Parliament entitled to override SC judgments: AG Venugopal

NEW DELHI: The Supreme Court on Thursday saw an interesting debate on the power of the legislature to pass laws to override judgements of the apex court, which saw this as undesirable -- a view opposed by the government’s top law officer . The discussion came in a case related to the appointment of members of tribunals, and that it was about a larger issue than just the case at hand was made further clear when Attorney General KK Venugopal submitted a note to the court that said that unless there is violation of fundamental rights or any constitutional provision is violated, courts should not interfere in matters that fall within the executive policymaking domain. He pointed out that Parliament in its wisdom enacts a law after broad consultation among standing committees and expert groups to decide what is in public interest.

The bench told Centre, “this is not a game of numbers” reminding the AG that just because Parliament has standing committees, it cannot be a ground to prevent Courts from striking down a law.

The exchange comes in the context of the Supreme Court saying last week (in an order on the government’s management of Covid-19) that the Constitution does not see courts as being spectators when the rights of citizens are affected by executive policies -- a response to the governments submission in an affidavit that the “wisdom of the executive should be trusted”.

Experts said that given the context of what has been happening -- earlier this week, the court termed the government’s vaccine policy for the 18-45 years age group arbitrary and sought to understand the logic behind it -such exchanges may continue.

The case in question was a petition challenging the validity of a Central Ordinance prescribing tenure, age of retirement and conditions of service of members of Tribunals under the Tribunals Reforms (Rationalization and Conditions of Service) Ordinance, 2021. The ordinance reduced the tenure of chairpersons and members of tribunals to four years instead of the five. Another bone of contention was how the ordinance retrospectively dealt with heads and members of tribunals appointed prior to its passing on April 4.

Parliament also went against orders of the Court which allowed lawyers with 10 years of experience to become members of tribunals and said only those over 50 could become members of chairpersons, defeating the intention of the SC to infuse fresh talent. There were other areas of challenge to the ordinance raised in the petition filed by Madras Bar Association. The amicus curiae and senior advocate Arvind Datar summed up the petition and said the executive order was a clear attempt to “override” the Court.

Responding to this, Venugopal said SC’s decisions were not based on any existing law. His argument was that if courts found that five years was a reasonable tenure, then Parliament was well within its rights to decide that four years was better.

The bench of Justices L Nageswara Rao, Hemant Gupta and S Ravindra Bhat did not agree. “This Court has struck down the rules relating to the tenure of four years, sending a panel of 2 to 3 candidates per post in the past. If you are bringing them again and again are you not overruling the judgment by way of legislation?”

Venugopal said that it was not correct “to proceed on the basis that Parliament is helpless and has to accept Supreme Court judgments.” “Courts can pass any number of judgments. The Parliament can always say that we will not accept it because it is not in the interest of people…. Parliament is entitled to override the judgment of the Supreme Court, within the contours of what is permitted,” he said.

The bench reserved judgment on the petition challenging the ordinance.

KK Venugopal