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N.K.Assumi (Advocate)     22 June 2009

Power of High court and Supreme Court to struck Down a Statu

Is it competent for the High Courts and the Supreme Court to struck down a statues of the Legislatures or the Parliament only on the ground of violation of Natural Justice?


 7 Replies

veenzar (Advocate)     22 June 2009

The concept of supremacy either of the legislature or of any of the other wings is no longer recognized.  Each wing is supreme in its own field and all the wings must work in harmony.  The legislature can make various laws, it can also amend the Constitution by following the procedure laid down in the Constitution.    But the laws must be valid and even constitutional amendments, after Kesavananda Bharathi v. State of Kerala, (1973) 4 SCC 225 must not violate the basic structure of the Constitution.   Among other aspects, the “separation of powers” has been recognized by the Supreme Court as one of the basic fundamentals of our Constitution, and neither the laws nor constitutional amendments can violate the doctrine of basic structure (per Sikri CJ in Kesavananda Bharathi, Chandrachud J and Beg J in Indira Nehru Gandhi v. Raj Narain, 1976 2 SCR 347).    A survey of law in other countries shows that the basic structure doctrine is not peculiar to India.  It has been applied elsewhere.  In some countries, the provisions of the Constitution as originally enacted are also subject to the basic structure doctrine and not merely the subsequent amendments.  The question whether any law or constitutional amendment has violated the basis structure is for the judiciary to decide. 


          It was stated in Minerva Mills Ltd. v. Union of India, (1980) 3 SCC 625, that in our country, the “Constitution is supreme lex, the paramount law of the land and there is no authority, no department or branch of the State, which is above or beyond the Constitution or has powers unfettered and unrestricted by the Constitution.   The Constitution has devised a structure of power relationship with checks and balances and limits are placed on the powers of every authority or instrumentality under the Constitution.   Every organ of the State, be it the executive or the legislature or the judiciary, derives its authority from the Constitution and it has to act within the limits of such authority.   Parliament too, is a creature of the Constitution and it can only have such powers as are given to it under the Constitution”.


Rajendran Nallusamy (Advocate)     22 June 2009


If the Courts strike down any law on the ground of violation of the fundamental rights or of any other provision of the Constitution, it is not because the Courts are claiming any supremacy over the legislature but because the Constitution permits, nay, requires the Courts, as a matter of law, to declare such laws as unconstitutional.   The Courts cannot declare any statute as unconstitutional without giving reasons. Judgments striking down laws must substantiate the conclusions on sound constitutional principles.   Where the High Courts have held laws invalid, the Supreme Court can act as a check.   The Supreme Court examines the matter afresh.  


All Courts start with a basic principle of interpretation that every law made by the Legislature is presumed to be constitutional and it is for those who challenge its validity to prove that it is unconstitutional.    No doubt, where fundamental rights are restricted by law, it will be for the State to establish that the restrictions on fundamental rights imposed by any statute are reasonable within the parameters laid down in Part III of the Constitution. The Courts perform a constitutional function of examining the validity of legislative action because they are vested with that power, and not because they claim supremacy over the legislature.


N.K.Assumi (Advocate)     22 June 2009


Dear Veenzar and Rajendran: thank you for your contributions. But my query is this: If any act of Parliament, or of the Legislature of a state, violates those constitutional provisions, it is unquestionably void...If, on the other hand, the Legislature of the Union, or the Legislature of any State,  pass a law, within the general scope of their constitutional power, Can the Court pronounce it to be void, merely because it is, in their judgment, contrary to the principles of natural justice...

Swami Sadashiva Brahmendra Sar (Nil)     23 June 2009

Dear Assumi sir ! a provision  conferring arbitrary power to an authority by exercise which, rights of a person are affected can be struck down. if it does not provide for giving opportunity of hearing or violative of other principles of natural justice then also it can be struck down. but there should be a petition by an aggrieved person showing accrual of cause of action.

N.K.Assumi (Advocate)     23 June 2009

Dear Dr.Tripathi, do you also mean that Natural Justice can be equted with Fundamental Rights?

Swami Sadashiva Brahmendra Sar (Nil)     23 June 2009

Natural justice though not specificaly enumerated under Part III, is inherent under Art 14 of the constitution. more particularly, decision in Maneka Gandhi case can be referred.

N.K.Assumi (Advocate)     24 June 2009

Thank you Dr. I will refer to that case afresh and will get back to you in your mail.

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