20, Nov 2020 | Sanchita Kadam

The Supreme Court recently refused to entertain a plea challenging validity of a central law questioning why the petitioner had not approached the High Court where the cause of action had arisen. The petitioner was challenging the Epidemic Diseases Act and the bench of Justices DY Chandrachud, Indu Malhotra and Indira Banerjee were hearing  the petition.

Justice Chandrachud noted, “So High Courts have jurisdiction in respect of central Acts. You don’t have to come to the Supreme Court. You are anyway on the issue of quarantine in Maharashtra…Every High Court in the country has the power to strike down a law for being in the teeth of Article 245, 246 or Part III of the Constitution.”

It is common knowledge that high courts have writ jurisdiction and can decide the question of law in a particular case.

The Supreme Court asked the petitioner to approach the High Court as High Courts have the jurisdiction to rule over question of law or deciding constitutionality of a central law. This is a constitutionally sound order since there once existed a constitutional provision that embargoed High Courts from deciding the constitutional validity of central laws under the writ jurisdiction under Article 226.

The Forty-second Amendment Act, 1976 had inserted Article 226A in the Constitution: constitutional validity of central laws not to be considered in proceedings under Article 226. The same was repealed by the Forty-third Amendment Act, 1977.

The Law Commission of India 136^th Report  titled Conflicts in High Court decisions on central law – how to forclose and how to resolve states that a provision mandating that the pronouncement of a high court on questions of law shall bind courts and authorities within the state is not found in the Constitution. But it is settled beyond doubt that the pronouncements of a high court have the same authority within the state as those of the Supreme Court have throughout India. This report had given some recommendations on how to resolve a question of law concerning a central law if another high court has already decided upon it. This has been discussed in the concluding part of this article.

So, when the apex court states that a central law can be challenged before a high court, one wonders what implication would the final judgement of that high court be? If the law is declared unconstitutional by one high court will it have to be followed by other states and high courts as well? The Constitution under Article 215 states that a High Court is a court of record which means that the decision of one high court will be binding upon lower courts within its territorial jurisdiction.

Hence, the only probable explanation to application of a judgment deciding constitutionality of central law by a high court, is that the Supreme Court will have to decide upon it. It has happened so in the past. There was a conflict of decision on interpretation of term “full owner” under section 14(1) of the Hindu Succession Act, 1956. Due to difference in interpretation of high courts, in an identical fact situation, a Hindu widow who inherited property in Orissa or Andhra Pradesh would be a limited owner but if she inherited property in Madras, Punjab, Bombay or Gujarat, she would become absolute owner; this was owing to the differing interpretations given by the high courts in these states. This lack of uniformity was finally resolved by the Supreme Court after 25 years of this confusion having arisen in the first place.

The high courts, although, have assumed that a judgment of a high court on constitutional validity of central law will be binding throughout India. The root cause of this common inference is the apex court judgment in Kusum Ingots & Alloys Ltd. v. Union of India [(2004) 6 SCC 254]. The apex court had stated thus,

’22. The Court must have the requisite territorial jurisdiction. An order passed on a 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.’

This is clearly the obiter dictum part of the judgment which in literal sense means, ‘that which is said in passing’. As per Cornell University’s Legal information Institute, obiter dictum is A comment, suggestion, or observation made by a judge in an opinion that is not necessary to resolve the case, and as such, it is not legally binding on other courts.

This is so because Article 226(1) of Indian Constitution specifically states that the power of High Courts is to be exercised within the territorial jurisdiction of the court and hence, to say that the pronouncement of one high court is binding throughout the country contravenes this constitutional provision.

The obiter dicta in Kusum Ingots is being read into by all High Courts because a Supreme court’s judgment is binding on all courts and becomes a precedent and so does the obiter dicta part of the judgment.

In Naz Foundation v. Government of NCT of Delhi and Others Delhi High Court had dealt with section 377 of the Indian Penal Code; a legal instrument that governs the criminal justice system in the whole of India. The high court had, inter alia, held that “Section 377 IPC, insofar as it criminalizes consensual sexual acts of adults in private, is violative of Articles 21, 14 and 15 of the Constitution”. The territorial extent of the application of this decision was not spelt out but the court stated that its interpretation shall stand till the parliament decides to act on the issue.

A high court’s decision cannot be binding upon other high courts, at the most it could have persuasive significance, i.e. it can be considered by another high court while making a decision but it is not mandated to follow it. Hence, the efficacy of letting a high court decide upon constitutional validity of a central law remains questionable and puts uniformity of law in the “Union of India” in danger. It might have to be ultimately decided by the Supreme Court, which means the litigator would rather approach the Supreme Court first, to get a final and binding judgment.

In another instance, the Delhi High Court is hearing a plea seeking registration of marriage of same sex couples under the Hindu Marriage Act, which is a central legislation. Although this is not a question of constitutional validity of any legal provision but if the court orders that same sex marriages be allowed to be registered under the central law that governs the whole of India, will the same be considered to be applicable throughout? Will a marriage registrar in Maharashtra follow the decision of the Delhi High Court? These questions remain unanswered.

The question of applicability of a central law being declared unconstitutional or invalid by a high court is still something that remains to be definitively decided by the apex court. The Law Commission of India 136^th report recommended that if a High Court is faced with a problem pertaining to a central law on which another high court has already made a pronouncement and if the high court holds a different view then it shall make a reference to the Supreme Court to that regard along with a reasoned opinion of its own view. While this may seem like a viable legal recourse, the same has not been applied in the jurisprudence yet despite the report having been released three decades ago.

Related:

SC refuses to entertain plea challenging Epidemic Act

Delhi HC issues notice to Union in a plea to recognise same sex marriage