On June 3, 2013, a full bench of the Central Information Commission (CIC) passed an order declaring six political parties to be public authorities[i], and consequently bringing them under the ambit of the Right to Information Act, 2005 (RTI/ Act). Not unexpectedly, the Centre was quick to react. The UPA and the opposition were quicker to find unanimity on this issue. The media is rife with reports that the Cabinet has approved the introduction of an amendment to the RTI granting immunity to political parties from the Act.[ii] This episode echoes the numerous instances when the Parliament has resorted to retrospective amendments for nullifying the effect of inconvenient judicial pronouncements. It also reiterates the vulnerability of judicial pronouncements to the legislature’s power to turn the clock back in time. In this post, I trace the checkered history of retrospective amendments, and question the Indian legislature’s aggressive tendency of overruling bothersome judicial pronouncements by large-scale retrospective amendments to the law.
At the outset, it is nobody’s case that the legislature cannot enact laws having retrospective effect, for the power to do so is bestowed on it under the Constitution and fortified by numerous judicial pronouncements.[iii] This post also does not seek to argue for or against political parties being covered under the RTI. What this post questions is the righteousness of an obstinate legislative tendency to wriggle out of judicial pronouncements by making retrospective amendments, especially when redress against an unjustifiable order is available through appeal to a higher forum.
The proposed amendment of the RTI refreshes one’s memories of the numerous election validating laws of the 1970s that were enacted retrospectively for political convenience. One is reminded of the Rajasthan State Legislature’s act of retrospectively amending the definition of office of profit under the The Representation of the People Act, 1951 (RP Act) as applicable to Rajasthan. The amendment was made to override the judgment of the Rajasthan High Court that invalidated a candidate’s election to the Legislative Assembly on the ground that he held an office of profit as defined under the RP Act as it stood at the time of the election. The RTI amendment also reminds one of the landmark judgment of the Allahabad High Court invalidating Indira Gandhi’s election to the Lok Sabha on the grounds of her having engaged in electoral malpractices as defined under the RP Act, as it stood at the time of the election. Indira Gandhi appealed to the Supreme Court against this judgment. During the pendency of the appeal, the Congress-controlled Parliament passed a law amending inter alia the RP Act, so as to obviate the grounds that formed the basis of the Allahabad High Court judgment. The rest, as they say, is history. In both these cases[iv], the Supreme Court respected the unbridled power of the legislature to enact retrospective laws notwithstanding their effect on judicial pronouncements.[v]
Retrospective amendments are most commonly known for neutralizing the effect of anti-Government tax rulings. Of recent prominence is the retrospective amendment that sought to override the Supreme Court’s judgment in the Vodafone dispute, and bring offshore share transfers within the tax net. The amendment was a fall-out of a 2 year-long battle that the Government waged against Vodafone for recovering taxes in respect of an offshore share-sale transaction, and ultimately lost. In the tax regime, one will recollect numerous such retrospective amendments (some of them turning the clock as many as 30 years behind) that have altered tax liabilities of assessees. For instance, the amendment that brought renting of immovable property within the service tax net nullifying the judgment of the Delhi High Court in the Home Solutions case[vi]; the amendment that retrospectively taxed fees paid for services rendered abroad seeking to defeat the Supreme Court judgement in the Ishikawajma-Harima case[vii], the amendment that nullified the Supreme Court’s decision which held that once a price-classification list was approved by the Excise department[viii], the department could not re-open the matter for levying additional excise duty, to name only a few.
Legislative power to amend laws retrospectively for obviating the effect of a judgment has been justified on several grounds, namely the legislature being empowered to cure defects and infirmities in the law, absence of restrictive language in the plenary powers conferred on the legislature under the Constitution, and the inability of lawmakers to envisage every possible situation that the law may need to address. Often, the power of retrospective legislation has been used to plug genuine loopholes in welfare legislations. At the same time, there is no gainsaying the unforeseen consequences imposed on those who are targeted by retrospective laws, often on those who have fought until the highest court of the land to get their due under the law prevalent at the relevant time.
Even if one were to give the legislature the benefit of doubt for retrospective amendments to taxing statutes as they generally help the exchequer, the question assumes greater significance in the context of retrospective amendments made for political convenience. Particularly so, when the amendment is intended to benefit the amendment-makers alone. For instance and at the risk of digressing from the main issue of retroactivity, has the Government followed the regular process in connection with the potential RTI amendment that it would ordinarily follow whilst enacting any other law? Have consultations been held with all stakeholders? The only argument put forward by the Centre justifying the exemption of political parties from the RTI is the potential of its abuse. However, the legislature’s power to enact retrospective laws has equally been challenged in the past on grounds of potential abuse. This challenge has failed and Courts have repeatedly held that potential for abuse of a law cannot be a ground of challenge.[ix] Does the same principle not defeat the Centre’s argument for exemption of political parties from the RTI?
With the legislature aggressively amending laws retrospectively and with many such amendments being triggered by inconvenient judicial pronouncements, it is perhaps time for lawmakers to introspect on the generous use of its retrospective powers. Let me spell out why – because it will lend much predictability to the Indian legal regime, enable citizens to plan their affairs with more certainty, enhance confidence in the future of the regime, and more importantly, it will restore the sanctity of judicial pronouncements.
[i] The CIC declared the Indian National Congress/ All India Congress Committee (AICC), Bhartiya Janata Party(BJP), Communist Party of India (Marxist) (CPM), Communist Party of India(CPI), Nationalist Congress Party(NCP) and Bahujan Samaj Party(BSP) to be public authorities under the RTI.
[ii] http://www.dnaindia.com/india/1868714/report-immunity-to-political-parties-cabinet-gives-nod-to-amend-rti-act; http://articles.timesofindia.indiatimes.com/2013-08-01/india/40961224_1_political-parties-cic-order-rti-act
[iii] Article 245 of the Indian Constitution that empowers the Parliament and State Legislatures to make laws for the whole of India and the concerned State respectively does not contain restrictive language. The only exception to this can be found in Article 20 of the Constitution which prohibits the conviction or penalization of a person under a retrospective law.
[iv] See Kanta Kathuria v. Manak Chand Surana (1969) SCC 268 and Indira Gandhi v. Raj Narain (1975) 2 SCC 159.
[v] In Indira Gandhi v. Raj Narain (Supra Note iv), the Supreme Court upheld retrospective amendments to the RP Act, and struck down certain retrospective amendments made to Article 329A of the Constitution. However, the latter amendment was struck down on grounds other than retroactivity.
[vi] Home Solutions Retail India Ltd v. Union of India and Ors. 2009-TIOL-196-HC-DEL-ST
[vii] Ishikawajima Harinia Heavy Industries Ltd. v. DIT, Mumbai, (2007) 3 SCC 481
[viii] Collector of Central Excise, Baroda v. Cotspun Ltd. 1999 (113) ELT 353 (S.C)
[ix] In Kanta Kathuria v. Manak Chand Surana (Supra) responded to a challenge to the legislature’s powers to enact retrospective amendments overruling judicial pronouncements, as under:
“The apprehension that it may not be a healthy practice and this power might be abused in a particular case are again no grounds for limiting the powers of the State Legislature.”