Friday, July 03, 2009

Implications of Naz Foundation judgment

Today's newspapers have variously interpreted the Naz Foundation judgment. Among the analyses, at least two deserve mention. Manoj Mitta has suggested in his piece that the judgment will be applicable outside Delhi too, in view of the Supreme Court's judgment in Kusum Ingots v.Union of India case in 2004. The Court said in this case:

"A parliamentary legislation when receives the assent of the President of India and published in an Official Gazette, unless specifically excluded, will apply to the entire territory of India. If passing of a legislation gives rise to a cause of action, a writ petition questioning the constitutionality thereof can be filed in any High Court of the country. It is not so done because a cause of action will arise only when the provisions of the Act or some of them which were implemented shall give rise to civil or evil consequences to the petitioner. A writ court, it is well settled would not determine a constitutional question in vacuum.

"The court must have the requisite territorial jurisdiction. An order passed on writ petition questioning the constitutionality of a Parliamentary Act whether interim or final keeping in view the provisions contained in Clause (2) of Article 226 of the Constitution of India, will have effect throughout the territory of India subject of course to the applicability of the Act."

I hope Tarunabh will throw light on this issue, and whether he supports Manoj Mitta's interpretation. Specifically, I am curious to know what was the cause of action which arose in the Naz Foundation case, to confer territorial jurisdiction on the Delhi High Court.

The other viewpoint is, of course, that of Tarunabh in Economic Times under the section Face-off (Ironically both Tarunabh and Pramada Menon defend the judgment). Some of Tarunabh's ideas, I notice, have already been debated in the comments section of his previous post.

Update:: There are two more judgments after Kusum Ingots, and they appear to suggest that High Court's judgment cannot apply beyond its jurisdiction. These are:
Ambika Industries v. Commissioner, Central Excise
Durgesh Sharma v. Jayshree. Readers are welcome to further reflect on this vexed question.
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