The Indian judiciary through various judgments held that the declaration of a central law as unconstitutional by a High Court is binding all over India and not just within the territorial jurisdiction of that High Court. Despite this, Parliament has, quite incredulously, chosen to bring back a provision which was already declared unconstitutional, not by a constitutional amendment, but by simply changing the label of the identical provision under a new statute. Is it possible for Parliament to bring back provisions which have been struck down as unconstitutional just by putting them in a new piece of legislation without fixing the constitutional defect?
This question becomes acute when one scrutinizes the parallel provisions of Section 17A of the Industrial Disputes Act, 1947 and Section 55(4) of the Industrial Relations Code, 2020. Both sections confer the government with the authority to make industrial tribunal awards unenforceable on the ground of public interest, such as threats to national economy or social justice. The procedure laid down in these sections clearly indicates that industrial awards shall become binding after a period of thirty days from the date of publication, thus providing a short period after which the government may issue a notification rejecting or modifying the award. This thirty-day enforcement period often functions as an opportunity for executive intervention and also by permitting the government to act within this timeframe, both provisions effectively subordinate tribunal determinations to executive override and also granting the power to reject or modify the award, a defect that courts have previously identified as violative of constitutional principles.
The Genesis: Section 17A and Judicial Declarations of Unconstitutionality
The narrative is anchored in 1997 when the Andhra Pradesh High Court in Telugunadu Workcharged Employees State Federation, Nalgonda District Unit President v. Government of India [(1997) 3 ALT 492] ruled Section 17A of the Industrial Disputes Act, 1947, as unconstitutional. This section empowered the government with the extraordinary power of declaring awards issued by Industrial Tribunals as unenforceable thereby giving the executive the authority to nullify judicial decisions in labour disputes. The Andhra Pradesh High Court was of the view that this constituted an infringement of the separation of powers, which is one of the basic principles of the constitution.
The principle lay dormant for several years until the Madras High Court, in a division bench judgment in Union of India v. Textile Technical Tradesmen Association [(2014) 4 LLJ 683], took cognizance of this issue and came to the same conclusion regarding the constitutional invalidity of the provision and even went further. The Division Bench unequivocally stated that if a High Court passes a judgment declaring a provision of Parliamentary legislation as unconstitutional, the said decision has effect throughout the territory of India/wherever the enactment is applicable. This declaration is based on Article 226(2) of the Constitution and the Supreme Court's obiter dictum in Kusum Ingots & Alloys Ltd. v. Union of India [(2004) 6 SCC 254] and it signifies that a central law which is set aside by any High Court is no longer valid anywhere in the country and not just within the jurisdiction of that court.
The Madras High Court's judgment in 2014 was decisive with respect to the unconstitutionality of Sections 17A (1), (2), and (3) of the Industrial Disputes Act, 1947 as they violated the principle of separation of powers by permitting the executive to sit in appeal over judicial determinations. The judgment declaring Section 17A unconstitutional “had not been reversed by Supreme Court” and thus remained operative throughout India.
The Paradox: Parliament's Move with the Industrial Relation Code 2020.
The Indian Parliament, when enacting the Industrial Relations Code, 2020, appeared to ignore this precedent entirely. Section 55 of the new Code, specifically Section 55(4), replicates the unconstitutional provision almost verbatim. It grants the appropriate government the power to “reject or modify” awards passed by Industrial Tribunals in certain circumstances claiming public grounds such as threats to the national economy or social justice. The government may also defer the enforcement of awards for 30 days, and the order must be tabled in the legislature. The irony is stark and unmistakable. Parliament has taken the exact constitutional defect identified which was struck down by both the Andhra Pradesh and Madras High Courts and simply relocated it to a new statute with a different section number. The substance remains unchanged only the legislative costume has been altered. This is precisely what constitutes as a “colourable legislation” i.e. legislation designed to circumvent a judicial judgment by technically changing the form while preserving the pernicious substance.
The Violation of the Rule of Law
This is a profound matter that goes beyond the technical aspects of constitutional doctrine. At its core, it is about the essential idea that all government organs, including Parliament, are subordinate to the Constitution and the rule of law. A courts declaration that a provision is unconstitutional is not a mere suggestion for Parliament to consider. It is a binding constitutional determination that the provision in question violates the supreme law of the land. If Parliament were to disregard this determination and re-enact the same provision, albeit under a different statutory guise, it would be an assertion that the legislature is above the Constitution and above the judiciary. According to our constitutional system, Parliament is sovereign in its legislative domain, but that sovereignty is limited by the Constitution. Therefore, if the judiciary finds that a provision violates the Constitution, Parliament's decision can only be to accept the judgment or to follow the route of constitutional amendment if it really thinks that the Constitution itself needs to be changed and not to go around the judgment by a legislative trick.
The Apex court's judgment in P. Sambamurthy & Ors. v. State of Andhra Pradesh [1987 AIR 663] articulated the principles that resolve the main constitutional questions raised. It was a significant case through which the Supreme Court scrutinized the legality of Article 371-D, Clause (5) that allowed the State Government to revoke or alter the decisions of the Administrative Tribunal even before these decisions were given effect. The Court viewed the provision that enables the executive to overrule the decisions of an independent adjudicatory body as contrary to the rule of law and to the basic structure of the Constitution.
The Sambamurthy judgment articulated a foundational principle that “The rule of law requires that the exercise of power by the executive must not only be conditioned by the Constitution but must also be in accordance with law. If the exercise of judicial review can be set at naught by the State Government by overriding a decision given against it, it would sound the death knell of the rule of law.” The Court further held that “such a power conferred on the executive amounted to allowing a party to litigation to override the decision of the adjudicatory body, which is shocking and clearly subversive of the principles of justice.”
Implications for Labour and Social Justice
Beyond the constitutional principles, this issue carries acute practical implications for workers and labour relations in India. The Tribunals that resolve industrial disputes exist to provide workers with access to justice independent of governmental manipulation. When the executive retains the power to reject or modify awards, the very purpose of these institutions is compromised. This was precisely the constitutional defect identified by the courts. It transforms the Tribunal from an independent arbiter into a subordinate body whose determinations can be overridden by the party against which the judgment was rendered. Section 55(4) of the Industrial Relations Code perpetuates this very scenario. Workers across India are therefore denied the benefit of the constitutional protection that the courts sought to provide through their declarations of unconstitutionality.
A Call for Constitutional Compliance
The law in India is clear. Declarations made by High Courts striking central legislations have binding authority all over the country. Section 17A which was struck down in 1997 and 2014, remains unconstitutional everywhere i.e. in every state and union territory of India. Section 55(4) of the Industrial Relations Code, being only a restatement of the same provision under a different name, carries the same constitutional defect. Parliament cannot authorize this provision by merely re-enacting it. The legislature should take out Section 55(4) from the Industrial Relations Code and see to it that tribunal awards have the finality and freedom that the Constitution require. Anything less than that would be a failure of Parliament to perform its constitutional duty and a breach of the rule of law which is the only basis of the legitimacy of democratic governance. For citizens and workers who depend on courts to defend their constitutional rights, the message should be clear i.e. judicial declarations of unconstitutionality are not suggestions which legislatures may disregard. They are constitutional necessities that bind all organs of government. When Parliament ignores them, it does not merely defy the courts, it defies the Constitution itself.
The Author Is An Assistant Professor Of Law At Vignan Institute of Law
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