PMLA IsvAn Instrument Of Oppression Being Used To Terrorize People SR Adv Kapil Sibal

In an interview with veteran journalist Nidhi Razdan, Senior Advocate and Rajya Sabha MP Kapil Sibal recently said the Prevention of Money Laundering Act (PMLA) is being used as an instrument of oppression by the government. “The PMLA is an instrument of oppression. It's as simple as that. It's an instrument by which you terrorize people,” he said. 

When Razdan pointed out that the Prevention of Money Laundering Act, 2002 was brought into force during the Congress Rule when he was part of the party, Sibal replied that the laws were not brought about with the intention of misusing them.

“We may have brought in PMLA but we never knew that the PMLA could be used in this fashion and we never used it in that fashion. All laws are fine, it's only the misuse of the laws that leads to this”.

He lamented how the PMLA is constantly being misused by the government to go after opposition leaders.

“Laws do not represent what we call justice. Justice comes through the court system. Laws are misused to destroy, to settle scores, to send a message. You know the PMLA is being used against the opposition leaders. Justice only comes when the court stands up and says you can't just do this. All this is now happening at the time of elections. In Chhattisgarh, in Jharkhand, in Rajasthan, in West Bengal, in Telangana, in Orissa, you name it. Every state where there's the opposition, you're having the same kind of problems,” he said.

"What world are we living in? and we call ourselves the mother of democracy?” he exclaimed.

Speaking on the rise of incidents of violence and hate speech and religious disharmony in the Country, Sibal said, "I can't think of another democratic country where this happens, boys in the class are asked to slap a young boy because of his religion. What has happened to that? Nothing has happened. Somebody is driving a car and runs over people, he gets bail. People are asked on the street to say Jai Shri Ram otherwise we'll beat you up. Which court has taken cognizance of it? If Justice Bhagwati were here, he would have taken suo motu cognisance of it. What are we doing to our country? And for what?”.

When Razdan pointed out that despite directions of the Supreme Court to curb hate speech, it is still rampant, Sibal responded “people defy the Supreme Court. They say we don’t care. If liberty dies in the hearts of men and women, no constitution, no courts, no law can save it. That’s what is happening.”

“Liberty is dead in India. No Constitution, no law, no court can save it because it is dead in the hearts of men and women in India including the courts,” he categorically stated in the interview. 

When asked about whether courts are doing enough to protect civil liberties, Sibal answered “the problem is that in an environment of this nature, the court also goes along with the tide. But some judges are extraordinary, they do whatever they can.”

When asked about the recent rulings of the Supreme Court that have upheld and strengthened provisions of the PMLA and the UAPA, Sibal said “we talk about the rule of law, which is fundamental to democracy. But in fact in this country, there is only rule and there is no law”

Sibal expressed grave concern about the state of affairs in the country and the misuse of these statutes:

“'I'm very concerned and I'm speaking out today. Because today the situation in our country is anybody can be arrested at any time and the courts will not give you bail. Where are we going as a nation? How many times can you fight? Some people don't have the wherewithal to pay lawyers. Some of them are very poor and they suffer. In this state of affairs, what do you do as a lawyer? I ask myself this question quite frankly. Honestly I tell you, I know which court I go to and what's going to happen. Because every judge has a different mindset, some judges are liberal some judges won't listen to us. That's the way it is.”

Razdan also asked Sibal about the recent News Click case where the Chief Editor has been arrested under the UAPA following allegations of the news portal receiving money for pro-China propaganda. Sibal has been representing the incarcerated journalist in the Delhi High Court and the Supreme Court.   

"The argument is that you sold your shares at a premium and you shouldn't have sold them at a premium and the person who gave you the money is actually now living in China.  There were chartered accountants who cleared the deal. What's the act of terror in all this? I don't understand. But then of course, courts still don't give him bail" Sibal said.

Razdan asked Sibal about the people associated with Newsclick, including contributors and office staff who were questioned by the police and whose devices were seized without warrants.  "Just from a legal point of view what happened to due process?" she asked. 

“..this happens all the time. I mean this happens every day. You are talking about Newsclick because you are a journalist and Newsclick is an institution in itself and you're very concerned about it. Every citizen in this country dealing with the police suffers from this and nobody says a thing. Law and justice are two different things. You misuse the law and that's injustice. But law by itself doesn't represent justice.”

“Legally are the police allowed to just come and seize our devices?" Razdan asked Sibal. 

“They cannot. What's the point of the privacy judgment? that you can just see somebody's mobile phone and just go through it? Some of these people don't have any evidence so they come and seize your phone, then they go through your phone, then they find out something, then they start questioning you about that. Without any paperwork, it is illegal. Even if if there was paperwork, what business do they have to take my phone and look at all the intimate conversations that a person has? What business does somebody have to just look through my phone? You know in a sense my phone represents my personality. You're destroying it by just seizing it and going through it. And then questioning me," Sibal replied.

Referring to the provisions of the UAPA prone to being misused by the government to curb dissent, Sibal said that as per the proposed new bill to substitute the Indian Penal Code, a wide definition is given for "terrorist".

 “Now under the new law you know what the definition of a terrorist is? If you are an impediment in the supply of essential services, you are a terrorist. If you say something against the government, if you emotively charge people, you're a terrorist. If you give support to somebody you are part of that.”

When asked about Umar Khalid's bail plea in a case under the UAPA in connection with the Delhi Riots, which has been pending for over 3 years, Sibal said the matter is coming up in the Supreme Court soon and he did not wish to comment on it. "The court will decide", he said. Sibal is representing Khalid in the Apex Court in his bail plea. 

 No Hope Left In Supreme Court : Senior Advocate Kapil Sibal

https://www.livelaw.in/top-stories/pmla-is-an-instrument-of-oppression-being-used-to-terrorize-people-sr-adv-kapil-sibal-241576

Unlike Elected Government Judges Dont Go By Popular Morality But By Constitutional Morality-CJI Chandrachud

Chief Justice of India DY Chandrachud, speaking at the Hindustan Times Leadership Summit 2023 on Saturday (4th November) said that judges don’t go by popular morality, but by constitutional morality. Constitutional morality, he explained, consists of those values of the constitution that the courts are intended to espouse such as fraternity, human dignity, personal liberty and equality.

“Judges don't look at how society would respond when they decide cases, that's exactly the difference between the elected arms of government & the judiciary,” he said.

While the elected arm of governance is intended to be responsive to the people, judges need to follow Constitutional morality, he said. Courts are a platform for engagement, where people feel that they will atleast have a space to exchange views and ideas to produce a new synthesis of change within society, he added.

When asked about his view on the recent pattern of the legislature passing laws to overrule the mandate of recent judgments of the Supreme Court, the CJI explained to the audience what is permissible and impermissible for the legislature to do, in this regard.

"There is a dividing line between what the legislature can and cannot do. If a judgment points out a deficiency in the law, it is open to the legislature to enact a fresh law to cure the deficiency. What the legislature cannot do is to overrule a judgment. But this is not happening for the first time. This has been happening in the tax arena. Validating acts are perfectly permissible, but directly overruling a judgment is completely impermissible," he said.

The CJI also said that the Supreme Court has recently been hearing some of the most difficult questions of our times.

“We can’t profess to be right. We are final not because we are right, but we are right because we are final. But that is no reason for the court to not answer the critical issues of our time. The work we do is open to criticism and broader social dialogue,” he said in this context.

During the interaction, he also explained that courts perform three critical functions, which is not just confined to deciding cases.

“The first and the most important is the cases we decide. But courts have also become important platforms for social engagement, not just for the verdicts we deliver, but for the space we create for dialogue between diverse segments of society. The third is the work which we do in our administrative capacity.”

He explained some of the administrative work done by the Supreme Court to bring transparency and accountability to the justice system.

“For instance, one of the critical barriers to access to justice is language. We have been in the process of translating Supreme Court judgments into various Indian languages, using AI assisted tools. The Courts must reach out to people so people understand what is going on in our courts,” he said.

He also talked about how the Supreme Court has begun livestreaming court proceedings. ”This is part of the process of confidence building, so people have an element of trust in the work we do,” he said.

He also added that the Supreme Court is in the process of transcribing court proceedings. The Supreme Court website has also been tweaked to make it more accessible to the visually impaired. “The technology we have deployed in the judicial system is democratizing access to justice. The idea behind this is to create transparency and accountability in the work of the court,” he said.

The CJI also highlighted that the Supreme Court is a court for the people. The Indian Supreme Court is not just the highest constitutional court, but also the court of final appeal, he explained. In that sense, it exercises a very wide jurisdiction as compared to other courts in the world, he said.

“Just to draw a comparison, the US Supreme Court decides about 80 cases a year, but our Supreme Court has already disposed of 72,000 cases this year with two more months to go. That gives you a sense of the difference in the work that we do,” he said.

With reference to the age of retirement of judges, CJI Chandrachud stated that he believes it is important for judges to retire. " It is too much of a responsibility to cast on human beings, in terms of their own infallibility, by postulating that they should not retire. Judges are human beings, we are prone to error, societies evolve,” he said.

It is important to pass on the mantle to succeeding generations who can point out errors of the past and rejig the social legal framework for society to evolve," the CJI stated.

https://www.livelaw.in/top-stories/unlike-elected-government-judges-dont-go-by-popular-morality-but-by-constitutional-morality-cji-chandrachud-241614

Time for courts to wake up to blatant misuse of PMLA: Sibal after ED summons Kejriwal

The probe agency was targeting leaders of almost all opposition parties, he alleged, adding that the ED and denial of bail to leaders has become a "political weapon" in the hands of the government. Published: 01st November 2023 11:41 AM | Last Updated: 01st November 2023 11:41 AM | A+A A- Senior Congress leader Kapil Sibal addresses a press conference at party headquarters in New Delhi.Rajya Sabha MP Kapil Sibal (Photo | PTI)By PTI NEW DELHI: It is time for courts to wake up to the blatant misuse of the Prevention of Money Laundering Act, Rajya Sabha MP Kapil Sibal said on Wednesday, days after the Enforcement Directorate summoned Delhi Chief Minister Arvind Kejriwal for questioning. The probe agency was targeting leaders of almost all opposition parties, he alleged, adding that the ED and denial of bail to leaders has become a "political weapon" in the hands of the government. Kejriwal has been issued the summons under the Prevention of Money Laundering Act (PMLA) and according to sources, the ED will record his statement in an excise policy-related case once he deposes at the probe agency's Delhi office at 11 am on November 2. Sibal, a prominent opposition voice and a senior advocate, in a post on X, said, "Kejriwal summoned by ED. ED targeting leaders of almost all political opposition parties." "ED and denial of bail to leaders has become a political weapon in the hands of the government. Time for courts to wake up to the blatant misuse of PMLA," the former Union minister said. In another post on Tuesday after the Supreme Court denied bail to Delhi's former deputy chief minister Manish Sisodia in the excise policy case, Sibal had said the INDIA bloc must speak in one voice as all opposition leaders were being targeted. "Supreme Court rejects Sisodia's bail. Bail law on its head. The process is the punishment. All opposition leaders were targeted. Send them to jail, proof can come later. The INDIA alliance must speak up in one voice," he had said. Delhi's former deputy chief minister Manish Sisodia and AAP MP Sanjay Singh have been arrested by the ED in the excise policy case so far. This is the first time that Kejriwal has been summoned by the ED. He was questioned by the Central Bureau of Investigation in the case in April. Sibal, who was a Union minister during UPA I and II, quit the Congress in May last year and was elected to the Rajya Sabha as an Independent member with the Samajwadi Party's support. He has floated a non-electoral platform 'Insaaf' aimed at fighting injustice.

Supreme Court Supreme Court Ruling Acquittal Technical Grounds Not Guarantee Job Employer Right To Choose Candidate Suitability

In a significant ruling, the Supreme Court held that an acquittal in a criminal case does not automatically qualify a candidate for a sensitive law enforcement post, particularly when the acquittal is based on technical grounds or on giving benefit of doubt.

The Court emphasized that employers retain the right to assess a candidate's suitability for a position. The issue before the Court revolved around the determination of a candidate's fitness for appointment as a constable despite his prior acquittal in a criminal case under Protection of Children from Sexual Offences (POCSO) Act,2012

The court observed “mere acquittal of the respondent in the criminal case would not automatically entitle him to being declared fit for appointment to the subject post. Even one criminal case faced by the respondent in which he was ultimately acquitted, apparently on the basis of being extended benefit of doubt, can make him unsuitable for appointment to the post of a Constable.”

The Court referred to Avtar Singh's case (2016) 8 SCC 471, which held that even in instances of acquittal in cases involving moral turpitude or serious offenses, employers have the choice to evaluate the candidate's antecedents and make informed decisions regarding their appointment.

It opined, “If acquittal had already been recorded in a case involving moral turpitude or offence of heinous/serious nature, on technical ground and it is not a case of clean acquittal or benefit of reasonable doubt has been given, the employer may consider all relevant facts available as to antecedents, and may take an appropriate decision as to the continuance of the employee. In a case where the employee has made a declaration truthfully of a concluded criminal case, the employer still has the right to consider antecedents, and cannot be compelled to appoint the candidate.”

The Supreme Court bench comprising Justices Hima Kohli and Justice Rajesh Bindal was hearing an appeal against a judgment by the division bench of the Madhya Pradesh High Court which had relegated the matter back to the competent authority for passing a fresh order in this case.

The case originated from allegations against the respondent, who was accused of stalking and attempting to befriend the complainant. In 2015, charges were filed against him for wrongful restraint and an attempt to outrage the modesty of the complainant, leading to charges under Section 341 and 354D of the Indian Penal Code, as well as Section 11D/12 of the POCSO Act. During the trial before a session judge, the complainant and witnesses turned hostile and reached a compromise, resulting in the respondent's acquittal.

In 2016, the respondent successfully qualified as a constable through state government exams. In 2017, the Superintendent of Police (appellant no. 3) requested the respondent to complete a verification form, where he disclosed information about the criminal case and his subsequent acquittal. Subsequently, the SP informed him that he was unfit for selection. Dissatisfied with this decision, the respondent filed a writ petition before the High Court, seeking reinstatement with all consequential benefits.

While the single bench initially dismissed his petition, the division bench later overturned this decision, remanding the matter back to the competent authority for reconsideration. This prompted the state government to approach the Supreme Court against the division bench's ruling.

The Court relied on the principles laid down in Avtar Singh’s case where it had emphasized the necessity of assessing a candidate's antecedents to determine their suitability for a given post.

It had observed“The verification of antecedents is necessary to find out the fitness of incumbent. What yardstick is to be applied has to depend upon the nature of the post, higher post would involve more rigorous criteria for all services, not only to uniformed service. For lower posts which are not sensitive, nature of duties, impact of suppression on suitability has to be considered by authorities concerned considering post/nature of duties/services and power has to be exercised on due consideration of various aspects”.

Applying the principles established in Avtar Singh's case to the matter at hand, the Court emphasized that even though the respondent had candidly disclosed the criminal case and secured an acquittal, the acquittal could not be deemed a "clean acquittal”.

It noted that, “This is a classic example of the situation contemplated in Avatar Singh’s case where the charges framed against the respondent herein involved moral turpitude. Here was a case where the complainant had reneged from the statement made to the police in view of a settlement arrived at with the respondent. Having regard to the fact that the prosecution could not succeed in proving the case against the respondent for the reasons noted hereinabove and further, being mindful of the fact that the case involved moral turpitude and the respondent was charged with non-compoundable offenses of a serious nature, we are of the firm view that the judgment of the trial Court cannot be treated as a clean acquittal.”

Therefore, the Court set aside the judgment of the division bench and upheld the decision of the single-judge bench. Accordingly, the appeal by the state government was allowed.

Related - Appointment Can't Be Denied Citing Suppression Of Material Facts When Employer's Query Was Vague : Supreme Court

Employee Can Be Terminated For Suppression Or False Information Regarding Suitability: Supreme Court

Case title: State of MP v. Bhupendra Yadav

Citation: 2023 LiveLaw (SC) 810;  2023 INSC 837

Supreme Court Working For Long Period On Contractual Basis Creates No Vested Right For Regularisation Supreme Court-

The Supreme Court recently held that by working for a long period of time on contractual basis, no vested legal right is acquired for regularisation in service.

The Apex Court was considering the appeal of persons appointed in Shri Guru Govind Singh Institute of Engineering and Technology on contractual basis since 2011. They had sought regularisation in service in their respective posts. However, the appointment process for the post had been complete, the State informed the Apex Court.

A bench of Justice Aniruddha Bose and Justice Bela M Trivedi, while appreciating the time spent by the petitioners at the institute, held that they had not acquired any vested legal right to be regularised. The view of the Bombay High Court was thus affirmed:

"We appreciate the argument of the petitioners that they have given best part of their life for the said college but so far as law is concerned, we do not find their continuous working has created any legal right in their favour to be absorbed. In the event there was any scheme for such regularization, they could have availed of such scheme but in this case, there seems to be none. We are also apprised that some of the petitioners have applied for appointment through the current recruitment process. The High Court has rejected their claim mainly on the ground that they have no right to seek regularization of their service. We do not think any different view can be taken.”

The matter was argued Advocate Manisha Karia.

Case Title: Ganesh Digamber Jambhrunkar V. State Of Maharashtra, Petition(s) for Special Leave to Appeal (C) No. 2543/2023

Citation : 2023 LiveLaw (SC) 801

Madras High Court Sanadhana Dharma Is Set If Eternal Duties Idea Neing Given That Its Inly About Casteism And Untouchability

The Madras High Court on Friday observed that “Sanadhana Dharma” is a set of eternal duties including duty to the nation, duty to the King, Duty to parents and Gurus, etc. and in that context, opposition to Sanadhana Dharma would have to mean that all these duties were liable to be destroyed.

“ It has also broadly understood Sanathana Dharama as a set of 'eternal duties', and that it cannot be traced to one specific literature, but has to be gathered from multiple sources which, either relate to Hinduism, or which those who practice the Hindu way of life, have come to accept. It includes the duty to the nation, duty to the King, King's duty to his people, duty to one's parents and Gurus, care for the poor, and whole lot of other duties,” the court observed.

Justice N Seshasayee was hearing a challenge against a Circular issued by the Principal of Thiru Vi. Ka. Government Arts College requesting the girl students in the college to share their views on the topic “Opposition to Sanadhana” on the occasion of commemorating birth anniversary of former Tamil Nadu CM Annadurai.

“ If the topic chosen by the impugned circular is now tested on the plane of these duties, it would then mean that all these duties are liable to be destroyed. Should not a citizen love his country? Is he not under a duty to serve his nation? Should not the parents be cared for? With genuine concern for what is going round, this Court could not help pondering over it,” the court wondered.

The court also noted that presently the idea that had been appearing was that Sanadhana Dharma is all about promoting casteism and untouchability. The court emphasised that untouchability, which has been abolished under Article 15 of the Constitution should not be tolerated even within or outside Sanadhana Dharma.

“ Somewhere, an idea appears to have gained ground that Sanadhana Dharma is all about, and only about, promoting casteism and untouchability. Untouchability in a country of equal citizens, cannot be tolerated, and even if it is seen as permitted somewhere within the principles of 'Sanathana dharma', it still cannot have a space to stay, since Article 17 of the Constitution has declared that untouchability has been abolished…. Therefore, untouchability, either within or outside Sanatana Dharma can no longer be Constitutional though sadly it still exits,” the court stressed.

The court also observed that though Article 19(1)(a) of the Constitution gave a fundamental right to free speech, it was important to underscore that one is adequately informed as it added value to what was being spoked. Adding that free speech was not an absolute right, the court noted that when free speech pertained to religion, it was necessary to ensure that no one is injured.

“Every religion is founded on faith, and faith by nature accommodates irrationality. Therefore, when free speech is exercised in matters pertaining to religion, it is necessary for one to ensure that no one is injured. In other words free speech cannot be hate speech, as the Hon'ble Supreme Court has cautioned. The users of free speech must not ignore to factor these aspects while exercising their right. If this is ignored, the course of any debate will get derailed, and the objective behind it will lose significance,” the court said.

The court also opined that free speech should be used to encourage dispassionate, healthy debates and help the society to move forward without forgetting the ethos and values of the Constitution.

Since the impugned circular in the present case was already withdrawn, the court encouraged the College to instead make the students reflect on the evils of untouchability and how as citizens of the society, they could eliminate untouchability.

The remarks of the Court assume relevance in the background of the recent controversy triggered off by the comments made by Tamil Nadu Minister Udhayanidhi Stalin against 'Sanathana Dharma'.

https://www.livelaw.in/high-court/madras-high-court/madras-high-court-sanadhana-dharma-is-set-of-eternal-duties-idea-being-given-that-its-only-about-casteism-and-untouchability-237934

Legislature Cant Directly Overrule Judgment But Law Can Be Made To Alter Basis Of Court Verdict Supreme Court

The Supreme Court has ruled that it is permissible for the legislature to remove a defect in an earlier legislation, as pointed out by a constitutional court in exercise of its powers of judicial review. The court said the defect can be removed both prospectively and retrospectively by a legislative process and previous actions can also be validated.

“However, where a legislature merely seeks to validate the acts carried out under a previous legislation which has been struck down or rendered inoperative by a Court, by a subsequent legislation without curing the defects in such legislation, the subsequent legislation would also be ultra-vires,” the bench comprising Justices B.V. Nagarathna and Ujjal Bhuyan said.

The bench remarked that such instances would amount to an attempt to ‘legislatively overrule’ a Court’s judgment by a legislative fiat, and would therefore, be illegal and a colourable legislation.

The court made the observation while considering the vires of the Himachal Pradesh Passengers and Goods Taxation Act, 1955, as amended by the Amendment and Validation Act of 1997. The court concluded that the Amendment and Validation Act passed by the State Legislature had validly removed the basis of the judgment of the Division Bench of the High Court, dated 27^th March, 1997, where the court had ruled that the appellant-assessee, NHPC Ltd, was not liable to pay tax under the 1955 Act for providing free transportation services to its employees, and their children.

Accordingly, the Supreme Court said the activity of providing free transportation to the employees and their children, would be a taxable activity under Section 3(1-A) of the 1995 Act, as inserted by the Amendment and Validation Act of 1997.

Facts of the case:

Assessment orders were passed by the Assessing Authority under the Himachal Pradesh Passengers and Goods Taxation Act, 1955 against the appellant- NHPC Ltd, assessing its liability to pay passenger tax under the Act in respect of the free transport facilities provided by the PSU to its employees and their children. Assessment Orders were passed on the ground that NHPC’s employees and their children were passengers under the Act and therefore, NHPC was liable to pay passenger tax for providing them with transport facilities.

NHPC filed a writ petition before the Himachal Pradesh High Court, challenging the vires of the 1955 Act and the assessments made in accordance with the provisions of the Act.

It was the case of NHPC that no tax could be levied on it as its employees and their children were being carried in the buses, without any fare or consideration. NHPC claimed that passenger tax under the Act can be levied only on fare-paying passengers against tickets issued by the owner of the motor vehicle, who is engaged in the business of carrying passengers for hire and reward.

The Division Bench of the High Court observed that the Explanation to Section 3 (1) of the Act introduced a legal fiction, requiring assessments to be made on the assumption that even passengers who did not actually pay a fare, were being carried at the normal rate chargeable on the concerned route. However, the Division Bench was of the view that for charging tax by invoking the Explanation to Section 3(1), routes were required to be prescribed. Since, the routes on which the NHPC plied its buses were not ‘routes’ in the sense defined under the MV Act, the Explanation was not attracted in the case.

The SLP filed by the tax authorities against the High Court’s decision was dismissed by the Supreme Court. Subsequently, with a view to remove the basis of the judgment of the Division Bench, the Himachal Pradesh Passengers and Goods (Amendment and Validation), Act, 1997 was passed by the Legislative Assembly. Accordingly, the tax authorities issued notices for recovery of tax under the amended Act in respect of NHPC’s activity of providing free transport facilities to its employees and their children.

NHPC challenged the vires of the Amendment and Validation Act of 1997 and the assessments made under it, by filing a writ petition before the High Court. The High Court, however, dismissed the writ petition and upheld the vires of the 1955 Act, as amended by the Amendment and Validation Act of 1997.

The High Court observed that the Explanation to Section 3(1) of the 1955 Act, which was previously referred to by the Division Bench of the High Court, had been removed by omitting the said Explanation and inserting Section 3(1-A). The court remarked that Section 3(1-A) sought to bring non-fare paying passengers at par with fare paying passengers. When read with the amended definition of the term ‘business’, the court said, all kinds of passengers and goods carried in private service vehicles were now subject to tax under the 1955 Act, irrespective of whether such passengers or goods were being carried for hire or reward.

Thus, the High Court concluded that the Amendment and Validation Act of 1997, covered non-fare paying passengers- such as NHPC’s employees and their children- as well as the goods and material belonging to it. Against this, NHPC filed an appeal before the Supreme Court.

Analysis of the Supreme Court:

The top court observed that by way of the Amendment and Validation Act of 1997, certain amendments were brought to the Preamble and various provisions of the Act, with retrospective effect. The same included the deletion of the word ‘certain’ from the Preamble, which had earlier preceded the term ‘motor vehicle’. The Amendment Act also brought about changes in the definition of terms like ‘business’, ‘motor vehicle’, ‘owner’, ‘road’, amongst others.

Permissible Manner Of Removing Defects In Previous Legislation:

The top court referred to a catena of judgments of the Supreme Court where the court was dealing with the permissible extent and manner of removing the material basis of a judgment, by correcting the defects pointed out by a Court in a legislation.

“What follows from the aforesaid judicial precedent is, a legislature cannot directly set aside a judicial decision. However, when a competent legislature retrospectively removes the substratum or foundation of a judgment to make the decision ineffective, the same is a valid legislative exercise provided it does not transgress on any other constitutional limitation. Such a legislative device which removes the vice in the previous legislation which has been declared unconstitutional is not considered to be an encroachment on judicial power but an instance of abrogation recognised under the Constitution of India,” said the court.

Thus, the bench held that it is open to the legislature to alter the law retrospectively, provided the alteration is made in such a manner that it would no more be possible for the Court to arrive at the same verdict. “In other words, the very premise of the earlier judgment should be removed, thereby resulting in a fundamental change of the circumstances upon which it was founded,” the court added.

However, the bench said that the legislature cannot validate the acts carried out under a previous legislation which has been struck down by a Court, by passing a subsequent legislation without curing the defects in the legislation. “The rule of law would cease to have any meaning if the legislature is at liberty to defy a judgment of a court by simply passing a validating legislation, without removing the defects forming the substratum of the judgment by use of a non-obstante clause as a technique to do so,” said the court, adding that abrogation is not a device to circumvent any and all unfavourable judicial decisions. It added that an amendment Act, if enacted solely with the intention to defy judicial pronouncement, may be declared to be ultra-vires and as a piece of ‘colourable legislation’.

Defects Identified By Division Bench Cured By The Amendment And Validation Act:

Referring to the facts of the case, the court concluded that the defects identified by the Division Bench of the High Court, forming the basis for its decision that the provisions of the 1955 Act were not applicable to the assessee, had been cured by the Amendment and Validation Act of 1997.

“The High Court had observed that for charging tax, by invoking the Explanation to Section 3(1) of the Act of 1955, the ‘normal rate’ and ‘routes’ were required to be prescribed, but since no normal rate or routes had been prescribed, the Explanation could not come to the rescue of the respondent Authorities. This defect has been cured by introducing Section 3(1A) by way of the Amendment and Validation Act of 1997 and omitting the Explanation to Section 3(1). Section 3(1A) seeks to bring non-fare paying passengers at par with fare paying passengers, by prescribing two alternate methods to notionally determine fares or freights, when the same has not been charged,” the court observed.

The bench further noted that by way of the Amendment and Validation Act of 1997, the definition of the terms ‘business’ and ‘owner’ have been enlarged.

“In light of the aforesaid discussion, we hold that by enacting the Amendment and Validation Act of 1997, the Himachal Pradesh State Legislature has validly removed the basis of the judgment of the Division Bench of the High Court dated 27 March, 1997,” the court ruled, dismissing the appeals.

Case Title: NHPC LTD. VS. STATE OF HIMACHAL PRADESH SECRETARY & ORS.

Citation : 2023 LiveLaw (SC) 756

Dated: 06.09.2023

Counsel for the Parties: Mr. Yashraj Singh Deora, Adv. M/S. Mitter & Mitter Co., AOR Mr. Priyesh Mohan Srivastava, Adv. Mr. Abhishek Singh, Adv. Mr. Piyush Sharma, AOR; Mr. Anup Kumar Rattan, Sr. Adv. Mr. Karan Kapur, Adv. Mr. Vivek Kumar, Adv. Mr. Abhishek Gautam, AOR Mr. Shubham Soni, Adv. Mr. Vineet Kumar, Adv. Mr. Abhinav Mukerji, AOR Mr. Anup Kumar Rattan, AG of HP/Sr. Adv. Mr. Kartikeya Rastogi, Adv. Ms. Inderdeep Kaur Raina, Adv. Ms. Radhika Gautam, AOR Mr. Puneet Rajta, Adv. Mr. Radhika Gautam, Adv. Mr. Karan Kapur, Adv. Mr. Vivek Kumar, Adv.

Himachal Pradesh Passengers and Goods Taxation Act, 1955: Sections 3(1) and 3 (1-A); Amendment and Validation Act, 1997-

The Supreme Court has ruled that it is permissible for the legislature to remove a defect in an earlier legislation, as pointed out by a constitutional court in exercise of its powers of judicial review. The court said the defect can be removed both prospectively and retrospectively by a legislative process and previous actions can also be validated.

“However, where a legislature merely seeks to validate the acts carried out under a previous legislation which has been struck down or rendered inoperative by a Court, by a subsequent legislation without curing the defects in such legislation, the subsequent legislation would also be ultra-vires,” the bench comprising Justices B.V. Nagarathna and Ujjal Bhuyan said.

https://www.livelaw.in/supreme-court/legislature-cant-directly-overrule-judgment-but-law-can-be-made-to-alter-basis-of-court-verdict-supreme-court-237278