LILY THOMAS Vs. STATE

JUDGEMENT

(1.) The prayer in the writ petition is for the issue of a writ of declaration, declaring that S.12-B of the Tamil Nadu Payment of Salaries Act (XX of 1951), hereinafter referred to as the Act, is illegal and unconstitutional being ultra vires the State Legislature and on these grounds the petitioner further wants this court to strike down the same.

(2.) The petitioner, who appeared in person, is an advocate practising in the Supreme Court of India, Delhi. The question raised in this writ petition was argued on merits without adverting to the competency of the petitioner to maintain the writ petition. The Act is apparently a post-Constitutional statute. Mrs. Lily Thomas, the petitioner has no grievance with reference to the enacting of the Act and she would concede that the Act is perfectly valid having the sanction of Arts.186 and 195 of the Constitution of India, read with Entry 38 of List II of the Seventh Schedule. The above constitutional provisions stand extracted as follows :-

(3.) The initial attack by Mrs. Lily Thomas of the provision, S.12B was that there is a total lack of power to enact it. The makers of our Constitution did not adopt the British principle of supremacy of Parliament according to which the British Parliament is an omnipotent body, the validity of whose enactments is not liable to be questioned in a court of law. Indian Legislature is no sovereign in character but within the limits imposed by the Constitution, the Indian legislature has plenary powers of legislation. The Legislatures under our Constitution are the creatures of our Constitution. They owe their existence to the Constitution. Their powers are derivable from the Constitution. The Constitution is their commission and naturally, every act of theirs must conform to the Constitution. The Constitution fixes the limits for the exercise of the powers of the Legislature and presents the orbit within which they should move or act. Any act of the legislature repugnant to the Constitution is absolutely void.