Writ Courts Can Suo Motu Strike Down Subordinate Legislation Which Violates Fundamental Rights & Biding Precedents : Supreme Court

The Supreme Court recently held that Writ Courts have the authority to exercise suo motu powers to strike down subordinate legislation if it violates fundamental rights enshrined in the Constitution, rendering it void and unconstitutional.

The Court observed that it saw no reason to not concede the power to suo motu declare a subordinate legislation invalid, on the ground of its being manifestly contrary to a Fundamental Right within the vast reserve of powers of the Constitutional Courts. 

“it is not only the duty of the writ courts in the country to enforce Fundamental Rights of individuals, who approach them, but it is equally the duty of the writ courts to guard against breach of Fundamental Rights of others by the three organs of the State.”, the court observed.

"Should, in a given case, it be found that there has been an egregious violation of a Fundamental Right as a result of operation of a subordinate legislation and the issue is concluded by a binding decision of this Court, we consider it the duty of the writ courts to deliver justice by declaring the subordinate legislation void to safeguard rights of others who might not still have been affected thereby," the Court said.

At the same time, the Court cautioned that this power must be exercised only sparingly.

The Court rejected the argument that subordinate legislation cannot be struck down without hearing the State, asserting that while such legislation enjoys a presumption of constitutionality like primary legislation, this does not bar Writ Courts from striking it down if it violates fundamental rights. The Court emphasized that Writ Courts are entitled to adopt a nuanced approach, rather than applying strict scrutiny when assessing the validity of subordinate legislation.

“After all, a subordinate legislation is seen as removed from the democratic process that is closely knit with primary legislation and hence, a more rigorous scrutiny in appropriate cases may not be inapt.”, the court observed.

The Court said that the level of presumption relating to subordinate legislation may indeed vary, depending on factors such as "(i) the nature of the subordinate legislation; (ii) the extent it is found to be in derogation either of the Constitution or the parent legislation which is its source; (iii) the exigencies and the manner in which the subordinate legislation is brought into force; and (iv) the potential impact on individual rights as well as public interest."

The Case

The bench comprising Justices Dipankar Datta and Manmohan heard the case where the Patna High Court while exercising its suo moto powers had struck down the Bihar Chaukidari Cadre (Amendment) Rules, 2014 because it allowed a retiring chowkidar to nominate dependent kin for appointment in his place.

The Division Bench of the Patna High Court struck this down as violative of Articles 14 (equality) and 16 (equal opportunity in public employment) of the Constitution, despite no formal challenge to the proviso.

Aggrieved by the High Court's decision, the Appellant-Bihar Rajya Dafadar Chaukidar Panchayat (Magadh Division) who was not originally a party, approached the Supreme Court arguing that the High Court exceeded in its jurisdiction to declare the Rule as unconstitutional despite the constitutionality of the heredity rule not being challenged before the Court.

Issue

The question that appeared for the Court's consideration was whether the High Court was justified in declaring the heredity rule as unconstitutional in the exercise of its suo motu powers, even though no formal challenge had been made against it.

Decision

Affirming the High Court's decision, the judgment authored by Justice Datta rejected the Appellant's argument stating that the High Court overstepped its jurisdiction to lay a challenge to the Rule whose constitutionality was not questioned before the Court.

The Court upheld the High Court's exercise of suo moto powers under Article 226 of the Constitution to declare the subordinate legislation as unconstitutional as it violates Articles 14 and 16 of the Constitution.

The Court upheld the High Court's decision, reasoning that it could be presumed the High Court was aware that appointments cannot be claimed as a matter of hereditary right. Therefore, even in the absence of a formal challenge to the offending proviso, the High Court's decision to strike it down was not per se illegal.

“we see no reason as to why the power to suo motu declare a subordinate legislation invalid, on the ground of its being manifestly contrary to a Fundamental Right read with binding precedents in terms of Article 141, should not be conceded to be within the vast reserve of powers of the Constitutional Courts. Though exercise of powers, suo motu, in an appropriate case in exercise of jurisdiction under Article 226 of the Constitution cannot be doubted, it is indubitable that such power has to be exercised sparingly and with due care, caution and circumspection.”, the court observed.

“This power (suo-moto) is a plenary power resident in all the Constitutional Courts. Should, in a given case, it be found that there has been an egregious violation of a Fundamental Right as a result of operation of a subordinate legislation and the issue is concluded by a binding decision of this Court, we consider it the duty of the writ courts to deliver justice by declaring the subordinate legislation void to safeguard rights of others who might not still have been affected thereby. We reiterate, it can only be done rarely and in cases which stand out from the ordinary.”, the court added.

Thus, accordingly, the Court dismissed the appeal.

Also from the judgment- Even As We Near 80 Yrs Of Independence, Not Enough Public Jobs Generated For Eligible Candidates : Supreme Court

Case Title: BIHAR RAJYA DAFADAR CHAUKIDAR PANCHAYAT (MAGADH DIVISION) VERSUS STATE OF BIHAR AND OTHERS

Citation : 2025 LiveLaw (SC) 394

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