37. In Piare Dusadh's case (AIR 1944 FC 1) (supra) the Special Criminal Courts
(Repeal) Ordinance, 1943 which conferred validity and full effectiveness on
sentences passed by special courts which functioned under the Special Criminal
Courts Ordinance. 1942 was challengd. It was argued in Piare Dusadh's case
(supra) that the 1943 Ordinance attempted to exercise judicial power. The Federal
Court did not accept the contention on the ground that in India the legislature has
enacted laws providing that suits which had been dismissed on a particular view of
the law must be restored and retried. Our Federal Court said that Partliament
simply takes up certain determinations which exist in fact, though made without
authority, and prescribes not that they shall be acts done by a board of Review, but
that they shall be treated as they would be treated if they were such acts. The
sections do not constitute an exercise of the judicial power. The legislature had not
attempted to decide the question of the guilt or innocence of any of the accused.
That question had as a matter of fact been decided by tribunals which were directed
to follow a certain judicial procedure. Our Federal Court held that once the
decisions of the special courts were held void for want of jurisdiction the legislature
created those special courts and authorised them to try cases and pass sentences.
The legislature gave jourisdiction to the courts to pass the sentences. The Ordinance
did not exercise any judicial power because the sentences in due course were subject
to an appeal and review by the regular courts of the land.
38. The power of the legislature to validate matters which have been found by
judgments or orders of competent courts and Tribunals to the invalid or illegal is a
well-known pattern. The legislature validates acts and things done by which the
basis of Judgments or orders of competent courts and Tribunal is changed and the
judgments and orders are made ineffective. All the Sales Tax Validation cases, the
election validation cases are illustrations of that proposition. The present appeals
are not of the type of providing indemnity against penalties or determining existing
facts to be treated in accordance with change of law.
39. The effect of validation is to change the law so as to alter the basis of any
judgment, which might have been given on the basis of old law and thus make the
judgment ineffective. A formal declaration that the judgment rendered under the
old Act is void, is not necesary. if the matter is pending in appeal, the appellate court
has to give effect to the altered law and reverse the judgment. The rendering of a
judgment ineffective by changing its basis by legislative enactment is not an
encroachment on judicial power but a legislation within the competence of the
Legislature rendering the basis of the judgment non est. If a competent court has
found that a particular tax or levy has been imposed by a law, which is void because
the legislature passing the law was not competent to pass the law, then the
competent legislature has validated the tax or levy by a validation Act involving a
re-enactment of the invalid law. Where the competent legislature has passed a law
which is contrary to any of the Fundamental Rights in Part III of the Constitution
and the law has been declared void by a competent court, the appropriate
legislature has passed a retrospective law validating the actions taken under the old
invalid law by curing the defects in the old law so as to make the new law consistent
with Part III of the Constitution.
40. Where invalid elections declared by reason of corrupt practices have been
validated by changing the definition of corrupt practices in the Representation of
the People Act, 1951 retrospectively the original judgment is rendered ineffective.