It is known that the state has three organs – the legislature, the executive, and the judiciary. Generally speaking, the legislature is tasked with enacting the legislation, the executive with executing the legislation, and the judiciary with interpreting the legislation. The legislation enacted by the legislature is primary legislation. For example, in Bangladesh, The Trademarks Act, 2009 (Act No. XIX of 2009) as enacted by the legislature in line with Article 65 read with Article 80 of the Constitution of Bangladesh is primary legislation. Further, when the legislature delegates its law-making authority to the executive or to some extent to the judiciary as well, the latter's formal pronouncement will be a delegated or secondary legislation. Delegated legislation may be enacted in the form of rules, orders, byelaws, schemes, and notifications. For example, Article 152 of the Constitution includes 'any Act, ordinance, order, rule, regulation, bye-law, notification or other legal instruments, and any custom or usage, having the force of law in Bangladesh' within the definition of law. Some examples of delegated legislation are The Trademarks Rules, 2015 as framed by the executive pursuant to Section 124 of The Trademarks Act, 2009, or The Supreme Court of Bangladesh (Appellate Division) Rules, 1988 as framed by the judiciary under Article 107 of the Constitution.

In addition to the legislative authority exercised by way of making the delegated legislation, the judiciary creates precedents. In the common law legal system, a precedent is a principle or rule established in a previous legal case that is either binding on, or persuasive for a court or other tribunal when deciding subsequent cases with similar issues or facts (Black's Law Dictionary). In Bangladesh, under Article 111 of the Constitution, '[t]he law [precedents] declared by the Appellate Division shall be binding on the High Court Division and the law [precedents] declared by either division of the Supreme Court shall be binding on all courts subordinate to it.'

The question arises whether subsequent legislation can dilute the effect of a precedent.

In India, the government enacted The Muslim Women (Protection of Rights on Divorce) Act, 1986 after the judgement by the Supreme Court of India in the Shah Banu Case (AIR 1985 SC 945). The Act diluted the effect of the judgement which stated a Muslim woman is entitled to maintenance from her husband after divorce, till her death or her remarriage. Although the Act has been interpreted in Daniel Latifi v Union of India (7 SCC 740) in a very broad manner so as to allow the courts to provide huge lump sum payments in the form of maintenance to divorcee women, the Supreme Court of India has avoided declaring the Act ultra vires to the Constitution.

Similarly, in the UK, an Act of Parliament overrides a precedent if both apply in the same area. In the Dredd Scott, after the Privy Council had ruled that the practice of providing council flats to commonwealth scholarship recipients must be continued, the UK Parliament passed subsequent legislation to dilute the effect of the precedent.

In the US, the use of subsequent legislation – termed congressional overrides has been used multiple times to dilute judicial rulings. The US Supreme Court decision in Dredd Scott v Stanford (60 US 393), which held that slaves did not have the right to US citizenship, was overruled by the 13th and 14th Amendments when slavery was abolished in the United States, and former slaves were given citizenship. In Chisolm v Georgia (2 US 419), the US Supreme Court ruled that individual citizens can sue the state government in the Federal Court. Later, the US Congress passed the 11th Amendment, which banned such lawsuits. After the US Supreme Court decision in Roe v Wade (410 US 113), the US Congress passed the Hyde Amendment to the Medicaid and Medicare Act, 1965 banning federal funding for abortion services. The US Supreme Court decision in Shelby County v Holder (570 US 529) severely discriminated against the voting rights of African Americans. The decision was diluted by the subsequent legislation John R Lewis Voting Rights Act, 2020. The US Congress also overrode the decision in Ledbetter v Goodyear Tyre Company (550 US 618) by passing the Lilly Ledbetter Fair Pay Act, 2009.  The Ledbetter decision created a bad precedent in terms of fair pay for women in the workplace. To be also noted that in none of the cases discussed, the subsequent legislation – primary or secondary was found to be contradictory with the Constitution.

Therefore, it can be seen that the legislature can override the precedent if the legislation is compliant with the constitution and applies to the same area that the precedent has been applied to. Legislatures in common law countries have long applied such a tactic of framing subsequent legislation to dilute the effects of a precedent set by the judiciary. In a truly democratic dispensation, such measures can help keep checks and balances amongst the organs of the state.

The author is a Professor at the Department of Law, University of Dhaka.