Is any section declared unconstitutional by supreme court
(Querist) 05 May 2021
This query is : Resolved
Respected members, If any section of any Act. Declared constitutional by constitutional bench of Apex court. does parliament repealed the same section in amending act. Or not.
Dr J C Vashista
(Expert) 06 May 2021
What is the requirement of consideration and declaration of a constitutional Act qua its validity ? No relevant facts have been posted by anonymous author vis-a-vis question paper. What is your problem / dispute / locus standi ? Academic debate may be initiated with professor / tutor / coach.
(Expert) 06 May 2021
This is a very crucial doubt which may linger in the minds of even learned persons who are not much exposed to the constitutional scheme and the interplay of legislature and judiciary in the making and unmaking of laws.
When a constitutional bench declares a clause or provision or law unconstitutional that part of the text in the law becomes inoperative from the moment the judgement is orally declared in the court, or its written version is issued in digital or text form.
Parliament need not repeal it further as the declaration of the court itself nullifies the text of the law.
In general, Parliament alone can make the law but the courts can unmake it by its judgement.
When Parliament amends the law to add or delete any portion of it further on account of any reason later, it should ignore that part of the law which was declared by the apex court unconstitutional and treat that part of the law inoperative.
The firms that print and distribute legal texts will remove the unconstitutional portion of the law only later when they reprint the book.
In short the law is what is enacted by the legislature and what is not declared as illegal by the courts.
T. Kalaiselvan, Advocate
(Expert) 06 May 2021
Constitutionality is the condition of acting in accordance with an applicable constitution; the status of a law, a procedure, or an act's accordance with the laws or set forth in the applicable constitution. When laws, procedures, or acts directly violate the constitution, they are unconstitutional. All others are considered constitutional until challenged and declared otherwise, typically by the courts using judicial review. Supreme Court of India Behram Khurshed Pesikaka vs The State Of Bombay.Reference ... on 19 February, 1954 Bench: Mahajan, Mehar Chand (Cj), Mukherjea, B.K., Das, Sudhi Ranjan, Bose, Vivian, Hasan, Ghulam, Constitution of India, Arts. 13 and 141-Statute declared unconstitutional-Effect of-Declaration in Balsara's case--Effect of-If the decision throws onus on the accused- Bombay Prohibition Act, 1949 (Bombay Act XXV of 1949), ss. 2 (24),13 (b), 66(b). Held (Per MEHR CHAND MAHAJAN C. J., MUKHERJEA, VIVIAN BOSE and GHULAM HASAN JJ., S. R. DAS J. dissenting) that the effect of the declaration in the case of The State of Bombay and Another v. F. N. Balsara(1) that clause (b) of s. 13 of the Bombay Prohibition Act (XXV of 1949) is void under Art. 13(1) of the Constitution in so far as it affects the consumption or use of liquid medicinal or toilet preparations containing alcohol, is to render part of s. 13(b) of the Bombay Prohibition Act inoperative, ineffective and ineffectual and thus unenforceable. In view of the constitutional invalidity of a part of s. 13(b) of the Bombay Prohibition Act having been declared void by the Supreme Court, that part of the section ceased to have legal effect in judging cases of citizens and must be regarded as null and void in determining whether a citizen was guilty of an offence. In India, on the other hand, once a law has been -struck down as unconstitutional by the Supreme Court, no notice can be taken of it by any Court because after it is declared as unconstitutional it is no longer law and is null and void. Influential examples of Supreme Court decisions that declared U.S. laws unconstitutional include Roe v. Wade (1973), which declared that prohibiting abortion is unconstitutional, and Brown v. Board of Education (1954), which found racial segregation in public schools to be unconstitutional. Article 13 in fact provides for the judicial review of all legislations in India, past as well as future. This power has been conferred on the High courts and the Supreme court of India which can declare a law unconstitutional if it is inconsistent with any of the provisions of part 3rd of the constitution.