Courts Can't Direct Legislature To Give Retrospective Effect To A Legislative Measure: Bombay High Court

The Bombay High Court has held that it cannot direct the legislature to give retrospective effect to a legislative measure. The Court was considering a Writ Petition seeking direction for correction in the customs tariff relating to sub-heading 293359 of Chapter 29 from the 3rd Schedule of the Finance Act, 2022.

The Court also held that it cannot direct the legislature to correct alleged errors in legislation.

The Division bench of Justice M. S. Sonak and Justice Jitendra Jain observed, "Suffice it to note that reliefs in terms of prayer clauses (a) and (b) of this Petition cannot be granted. Grant of such reliefs would virtually amount to directing the legislature to modify the law by accepting the Petitioner’s contention that there was some error, an obvious error, or a clerical error in the customs tariff. Similarly, no relief can be ordinarily granted by the Court to direct the legislature to give retrospective effect to a legislative measure. All this would amount to encroaching on the domain primarily reserved for the Legislature by our Constitution."

The Petitioner was represented by Advocate Prasannan Namboodiri, while the Respondent was represented by Advocate Jitendra B Mishra.

Facts of the Case

The Counsel for the Petitioner strenuously submitted that the customs tariff, in so far as it concerns sub-heading 293359 of Chapter 29, is concerned, obvious errors, which he describes as “clerical errors”, have crept in and therefore the Court should direct its correction.

He pointed out that the errors have now been corrected; however, such corrections/changes are to take effect from either 1 February 2025 or 1 May 2025 and that since that was an error, the same ought to have been corrected with retrospective effect and therefore, reliefs in terms of prayer clause (a) and (b) deserve to be granted.

In the alternate, he submitted that relief in terms of prayer clause (c) may be granted by issuing time bound directions to Respondents 1 and 2 to decide Petitioner’s representation for revision of the tariff rate of Basic Customs Duty (BCD) for the tariff items under the subheading 293359 from 10% to 7.5% effective from 1 May 2022.

On the other hand, Counsel for the Respondent opposed the same by pointing out that once a particular tariff heading is prescribed, that constitutes the authoritative expression of the legislative will of the parliament, and the Courts cannot exercise their powers of judicial review in such matters. Reliance was placed on the Supreme Court's decision in Amin Merchant Vs Chairman, Central Board of Excise & Revenue(2016).

Reasoning By Court

The Court noted at the outset that, as per claims, there is an “omission” or “obvious error” or “clerical error” in the customs tariff relating to sub-heading 293359 of Chapter 29 from the 3rd Schedule of the Finance Act, 2022. It pointed out that certain changes were brought about in the finance bill from May 01, 2025 or, in terms of the notification dated February 01, 2025, effective from February 01, 2025, by which such so-called errors stand rectified.

On the grievance that such rectification should have been retrospective, the Court observed, "Normally, it is not for this Court to rule on what the Petitioner describes as errors, obvious errors or clerical errors in a legislative instrument. In any event, it is not for this Court to issue directions for corrections of the so-called errors. The Courts interpret the laws enacted by the Legislature. They may, if a case is made out, strike down a law if it is ultra vires the Constitution. But they do not encroach upon the domain of the Legislature by directing it to enact a law or to correct what they believe may be errors in such enacted law."

It clarified that only if a law suffers from a lack of legislative competence or is ultra vires any provision of the Constitution can the Court interfere, however, on the grounds urged by the Petitioner, there is no question of issuing directions to the legislature to correct what the Petitioner terms as errors in the customs tariff.

The Petition was accordingly disposed of.

Cause Title: Aarti Drugs Limited vs. Union of India (2025:BHC-OS:10541-DB)

Appearances:

Petitioner- Advocate Prasannan Namboodiri, Advocate Pallavi Dabak

Respondent- Advocate Jitendra B Mishra, Advocate Sangeeta Yadav, Advocate Rupesh Dubey

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