Cameron Miranda
In India, the constitutionality of a law can be challenged by citizens and states. Citizens can challenge constitutional amendments that affect states' powers, such as in the case of the 97th Amendment, which was successfully contested by an activist associated with an NGO. States can also challenge central laws, such as when Kerala and Chhattisgarh challenged the Citizenship (Amendment) Act, 2019 (CAA) as being against the secularism principle enshrined in the Constitution. The Supreme Court and High Courts act as a check on the legislature and have the power to review and determine the constitutionality of laws.
| Characteristics | Values |
|---|---|
| Who can challenge | Citizens, states, and NGOs can challenge constitutional amendments and central laws |
| What can be challenged | Constitutional amendments, central laws, and government actions |
| Where to challenge | Supreme Court of India, High Courts |
| Basis for challenge | Unconstitutionality, ultra vires, arbitrary, unreasonable, against fundamental rights, against basic features of the Constitution (e.g. secularism) |
| Outcome | Laws can be upheld, struck down, read down, decriminalized, amended |
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What You'll Learn
Challenging a constitutional amendment
The Constitution of India is the most amended national constitution in the world, with 106 amendments since its enactment in 1950. It is amended roughly twice a year, with a combination of the "theory of fundamental law" and "theory of parliamentary sovereignty". The process of amending the Constitution is called a Constitutional Amendment, and it involves making changes to the nation's fundamental law.
The procedure for amending the Constitution is laid down in Part XX (Article 368) of the Constitution. This article grants Parliament the power to amend the Constitution, and there are three types of amendments governed by it. The first type must be passed by a simple majority in each house of Parliament. The second type requires a prescribed "special majority" in each house, and the third type must be passed by a "special majority" and ratified by at least half of the State Legislatures.
The Supreme Court of India has ruled that amendments must respect the "basic structure" of the Constitution, and certain fundamental features cannot be altered. This is known as the Basic Structure Doctrine. The amending power of Parliament is limited by this doctrine, which was propounded by the Indian Judiciary in the Keshavananda Bharati case in 1973. As a result, amendments under Article 368 are valid as long as they do not violate the basic structure of the Constitution.
When a constitutional amendment is challenged, the Supreme Court can uphold, strike down, or read down certain provisions. In some cases, the Court may declare only certain interpretations of a provision invalid. For instance, in the case of Section 377 of the Indian Penal Code, the Supreme Court invalidated the interpretation of unnatural acts as homosexual acts, effectively decriminalizing homosexual acts.
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Challenging central laws
In India, the Supreme Court and High Courts act as a check on the legislature and have the power to review laws to determine if they are constitutional.
There have been several instances of states challenging the validity of central laws in India. For example, Kerala filed a suit in the Supreme Court of India seeking to declare the Citizenship (Amendment) Act, 2019 (CAA) as unconstitutional, arguing that it was against the principle of secularism, a basic feature of the Constitution. Chhattisgarh also challenged the CAA, arguing that it was "beyond the legislative competence of Parliament".
States can also challenge the constitutional validity of central laws in State High Courts and the Supreme Court under Article 32. In the case of State of Madhya Pradesh v. Union of India and Another, the Supreme Court held that normally, no recourse can be permitted to challenge the validity of a central law under the exclusive original jurisdiction of the Court provided under Article 131. However, this does not mean that central laws cannot be challenged in the Supreme Court, as Article 131 confers exclusive jurisdiction on the Supreme Court in disputes involving States or the Centre on one hand and one or more States on the other.
In addition to states, citizens of India also have the right to challenge a constitutional amendment affecting states' power. For example, in 2012, an activist associated with the NGO Consumer Protection Analytic Committee (CPAC) filed a Public Interest Litigation before the Gujarat High Court, seeking to quash the Constitution (97th Amendment) Act, 2011, as ultra vires the Constitution of India, 1950. The High Court allowed his writ petition, and the Supreme Court upheld the High Court's judgment, clarifying that the Amendment is operative only concerning multi-state cooperative societies within the States and Union territories of India.
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Who can challenge a law?
In India, the Supreme Court and High Courts act as a check on the legislature and have the power to review laws and determine if they are constitutional.
In the case of Smt Ujjam Bai vs State Of U.P on 10 April 1962, it was held that an executive body cannot take action that violates a fundamental right without the authority of law. If it does, an application under Article 32 will lie. In this case, the Central Board of Revenue passed an order without jurisdiction, and the decision was considered unconstitutional.
In another case, Bhatnagar & Co. Ltd. v. The Union of India (1957 SCR 702), the petitioner challenged the government's confiscation of goods imported under a license. The petition was filed under Article 32, but the court held that the petitioner's grievance was not a matter that could be legitimately agitated under Article 32.
States can also challenge the validity of central laws. For example, Kerala and Chhattisgarh have challenged the constitutionality of the Citizenship (Amendment) Act, 2019, or CAA, invoking Article 131, which gives the Supreme Court exclusive jurisdiction in disputes involving States or the Centre. However, there are conflicting opinions on whether central laws can be challenged under Article 131. In the case of State of Madhya Pradesh v. Union of India and Another (2011), the court held that normally, no recourse can be permitted to challenge the validity of a Central law under Article 131. On the other hand, in State of Jharkhand vs. State of Bihar and Another (2014), the Bench referred the matter to a larger Bench, unable to accept that the constitutionality of a law cannot be raised in a suit under Article 131.
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What laws can be challenged?
In India, laws can be challenged on the grounds that they are unconstitutional. The Supreme Court and High Courts act as a check on the legislature and have the power to review and determine the constitutionality of laws.
Recent examples of laws that have been challenged include the Aadhaar Act, Section 377 of the Indian Penal Code, the Citizenship Amendment Act (CAA), and the law for the prevention of Money Laundering Act. In 2020, Kerala challenged the CAA, arguing that it was violative of the Constitution and against the principle of secularism. Chhattisgarh also challenged the constitutional validity of the National Investigation Agency Act (NIA Act), arguing that it was "beyond the legislative competence of Parliament".
Constitutional amendments can also be challenged and tested against the Basic Structure. For example, the 103rd amendment, which introduced a 10% reservation for economically backward sections in government jobs, was challenged.
When a law is declared unconstitutional by the courts, the entire law may not be removed. The court can uphold certain provisions while striking down others. In some cases, the court may only declare certain interpretations of a provision to be invalid. For instance, in the case of Section 377 of the Indian Penal Code, the Supreme Court invalidated the interpretation of unnatural acts as homosexual acts, effectively decriminalizing homosexual acts.
Citizens of India also have the right to challenge a constitutional amendment affecting states' power. In 2012, an activist associated with the NGO Consumer Protection Analytic Committee (CPAC) filed a Public Interest Litigation before the Gujarat High Court, challenging the Constitution (97th Amendment) Act, 2011, as ultra vires the Constitution of India, 1950. The High Court allowed the writ petition, declaring the 97th Amendment Act ultra vires for not taking recourse to Article 368(2) of the Constitution.
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What happens when a law is deemed unconstitutional?
In India, the Supreme Court and High Courts act as a check on the legislature and have the power to review and determine the constitutionality of laws. When a law is deemed unconstitutional, it is typically because it has been found to be in violation of Part III of the Constitution, which pertains to fundamental rights. Once a law is declared unconstitutional, it becomes inoperative from its inception and is considered void, unenforceable, and non-existent. This principle, known as "void ab initio," means that the law is treated as if it never existed and is retroactively invalid from the date of its enactment.
For example, in the case of Subramanian Swamy v. Union of India, the Supreme Court struck down Section 6A(1) of the Delhi Police Special Establishment Act, 1946, which mandated central government sanction for investigations against government officials. The Court held that this provision was unconstitutional and, therefore, void from its inception, rendering it unenforceable and non-existent in the eyes of the law.
The Supreme Court can also strike down specific provisions within a law while upholding the validity of the remaining sections. In the case of Section 377 of the Indian Penal Code, which criminalized unnatural sexual acts, the Court invalidated only the interpretation of unnatural acts as homosexual acts, effectively decriminalizing homosexual acts while leaving the rest of the section intact.
Additionally, states in India can challenge the validity of central laws if they believe these laws violate the Constitution or infringe upon the state's legislative powers. For instance, Kerala and Chhattisgarh challenged the Citizenship (Amendment) Act, 2019 (CAA), arguing that it was against the principle of secularism and beyond the legislative competence of Parliament, respectively. These challenges were brought before the Supreme Court, invoking its exclusive jurisdiction to adjudicate disputes between states and the Centre.
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Frequently asked questions
Any citizen of India can challenge a constitutional amendment as being procedurally infirm. States can also challenge the validity of central laws.
The Supreme Court and High Courts act as a check on the legislature because they have the power to review these laws and determine if they are constitutional. The court may uphold the law, strike it down, read it down, decriminalize it, or declare it arbitrary.
Yes, Kerala has challenged the Citizenship (Amendment) Act, 2019, or CAA, arguing that it is against the principle of secularism, which is a basic feature of the Constitution.
