Court has a duty to strike down law if it violates fundamental right: SC


Dr KK Aggarwal    20 July 2018

“Courts cannot wait for a "majoritarian government" to decide on enacting, amending or striking down a law if it violates fundamental rights”, state the Supreme Court of India while reserving the verdict on the petitions challenging the validity of section 377 of the IPC and seeking decriminalisation of homosexuality.

The five-judge Constitution bench headed by Chief Justice Dipak Misra, however, made clear that it may not strike down the law completely and deal with it to the extent it relates to consensual acts between two adults. 

"If section 377 of the IPC goes away entirely, there will be anarchy. We are solely on consensual acts between man-man, man-woman. Consent is the fulcrum here. You cannot impose your sexual orientation on others without their consent." "We would not wait for the majoritarian government to enact, amend or not to enact any law to deal with violations of fundamental rights."

The observations came when lawyer Shyam George, appearing for Apostolic Alliance of Churches and Utkal Christian Association, said that it was not the job of the court and rather it fell under the domain of the legislature to decide whether to enact, amend the existing law as the decriminalising it would have the impacts on many other statutes which deal with matrimonial and civil rights of men and women. 

The issue here is separation of the powers of the three branches of the government, namely the Legislature, Executive and Judiciary.

The Legislature i.e. the Parliament, enacts the laws; the Executive i.e. the Govt. enforces the laws, while the Judiciary interprets the laws and is responsible for administering the constitutional law.

The Supreme Court is the highest judicial forum and final court of appeal under the Constitution of India, the highest constitutional court, with the power of constitutional review. The laws of the Parliament are subject to judicial review. The Supreme Court can either strike down or uphold a law passed by the Govt.

The constitution of India gives powers to the Supreme Court under Articles 136 and 142 to form laws in the interest of complete justice without any jurisdictional difficulties.

“136. Special leave to appeal by the Supreme Court. (1) Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion, grant special leave to appeal from any judgment, decree, determination, sentence or order in any cause or matter passed or made by any court or tribunal in the territory of India.” But, these provisions do not apply to Armed Forces as per Clause 2 of this article.

Article 142 empowers the Supreme Court to “pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it, and any decree so passed or orders so made shall be enforceable throughout the territory of India in such manner as may be prescribed by or under any law made by Parliament and, until provision in that behalf is so made, in such manner as the President may by order prescribe” in the exercise of its jurisdiction.

Two judgements of the Supreme Court of India on fundamental rights are noteworthy in that they upheld the constitution as above all and denied absolute powers to the Legislature.

In 1967, in the matter of Golaknath v. State Of Punjab, the 11-member bench of the Supreme Court ruled that “Parliament cannot take away or abridge and amend any of the fundamental rights, even cannot touch, because these are sacrosanct in nature”.

To regain its supremacy, the Parliament overruled its verdict vide the 24th and 25th Amendment Acts in 1971 stating that its powers to amend the Constitution were unrestricted and unlimited under Article 368.

“… (1) Notwithstanding anything in this Constitution, Parliament may in exercise of its constituent power amend by way of addition, variation or repeal any provision of this Constitution in accordance with the procedure laid down in this article.


(4) No amendment of this Constitution (including the provisions of Part III) made or purporting to have been made under this article whether before or after the commencement of Section 55 of the Constitution (Forty second Amendment) Act, 1976 shall be called in question in any court on any ground


(5) For the removal of doubts, it is hereby declared that there shall be no limitation whatever on the constituent power of Parliament to amend by way of addition, variation or repeal the provisions of this Constitution under this article…”


The matter of His Holiness Bharati Sripadagalvaru and Ors vs State of Kerala and Anr in 1973 challenged the power of the Parliament to amend the Constitution. In this case, the 13-judge Constitutional bench of the Supreme Court said that while the govt. had the power to amend the constitution, this did mean the power to amend the fundamental rights. The bench of the Supreme Court also outlined the ‘Basic Structure Doctrine’ of the Constitution in this judgement, which can neither be amended nor destroyed by the legislature (the Parliament). While the Bench did not limit the powers of the Parliament, it held that amendments that affect the Basic structure of the Constitution are subject to judicial review.

Amongst the various elements of the ‘Basic Structure Doctrine’ is the supremacy of the Constitution, freedom and dignity of the individual.

Right to equality is one of the six fundamental rights guaranteed by the Constitution of India.

Article 14 guarantees the right to equality, meaning that every citizen is equal before the law and is equally protected by the laws of the country, which cannot be denied by the state.

“14. Equality before law The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.”


Article 15 prohibits discrimination on grounds of religion, race, caste, sex or place of birth.

Over the years, Article 21 “Right to life and personal liberty” has been widely interpreted to also include right to health, right to clean environment, right to live with dignity, right to adequate nutrition, right to education. In Maneka Gandhi vs Union of India 25th January, 1978, the Supreme Court held the right to travel and go abroad as a part of right to personal liberty guaranteed under Article 21. Last year, the Supreme Court declared right to privacy as a fundamental right under Article 21. Many more fundamental rights are implied under this Article.

The scope of Article 14 has been addressed in various judgements of the Supreme Court.

In E.P. Royappa v State of Tamil Nadu, the Supreme Court altered the concept of equality which was traditionally based on reasonable classification and said, “Equality is a dynamic concept with many aspects and dimensions and it cannot be ‘cribbed, cabined and confined’ within traditional and doctrinaire limits. From a positivistic point of view, equality is a antithesis to arbitrariness. In fact equality and arbitrariness are sworn enemies; one belong to the rule of law in a republic while the other to the whim and caprice of an absolute monarch. Where an act is arbitrary it is implicit in it that it is unequal both according to political logic and constitutional law and is therefore violative of Art. 14… Arts. 14 strike at arbitrariness in State action…”

Reiterating this in Maneka Gandhi v Union of India, the Apex Court again held “…Equality is a dynamic concept with many aspects and dimensions and it cannot be imprisoned within traditional and doctrinaire limits. Article 14 strikes at arbitrariness in State action and ensures fairness and equality of treatment. The principle of reasonableness which legally as well as philosophically, is an essential element of equality or non-arbitrariness, pervades Article 14 like a brooding omnipresence and the procedure contemplated by Article 21 must answer the best of reasonableness in order to be in conformity with Article 14. It must be "right and just and fair" and not arbitrary, fanciful or oppressive; otherwise, it would be no procedure at all and the requirement of Article 21 would not be satisfied...”

With this background, it would perhaps be fair to state that the Supreme Court, as the Regulator, has the right to strike down any unconstitutional law formed by the Legislator, the Govt. So, the Legislator cannot legislate any unconstitutional law. The Administrators are the Bureaucrats and Ministries.

It also has implications for health.

All laws which the government makes, if violating basic rights, should be challenged in the court of law.

A legal approach and not a political approach may be the answer to resolve all issues and concerns raised by the medical fraternity. Will Article 14 or even Article 15 help?

Can the scope of these articles be expanded further to address the many concerns of the doctors?


Dr KK Aggarwal

Padma Shri Awardee

Vice President CMAAO

Group Editor-in-Chief IJCP Publications

President Heart Care Foundation of India

Immediate Past National President IMA

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