Regarding the Ordinance amending Representation of Peoples Act: The Ordinance is an executive act & is susceptible to challenge like any Executive or Administrative act. The judgment of the Supreme Court in McDowell settles the issue that a plenary legislation can be challenged only on two grounds i.e. violation of Part III and want of legislative competence. There is no third ground says SC. Malafides cannot be attributed to Legislature and one man legislation is permissible. The Supreme Court found fault with the offending section only on the ground that there is no Constitutional backup. This judgment cannot be simply over-ruled by amending RPAct. Parliament has to remove the basis of the judgment by providing Constitutional backup first before amending RPAct. If this is done, the basis of the SC judgment is removed, which is perfectly permissible. The judgment in second S.P.Gupta case on appointment of Judges is successfully being nullified by constitutional amendment. The amendment to Constitution simply says judges to be selected by the NJC which will be established by Act of Parliament. (It may be challenged on the ground of destroying the Basic Structure of the Constitution) Now unlike the Legislative power of the Parliament, its Constituent power cannot be challenged on the McDowell principle but on the doctrine of basic structures of the Constitution. If the Parliament has not provided constitutional backup and has simply amended RPAct, then its runs in the teeth of the SC Judgment and is liable to be struck down. The basis of this particular judgment cannot be removed unless the Constitution is amended..
Posted on: Thu, 26 Sep 2013 04:43:29 +0000