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Challenging the
validity of laws at the prism of Constitutional philosophy
Introduction of
law is a basic incident of a democracy. The conception of democracy is a
sentiment which desires the well being of all men. Laws were made so that the
stronger might not have their way at their choices, but according to law.
But first let us
see what the law, and its attributes are. Section 3(29) of General Clauses Act,
1897 defines the law as any Act, ordinance, regulation,
rule, order, bye-law or other instrument which has the force of law. The first incidence
of Law is Rule of law. The expression “Rule of law” often springs out, whilst
cultivating the crops of judgments of Apex Court and High Courts.
The expression
“Rule of Law” may have varied dimensions, and the most apt explanation to this
expression appears to be, that, “People have an absolute / unqualified right to
be Ruled / governed/ regulated by Laws in force, and not by individual whims
and fancies of the ruler. This is also in fact and precisely one of the mandate
of Article 14 of our Constitution, which among other things, guarantees equal
protection of laws to all persons.
The attributes of law:
1.
A
law or rule is a common sense which is binding on you to obey. A law is a
social necessity prevailing over your own interest.
2.
Every
law, as far as possible, must have a certain degree to its application, and
must provoke intelligent proposition in the minds of the reader.
3.
A
law is something which must have a moral basis, so that there is a inner
compelling force for every citizen to obey.
4.
The
law is reason, free from passion.
The
law is to play its allotted role of serving the needs of the Society. It must
reflect ideas and ideologies of that society. It must keep pace with the
heartbeats of the society, and the needs and aspirations of the people. Laws are to be enforced simply because they are made; and
unnecessary laws are traps for extorting money. And, the present write up
sought to deal with such laws enacted out of passion and out of naive benevolence
or objectives, wanting in reasons. The “reasons” is the litmus test of the
validity of any law.
Our Constitutional Courts, High
Courts and Supreme Court, undertake inquiries into the substantive fairness of
the laws, at the prism of three Articles, 14, 19 and 21.
Article 14 of
the Constitution enjoins upon the State not to deny to any person 'Equality
before law' or 'the equal protection of laws' within the territory of India.
Under Article 14 analysis, Courts would often measure whether laws are arbitrary,
as if the laws are discriminatory in their application, or have carried out
unreasonable or irrational classification; or if the laws have conferred
unguided powers upon Govts. or administrative authorities. The “Reasonableness”
of the law in its application, is the foremost requirement of any law, if it is
to be declared as valid law. The laws enacted touching upon personal liberty
rights of people or Article 19 rights, may be declared as invalid laws, if they
were found wanting in “reasonableness” quality. The word “Reasonable” appeared
in Article 19, but had been held to be implicit in Article 14 as well. P N Koushal Case – AIR 1978 SC 1484. In the landmark
Maneka Gandhi case, the Apex Court frowned upon the law as being excessive and
unreasonable, and said – the “Procedure established by law” for the deprivation
of life and personal liberty, enshrined under Article 21, should be fair, just
and reasonable, and not fanciful, oppressive and arbitrary. Under Article 14
analysis, the validity of a law may also becomes suspect if the impugned law lay
down a “unreasonable” procedure which has the vulnerability and propensity of
depriving a person of his property, movable (includes money) or immovable. At
the same time there are no defined standards of “reasonableness of law”, and
sure test could be whether the law is obnoxious / needlessly irritating, to the
minds of persons of common prudence and intelligence.
Under Article 19
analysis, which deals fundamental rights of the people in respect of (a) Right
to freedom of speech and expression; (b) Right to assemble peaceably and
without arms; (c) Right to move freely throughout India; (d) Right to form
association; (e) Right to reside and settle in any part of India; (f) Right to
practice any profession or to carry on any trade, occupation and business; and
whereas the law can be made to put “reasonable restrictions” in the due
exercise of those aforesaid fundamental rights, the Courts tests the
“reasonableness” of these legislations, and this reasonableness is measured vis
a vis “the conditions” which persuaded the Legislature to enact the impugned
law.
Under Article 21 analysis, which deals with the most cherished
right, that is personal liberty of people, the challenge to the law could be
both substantive and procedural, that is to say, it could be contended that (a) Where the impugned
law (substantive law) is vague and uncertain, and the people thus would have no
notice of the “requirements of law”, and people would therefore be exposed to
rigours of the impugned law, and hence the impugned law would have the tendency
to frustrate the personal liberty of the people; and the vagueness of the
impugned law invariably also brings in the element of whimsical / biased
application of law; and (b) the procedure prescribed for the deprivation of
personal liberty is, (i) harsh, burdensome and needless, or is (ii) rather
irrational, or (iii) unfair, or (iv) there is excessive delegation of powers /
there is no legislative guidance for the due exercise of powers, to those who
may exercise their such powers, which may result in the deprivation of the
personal liberty, resulting in definite unpredictability and resultant bias in
the said exercise of powers; and therefore the impugned law, prescribing the
procedure to deprive a person of his treasured personal liberty, is excessive,
unfair and unreasonable, and the impugned law has the tendency to frustrate the
personal liberty of the people cheaply and casually.
Now let us look at case specifics.
Sr. No.
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Nature of
illegality in the impugned Law
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Link
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1
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Where
the Rule / Circular / Notification / Resolution of any Govt. / Authority, is
inconsistent with / or in breach of, or if it frustrate the express mandate
of the main provisions of the Statute / Act;
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2
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Where the Law
makers or the Executive govts, or the administrative authorities, in the
exercise of their discretion and powers, makes any law or policy or takes any
decision, by which, benefits or privileges are conferred upon a certain class
of persons only, to the exclusion of masses, or, where obligations are
imposed upon a certain class of persons only, and not upon the masses; and
the said discrimination which is being practiced has no rational or
appreciable logic; or where the procedure prescribed for enacting the law /
policy is not duly followed. For example, the arbitrary allotment of lands to
certain persons; grant of licenses without any defined guidelines or
parameters, etc.
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3
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Laws which deals with the most cherished right, that is
personal liberty of people, the challenge to the law could be both
substantive and procedural, that is to say, it could be contended that (a) Where the impugned
law (substantive law) is vague and uncertain, and the people thus would have
no notice of the “requirements of law”, and people would therefore be exposed
to rigours of the impugned law, and hence the impugned law would have the
tendency to frustrate the personal liberty of the people; and the vagueness
of the impugned law invariably also brings in the element of whimsical /
biased application of law; and (b) the procedure prescribed for the
deprivation of personal liberty is, (i) harsh, burdensome and needless, or is
(ii) rather irrational, or (iii) unfair, or (iv) there is excessive
delegation of powers / there is no legislative guidance for the due exercise
of powers, to those who may exercise their such powers, which may result in
the deprivation of the personal liberty, resulting in definite unpredictability
and resultant bias in the said exercise of powers; and therefore the impugned
law, prescribing the procedure to deprive a person of his treasured personal
liberty, is excessive, unfair and unreasonable, and the impugned law has the
tendency to frustrate the personal liberty of the people cheaply and
casually.
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4
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Where
the law imposes unreasonable restrictions in the exercise of invaluable
rights by the citizens of India, more particularly conferred under Article 19
of the Constitution, i.e. to say, (a) Right to freedom of speech and
expression; (b) Right to assemble peaceably and without arms; (c) Right to
move freely throughout India; (d) Right to form association; (e) Right to
reside and settle in any part of India; (f) Right to practice any profession
or to carry on any trade, occupation and business –
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5
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Where the law, so as to give
effect to the objectives set out in the Act, or to carry out the mandate of
provisions of the Act, confers unfettered and unguided discretionary powers upon
the Govts. / Administrative authorities or even upon judicial authorities, thereby
permits these Govts / Authorities to pick and choose, in the application of
law to different individuals, these are regarded as abdication of essential
legislative function, or are regarded as excessive delegation of powers upon Govts.
/ Administrative or statutory bodies / judicial authorities, as the case may
be.
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6
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Where the law is manifestly vague / ambiguous in its free
operation, and thereby gives unfettered and unguided discretion to the
authority concerned, to pick and choose, in the application of law to
different individuals;
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7
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Where
the law, more particularly the procedural laws imposes extremely onerous
conditions, sometimes as a condition precedent to invoke jurisdiction of the
Court; or where the concerned tribunal is distantly located; or where the
Judges, during the course of proceeding, invents and imposes onerous
conditions upon any of the litigant, which are beyond the contemplation of procedural
laws; and which has the effect of (a) potentially depriving a person to have
access to courts, to seek enforcement of his rights / seek justice; or (b)
causes serious prejudice to one of the parties to the case.
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8
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Where
the law is enacted to overcome / overrule the judgment of the HC/SC, and
without curing the unconstitutionality / reasoning / defects based on which
the judgment was made;
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9
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Incompetency
of the Legislature to enact the impugned Law;
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10
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Where
the jurisdiction of the traditional Courts are transferred to Statutory
Tribunals, wherein the independent functioning of the Judicial Members of the
Tribunals are compromised, by providing arbitrary rules of their appointment,
conditions of their service, transfers etc., and thereby the independent
functioning of the Tribunal is imminently jeopardized, and which may serious
frustrate the valuable rights of the parties therein; or where the legislative provision takes away the core judicial
function or judicial discretion, by way of legislative pronouncement.
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11
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Where
the law is manifestly (a) oppressive, (b) unwarranted, (c) irrational, (d)
needlessly invades the privacy of persons (d) disproportionately beneficial
to a class of persons, at the cost of the other persons; (e) where the punishment / penalty prescribed
is disproportionate to the act which is forbidden; and in all these cases the
law may not be discriminatory, per se. yet may be declared invalid on the
grounds of irrationality, and wanting in “reasonableness”, frustrating the
mandate of Article 14.
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The first factors which would weigh the minds of the
Constitutional Courts whilst deciding the Constitutional validity of any law or
whilst judging the validity of any Policy –
1.
Prima
facie, there will always be presumption in favour of the constitutionality of
the Statute / Policy of the State;
2.
The
Court would not start with an assumption that the law will be misused, and the
mere possibility of the misuse of the law would not render the impugned law
liable for invalidation;
3.
No
one may speak for the Parliament and Parliament is never before the Court.
After Parliament has said what it intends to say, only the Court may say what
the Parliament meant to say. None else. Once a statute leaves Parliament House,
the Court's is the only authentic voice which may echo (interpret) the
Parliament. This the Court will do with reference to the language of the
statute and other permissible aids. The executive Government may place before
the Court their understanding of what Parliament has said or intended to say or
what they think was Parliament's object and all the facts and circumstances
which in their view led to the legislation. Validity of Legislation is not to
be judged merely by affidavits filed on behalf of the State, but by all the
relevant circumstances which the court may ultimately find and more especially
by what may be gathered from what the legislature has itself said. [AIR 1992 SC
999] [(1983) 1 SCR 1000]
4.
Whether
a law conferring discretionary powers on an administrative authority is
constitutionally valid or not should not be determined on the assumption that
such authority will act in an arbitrary manner in exercising the discretion
committed to it. Abuse of power given by law does occur; but the validity of
the law cannot be contested because of such an apprehension. Discretionary
power is not necessarily a discriminatory power.
5.
In
determining the impact of State action upon constitutional guarantees which are
fundamental, it follows that the extent of protection against impairment of a
fundamental right is determined, not by the object of the Legislature, nor by
the form of the action, but by its direct operation upon the individual's
rights, that is to say, it is not the object of the authority, making the law,
nor the form of action, it is the effect of the law and of the action upon the
right which attracts the jurisdiction of the Court to grant relief.
The above
principles may be considered by the Hon’ble Court whilst they adjudicate the
constitutionality of impugned law attacked as discriminatory and violative of
the equal protection of the laws.
Concluding remarks
1.
The
law of the Constitution is not only for those who govern, and, for the
theorist, but also for the bulk of the people, for the common man, for whose
benefit & pride, and, safeguard, the Constitution has also been written.
2.
The
mere solemn object of the legislation is no justification for its enactment;
and the law enacted has to pass the test of Constitutional norms and standards.
3.
Notwithstanding,
the enacted law may have been emanated from the “Body of wisdom”, the wisdom of
the Constitution should prevail.
4.
In
a democratic society governed by the rule of law, it is the duty of the State
to do what is fair and just to the citizen and the State should not seek to
defeat the legitimate claim of the citizens.
Legal issues !!
If you are facing any of these issues like (a) Recovery of Moneys (b) Immovable property disputes (c) grievances against Municipalities & Govts., including challenge to legitimacy of laws etc. (d) grievances against illegalities and highhandedness of Police like illegal arrests, refusal to register FIR, deliberately flawed investigations, etc (e) False FIRs (f) False Claims (g) False evidences (h) Grievances against Judges (i) Illegal or perverse Orders of the Courts / Tribunals, among others.
or
If you are looking for draft of any legal proceeding; or if you want to know the nature and attribute of any legal proceeding; or if you want to know the procedure followed in any legal proceeding; or if you want to know the grounds on which any order of the court / tribunal is challenged; or if you are facing any frivolous litigation.
Tap “Lawyer” in your Cell to explore.
Thank you.
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