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Meghavath M R (Human Welfare Practitioner)     03 February 2015

Power of hugh court to struck down the constitution

WHETHER HIGH COURTS ARE EMPOWERED TO STRUCK DOWN ANY OF THE PROVISIONS OF CONSTITUTION?



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 8 Replies

Dr. MPS RAMANI Ph.D.[Tech.] (Scientist/Engineer)     26 April 2015

No court, not even the Supreme Court has the powers to strike down any of the provisions of the Constitution. Only Parliament can amend any of the provisions of the Constitution by a 2/3rds majority.

Meghavath M R (Human Welfare Practitioner)     26 April 2015

Please explore the following link and advice.

https://www.lawyersclubindia.com/forum/Constitutional-97th-amendment-declared-ultra-vires-79572.asp#.VT0kC9Kqqko

Regards

Dr. MPS RAMANI Ph.D.[Tech.] (Scientist/Engineer)     27 April 2015

If Parliament or State Legislature passes a law which is in contravention of the Constitution an appropriate court can strike down such law. Similarly if an amendment to the Constitution is in conflict with any of the existing provisions in the Constitution such amendments can also be struck down. This is because no law whether it is the Constitution or any other law can contradict itself. Whenever there are conflicts in law the earlier one will prevail over the later one. There can be exceptions to this rule.

Meghavath M R (Human Welfare Practitioner)     27 April 2015

Very apt response. Thank You Sir.

Democratic Indian (n/a)     01 May 2015

First of all the query looks like just academic without mentioning the actual Articles of Constitution in question. Regardless of anything, one should not have some  exaggerated view of the Constitution.

 

The Constitution is not some infalliable document that is ageless, faultless and able to transcend both space and time. It is a political document based on social contract. It is also based on higher laws. It is  based on many fundamental natural, human, civil, political, religious, and common law laws and rights. Common law is also explicitly recognized by Articles 25(2), 35(b), 367(1), 372 and 374. The fundamental laws of the Constitution are based on Common law.

 

Since rights under Part III of the Constitution are based on higher laws than the Constitution, the Parliament even during emergency, is incompetent to derogate these rights by using Article 358(1) except those under Article 19. Similarly since Articles 20 and 21 are directly connected with higher laws than the Constitution, the President even during emergency, is incompetent to order suspension of enforcement of rights under Articles 20 and 21 using Article 359(1). Similarly even the Constituent Assembly is incompetent to violate higher laws while enacting the Constitution.

 

The Supreme Court and High Courts are custodians of the Constitution and have powers of judicial review, powers to interpret the Constitution and power to issue writs. These powers include the power to review or interpret if higher laws are getting violated and strike down if required. Mere conflict or confusion between two or more Articles in Constitution does not always create condition to strike them down. For example on cursory reading of the text of Article 368 it appears that it is conferring unlimited powers to Parliament to make any amendments (meaning Article 13 will not be offended if Amendment done under Article 368) to the Constitution and Article 13(4) besides Article 368(3) is also confirming that. But as per interpretation of Supreme Court in Kesavananda Bharati v State of Kerala, the power of Parliament under Article 368 is not an unlimited or unrestricted power and it does not entitle it to amend the Constitution in such a way as to alter or affect the basic structure of the Constitution. Because such unlimited power would defeat the very purpose of guarantees in Part III of the Constitution.

1 Like

Meghavath M R (Human Welfare Practitioner)     02 May 2015

Thank you Sir.

S K KARNjhc (Legal Adviser)     07 May 2015

you have been well elborated by Mr D I

H.M.Patnaik (Proprietor)     29 March 2016

Matters like this cannot be discussed in a generalised manner without indicating the actual point of conflict. However, based on your posting view expressed by DI is adequate.


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