Gavin Howe
In India, the Supreme Court and High Courts act as a check on the legislature by reviewing laws and determining their constitutionality. When a law is found to be in violation of the fundamental rights enshrined in the Constitution, such as the right to equality, freedom of speech, and freedom of religion, it is declared unconstitutional. This means that the law is held to be 'void', 'stillborn', 'unenforceable', and 'non est', rendering it inoperative from the date of its enactment. In other words, it is as if the law never existed, and any rights or contracts based on it become void as well. The Supreme Court of India has the power to uphold, strike down, or read down laws, as well as decriminalize certain acts and declare certain interpretations of laws invalid.
| Characteristics | Values |
|---|---|
| What happens when a law is declared unconstitutional | The law is rendered inoperative from the date of enactment |
| Who can declare a law unconstitutional | The Supreme Court |
| What does the Supreme Court do when a law is declared unconstitutional | Strikes down the law, or parts of it |
| What is the impact of a law being declared unconstitutional | The law is considered to be 'void ab initio', 'stillborn', 'unenforceable' and 'non est' |
| What is the basis for declaring a law unconstitutional | Violation of fundamental rights, such as equality, freedom of speech and expression, right to life, freedom of religion |
| Can a law be partially struck down as unconstitutional | Yes, the Supreme Court can uphold certain provisions and strike down others |
| Can constitutional amendments be challenged | Yes, they can be tested against the Basic Structure |
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What You'll Learn
The law is void from inception
In India, if a law is found to be in violation of the fundamental rights enshrined in the Constitution, it is declared unconstitutional by the Supreme Court. Once a law is declared unconstitutional, it is considered "void ab initio", meaning it is void from the inception or beginning. This principle was reaffirmed by a Supreme Court ruling in October 2023, which stated that such a law is "stillborn, unenforceable, and non est".
The concept of a law being void ab initio means that it is as if the law never existed. Any rights or contracts based on this law are considered void, and no one can be punished for refusing to obey it. This was demonstrated in the case of Behram Khurshed Pesikaka vs The State Of Bombay in 1954, where the Supreme Court declared a part of the Bombay Prohibition Act unconstitutional, after which it ceased to have any legal effect and was considered null and void.
The Supreme Court has the power to review and determine the constitutionality of laws through its power of judicial review. The Court can strike down laws, or parts of laws, that are found to be in violation of fundamental rights. For example, in 2017, the Supreme Court struck down the 2012 Amendment to the Prevention of Money Laundering Act 2002 as unconstitutional.
The Court can also "read down" laws, declaring certain interpretations or provisions invalid while upholding the rest of the law. In the case of Section 377 of the Indian Penal Code, which criminalized all unnatural sexual acts, the Supreme Court invalidated only the interpretation of unnatural acts as homosexual acts, thereby decriminalizing homosexual acts.
Additionally, the Supreme Court can uphold the validity of laws that are challenged. For instance, in the case of Suresh Kumar Koushal v. Naz Foundation, the Court upheld the validity of Section 377, which criminalized consensual homosexual acts, as constitutional. However, in a later case, the Court declared this provision unconstitutional for violating the right to equality.
In conclusion, when a law is declared unconstitutional in India, it is considered void from its inception, with no legal effect, and is treated as if it never existed. The Supreme Court plays a crucial role in upholding the fundamental rights of citizens by reviewing and striking down laws that violate these rights.
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The law is unenforceable
In India, the Supreme Court and High Courts act as a check on the legislature and have the power to review laws passed by parliament and state legislatures. This is known as the power of judicial review.
When a law is declared unconstitutional in India, it becomes unenforceable from the date of its enactment. This means that the law is considered to have never been valid and is rendered inoperative and void. The Supreme Court of India has stated that such a law is "stillborn" and "non est", in addition to being unenforceable.
For example, in 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 investigation. The court ruled that the law was not in force from the date of its insertion, i.e. September 11, 2003.
Another example is the case of Nikesh Tarachand Shah v. Union of India, where the Supreme Court struck down the 2012 Amendment to the Prevention of Money Laundering Act 2002 as unconstitutional.
Once a law is declared unconstitutional, it is no longer law and is null and void. It cannot be used to determine the guilt of a citizen, and no notice can be taken of it by any court in India. This is in contrast to the American doctrine, where a declaration of unconstitutionality affects only the parties involved in the case and does not strike the statute from the books.
In conclusion, when a law is declared unconstitutional in India, it becomes unenforceable from the date of its enactment and is considered to have never been valid. The Supreme Court of India plays a crucial role in interpreting the Constitution and protecting the fundamental rights of citizens by striking down laws that are found to be unconstitutional.
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The law is struck down by the Supreme Court
The Supreme Court of India has the power to review laws passed by the parliament and state legislatures to determine if they are constitutional. This is called the power of judicial review.
When the Supreme Court strikes down a law as unconstitutional, it becomes inoperative from its inception and is void. This means that the law is treated as if it never existed. The struck-down law cannot be used as a basis for any rights, contracts, protection, or enforcement. It is considered unenforceable and non-existent in the eyes of the law.
In the case of Nikesh Tarachand Shah v Union of India, the Supreme Court struck down the 2012 Amendment to the Prevention of Money Laundering Act 2002. In another case, Maharashtra Forest Guards and Foresters Union v State of Maharashtra, the Court struck down Rule 7(1)(a) of the Forester (Recruitment) Rules, 1987, inserted in 2013.
The Supreme Court can strike down a law as entirely unconstitutional, or it can strike down specific provisions within a law. For example, in the case of Section 377 of the Indian Penal Code, the Court invalidated only the interpretation of unnatural acts as homosexual acts, thereby decriminalizing homosexual acts without removing the entire section.
The Supreme Court's decision to strike down a law as unconstitutional is binding on all courts within the territory of India. Once a law is declared unconstitutional, no court can take notice of it, and it is no longer considered law.
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The law is challenged in court
In India, the Supreme Court and High Courts act as a check on the legislature and have the power to review laws passed by parliament and state legislatures. This is known as the power of judicial review.
When a law is challenged in court, the court will determine whether the law is constitutional. If a law is found to be in violation of fundamental rights, such as the right to equality, freedom of speech and expression, right to life, and freedom of religion, it will be declared unconstitutional. For example, in 2017, the Supreme Court struck down the 2012 Amendment to the Prevention of Money Laundering Act 2002 as unconstitutional.
In some cases, only certain interpretations of a particular provision may be declared invalid. For instance, in the case of Section 377 of the Indian Penal Code, the Supreme Court ruled that only the interpretation of unnatural acts as homosexual acts was invalid, thereby decriminalizing homosexual acts.
The process of challenging a law in court can vary, but it typically involves filing a petition or a writ petition, as demonstrated in the case of Shayara Bano v. Union of India, where a writ petition was filed in the Supreme Court. The court will then hear arguments from both sides and make a judgment on the constitutionality of the law.
Once a law is declared unconstitutional, it becomes inoperative from its inception and is considered void, unenforceable, and non-existent. This means that the law is treated as if it had never been in force, and any rights or contracts based on it become void as well.
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The law is reviewed by the Supreme Court or High Courts
In India, the Supreme Court and High Courts are responsible for reviewing the constitutionality of laws. This power of judicial review allows them to determine whether laws made by the parliament and state legislatures are constitutional.
The Supreme Court of India has the authority to strike down or invalidate laws or provisions that are found to be unconstitutional. This means that the court declares the law or provision in question to be contrary to the Indian Constitution and, therefore, null and void. The court's decision effectively renders the law inoperative from the date of its enactment, as if it had never been in force. This principle, known as "void ab initio," signifies that the law is considered unenforceable and invalid from its inception.
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 investigation. The court held that the provision was violative of Part III of the Constitution, which deals with fundamental rights. As a result, the law was deemed to be void and inoperative from its date of insertion, September 11, 2003.
Additionally, the Supreme Court can also interpret laws to ensure they align with the Constitution. In the case concerning Section 377 of the Indian Penal Code, which criminalized unnatural sexual acts, the court declared that the interpretation of unnatural acts as homosexual acts was invalid, thereby decriminalizing homosexual acts. This decision was based on the right to equality, as it was found to be discriminatory against a particular community on the basis of gender and sexual identity.
The High Courts in India also play a crucial role in reviewing the constitutionality of laws. They serve as the first point of contact for citizens challenging the validity of laws. High Courts can strike down laws or provisions within their respective states if they are found to be unconstitutional. These decisions can then be challenged or upheld by the Supreme Court, which has the final authority on constitutional matters.
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Frequently asked questions
A law is deemed unconstitutional in India if it violates the fundamental rights laid out in the Constitution, such as the right to equality, freedom of speech and expression, right to life, and freedom of religion.
Once a law is declared unconstitutional, it is considered "void ab initio", meaning it is unenforceable from the date of its enactment and is treated as if it never existed. Any rights or contracts based on this law become void, and no one can be punished for disobeying it.
Some examples include Section 377 of the Indian Penal Code, which criminalized consensual homosexual acts, and Section 497 IPC, which was related to the offence of adultery. Other examples include the Aadhaar Act, the Citizenship Amendment Act, and the Prevention of Money Laundering Act.
