- (1.) I have had the advantage of going through the judgments prepared separately by brother Ramaswamy and Brother Pattanaik. i agree with Brother Pattanaik on all the questions involved in this case, but I want to ad a few words of my own without setting out the facts of the case which have already been reproduced in the two Judgements.
(2.) To declare what the law is or has been is a judicial power. To declare what the law shall be is a legislative power. this is the principle deducible from the education of the Federal Court in Basanta Chandra Vs. Emperor AIR 1944 FC 86 (90) and Ogden vs. Black Ledge 1804(2) Lawyers Edition 276 (278).
(3.) It would be within the exclusive domain of judiciary to expound the law as it is and not to speculate what it should be as it is the function to the Legislature. It is also within the exclusive power of the Judiciary to hold that a statute passed by the Legislature is ultra vires. The Legislature in that situation dose not become a helpless creature as it continues to remain a living pillar of a living constitution. Though it cannot directly override the judicial decision, it retains the plenary powers under Articles 245, 246 and 248 to alter the law as settled or declared by judicial decisions. This is what was observed by this Court in M/S Anwar Khan Mahboob Co. vs. State of Madhya Pradesh (1966) 2 SCR 40, Which had the effect of indirectly overruling it s previous decision in Firm C.J. Patel & Co. & Ors. vs. The State of Madhya Pradesh AIR 1953 SC 108. The Legislature can also validate an Act which was declared invalid by the Court or amend it with retrospective effect so as to remove the grounds of its invalidity. (See Rai Ramkrishna & Ors. vs. State of Bihar (1964) 1 SCR 897 and Mt. Jadao Bahuji vs. Municipal Committee, Khandwa & Anr. AIR 1961 SC 1986.;