Author Name:   usman karim

Under a written Constitution the powers of Executive, Legislature and Judiciary are fully described and under the principle of supremacy of Constitution, all the three organs of a State are bound to remain within their vires...

Can a Legislature supplement the powers of Courts given by a written Constitution, through a Sub-Constitutional Legislation.

Under a written Constitution the powers of Executive, Legislature and Judiciary are fully described and under the principle of supremacy of Constitution, all the three organs of a State are bound to remain within their vires as prescribed by the Constitution. Function of the Legislature is to promulgate the laws as per its competence under the Constitution for regulating different affairs. It is an established principle of Constitutional Law that the legislative organ of a State, run under a written Constitution, has exclusive power to make laws and the other organs has no such power, except to the extent the legislature confers it to Executive or Judiciary.

The question which is very important to resolve is whether the Legislature has unbridled powers to make laws or there are some limitations placed on it by the Constitution. In most of the modern Constitutions, the legislative powers of the Legislature have been defined and the Legislature is not allowed to go beyond the powers as defined by the Constitution. For instance, in Indian as well as in Pakistani Constitutions there are Federal Legislative List, Provincial or State Legislative List and Concurrent Legislative List (the concurrent Legislative List has been omitted from the Constitution of Pakistan through Eighteen Amendment). The Federal Legislature has no power to pass any law relating to any matter which falls in Provincial or State Legislative List and in the same manner the Provincial or State Legislature has no authority to promulgate any law relating to any subject which is mentioned in Federal Legislative List.

Laws inconsistence of Fundamental Rights.
Most of the modern Constitutions provide the Fundamental Rights of individuals, such as right to life, liberty, business, education etc. and also provide guarantee to protect those rights. The Legislature has no power to take away the Fundamental Rights of the subjects of the State through any law. As per the Constitution of India and Pakistan, laws inconsistence or in derogation with the Fundamental Rights are void to the extents of their inconsistency with such Rights.

Power of Judicial Review of Legislative Instruments.
It is the duty of the Judicial organ of a State to strike down any legislative instrument which is in derogation of the Fundamental Rights as guaranteed under the Constitution.

There is another aspect of the powers of Judicial Review which was discovered by Chief Justice Marshal in a land mark judgment of Marbury v Madison 5 U.S. (1 Cranch) 137 (1803). As per the said judgment it is the duty of the Courts to uphold the Constitutional Provisions and any law which is in conflict of the provisions of Constitution should be held void. While following the said decision of the Supreme Court of USA, all the courts in America has the power to declare any law as unconstitutional while in the Indian Sub-continent this power is exercised by the Constitutional Court (High Courts and the Supreme Courts).

Legislature cannot take away the powers of Constitutional Courts through a sub-constitutional legislation.
It is an established principle of Constitutional Law that the Legislature has no power to take away any power of the Constitutional Courts or any other constitutional body. Even in India the Supreme Court of India in L. Chandra Kumar vs. Union of India and others (AIR 1997 SC 1125) has declared that the powers of Constitutional Courts under Articles 32, 226 and 227 of the Constitution of India cannot be taken away even through a Constitutional Amendment on the principle that the basic structure of the Constitution cannot be changed even through an amendment in the Constitution.

Can the powers of Constitutional Court can be supplemented through an ordinary law.
As it has already been discussed that this is an established principle that the power of courts bestowed upon them through Constitution cannot be slashed through an ordinary law but what would be the situation when a Legislature gives supplemental powers to the courts through an ordinary law?

Article 226 of the Constitution of India and Article 199 of the Constitution of Pakistan bestowed upon the High Courts the power to issue writs of Mandamus, Prohibition, Certiorari, Habeas Corpus and Quo-Warranto. Under both of the above referred Articles no right of appeal has been granted to any aggrieved person against the order passed by the High Court while issuing or refusing to issue the writs as mentioned above. But through different legislative instruments the Legislature has given the right of appeal before the Division Bench of the same High Court if the original order has been passed by a Single Bench. In India, this right has been granted by some of the State Legislatures while in Pakistan the Federal Legislature has given the right of appeal against the order of Single Bench passed under the writ jurisdiction.

We should see whether the Legislature, Federal or Provincial or State, under the Constitution has power to regulate the writ jurisdiction of High Courts? If we peruse the Legislative Lists of the Constitution of India and Pakistan we can clearly see that the Legislature has no authority to pass any law to regulate the writ jurisdiction of the High Court.

Umaji Kashao Meshram vs. Radhika Bai.
In “Umaji Kashao Meshram vs. Radhika Bai” (1986 AIR 1272) it was held that under Article 225 of the Constitution of India the High Court would have the same powers as it possessed before coming into force of Constitution and as the Chartered High Courts had the power to hear intra court appeals against the order passed in writ jurisdiction under their respective Letters Patents, therefore, the same power would also be available to High Courts even after coming into force of the Constitution of India. The reason given by the honorable Supreme Court of India in support of its decision was that the present Indian Constitution is in continuity of the Government of India Act, 1915-1919, and Indian Independence Act, 1947 passed by the British Parliaments, therefore, the Letters Patents of the High Courts are fully in force under Article 225 of the Constitution of India.

If we go through this judgment carefully then we get the support for drawing the conclusion that the Legislature, whether Federal, Provincial or State has no authority to confer upon the High Court right to hear an appeal against its own decision passed under writ jurisdiction. It was held that:

“It should be remembered that the Government of India Act of 1915-1919 was a Constitution Act and, therefore, the jurisdiction which was conferred upon the High Courts by section 107 of that Act was a jurisdiction conferred upon them by a Constitution Act.”

The above Para shows that the Supreme Court of India accepted the preposition that the constitutional powers of High Courts for issuing writs cannot be supplemented by providing a right of intra court appeal against the order passed by the court by an ordinary law and such right can only be granted through constitutional amendment or constitutional law.

Marbury vs. Madison.
Through the Judiciary Act of 1789 the Legislature of the United States of America bestowed upon the Supreme Court of America the power to issue the writ of Mandamus in its original jurisdiction, whereas, under Article III of the Constitution of USA the Supreme Court has following original jurisdiction:

“The Supreme Court shall have original jurisdiction in all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be a party. In all other cases, the Supreme Court shall have appellate jurisdiction”.

The Supreme Court of USA described the Act of 1789 as against the provisions of the Constitution in the following words:

“The authority, therefore, given to the Supreme Court by the act establishing the judicial courts of the United States to issue writs of mandamus to public officers appears not to be warranted by the Constitution, and it becomes necessary to inquire whether a jurisdiction so conferred can be exercised The question whether an act repugnant to the Constitution can become the law of the land is a question deeply interesting to the United States, but, happily, not of an intricacy proportioned to its interest. It seems only necessary to recognise certain principles, supposed to have been long and well established, to decide it.”

The Supreme Court of USA declared the Judiciary Act, 1789 to the extent of its granting power of writ of Mandamus to the Supreme Court as unconstitutional and void and declared:

“So, if a law be in opposition to the Constitution, if both the law and the Constitution apply to a particular case, so that the Court must either decide that case conformably to the law, disregarding the Constitution, or conformably to the Constitution, disregarding the law, the Court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty.

If, then, the Courts are to regard the Constitution, and the Constitution is superior to any ordinary act of the Legislature, the Constitution, and not such ordinary act, must govern the case to which they both apply.”……………………………… “a law repugnant to the Constitution is void, and that courts, as well as other departments, are bound by that instrument.”

Section 3 (2) of the Law Reforms Ordinance, 1972, passed by the Federal Legislature of Pakistan reads as under:

Appeal to High Courts in certain cases---

(1). …………………………………………………………………………………………………..

(2). An appeal shall also lie to a Bench of two or more Judges of a High Court from an order made by a single Judge of that Court under clause (1) of Article 199 of the Constitution of the Islamic Republic of Pakistan not being an order made under sub-paragraph (i) of paragraph (b) of that clause:

Provided that the appeal referred to in this sub-section shall not be available or competent if the application brought before the High Court under Article 199 arises out of any proceedings in which the law applicable, provided for at least one appeal or one revision or one review to any Court, Tribunal or authority against the original order.

Whereas, section 2(1) of the M.P. Uchacha Nyayalay (Khand Nyaypeth Ko Appeal) Adhiniyam, 2005, is as under:
Section 2 of the Act reads as follows:
"2(1) An appeal shall lie from a judgment or order
passed by the one Judge of the High Court in exercise of
original jurisdiction under Article 226 of the
Constitution of India, to a Division bench comprising of
two judges of the same High Court.

Provided that no such appeal shall lie against an
interlocutory order or against an order passed in exercise
of supervisory jurisdiction under Article 227 of the
Constitution of India."

Both of the above mentioned provisions provide the right of appeal against the order passed by the High Courts under the writ jurisdiction has in fact extended the jurisdiction of the High Courts and the courts have given the authority to revisit their decisions without any amendment in the constitution. On the basis of dictum laid down by the landmark decision of Marbury vs. Madison, all these statutes are ultra vires the constitution and void.

Letters Patent Appeals under the Letters Patents of High Courts.
The conclusion as drawn under this article is not in conflict with the decision of the Indian Supreme Court in the case of “Umaji Kashao Meshram vs. Radhika Bai” (1986 AIR 1272) as in that case the Supreme Court of India only discussed the right of appeal as provided under the Letters Patents of different High Courts and declared that Letters Patents as valid laws and not in conflict of the Constitution of India, 1949. The said judgment did not discuss the matter I want to elaborate through this article.

The Supreme Court declared only that the Letters Patents, wherein right of intra court appeal was provided against the order passed in writ jurisdiction of respective High Court is protected under Article 225 of the Constitution. The apex court did not allow the Legislature to promulgate the laws for supplementing the writ jurisdiction of High Courts through an ordinary law, which object can only be achieved through an amendment in the constitution.

It would be appropriate that the Superior Judiciary of India and Pakistan should consider the validity and constitutionality of the laws which has extended the jurisdiction of the High Courts while providing the right of intra court appeal against the orders passed by the courts by exercising its writ jurisdiction.

The  author can be reached at: usmankarimuddin@legalserviceindia.com

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