ARTICLE 226 AND INVALIDATION OF CENTRAL STATUTES: A MOOT EXERCISE

ARTICLE 226 AND INVALIDATION OF CENTRAL STATUTES: A MOOT EXERCISE

(Published on a legal blog elsewhere too)

PROPOSITION: An order passed on writ petition questioning the constitutionality of a Parliamentary Act whether interim or final keeping in view the provisions contained in Clause (2) of Article 226 of the Constitution of India, will have effect throughout the territory of India subject of course to the applicability of the Act. (Kusum Ingot v. Union of India AIR 2004 SC 2321, P22)

B: ARGUMENTS IN FAVOUR

X: POSSIBLE RESPONSES TO ARGUMENTS

B.1: Article 13(2) provides that any law inconsistent with Part III of the Constitution would be void to that extent. No limits of territoriality have been provided in the provision.

X.1: Article 13 could not be read in isolation. Article 226 has to be read simultaneously with it. Further, the legislative history of Article 226 has to be also taken into consideration. 226(2) was the result of a constitutional amendment before which the jurisdiction of a High Court was limited to the territorial jurisdiction, which is more or less the state in which it was situated. Only the Supreme Court could have invalidated a parliamentary law under the original scheme of the Constitution and thus it was void throughout the country. For a High Court, such central law should be void throughout the state. Only after the 15th Amendment in 1963, High Courts had got jurisdiction to issue writs, orders against any government (including the central government). This power to issue orders does not seem to suggest that any order declaring a law unconstitutional extends to the entire territory of India.

B.2: When a law is invalidated for infringing the fundamental rights of its subjects, it becomes void for everyone (the spatial metaphor for a legislation as discussed by Prof. Swaminathan). It does not matter if the invalidating body is High Court or the Supreme Court.

X.2: This is a mere extension of the first argument. In fact, this is not even always true for the Supreme Court, let alone for a High Court. When a law is invalidated by the Supreme Court on the ground of fundamental rights which are applicable only against its citizens, such law would still exist for the non-citizens i.e. it would still not become non-est for everyone. This is because the Supreme Court could not provide relief to non-citizens of those fundamental rights which are only available for the citizens.

Now to understand the jurisdiction it is important to read the scheme of the Article: The general rule for the jurisdiction of the High Court is given by 226(1) which limits it to its territory. Article 226(2) is an exception to the general rule which empowers the High Court to issue directions against any government/ authority/ person when the cause of action arises wholly or partially within its territorial jurisdiction. It is submitted that to bind all High Courts, authorities and persons throughout the country under this provision, whenever there is a striking down of a central statute(and not for any other purpose) is a bit of a stretch.

B.3: Non-compliance of the proposition would lead to inconsistency and consequentially absurdity as this would result in a central statute being operational in one state and not in another.

X.3: High Courts interpret central laws from time to time and such interpretation is applicable merely within its territorial jurisdiction (mostly, the state in which it is situated).  It would be logically untenable to argue that inconsistency should compel other states to follow the dictum of one High Court only when the central legislation is invalidated by the HC and not when given a different interpretation by the same HC. It is submitted that such a conclusion is more absurd than the mere inconsistency, which is again already in place due to varied interpretations of the High Courts and state amendments on various central laws throughout the country.

These are merely possible arguments in my opinion. Any counters or new propositions on either side are welcome. I will try to analyze them.