the top court used the blindfolds was when the Emergency was imposed in 1975 and the Indira Gandhi government snapped the fundamental rights with one stroke of her. Judges nodded to this grave injustice, but some of them later regretted having become a party to a patently wrong decision.

Much water has flown in the river since then. Judges only represent an institution. There’s an age of retirement for them, unless politicians. They shouldn’t be accused of malice against the governance.