Unconstitutional

What Does Unconstitutional Mean?

A law, government action, executive order, or regulation is **unconstitutional** when it contravenes any provision of the Constitution of India. The Constitution is the supreme law of the land, and any law or action that is inconsistent with it is, to the extent of the inconsistency, void and unenforceable. The power to declare a law unconstitutional belongs to the judiciary — specifically the Supreme Court and the High Courts — through the mechanism of **judicial review**.

In simple terms, if the Parliament passes a law that takes away a fundamental right guaranteed by the Constitution, the Supreme Court can examine the law and declare it unconstitutional. Once declared unconstitutional, the law ceases to have legal effect.

Legal Framework in India

Article 13 — The Foundation

**Article 13** of the Constitution is the cornerstone of the unconstitutionality doctrine:

- **Article 13(1):** All laws in force immediately before the commencement of the Constitution, in so far as they are inconsistent with the provisions of Part III (Fundamental Rights), shall, to the extent of such inconsistency, be **void**.

- **Article 13(2):** The State shall not make any law which takes away or abridges the rights conferred by Part III, and any law made in contravention of this clause shall, to the extent of the contravention, be **void**.

- **Article 13(3):** Defines "law" broadly to include ordinances, orders, bye-laws, rules, regulations, notifications, customs, and usages having the force of law.

Judicial Review — Articles 32 and 226

- **Article 32:** Empowers the Supreme Court to issue directions, orders, and writs for enforcement of fundamental rights. Dr. B.R. Ambedkar called it the "heart and soul of the Constitution."

- **Article 226:** Empowers High Courts to issue writs for the enforcement of fundamental rights and for any other purpose, including testing the constitutional validity of laws and government actions.

- **Article 245 and 246:** Define the legislative competence of Parliament and State Legislatures. A law enacted beyond the legislative competence is unconstitutional.

Doctrine of Severability

When a part of a statute is found unconstitutional, the court applies the **doctrine of severability** — only the offending provisions are struck down, and the rest of the statute survives if it can operate independently. The Supreme Court in **R.M.D.C. v. Union of India (1957)** held that if the valid and invalid parts of a statute are so intertwined that they cannot be separated, the entire statute falls.

Doctrine of Eclipse

The **doctrine of eclipse** applies to pre-constitutional laws. A pre-existing law that violates fundamental rights is not dead — it is merely eclipsed or overshadowed by the fundamental right. If the fundamental right is subsequently amended or removed, the eclipsed law revives. This was established in **Bhikaji Narain Dhakras v. State of M.P. (1955)**.

When Does Unconstitutionality Matter?

Violation of Fundamental Rights

The most common ground for declaring a law unconstitutional is that it violates one or more fundamental rights under Part III:

- **Article 14 (Equality):** Laws that are arbitrary, discriminatory, or treat equals unequally violate Article 14. The Supreme Court in **E.P. Royappa v. State of Tamil Nadu (1974)** held that arbitrariness itself is the antithesis of equality.

- **Article 19 (Freedom of speech, profession, etc.):** Laws that impose unreasonable restrictions on the freedoms guaranteed under Article 19 are unconstitutional. The test is whether the restriction is "reasonable" — disproportionate or excessive restrictions fail this test.

- **Article 21 (Right to Life and Personal Liberty):** The Supreme Court in **Maneka Gandhi v. Union of India (1978)** expanded Article 21 to require that any law depriving personal liberty must be just, fair, and reasonable.

Beyond Legislative Competence

A law passed by Parliament on a subject within the State List (or vice versa) is unconstitutional for want of legislative competence. The **Seventh Schedule** distributes legislative subjects between the Union, State, and Concurrent Lists.

Violation of Basic Structure

The Supreme Court in **Kesavananda Bharati v. State of Kerala (1973)** held that even constitutional amendments that destroy or damage the **basic structure** of the Constitution are unconstitutional. The basic structure includes: supremacy of the Constitution, democratic and republican form of government, secularism, separation of powers, federalism, and judicial review.

Landmark Cases

- **A.K. Gopalan v. State of Madras (1950):** Early case on the scope of Article 21 and legislative power to restrict personal liberty.

- **Golak Nath v. State of Punjab (1967):** The Supreme Court held that Parliament cannot amend fundamental rights, later overruled in part by Kesavananda Bharati.

- **Minerva Mills v. Union of India (1980):** Section 4 and 55 of the 42nd Amendment were struck down for violating the basic structure doctrine.

- **Shreya Singhal v. Union of India (2015):** Section 66A of the Information Technology Act was declared unconstitutional for violating the right to free speech under Article 19(1)(a).

- **Navtej Singh Johar v. Union of India (2018):** Section 377 IPC, to the extent it criminalised consensual same-sex relations, was declared unconstitutional for violating Articles 14, 15, 19, and 21.

Practical Significance

- **Void ab initio vs void from declaration:** There is a jurisprudential debate on whether an unconstitutional law is void from inception (void ab initio) or only from the date of judicial declaration. Indian courts have generally held that an unconstitutional law is void from its inception, though the practical effects of the declaration may be prospective in certain cases.

- **Prospective overruling:** In some cases, the Supreme Court applies the doctrine of **prospective overruling** — declaring a law unconstitutional but limiting the effect to future cases to avoid disruption. This was first applied in **I.C. Golak Nath v. State of Punjab (1967)**.

- **Costs of litigation:** Constitutional challenges are time-consuming and expensive, often requiring years of litigation through High Courts and the Supreme Court.

- **Parliamentary response:** When the Supreme Court strikes down a law, Parliament may re-enact it with modifications that cure the constitutional defect, or may amend the Constitution itself (subject to the basic structure limitation).

Frequently Asked Questions

Who can declare a law unconstitutional in India?

Only the **Supreme Court** and **High Courts** have the power to declare a law unconstitutional. Subordinate courts, tribunals, and other authorities do not have this power. The Supreme Court's declaration is binding on all courts throughout India under Article 141. A High Court's decision is binding within its territorial jurisdiction but is persuasive for other High Courts.

What happens to actions taken under a law that is later declared unconstitutional?

If a law is declared unconstitutional and void, actions taken under it are generally also void — since the law never had legal existence. However, courts may apply the doctrine of **de facto officers** or **prospective overruling** to protect actions already completed in good faith. In certain cases, the Supreme Court has given its judgment prospective effect to avoid chaos — for example, validating appointments or transactions already completed under the struck-down law.

Can a constitutional amendment be declared unconstitutional?

Yes. Following the landmark **Kesavananda Bharati v. State of Kerala (1973)** decision, the Supreme Court held that constitutional amendments that violate the **basic structure** of the Constitution can be declared unconstitutional. Parliament has unlimited power to amend the Constitution under Article 368, but this power cannot be exercised to destroy the Constitution's essential features. The basic structure doctrine has been applied to strike down parts of the 42nd and 39th Amendments, among others.