A bench comprising Justices B V Nagarathna and Satish Chandra Sharma made the observation while disposing of a 2012 contempt plea filed by sociologist and former Delhi University professor Nandini Sundar and others.
The contempt plea alleged failure of the Chhattisgarh government to comply with its 2011 directions to stop support to vigilante groups like Salwa Judum and arming tribals in the name of special police officers (SPO) in the fight against Maoists.
The petition contended that there has been contempt of the order of the apex court as the Chhattisgarh government has legislated the Chhattisgarh Auxiliary Armed Police Force Act, 2011 which authorised an auxiliary armed force to assist security forces in dealing with Maoist/Naxal violence and legalising existing SPOs by inducting them as members.
Besides accusing the Chhattisgarh Government of not acknowledging the directions on Salwa Judum, the petitioners said instead of “desisting” from using SPOs and disarming them, the state government passed the “Chhattisgarh Auxiliary Armed Police Force Act, 2011” regularising all SPOs with effect from the date of the top court order on July 5, 2011.
They alleged that state government has also not vacated all school buildings and ashrams from the occupation of the security force nor has it compensated the victims of Salwa Judum and SPOs. The top court on May 15 said that the passing of an enactment subsequent to the order passed by the top court by Chhattisgarh cannot be an act of contempt. The top court said in order to ensure that rule of law permeates to fulfil constitutional objectives of establishing an egalitarian social order, the balance between the respective sovereign functionaries must always be delicately maintained.
“Every State Legislature has plenary powers to pass an enactment and so long as the said enactment has not been declared to be ultra vires the Constitution or, in any way, null and void by a Constitutional Court, the said enactment would have the force of law.”
The bench added, “However, if any party wishes that the said Act be struck down for being unconstitutional, then legal remedies in that regard would have to be resorted to before the competent court of law.”
Considering the situation prevailing in Chhattisgarh over decades, the bench outlined the need for “specific steps” to bring peace and rehabilitation in the affected areas through coordinated measures of the state and the Central Government.
“It is duty of the State of Chhattisgarh as well as the Union of India, having regard to Article 315 of the Constitution, to take adequate steps for bringing about peace and rehabilitation to the residents of State of Chhattisgarh who have been affected by the violence from whatever quarter it may have arisen,” the court said.
Judiciary is vested under the Constitution with the power to resolve interpretive doubts and disputes about the validity or otherwise of an enacted law by Parliament or any state legislature, the bench added.
“However, the interpretative power of a Constitutional Court does not contemplate a situation of declaring exercise of legislative functions and passing of an enactment as an instance of a contempt of a Court,” it noted.
The verdict pointed out that central to the legislative function was the power of the legislative organ to enact and amend laws.
“Any law made by the Parliament or a State legislature cannot be held to be an act of contempt of a Court, including this Court, for simply making the law,” the bench said.
The top court underlined the legislature’s powers to pass a law; to remove the basis of a judgment or in the alternative, validate a law which has been struck down by a constitutional court by amending or varying it so as to give effect to the judgment of a constitutional court which has struck down a portion of an enactment or for that matter the entire enactment.
“This is the core of the doctrine of separation of powers and must always be acknowledged in a constitutional democracy such as ours. This doctrine also emphasises on the principle of checks and balances under our Constitution which is a healthy aspect of distribution of powers, particularly legislative powers.”
The order went on, “Any piece of legislation enacted by a legislature can be assailed within the manner known to law and that is by mounting a challenge against its validity on the twin prongs of legislative competence or constitutional validity.”
