I think it is 1993 Supp. (1) SCC 96(II)
It is not that Parliament can't amend laws retrospectively to "clarify" a judgment. But it can't do so to make "substantive changes" in the policy or previous legislation retrospectively unless it is COMPETENT to do so and the changes are reasonable etc..
In NAMFED (2003) the SC addressing this said
"The legislative power either to introduce enactments for the first time or to amend the enacted law with retrospective effect, is not only subject to the question of competence but is also subject to several judicially recognized limitations. The first is the requirement that the words used must expressly provide or clearly imply retrospective operation. The second is that the retrospectivity must be reasonable and not excessive or harsh, otherwise it runs the risk of being struck down as unconstitutional. The third is apposite where the legislation is introduced to overcome a judicial decision. Here the power cannot be used to subvert the decision without removing the statutory basis of the decision.
so the argument against the Amendment Act will essentially hinge on "competence" and "reasonableness" as the 3 points seem addressed in the Amending Bill.Other cites:
Khyerbari Tea Company Limited and Another v State of Assam - 1964 AIR(SC) 925
Kanta Kathuria v Manak Chand Surana - 1970 AIR(SC) 694
Ujagar Prints and Others (II) vs. Union of India and Others
"A competent legislature can always validate a law which has been declared by courts to be invalid, provided the infirmities and vitiating infactors noticed in the declaratory judgment are removed or cured. Such a validating law can also be made retrospective. If in the light of such validating and curative exercise made by the legislature - granting legislative competence - the earlier judgment becomes irrelevant and unenforceable, that cannot be called an impermissible legislative overruling of the judicial decision. All that the legislature does is to usher in a valid law with retrospective effect in the light of which earlier judgment becomes irrelevant"
Virender Singh Hooda And Ors. vs State Of Haryana And Anr. on 27 October, 2004The power to make laws includes power to give it retrospective effect.
The validity of a validating law, therefore, depends upon whether the legislature possesses the competence which it claims over the subject-matter and whether in making the validation it removes the defect which the courts had found in the existing law.
33. The legislative power to make law with retrospective effect is well recognised. It is also well settled that though the legislature has no power to sit over Court's judgment or usurp judicial power, but, it has, subject to the competence to make law, power to remove the basis which led to the Court's decision. The legislature has power to enact laws with retrospective effect but has no power to change a judgment of court of law either retrospectively or prospectively.
..
73(1) The impugned Act, to the extent of its retrospectivity, except to the limited extent indicated above, does not amount to usurpation of judicial powers by the Legislature. It is not ultra vires. It has removed the basis of decisions in Hooda and Sandeep Singh's cases.
The validity of a validating law, therefore, depends upon whether the legislature possesses the competence which it claims over the subject-matter and whether in making the validation it removes the defect which the courts had found in the existing law.
33. The legislative power to make law with retrospective effect is well recognised. It is also well settled that though the legislature has no power to sit over Court's judgment or usurp judicial power, but, it has, subject to the competence to make law, power to remove the basis which led to the Court's decision. The legislature has power to enact laws with retrospective effect but has no power to change a judgment of court of law either retrospectively or prospectively.
..
73(1) The impugned Act, to the extent of its retrospectivity, except to the limited extent indicated above, does not amount to usurpation of judicial powers by the Legislature. It is not ultra vires. It has removed the basis of decisions in Hooda and Sandeep Singh's cases.
So in sum, this shows that the CIC passed a POORLY THOUGHT OUT ORDER in Subhash Agrawal's case - "BY" versus "UNDER" etc without any basis, which the Govt has fully exposed by this amending legislation.
By going to Parliament instead of Court they have fast-tracked the issue - which would otherwise be stuck for decades in litigation.
Sarbajit
On Tue, Aug 13, 2013 at 11:42 AM, venkatesh nayak <nayak.venkatesh@gmail.com> wrote:
Dear Sarbajit,Would be grateful for the citation of the Cauvery waters case. I am unaware even though I am from one of the litigant states. I fully agree with your assessment of the amendment Bill. I cant believe the GOI draftspersons came up with such a trashed up Bill. Surely many of them have better brains than this. I hope this is not a ploy to achieve some other hidden goal.ThanksVenkatOn Tue, Aug 13, 2013 at 11:12 AM, Sarbajit Roy <sroy.mb@gmail.com> wrote:
Dear Er Purohit,
The RT Act amendment does not take political parties out of RTI Act. It says they are not "public authority".
Firstly, the new Bill seeks to amend the definition of public authority in s/s 2(h) of the Act to exclude them as public authorities:-
"... bodies .. established or constituted BY any law passed by Parliament shall not include any body registered as a political party UNDER the Representation of People's Act 1951."
So this is a completely meaningless and inapplicable piece of drafting and the sooner it is passed the better.
Secondly, the Bill tries to amend the Act, RETROSPECTIVELY SINCE 3 JUNE 2013, to exclude jurisdiction of Courts and Commissions over the amendment.
In other words it is clearly a "curative legislation" for the CIC's order dt. 3.Jun.2013. In 1993 a Constitution Bench of the SC in Cauvery Waters dispute has already held that such curative legislations have no force as it would amount to Parliament sitting as an appellate body. This is at least the second time the Govt is trying this retrospective nonsense after Vodafone.
Thirdly, Political Parties were never included as "public authorities" under the present RTI Act. So this amendment firmly puts the CIC in its place as a corrupt body packed with corrupt pliable persons who lack "judicial mind" and don't know the difference between "BY" and "UNDER".
Information about Parties is still very much available in RTI from those who hold it.
SarbajitOn Tue, Aug 13, 2013 at 6:35 AM, rb purohit <rbpurohit4productivity@gmail.com> wrote:
Dear Sarbajitji
You have confused me.
If you are debarred from getting any RTI how can you get information faster. Not undrr RTI that is.
Regards
Er Ratanlal Purohit
On 13-Aug-2013 2:33 AM, "Sarbajit Roy" <sroy.mb@gmail.com> wrote:Dear Gp Cap Rao
Its the oldest trick in the book, to first create the problem and then offer yourself as part of the solution.
These anti-RTI-amendment wallahs are mostly either foreign financed or Congress/NAC stooges. (They are financed in crores - not lakhs)
Starting from Aruna Roy and ending with Bhaskar Prabhu, with Anjali Bharadwaj, Nikhil Dey, Harsh Mander, Shekhar Singh, Shailesh Gandhi, Venkatesh Nayak, etc thrown in for good measure.
I say its a damn good thing if the RTI Amendment Bill is passed as it is and as soon as possible (even with the wobbly section 31). We will get RTI info about Political Parties faster.
SarbajitOn Tue, Aug 13, 2013 at 12:05 AM, Venkata Rao <bvrao39@hotmail.com> wrote:I find 'Political Language' in the trail mail.
RTI amendment is moved by Congress. Mail states that this is opposed " by a small section of anti-national NGO persons closely associated with the Congress Party who claim to be 'thekedars' of RTI.
Can the contradictions be clarified in " simple (non-emotional/apolitical) language", please.
BV Rao
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