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Subramanian Natarajan

I have been following with quite some fascination what is probably the only purely theoretical question to have faced the Indian constitution since the much vexed question of its amendability. I would like to make certain points in relation to the post by Mr. Shivprasad Swaminathan. Certain points that express my initial disquiet regarding the bases of his arguments. This is more a hole picking exercise than a response. I would be exceedingly happy, with some time, to articulate my own thoughts in a more refined manner, if the editors of the blog give me the opportunity.

First, the easy comment. The example of conflicts of law is I feel confusing and irrelevant. Indian courts are bound by Indian private international law to give recognition to the judgment of the English court without looking into the basis of the judgment. In fact, the major exercise in Private International Law is to somehow prevent the enforcing court from going behind the order to be enforced (with a few narrow and nebulous exceptions of public policy and the like).

The parallel to this situation within India is not a difference in interpretation between two High Courts regarding a central law on a PIL, rather it is the Section in the CPC that deals with the execution of a decree transferred from another state. (Section 42 of the CPC read with the relevant provisions of Order 21). These rules upon careful (and painful!) consideration also embody a principle similar to private international law- that the issues in the case should not be re-agitated in the execution stage. This question has little to do with constitutionality, because the declaration of unconstitutionality is not the reasoning in the judgment. That is the judgment. This is even more the case in a PIL where the whole exercise is hypothetical in the sense that there is no actual person being prosecuted under Section 377. The prayer is for the declaration. Therefore, I believe that example is not entirely relevant.

Coming to the next point of Mr. Swaminathan. Interpretation of the Contract Act, is not the same as striking down parts of the Contract Act. In the former, the High Court addresses the subjects of the dispute (both or one of whom fall within its territorial jurisdiction) in guiding them in their behaviour with regard to certain portions of the Contract Act and another High court has every right to disagree with that interpretation. However, when the High court strikes down a part of the contract as void it not only speaks to the parties of the dispute or the subjects in its territory- it also speaks to the creator of the offending statute. This is why the Union is always a party in cases where constitutionality is in question.
This brings me to the final point.

I agree with Mr. Swaminathan that there needs to exist a relationship of authority between the rule maker and recipient.(In fact it is extremely hard to disagree with that!) I would only disagree with his identification of the recipients in this case. I would suggest that Union of India (by which both executive and Parliament is referred to) is a recipient in a case where a Central legislation is struck down. It is the simple meaning of judicial review, that the judiciary stands in judgement and in review over the other organs. So, in this case, the recipient is Parliament which has offended a higher Constitutional norm. It is not merely the hypothetical person prosecuted under 377, it is not merely the homosexuals of Delhi, it is not merely the Delhi government, it is not merely the Central Executive, but rather it also is the source of the offending rule – the Indian Parliament.

Now, the question arises, jurisdictionally is the High Court allowed to give such a ruling? One would be tempted to say yes – because of this in the Indian Constitution: Article 226A. [Constitutional validity of Central laws not to be considered in proceedings under article 226.-Rep. by the Constitution (Forty-third Amendment) Act, 1977, s. 8, w.e.f.13-4-1978].

So it is clear that the High Court can consider the constitutional validity of central acts. What is the scope of this power? Is there a territorial limit to this power? I believe the territorial limit to this power is only found in the territorial limit of the offending statute – all of India.

The problem with this is that somehow one cannot imagine the High Court issuing a writ against Parliament. That would be absurd. But the exercise of power need not be only through writs – Article 226 is not exhaustive in this regard. A mere declaration of unconstitutionality – rendering the section void – may be the power that the High Court wields against the parliament. And the scope of such power should be determined by the scope of power of the Parliament – which is India – for it to make institutional sense.

But there are problems – the text is not clear. Indeed the textual basis for my argument is almost nonexistent. I am only saved by the fact the textual basis of the converse argument is not great either. Article 226 does not seem to envision this situation. There is the theoretically problematic question of differing interpretations in High Courts. All these need to be answered in a longer – more well thought post. As I said this post is only to critique!