Anaya Nolan
In India, the Supreme Court and High Courts can declare a law unconstitutional. These courts act as a check on the legislature by reviewing laws and determining whether they are constitutional. This is known as the power of judicial review. Once a law is declared unconstitutional, it is considered void from the date of its enactment and is rendered inoperative. This means that the law is treated as if it had never been passed. The Supreme Court of India has the authority to uphold laws, strike them down, decriminalize certain acts, and interpret the Constitution.
| Characteristics | Values |
|---|---|
| Body that can declare a law unconstitutional | Supreme Court and High Courts |
| Basis for declaring a law unconstitutional | Violation of fundamental rights, such as equality, freedom of speech and expression, right to life, and freedom of religion |
| Effect of declaring a law unconstitutional | The law is obliterated as though it had never been passed and becomes inoperative from its inception, void ab initio |
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What You'll Learn
The Supreme Court can declare a law unconstitutional
In India, the Supreme Court can declare a law unconstitutional. The Supreme Court and High Courts act as a check on the legislature because they have the power to review laws passed by the parliament and state legislatures. This is known as the power of judicial review.
The Supreme Court can strike down or read down laws that are found to be unconstitutional. For example, in 2017, the Supreme Court struck down a statute or part of a statute as unconstitutional in five cases. In one case, the Supreme Court struck down the 2012 Amendment to the Prevention of Money Laundering Act 2002. In another case, the Supreme Court read down the exception to Section 375 of the Indian Penal Code, holding that the exception, which created an exception to the offence of rape in cases of forced sexual intercourse by a man with his wife if she is 15 years of age or older, was unconstitutional.
The Supreme Court has also invalidated certain interpretations of provisions without striking down the entire law. For instance, in the case of Section 377 of the Indian Penal Code, the Supreme Court declared that only the interpretation of unnatural acts as homosexual acts is invalid, thereby decriminalizing homosexual acts.
When a law is declared unconstitutional by the Supreme Court, it becomes inoperative from its inception and is considered void ab initio, meaning that it is treated as if it had never been passed. This was affirmed in a 2022 Supreme Court decision, where the Bench stated that a declaration of unconstitutionality "obliterates that statute entirely as though it had never been passed."
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High Courts can review laws and determine constitutionality
In India, the Supreme Court and the High Courts have the power to review laws and determine their constitutionality. This is known as judicial review, which acts as a check on the legislature to ensure constitutional supremacy. The High Courts play a crucial role in this process.
The High Courts in India have the authority to review laws and determine whether they are compatible with the Constitution of India. This power of judicial review allows the High Courts to act as guardians of the Constitution, ensuring that any law, ordinance, order, rule, regulation, or custom does not infringe upon the fundamental rights guaranteed to citizens. The High Courts can declare a law unconstitutional if it violates the basic structure of the Constitution, including the right to equality, freedom of speech and expression, right to life, and freedom of religion.
The High Courts' power to review laws and protect fundamental rights was highlighted in the case of Chandra Kumar v. Union of India (1997). In this case, the Court held that if a law excluded the jurisdiction of the High Court without providing an alternative avenue for judicial review, it would violate the basic structure of the Constitution and exceed parliamentary power. This demonstrates the High Courts' crucial role in upholding the Constitution and protecting citizens' rights.
The decisions of the Supreme Court are binding on all Courts within India, and the High Courts are an integral part of this system. The Supreme Court may withdraw a case from a High Court if it involves substantial questions of law or constitutional interpretation. This hierarchical structure ensures consistency in legal interpretation and promotes the uniform application of laws across the country.
The High Courts are also a stepping stone to the Supreme Court. To be appointed as a Judge of the Supreme Court, one must typically have served as a Judge or Advocate in a High Court for several years. This requirement underscores the importance and trust placed in the High Courts as a vital component of India's judicial system.
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Laws that violate fundamental rights are unconstitutional
In India, the Supreme Court and the 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.
The Constitution of India guarantees fundamental rights to all citizens, which are enforceable by the courts. These fundamental rights are basic human rights that are essential for the all-round development of citizens, including their material, intellectual, moral, and spiritual development. They include rights such as equality before the law, freedom of speech and expression, freedom of religion, and the right to life. These rights are enshrined in Part III (Article 12–35) of the Constitution and are justiciable, meaning that citizens can approach a court of law if their fundamental rights are violated.
Any law that violates these fundamental rights is unconstitutional and can be struck down by the courts. For example, Section 377 of the Indian Penal Code, which criminalized unnatural sexual acts, was declared unconstitutional by the Supreme Court because it violated the right to equality. The Supreme Court has the jurisdiction to enforce these rights even against private bodies and can award compensation to affected individuals.
It's important to note that not all laws that violate fundamental rights are automatically void. This depends on whether the law was enacted before or after the Constitution came into force. Pre-constitutional laws that violate fundamental rights are not considered null or void but are instead considered inactive and can become active again if the conflicting right is struck down. On the other hand, post-constitutional laws that violate fundamental rights are considered void ab initio, meaning they are invalid from the outset.
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Unconstitutional laws are void from inception
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.
The Supreme Court has ruled that once a law is declared unconstitutional, it becomes inoperative from its inception and is void ab initio. This means that the law is considered to have never had any legal force or effect, as if it had never been passed. This principle is derived from Article 13(2) of the Indian Constitution, which states that any law that is inconsistent with the fundamental rights guaranteed in the Constitution is void.
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 central government officials. The Court held that this provision was unconstitutional and declared it to be void from its insertion on September 11, 2003.
In another case, Nikesh Tarachand Shah v Union of India, the Supreme Court struck down the 2012 Amendment to the Prevention of Money Laundering Act, 2002, as being unconstitutional.
The judiciary, therefore, acts as a watchdog to prevent any legislative or executive act from overstepping the bounds set by the Constitution. This ensures that the fundamental rights of citizens, such as the right to equality, freedom of speech and expression, right to life, and freedom of religion, are protected.
It is important to note that this principle of void ab initio applies only to laws made after the adoption of the Constitution. Pre-Constitution laws may continue to subsist unless they are inconsistent with the provisions of the Constitution.
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Constitutional amendments can be challenged
In India, the Constitution is the supreme law of the land. It is a living document that can be amended to accommodate evolving political, social, and economic needs. The process of amending the Constitution involves the introduction of a bill in either house of the Parliament, requiring a special majority for passage, and the assent of the President.
However, the question arises: can these constitutional amendments be challenged? The answer is yes. While the Constitution of India vests constituent power upon the Parliament, it is subject to certain limitations and a special procedure for amendment. The most well-known doctrine for checking the validity of amendments is the Basic Structure doctrine, laid down by the Supreme Court in the case of Kesavananda Bharati v. State of Kerala. This doctrine asserts that amendments cannot violate the fundamental principles and values of the Constitution.
The Supreme Court, as the highest judicial authority, plays a crucial role in interpreting and safeguarding the Constitution. It has the power of judicial review, enabling it to determine the constitutionality of laws and amendments. In the past, the Supreme Court has struck down or partially struck down amendments that were deemed unconstitutional. For instance, 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.
It is important to note that the Supreme Court's power to review amendments is not absolute. There have been instances where the Court upheld the validity of amendments while striking down specific provisions within them. The interpretation of the Basic Structure doctrine has also been a subject of debate among justices, with some considering it too vague to provide a clear yardstick for measuring the validity of laws.
In conclusion, while constitutional amendments in India can be challenged and reviewed by the Supreme Court, the process is complex and subject to varying interpretations. The dynamic nature of the Constitution allows it to adapt to changing circumstances, but it also invites legal scrutiny to ensure that any amendments align with the fundamental principles enshrined within it.
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Frequently asked questions
The Supreme Court and High Courts can declare a law unconstitutional in India.
A law that is declared unconstitutional is obliterated in its entirety, as though it had never been passed.
The power to declare laws unconstitutional is called judicial review.
In 2017, the Supreme Court struck down the Assam Parliamentary Secretaries (Appointment, Salaries, Allowances and Miscellaneous Provisions) Act, 2004 as unconstitutional.
