Should Legislature Specifically Delete Provisions Which Are Struck Down By Courts? Supreme Court Discusses

A Supreme Court 9-Judge Constitution bench on Thursday (April 25), while hearing the issue of interpretation of Article 39(b), pondered whether the legislature needed to pass necessary amendments to delete a provision from the statute book after it has been struck down by the Court as unconstitutional.

The matter is being heard by a bench of Chief Justice of India DY Chandrachud, Justices Hrishikesh Roy, B.V. Nagarathna, Sudhanshu Dhulia, J.B. Pardiwala, Manoj Misra, Rajesh Bindal, Satish Chandra Sharma and Augustine George Masih.

The Court noted that even after a provision is struck down, it remains in the statute books with a footnote stating that it has been struck down. This might escape the attention of common people, who might be under the impression that the provision was still active. Hence, the Court pondered whether there was a need for a specific legislative amendment to omit the struck-down provisions from the statute books.

The Court raised these points in view of the confusion created by Article 31C of the Constitution. Article 31C, as amended by the 42nd Amendment of 1976, was struck down in the case Minerva Mills v. Union of India. The Court pondered whether, after the Minerva Mills judgment, the unamended version of Article 31C was revived. A detailed understanding of this 'conundrum' revolving around Article 31C can be read here. 

It is in this context that Justice Rajesh Bindal inquired whether the Parliament is duty-bound to clarify the position of law by way of an Amendment act After the Top Court strikes down a provision.

"After the provision is struck down, are they (Parliament) bound to carry out the amendment also? deletion, addition etc." 

Senior Advocate Mr Zal Andhyarujina recalled the words of former CJI YV Chandrachud, that the law which is struck down, "lives an 'italicised' existence". That is, once declared invalid, often such laws or provisions will be found to exist in Statute books or commentaries in an italicised font supported with a footnote indicating its invalidity. 

Answering Justice Bindal's question, he clarified that in such instances the Parliament is not bound to pass an amendment. 

"Parliament may do it or may not do it." 

Reverting to this, Justice Bindal expressed that the absence of any practice to clarify the position of laws after being declared invalid creates confusion in the mind of a common man attempting to understand the law through a bare reading. Once an amended version is struck down, to see its italicised existence despite being declared invalid only makes the reader wonder what is the original/ present position before the coming of the italicised one. 

"For the layman, it is very difficult to understand. The kind of argument we make here is that the earlier has revived, so nobody knows what was there."  

Mr Andhyarujina submitted that the decision to take a legislative step would lie squarely in the domain of the Parliament. Since the doctrine of separation of powers only grants the ability to the Judiciary to check wherever the Legislature oversteps, that would not mean granting law-making powers to the Judiciary itself. Parliamentary inactivity in the event of striking down a law perhaps leads the Courts to legal conundrums as the present one being faced today. 

"For the ordinary development of the law, it must either remove it from the statute book or it must remove the basis of its unconstitutionality and revalidate it by a parliamentary motion. That would be the correct parliamentary procedure...I see this as an important point between the separation of the powers of the parliament and the judiciary ....Parliamentary inactivity results in the situation that we are in today ...and it is difficult to see who can do it but the Parliament."  

Justice Sudhanshu Dhulia also weighed in to point out how such effects of Parliamentary inactivity persist beyond the provisions of the Constitution and are common to be seen in other statutes where a provision is struck down. He drew the analogy between S. 303 of the IPC (a death sentence for a person who commits murder while undergoing life imprisonment) and how it was struck down by the Apex Court in Mithu Singh v. State of Punjab and the present dilemma that the bench faces with Article 31C. 

Article 31C of the Constitution, in its original form, was introduced through the Constitution (25th Amendment) Act, 1971. As per the Article, two key things were introduced, (1) Even if a law conflicts with articles 14 (equality before the law) or 19 (freedom of speech, etc.), as long as it is trying to implement the goals set out in Part IV, it won't be considered invalid; (2) if a law declares its objective is to fulfil these broader goals of public good under the DPSPs, the effectiveness of such a law cannot be scrutinized under the principles of Judicial review.

However, in the landmark case of Kesavananda Bharati v. State of Kerala, the second part of Article 31C namely providing immunity to the Centre's legislations made in furtherance of the DPSPs from the judicial review was struck down. It may noted that now the operative part of Article 31C reads :

“Notwithstanding anything contained in article 13, no law giving effect to the policy of the State towards securing all or any of the principles laid down in Part IV shall be deemed to be void on the ground that it is inconsistent with, or takes away or abridges any of the rights conferred by article 14 or article 19 and no law containing a declaration that it is for giving effect to such policy shall be called in question in any court on the ground that it does not give effect to such policy.” (The italicized part was struck down in Kesavananda Bharati)

Provided that where such law is made by the Legislature of a State, the provisions of this article shall not apply thereto unless such law, having been reserved for the consideration of the President, has received his assent.”

Subsequently, the 42nd Amendment Act, 1976 introduced by the Parliament further amended Article 31C. Herein the expression “The principles specified in clause (b) or clause (c) of article 39", was substituted with "all or any of the principles laid down in Part IV" (section 4 of the 1976 Amendment Act)

The said amendment when put to challenge in the case of Minerva Mills was struck down completely. In the same year, after deciding Minerva Mills, the Court in Waman Rao v. Union of India held that the unamended version of Article 31C as upheld by Kesavananda Bharati remains valid. 

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