involved the usurpation and infringement by the legislature of the judicial
powers inconsistent with the written constitution of Ceylon. Their Lordships,
however, expressly referred on page 287 to the fact that the impugned
legislation had not been passed by two-thirds majority in the manner
required for an amendment of the Constitution contained in Section 29 (4) of
the constitution. It was observed:
“There was speculation during the argument as to what the position
would be if Parliament sought to procure such a result by first amending the
Constitution by a two-thirds majority. But such a situation does not arise
here. In so far as any Act passed without recourse to Section 29(4) of the
Constitution purports to usurp or infringe the judicial power it is ultra vires.”
The above observations, it is urged, show that the restriction upon the
legislature in encroaching upon judicial sphere may not necessarily hold good
in the case of constituent authority.
194. The above contention has been controverted by Mr. Shanti Bhushan
and he submits that the limitation on the power of the legislature that it
cannot declare void a judgment of the court equally operates upon the
constituent authority. It is urged that the constituent authority can only
enact a law in general terms, even though it be a constitutional law. The
constituent authority may also, if it so deems proper change the law which is
the basis of a decision and make such change with retrospective effect, but it
cannot, according to the learned counsel, declare void the judgment of the
court. Declaration of voidness of a judgment, it is stated, is a judicial act and
can not be taken over by the constituent authority. Although legislatures or
the constituent authority can make laws including those for creation of
courts, they cannot, according to the submission, exercise judicial functions
by assuming the powers of a super court in the same way as the courts
cannot act as a super legislature. It is in my opinion, not necessary to dilate
upon this aspect and express a final opinion upon the rival contentions,
because of the view I am taking of part (iii) of clause (4).
195. We may now come to part (iii) of clause (4) By part (iii) it is declared
that the election of the appellant shall continue to be valid in all respects.
Such a declaration would not follow from part (i) of the clause. It would not
also follow from part (ii) and part (iv) of the clause which, as mentioned
earlier, in effect represented the consequences flowing from part (i). The
election to the Lok Sabha of the appellant, who was the Prime Minister, was
challenged on the ground that she or her election agents had been guilty of
some malpractices. The declaration that her election was to be valid in all
respects necessarily involved the process of going into the grounds on which
her election had been assailed and holding those grounds to be either
factually incorrect or to be of such a nature as in law did not warrant the
declaration of her election to be void. The case of the appellant is that some of
the grounds mentioned against her were factually incorrect and in respect of
those grounds the findings of the High Court is against the respondent and in
her favour. In-respect of some other grounds, except in one or two matters
there is not much divergence between the appellant and the respondent on
Select target paragraph3
Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents