Implications of Naz Foundation judgment

Today’s newspapers have variously interpreted the Naz Foundation judgment. Among the analyses, at least two deserve mention. Manoj Mitta has suggested in his piece that the judgment will be applicable outside Delhi too, in view of the Supreme Court’s judgment in Kusum Ingots v.Union of India case in 2004. The Court said in this case:

“A parliamentary legislation when receives the assent of the President of India and published in an Official Gazette, unless specifically excluded, will apply to the entire territory of India. If passing of a legislation gives rise to a cause of action, a writ petition questioning the constitutionality thereof can be filed in any High Court of the country. It is not so done because a cause of action will arise only when the provisions of the Act or some of them which were implemented shall give rise to civil or evil consequences to the petitioner. A writ court, it is well settled would not determine a constitutional question in vacuum.

“The court must have the requisite territorial jurisdiction. 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.”

I hope Tarunabh will throw light on this issue, and whether he supports Manoj Mitta’s interpretation. Specifically, I am curious to know what was the cause of action which arose in the Naz Foundation case, to confer territorial jurisdiction on the Delhi High Court.

The other viewpoint is, of course, that of Tarunabh in Economic Times under the section Face-off (Ironically both Tarunabh and Pramada Menon defend the judgment). Some of Tarunabh’s ideas, I notice, have already been debated in the comments section of his previous post.

Update:: There are two more judgments after Kusum Ingots, and they appear to suggest that High Court’s judgment cannot apply beyond its jurisdiction. These are:
Ambika Industries v. Commissioner, Central Excise
Durgesh Sharma v. Jayshree. Readers are welcome to further reflect on this vexed question.

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Tarunabh Khaitan
Tarunabh Khaitan
13 years ago

dear venkatesan, kusum ingots can be useful, but i am not sure its reasoning is very sound (at least when extended to this issue). i think a better way to argue is to use articles 13 and possibly article 261. Article 226 of the Constitution limits the power of the High Court to issue orders, writs and directions ‘to any person or authority, including in appropriate cases, any Government’ within its jurisdiction. A declaratory order made under Article 13 of the Constitution is not an order issued to any person, authority or government in particular. It is a general declaration of the constitutionality of a provision. As such, these declaratory orders are not limited by the territorial limits imposed under Article 226. Article 13 of the Constitution states that ‘All laws in force in the territory of India immediately before the commencement of this Constitution, in so far as they are inconsistent with the provisions of this Part, shall, to the extent of such inconsistency, be void.’ Since both the Supreme Court and the High Courts have the power to enforce Article 13, there is no reason to believe that a declaration by a High Court under Article 13 is restricted in its application to its jurisdictional limits. This reasoning is bolstered by Article 261 of the constitution, which requires that ‘Full faith and credit shall be given throughout the territory of India to public acts, records and judicial proceedings of the Union and of every State.’ Also, the Ingots case appears to point to the same direction.

Of course, any other High Court has the power to disagree and give a contrary judgment. But until that happens, the law declared by the Delhi High Court is the law applicable to the entire country.

I must add, this is only a plausible view. Without a decisive ruling on the issue, it is hard to tell what the law is.

Tarunabh Khaitan
Tarunabh Khaitan
13 years ago

having re-read kusum ingots, i revise my opinion. i think it is pretty much a direct authority on the question: '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.'
The only qualification I will add is 'subject to a decision to the contrary by another court of comparable or superior status'.

Madhav Khosla
Madhav Khosla
13 years ago

Dear Tarunabh and Venkatesan,

I find this position slightly problematic. Tarunabh, you're right, Kusum does seem to suggest this. But lets envisage a situation where two high courts provide different rulings on the same issue, lets say the Bombay HC now decides to uphold 377. What will be the applicable law in a third neutral state? Will the presumption of constitutionality apply? What if 2 HC's strike it down but 1 upholds it?

Tarunabh Khaitan
Tarunabh Khaitan
13 years ago

you are right madhav. in fact, the situation you describe was exactly what the position was on restitution of conjugal rights provision for some years, until the SC stepped in. the issue clearly needs clarification. so, at least right now, the law is that a jdugment of a high court on constitutionality of a statute applies to other states, provided no other high court has ruled to the contrary. what happens after that, no one knows. but in this case, that situation is unlikely to arise since SC should be seized of the matter soon.

Madhav Khosla
Madhav Khosla
13 years ago

Hmm. Thanks… Personally, I believe that Kusum was wrongly decided. If different high courts can pronounce verdicts that impact the entire country, the cross-decisions can lead to serious problems.

Renu Gupta
Renu Gupta
13 years ago

Tarun/venkatesan:

Kusum Ingots judgment states that:

"If passing of a legislation gives rise to a cause of action, a writ petition questioning the constitutionality thereof can be filed in any High Court of the country."

In the present case, the relevant legislation Indian Penal Code, dates back to 1860. Therefore, how is it that the PASSING of Section 377 of IPC has given rise to a cause of action.

I am rather unclear about this.

Renu Gupta
Renu Gupta
13 years ago

Tarun:

Your argument for application of the decision to the entire country, based on Article 13 and 261 is very interesting and novel.

W.r.t Article 261 I am a little unclear.

261 (1) uses the words "Full faith and credit shall be given throughout the territory of India to public acts, records and judicial proceedings of the Union and of every State."

Firstly, the phrase "judicial proceedings of the Union and of every State" is unclear. I have not come across usage of this phrase elsewhere. Would it positively include decisions of courts?

Secondly, the phrase "full faith and credit" is also new. Would it amount to a positive mandate to execute the decisions of courts?

Aditya Swarup
Aditya Swarup
13 years ago

there are also two other judgments coming after Kusum Ingots. both being Justice Sinha's.

http://timesofindia.indiatimes.com/India/Is-HCs-gay-ruling-applicable-to-all-states/articleshow/4735189.cms

The gist is that they differ from Kusum Ingots thus making it plausible that the NAZ judgment may not be appilcable to all states.

Gopal
Gopal
13 years ago

I have followed this discussion for a while, and there is a point I think might which has been overlooked:

The observations in Kusum Ingots as quoted correctly by Tarunabh have 2 distinct underpinnings:
1. They are rendered in the context of the situs of the cause of action, and not in the context of the execution of an Order.
2. They are specifically in the context of Article 226(2).

From the above, 1 of 2 conclusions may be drawn:
1. That the observation regarding 'effect' of the Order is obiter; OR
2. The observations are correct if, read in the light of Article 226(2), it is an Order IN PERSONEM delivered in a Writ Petition.

I hope you will agree that Article 226(2) merely extends the power of the High Court beyond its territories to where a part of the cause of action has arisen. As a result, I do not think the passage in Kusum Ingots will assist Mr.Mitta's interpretation.

The clear fact is that there is no provision like Article 141 for the High Courts. I agree with Madhav that an absurd construction cannot therefore be put on the High Court's power based on a sentence taken out of context from a judgment.

As for Tarunabh's reliance on Article 261, I think that might be misplaced. Article 261 is purely dealing with the evidential admissibility of public acts, records and court proceedings, as will be evident from its second sub-clause. It merely declares that such documents may be taken at face value.

Madhav Khosla
Madhav Khosla
13 years ago

I completely agree with Gopal. He is especially correct with regard to Article 261, which clearly seems to be dealing with evidential admissibility.

Tarunabh: I believe that Article 226 covers declarations of unconstitutionality. You suggest that 'a declaratory order made under Article 13 of the Constitution is not an order issued to any person, authority or government in particular, and is thus not limits by the territorial limits expressly specified in Article 226'. But this strict textual reading does not give due consideration to the fact that Article 226 is extremely widely worded, seemingly to cover all situations where the court, simply put, says or does something. Firstly, the verdict can be issued to any person. Would this not include general declarations? I believe that wording suggests that all declarations, whoever they are addressed to (even if they are addressed to no one at all), are covered. I believe that the purpose of the provision is to ensure that all declarations – whether they are issued to the government, a certain person, or whoever – are covered by this provision. Secondly, the verdict may be directions, orders or writs. Does this not cover all possibilities? You too refer to the verdict as a declaratory 'order'. Thirdly, the verdict may enforcing Part III or 'for any other purpose'. This final part also seems to confirm that Article 226 will come into play whatever the nature of this issue. Thus, unconstitutionality would certainly fall under 'any other purpose' and any direction to that effect would have to be covered by this provision. I thus feel that the territorial limitations of Article 226 must apply.

Tarunabh Khaitan
Tarunabh Khaitan
13 years ago

agree that 261 has no relevance. i used 13 to try and see if there is a better way of justifying the decision in Ingots. but without a clear SC ruling to that effect, i think it is difficult to treat the observation in ingots as mere obiter, or issued in personem. as things stand, am i correct in surmising that ingots is the governing, if under-justified, precedent?
(i havent read the two later cases cited in the times of india piece)

aparnachandra
aparnachandra
13 years ago

What if we were to turn around the question and look at it from the point of view of the UOI and the common citizen. So I am the UOI and I have been told that 377, which forms part of a central statute is unconstitutional. What is my obligation? Can I enforce the law in any other state, given that the only judicial word on the issue has been in the negative? Also, since this is a criminal statute and the field is divided between the union and the state, as a state government can I enfore a law which has been held to be unconstitutional by a competant court, and my own jurisdictional high court or any other, has not determined the issue?

Also since this is a criminal statute, as a conscientious citizen, living in say Noida, I need to know what is criminalized and what isn't. In this case, if a high court has held this law to be unconstitutional do I have an obligation to obey it?

In both these cases, the only word on the street is that the law is unconstitutional. Should that not guide the actions of the government and the citizen (I am not talking about the "binding" nature of the judgment here)?

Recluse
Recluse
13 years ago

Aparna, the problem with that is that the Union of India does not enforce the law in the States. That is the job of the State Government through its police force. As no State Government apart from that of Delhi has been represented in the Delhi High Court, they will not feel compelled at all to act on the basis of a ruling of the Court of some other State.

Aditya Swarup
Aditya Swarup
13 years ago

I'd like to add to what I have said above. none of the three judgments, especially kusum ingots' as regards the "unconstitutionality of a statute/ provision" , may be applicable.

This is because of the distinction that may be drawn between the unconstitutionality of a statute vis-a-vis 'reading it down'. When you read down a statute (cb gautam v. UOI), you same it from being declared unconstitutional and just give a different interpretation to it.

Thus, in simpler terms, the Delhi High Court has merely given a different interpretation to S 377 so as not to include consensual sex.

If that be the case, this judgment is surely not applicable to other states, as each high court is free to give its owne interpretation of the law.