You are on page 1of 10


Commencement of an act- Centre: Presidents assent. State: Either governors or presidents assent. In some act
there is some specific time of its commencement. It is left on the discretion of the government.
Retrospective legislation- Legislation may make a law which is is operative for a limited period prior to the date
of its coming into force. The power to retrospective legislation enables the legislature to obliterate an amending
act completely and restore as it existed before amending the law. This power is often used for validating prior
executive and legislative acts by retrospectively curing the defect which led to their invalidity. And thus even
making an effective judgment of competent court declaring the act invalid.
Statute which affect our substantive right: 1. the cardinal principle is every act or statute is prima facie
prospective unless contrary is specifically provided. 2. The general rule- the retrospective act is not taken to be
intended unless that intention is manifested by expressed words or necessary implication. 3. The subordinate
rule to the effect that a statute or a section is not to be constructed so as to have larger retrospective operation
than its language render necessary and the close attention has to be paid to the language of the statute.
Statute dealing with procedure: In comparison to the above, the statute dealing with merely matter of procedure
are assumed to be retrospective unless such a construction is textually inadmissible. Why so? If the new act
affects a matter of procedure, only then it applies to all the actions pending as well as future. According to
Maxwell no person has a vested right in any cause of procedure. He only has the right of prosecution or defense
in the manner prescribed for the time being by or for the court in which the case is pending and if by an act of
parliament the mode of procedure is altered, he has no other choice than to proceed according to the altered

# Secretary of State for Social Security v Tunni Clif- The true principle is that the parliament is presumed not to
have intended to alter the law applicable to past events and transactions in a manner which is unfair to those
concerned in them unless a contrary intention appears. It is not simply a question of classifying an act as
retrospective or not retrospective, rather it may well be a matter of degree, the greater the unfairness the more it
is to be expected that parliament will make it clear if that is intended.
# Loffice cheritien des Phosphates v Yamashta Shinnihon Steamship Co. Ltd. - The HOL observed the question
of fairness to be answered in respect of a particular act or statute by taking into account various factors and
these factors are: 1. Value of the rights which the statute affects. 2. Extent to which the value is diminished or
extinguished by the suggested retrospective effect of the statute. 3. Unfairness of adversely affecting the rights
4. Clarity of the language used by the parliament. 5. The circumstances in which the legislation was created.
# Vijay v State of Maharashtra A new law was enacted according to which no person shall be a member of
panchayat or continue as such who has been elected as counsellor of Jila Parishad or as a member of panchayat
samiti. And this law was held to be retrospective and applicable to the existing member of the panchayat.
Justice S.B Sinha observed in this case that it is now well settled that when a literal reading of a provision
giving retrospective affect does not produce absurdity. The same would not be constructed only prospective.
The negation is not a rigid rule and varies with the intention and purpose of the legislation. When a new law is

enacted for the benefit of the community as a whole even in the absence of the provision the statute may be held
to be retrospective in nature.
Whether language is the sole parameter and decisive factor- In deciding the question of applicability of a
particular statute to past events the language used is no doubt the most important factor to be taken into account
but it cannot be stated as an inflexible rule. The rare issue in each case is as to the dominant intention of the
legislature to be gathered from the language used. The object indicated the nature of rights affected and the
circumstances under which the statute is passed.
Statute relating succession- The statute enacted for regulating succession are not applicable to succession which
had already opened as otherwise the affect will be to divest the state from the person in whom it had been
vested prior to coming into force of the new statute.

Statue relating to Transfer- Retrospectively it wil not affect. Statute which basically prescribe formalities fir
affecting transfer are not applicable to transfer made prior to their enforcement and in the same manner the
statute dispensing with formalities which were earlier necessary for making transfer have not the effect of
validating the transfer which were lacking in these formalities and which were made prior to such statute. A
transfer made in contravention of a statutory prohibition is invalid and is not validated by repeal of the statute
containing the prohibition.
Statute relating to contract- Validity of existing contracts is not affected by a later act making contracts of that
nature invalid. Eg- Act no 41 of 1948 under which an act for avoiding wager which provide that all agreements
by way of gaming or waging shall be null and void and not enforceable. This provision does not affect the
validity or enforceability of waging agreements made prior to the coming into force of this act and a contract is
valid when made is not invalidated by a subsequent prohibition.
Statute of limitation- Regarded as procedural and the law of limitation which applies to a suit is the law in force
at the date of the institution of the suit irrespective of the date of the occurring of the cause of action. The object
of a statute of limitation is not to create any right but to prescribe periods within which legal proceeding maybe
instituted for enforcement of rights which exists under the substantive law but after expiry of the period of
limitation the right to suit comes to an end therefore if a particular right of action had been barred under an
earlier limitation act, the right is not revived by a later limitation act even if it provides a larger period of
limitation than that provided by an earlier act. On the same principle if a right to execute a judgment gets barred
under an earlier act the right is not revived by a later act.
Penal Statute- Which create offence or which have the effect of increasing penalties for existing offence will
only be prospective by reason of the constitutional restriction imposed by article 20 of the constitution. Even
otherwise they are constructed prospectively because it manifestly shocks ones sense of justice that an act legal
at the time of doing it should be made unlawful by some new enactment therefore if an act create a new offence
it will bring into its fold only those offenders who commit all ingredients of the offence after the act comes into
operation. The prohibition of art 20 to enact retrospective penal laws has no application to a law which only
modifies the rigour of the existing penal law if subsequent to the commission of the offence provision is made
by law for imposition of a lighter penalty, the offender shall benefit thereby.

# State v Gyan Singh (1999) SC held that if any subsequent legislation would downgrade the offence it would
be a Salutory principle for administration of criminal justice to suggest that the said legislative benevolence can
be extended to accused who awaits judicial verdict regarding sentence.
Pending proceeding- 1. Regarding the alteration of substantive rights- A retrospective statute which affects
rights and existence is not readily constructed to affect adjudication of pending proceeding. The court insist that
to have result the language should be sufficiently clear. Although it need not be expressive. The court have
undoubtedly leaned very strongly against applying a new act to a pending action when the language of the
statute does not compel them to do so. According to CJ C.R. Das the golden rule of construction is that in the
absence of anything in the enactment to show that it is to have retrospective operation it cannot be so
constructed as to have the effect of altering the law applicable to a claim in litigation at that time when the act
was passed(to be contd.)
The principle that the pending proceeding does not go beyond this that in every case language of the statute
has to be examined to determine whether the legislature clearly indicated to bring within reach of the statute
even pending proceedings. It is therefore not essential that the legislature if it intends to apply a statute to
pending proceeding must enact an express provision to that effect. It is the duty of the Court whether trying
original proceeding or hearing an appeal to take note of the changes in law affecting pending action and to give
effect to the same.
Alteration in matter of procedure- it has already been noticed that for reason that a litigant has no vested right
in any matter of procedure alteration in procedural law are generally held to be retrospective in the sense that
they apply to future as well as pending actions.
# Anant Gopal v State of Bombay- In this case s.342 (a) of CrPC, 1898 introduce by amending act of 26 of
1964, which enacted that any accused person shall be a competent witness and may give evidence on oath in
disprove of the charge was held to be applicable to a prosecution which was pending at that time the amending
act came into force.
Statutes are presumed to be prospective only in their operation.

Literal meaning of overruling is to overturn or set aside a precedent by expressly deciding that it should no
longer be controlling law. Prospective overruling means constructing an earlier decision in such a way that
would not have a binding effect to the parties to the original suit or to the cases decided on the basis of that
judgment and yet changing the law applying it only prospectively to the future cases.
Blackstone- doctrine of stare decisis- The court should follow the precedent and the principle laid down by
earlier decisions should be followed. And it should be left on the judges discretion to apply law prospectively
or retrospectively.
Justice Cardozo who propounded this doctrine of prospective overruling # Northern Railway v Sunburst Oil and
Refining corporation said this is not a case where a court is overruling its earlier decision has given to the new
ruling a retroactive bearing and thereby has made invalid what was valid in the doing. It was adopted in #

Golaknath v State of Punjab, SC said the doctrine of prospective overruling is a modern doctrine suitable for a
fast moving society it does not do away with the doctrine of stare decisis but confines it to pass transactions
while in strict theory it maybe said that the doctrine involved in making of law what the court readily does is to
declare the law but refuses to give retroactivity to it. It is readily a pragmatic solution reconciling the two
conflicting doctrine namely the court finds the law and that it does make law and it finds law but restricts its
operation to the future. It enables the court to bring about a smooth transaction by correcting its error without
disturbing the impact of these errors on past transactions. By application of this doctrine the past may be
preserved and the future protected. In a constitution does not expressly of by necessary implication speak
against the doctrine of prospective overruling. The main purpose of this doctrine is to prevent the multiplicity of
cases. Mandals judgment came into effect after 5 years. Doctrine was given by Subbarao in the Golaknath case.
In that case the 17th amendment was challenged. Subbarao said that having regard to the history of amendment
their impact on the socioeconomic affairs of a country and the chaotic situation that may be brought about by
the sudden withdrawal at this stage of the amendment from the constitution. We think that considerable judicial
restraint is called for. We therefore declare that a decision will not affect the validity of the constitutional 17th
Amendment Act 1964 or other amendments made to the constitution taking away or abridging the fundamental
We further declare that in future parliament will have no power to amend Part III of the constitution so as to
take away or abridge the fundamental rights. Subbarao also discussed the objections which could arise due to
the doctrine1.

The doctrine involved legislation by court.

It will not encourage parties to prefer appeals as they would not get any benefit therefrom.
The declaration for the future would only be obiter.
It is not a desirable change.

He himself discarded these objections. He basically supported the legitimacy of the doctrine and held that the
overruling as a concept included within its ambit the discretion to decide whether a particular decision will have
retrospective effect or not. He further added that what is being laid down cannot be considered as obiter as what
the court is doing in effect is to declare the law and by the use of the doctrine restrict its scope. This in strict
legal sense may encompass making law. But according to the Chief Justice what is being done is to strike a
pragmatic balance b/w two conflicting considerations which are a court finds law and the court makes law. He
further said that there is no statutory provision that in fact prevent or bar him from employing the doctrine. And
court in India has the inherent power to reject the retroactivity of law when it affects vested interests.

Complete justice- 32, 141,142. Nothing shall go against the constitutional scheme. The doctrine should not be
used unjustly. He also laid down some guidelines- 1. The doctrine of prospective overruling can be invoked
only in matters arising under a constitution. 2. It can be applied only by the highest court of land i.e. SC because
in the constitutional jurisdiction only SC can declare law which are binding on all the courts in India. 3. The
scope of the retroactive operation of the law declared by the SC superseding its earlier decision is left to its
discretion to be molded in accordance with the justice of the cause or matter before it.
But it is seen that in cases later this doctrine has been applied even in the cases of ordinary statute.
# UOI v Md. Ramzaan Khan

# Atma Prakash v State of Haryana

# Odisha Cement ltd. v State of Odisha
Justice Jeevan Reddy has applied this doctrine in the Mandal case (Indira Sahni v UOI) and decided that the
ruling in this case would be effective after five years of the date of ruling. Held that the judgment in Mandal
case would not affect the prior transactions and those transactions already contemplated under the scheme so he
decided that the judgment would be effective after five years.
The invocation of the doctrine by Subbarao must be seen in the given socio economic setting at that time was in
fact ta fascinating endeavor keeping in mind the rhetoric of following traditional rules and principles. Also such
an exercise of power is constitutionally upheld under art. 141 which empowers the SC to declare the law of the
land. So one can see that the task of the courts in India is to supply gaps in the legal theory so that it fosters the
development of the culture of respectability towards human and fundamental rights. This has been done by the
doctrine of PO which fulfills the gap in legal theory and offers the doctrinal foundation for an extended view of
judicial functions with build in discretion in the court to decide the applicability of the decision.

Statute affecting the state or the crownEnglish law provides that a crown is not bound unless it is specified either expressly or by necessary
implication. The reason of the rule has been stated to be that a statute is presumed to be enacted for the subject
and not for the king. In # Bombay Province v Bombay Municipal Corporation, Lord Du Parcq stated that the
maxim of the law in earlier time was that no statute bound the crown unless the crown was expressly named
therein. But the rule so laid down is subject to at least one exception the crown may be bound as often being
said by necessary implication. If that is to say it is manifested from the varied term of the statute that it was the
intention of the legislature that the crown should be bound. Then the result is the same as if the crown has been
expressly named. It must then be referred that the crown by assenting/ascending to the law agreed to be bound
by its provisions. Lord Keith in the case # Lord Advocate v Dunbarton District Council, said that the crown is
not bound by any statutory provision unless there can somehow be gathered from the terms of the relevant act
and intention to that effect. The crown can be bound only by express word or by necessary implication. This
rule was applicable in English colonies as well that the executive government was not bound by the statute
unless the intention is apparent.
Certain categories as when the crown is bound although not specifically named- Lord Coke indicated three
kinds of statutes which bound the king without specifically naming him- 1) the statute for Maintenance of
Religion, Learning, and Poor. 2) Statute for suppression of wrong. 3) Statute that tends to perform the Will of a
founder or donor.
According to Bacon, when an act of parliament is made for the public good, the advancement of religion and
justice and to prevent injury and wrong the king shall be bound by such act though not particularly named
therein. According to him the crown should be bound by all the statutes as all statutes are made for public good.
The reason for not drawing a distinction b/w statute enacted for the public good and other statutes is that statute
of modern state whether theyd be directed for imposition of taxes or for safeguarding the health of the
community or for any other purpose are all at least in theory enacted for public good. This qualification has
however very slender authority. The only safe rule which may be valid in all cases to decide whether a given
statute binds the crown by necessary implication is to read the statute as a whole and to see whether it is

manifested from the very terms of the statute that it was the intention of the legislature that the crown should be

# Bombay Province v Bombay Municipal Corporation- The question was whether the provisions of Bombay
Municipal Act, 1988 which authorized the commissioner to carry water mains and municipal drain under any
land whatsoever within the city was applicable in respect of government land within the city. Bombay HC held
that even government land within the city was subject to the statutory power of the corporation to carry water
mains observed that if it can be shown that legislation cannot operate with reasonable efficiency unless the
Crown is bound. That would be sufficient reason for saying that the Crown is bound by necessary implications.
This decision was overruled by the Privy Council which said that to interpret the principle in the sense put upon
it by the HC would be reduce it down and they cannot find any authority which gives any support to such an
interpretation. The presumption that the Crown or state is not bound would be rebutted and an intention to bind
would be clearly made out if it could be shown from the terms of the statute taken as a whole that the purpose of
the statute would be wholly frustrated or the legislation would be un-meaningful unless the crown or the state
were held to be bound. When a court is asked to draw this inference it must always be remembered that if it be
the intention of the legislature that the crown should be bound, nothing is easier than to say so in plain words.
Extent of the RuleAccording to English Law the protection of the Rule of Presumption that the Crown is not bound by statute
extend to three classes of persons. 1) The sovereign personally, 2) his servants or agents acting as such, and 3)
Person who though not strictly servant/agent are deemed to be in consimili casu i.e. similar to servant/agent.
Rule in India# Director of R&D v Corporation of Calcutta- It was held that the common law rule that a Crown was not
bound by a statute unless named expressly or by necessary implication applied to India before the Constitution
as held by the Privy Council in # Mumbai Province v Mumbai Municipal Corporation and it continues to apply
after the Constitution in the form that the state is not bound by a statute unless it is so provided in express terms
or by necessary implications. But this view was overruled in State of West Bengal v Corporation of Calcutta. It
was held that the common law rule of construction was not accepted prior to Constitution throughout India and
even in the presidency towns it was not regarded as an inflexible rule. It was further held that the rule of
common law which was based on prerogative of the Crown has no relevance to a democratic republic and was
inconsistent with the rule of law based on the doctrine of equality enshrined in the Constitution. As a result of
this decision the rule that applies in India is that a general act applies to citizens as well as to state unless it
expressly or by necessary implication exempts the state from its operation.
# LDA v M.K. Gupta- The same rule will apply to government corporations and body corporate mentioned in
the general acts. CPA 1986 applies to statutory authorities and a government or semi government bodies or the
local authorities in the same way as it applies to private bodies for the act does not either expressly or impliedly
indicate that these bodies are excluded from the purview of that.
# State of WB v Corporation of Calcutta 1967- Some dairy business was undertaken by the government without
taking any license. Section 218 of Calcutta was violated. S. 541 of Calcutta Municipal Corporation which

makes it an offence if business is carried on w/o license. Challenged. Held- State is bound by these provisions
of the Act and was liable for the offence as it had not taken a license to carry on the business. It must be noticed
that the fine recovered under section 541 of Calcutta municipal act 1952 goes to the corporation fund and
therefore the act contained no implication that the state was not liable for the offence. When any penal
law/criminal law enacted providing for imprisonment or fine is made applicable to the government or a
government department, it will generally indicate the officer who is liable to be punished. Eg. When a lottery is
organized in contravention of the lotteries regulation act 1988, the HOD is liable
# Samatha v State of Andhra Pradesh- AP Scheduled Area Land Transfer Regulations 1959 was challenged. It
was provided that a land belonging to a tribal would not be transferred to a non-tribal. This limitation will apply
to the government as well. Thereby government is also prohibited from transferring such land.
# State of Bihar v Sonabati Kumari- If a state disobey a temporary injunction. Its property is liable to get
attached under order 39 rule 2 (3) of CPC.

Statute affecting the Jurisdiction of Court# Gurdwara Prabhandak v Shiv Ratan Dev 1955-The exclusion of jurisdiction of civil court is not to be readily
inferred and such exclusion must either be explicitly expressed or clearly implied.
Basically the provision excluding the jurisdiction of civil court and the provision confirming the jurisdiction on
authorities and tribunals other than civil court. The existence of jurisdiction of civil court to decide question of
civil nature being the general rule and exclusion being an exception, the burden of proof to show that
jurisdiction is excluded in any particular case is on the party arising such contention. The rule that the exclusion
of jurisdiction of civil court is not to be readily inferred is based on the theory that civil court are court of
general jurisdiction and the people have a right unless expressly or impliedly debarred to insist for free access
to the court of general jurisdiction of the state. Indeed the principal is not limited to the civil court alone but
applies to all courts of general jurisdiction including criminal courts. The rule states that provisions relating to
exclusion of jurisdiction of court of general jurisdiction should be strictly constructed and this rule has also been
approved by the Supreme Court in the case # Swami Atmanand v Sri Ram Krishna Tapovan (2005). The
exclusion of jurisdiction of ordinary criminal courts can be brought about by setting up courts of limited
jurisdiction in respect of the limited field only if the vesting and the exercise of that limited jurisdiction is clear
and operative and there is an advocate machinery for the exercise of limited jurisdiction. So was held by the
Supreme Court in the case # Bhimsen v State of U.P. (1955). The rule against like other rule of construction is
attracted only when two or more reasonable possible construction are open on the language of the statute and
not when the legislative intent is plain and manifested to outset the jurisdiction.
# Brijraj Singh v Laxman Singh (1961) - In Ajmer Land and Revenue Regulation 1877 under which s.23
provides that no adoption made by a widow shall be deemed valid unless confirmed by the central government
and by section 119 it further provides that everything done by the Central Government shall be deemed to have
been done legally and rightly. In this it has been held that these sections does not exclude the jurisdiction of
civil court for deciding whether the adoption was legal or not. Although the order confirming the adoption may
have been passed by the Central Government.
# Akbar Khan v UOI 1962- Question of citizenship. S.9 (2) Citizenship act, 1955 provides if any question arises
as to whether when or how any person has acquired the citizenship of any other country it shall be determined

by authorities as maybe prescribed. Rule 30 framed under the Act prescribed that such a question shall be
determined under Central Government. In a suit in a civil court plaintiff claimed that they were Indian citizens
26 Jan 195. Although went to Pakistan in 1953 on temporary visit and they had not acquired Pakistan
citizenship and continued to be Indian citizens. The state contended that plaintiff had never been Indian citizens
and had voluntarily acquired citizenship of Pakistan. Suit was dismissed on the ground that it was barred by s.9
(2) of the abovementioned Act. But the SC held that the question whether plaintiff were Indian citizen on 26 Jan
1950 could be decided by the civil court and was not barred by the s.9. Although the question whether they had
thereafter acquired foreign citizenship could only be decided by the Central Government. The SC directed that
the first question whether on 26 Jan 1950 plaintiff was Indian citizen should be decided by the civil court and if
it was found that the plaintiff were never Indian citizens the suit should be dismissed. Whereas if it was found
that that they were Indian citizens on that particular date the suit shall stay till the second question was decided
by the Central Government.
Jurisdiction of Court
The legislature is competent to take away the jurisdiction of a Court and give it to a tribunal. Justice WillesThree classes of cases in which liability may be established founded upon Statute.
1. Where there was a liability which gives a special and peculiar form of remedy different from the
remedy which exist at Common Law. There unless the statute contain words which expressly or by
necessary implication excludes the common law remedy the party suing has his election to pursue either
that or the statutory remedy.
2. Where the statute gives the right to sue merely but provides no particular form of remedy there the party
can proceed by action at common law.
3. Where a liability not existing at common law is created by a statute which at the same time give a
special and particular remedy for enforcing it. The remedy provided by the statute must be followed.
Example-Industrial Dispute Act which creates new rights and obligations and provide machineries for
adjudication of disputes pertaining to them.
# Prime Auto Mobiles ltd. v. Kamlakar Shantaram (1975) - In this case the SC held that if an industrial dispute
relating to the enforcement of a right or an obligation created under the Act then the only remedy available to
the person suing is to get an adjudication under the Act. This case held that the wrong created by the Act the
only remedy is what is provided in the Act. When the rights claimed under the civil suit is not under Industrial
Dispute Act but under Constitution or common law. For example when the order challenged by the employee of
a state corporation is wholly unreasonable or arbitrary or in gross violation of the principles of natural justice,
then the jurisdiction of civil court is not taken away even if the employee concerned be also a workman within
the meaning of the IDA.
Extent of Exclusion of Jurisdiction
The extent of exclusion will largely depend upon a construction of the provisions enacted for that purpose but in
case of doubt it is a familiar approach to co-relate the sections excluding civil court jurisdiction with other
sections in the same statute providing special remedy for a contrary construction. Absence of a provision to
enable an authority or tribunal for holding an enquiry on a particular question is indicative that jurisdiction on
that question is not excluded whereas the very provisions setting up the hierarchy of judicial tribunals for
determination of the question is sufficient in most cases for inferring that a jurisdiction of a civil court to try the

same matter is barred. But when adjudication of certain matter which are widely defined jurisdiction is
confirmed tribunals or special courts and jurisdiction of normal courts is excluded.
# State Road Transport Corporation v Poonam Pava (1997 SC) When the jurisdiction of a civil court on a
particular matter is excluded by transferring that jurisdiction from civil court to tribunals or authorities it is
presumed that such tribunals or authorities can draw upon the principles of procedure in CPC though not
explicitly made available to ensure fair procedure and just decision unless such principles are inconsistent with
the provisions of that constituting them.
# Dhulla Bhai v State of M.P. 1968 SC- Suit was filed for declaration that the provisions of law relating to
assessment under Madhya Bharat Sales Tax Act, 1950 were ultra vires and therefore for an order a refund of tax
collected. S. 17 of act provides that assessment made shall not be called in question in any court holding that the
suit was not barred, the SC laid down the following propositions- 1. Where the statute gave finality to the order
of the special tribunal the civil court jurisdiction must be held to be excluded if there is adequate remedy to do
what the civil court would normally do in a suit. 2. Where there is an express bar on the jurisdiction of the court
an examination of the scheme of the particular act to find the adequacy or the sufficiency of the remedy
provided may be relevant but is not decisive to sustain the jurisdiction of civil court. 3. Challenge to the
provisions of the particular act cannot be brought before tribunals constituted under that act. 4. Where the
particular act contain no machinery for refund of tax collected in excess of constitutional limit or illegally
collected, a suit lies. 5. An exclusion of the jurisdiction of civil court is not to be readily inferred unless the
conditions said above applies.
# State of Rajasthan v UOI 1977 SC- Art 356 was in question. By the 44th amendment the word satisfaction
should be final and conclusive and shall not be questioned in any court of law. So SC held that if the satisfaction
of the President is based on wholly irrelevant grounds which have no nexus with the action taken, the
proclamation can be challenged in the court of law on the ground that the president acted without the required
satisfaction in issuing the proclamation, for satisfaction is based on irrelevant grounds amounting to no
satisfaction. But if there are some grounds which bear some relevance or nexus to the action taken then it cannot
be challenged in a court of law.
# S.R. Bommai v UOI- Art 356 was challenged before SC. After deleting of the clause related to judicial review.
It has been held that Art 356 confirms a conditional power on the President and the proclamation issued by him
is open to judicial review on the ground that it was a mala fide exercise of power and that it was based on
wholly irrelevant grounds. If the proclamation is struck down the court can also restore back the dissolved
Exclusion of jurisdiction of Superior Courts- The question of curtailing the jurisdiction of high court as
conferred by the constitution does not arise and it can be taken away only by amending the constitution and not
by statutory enactments. The only exception in this respect is article 262 (2) of the constitution which enables
the Parliament to provide by law that neither SC nor any other court shall exercise jurisdiction in respect of any
dispute relating to water of inter-state river or river valleys. The law enacted by the Parliament in this context
was Inter-state Water Dispute Act 1956 which provides for constitution of water dispute tribunals for
adjudication of such dispute and s.11 of which bars the jurisdiction of all courts including the SC in terms of
article 262 (2). Interpreting this clause in case of # State of Odisha v UOI 2009- the SC held that the bar under
s.11 will come into play when a tribunal is constituted and till then the SC can issue interim orders preserving

the status quo. Even a provision in the constitution confirming finality to the decision of an authority is not
constituted completely as excluding judicial review under art 136, 226, & 277 of the constitution.
# In another case, art 323 A was added by the constitutional amendment 1976 authorized constituting a tribunal
which has jurisdiction examining the validity of enactments in certain subjects and exercise also power of
judicial review of those subjects under art. 226 and 227 and to that extent directly filing of a petition to HC
maybe excluded.
As the power of SC under art 32 and 136 and of the HC under 226 and 227 are part of its basic structure. It is
impossible even by constitutional amendments to create tribunals making its order immune from challenge
under the provisions of the constitution.