found to be legal, or making legal that which the judgement found to be
illegal.
10—Judgment as to public right.
With respect to legislative interference with a judgement, a distinction
has been made between public and private rights under which distinction a
statute may be valid even though it renders ineffective a judgment
concerning a public right. Even after a public right has been established by
the judgment of the court, it may be annulled by subsequent legislation.”
192. Question arises whether the above limitation imposed upon the
legislature about its competence to declare a judgment of the court to be void
would also operate upon the constituent authority?
193. View has been canvassed before us that the answer to the above
question should be in the negative. Although normally a declaration that the
judgment of a court is void can be made either in separate proceedings or in
proceedings before the higher court, there is, according to this view, no bar to
the constituent authority making a declaration in the constitutional law that
such an order would be void especially when it relates to a matter of public
importance like the dispute relating to the election of a person holding the
office of Prime Minister. The declaration of the voidness of the High Court
judgment is something which can ultimately be traced to part (i). Whether
such a declaration should be made by the court or by the constituent
authority is more, it is urged, a matter of the mechanics of making the
declaration and would not ultimately affect the substance of the matter that
the judgment is declared void. According to Article 31B, without prejudice to
the generality of the provisions contained in Article 31A, none of the Acts and
Regulations specified in the Ninth Schedule nor any of the provisions thereof
shall be deemed to be void, or ever to have become void, on the ground that
such Act, Regulation or provision is inconsistent with, or takes away or
abridges any of the rights conferred by, any provisions of this Part, and
notwithstanding any judgment, decree or order of any court or tribunal to the
contrary, each of the said Acts and Regulations shall subject to the power of
any competent Legislature to repeal or amend it, continue in force. The effect
of the above article, it is pointed out, is that even if a statute has been
declared to be void on the ground of contravention of fundamental rights by a
court of law, the moment that statute is specified by the constituent authority
in the Ninth Schedule to the Constitution, it shall be deemed to have got rid
of that voidness and the order of the court declaring that statute to be void is
rendered to be of no effect. It is not necessary in such an event to make even
the slightest change in the statute to rid it of its voidness. The stigma of
voidness attaching to the statute because of contravention of fundamental
rights found by the court is deemed to be washed away as soon as the statute
is specified by the constituent authority in the Ninth Schedule and the
judgment of the court in this respect is rendered to be inoperative and of no
effect. In the case of Don John Douglas Liyange v. The Queen, 1967 AC 259
the Judicial Committee struck down as ultra vires and void the provisions of
the Criminal Law (Special Provisions) Act. 1962 on the ground that they
Select target paragraph3
Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents