The Constitution is the supreme law of the land, and judiciary is charged with
interpreting and protecting it.
For this aim, the judiciary can conduct judicial review of any statute to
determine if it is in compliance with the constitution's word and spirit. If a
statute is deemed to be ultra vires , it is overturned by the courts and becomes
unenforceable in the future. When the judiciary does engage in that rare act of
review, its decision is scrupulously honoured.
In legal jurisprudence, the idea of progressive realisation of rights dictates
that a country's laws should be in conformity with its current culture,
"sensible," and "simple to apply.
According to the concepts of transformative
constitutionalism and progressive realisation of rights, the constitution must
steer the society's change from archaic to pragmatic, with fundamental rights
firmly protected. To ensure that individual human rights are preserved,
constitutional morality should take precedence over societal morality.
When laws become outdated, they must be modified in accordance with current
morality, which aids in the advancement of rights morality. The role of the
courts in the reformation of laws is significant.
A number of Supreme Court decisions have resulted in the annulment or alteration
of certain provisions like in
Union of India vs. Shreya SinghalSection 66A of the IT Act was found unconstitutional by the Supreme Court, which
characterised online publication of information as "grossly offensive," a crime
punishable under article 19(1)(a) of the Indian constitution and not covered by
the purview of reasonable limits outlined in article 19(2).
The court further stated that the expressions in section 66A were open-ended,
indeterminate, and therefore arbitrary. The court ruled that the term, which
included the grossly offensive, menacing, unpleasant, inconvenient, dangerous,
insulting, and intimidating, was void due to its ambiguity. The Court argued
that such ambiguity jeopardised the rule of law and disproportionately infringes
on the right to free expression.
Mithu vs State of PunjabSection 303 of the Indian penal code, which permitted capital penalty for a
murder committed by a person serving a life sentence in another case, was
declared unconstitutional by the court in 1983. It was determined that the
punishment was not based on rational principles because no judicial discretion
was available to life convict.It was overturned not because the sentence was way
too harsh for the offender, but because the only punishment stated was execution
punishment, and the court's discretion to give a lower sentence was taken away,
and the death penalty was rendered mandatory. The provision in section 303 of the
Indian Penal Code is irrational and arbitrary, and so breaches article 21 of the
Navtej Singh Johar vs Union of IndiaThe Supreme Court's five-judge panel unanimously declared Section 377 of the
Indian Penal Code, unconstitutional because it was violative of Art. 14 of the
Constitution (Right to Equality Before the Law) .It was vague in the sense that
it did not define �carnal intercourse against the order of nature�. Between
natural and unnatural consenting sex, there was no intelligible differentia or
The Court cited its decision in NALSA v. Union of India to reaffirm that gender
identity is an integral part of one's personality and that rejecting it would be
a violation of one's dignity. The Supreme Court ruled that "intimacy between
consenting individuals of the same sex is outside the state's legitimate
Joseph Shine vs. Union of IndiaSection 497 IPC held to be manifestly arbitrary , discriminatory and violative
of the dignity of a woman and therefore unconstitutional. Wives are not the
property of their husbands, and husbands are not their masters, court asserted.
Section 497 deprives a woman of her autonomy, dignity, and privacy, and is thus
viewed as the wife's infringement on her right to life and personal liberty by
adopting the concept of marriage, which undermines actual equality. This
provision places a significant focus on the husband's consent, which leads to
women's submission, which is obviously in violation of Indian constitution
articles 14,15, and 21.
Rajesh Sharma vs. State of UPThe Supreme Court of India handed down a decision on July 27, 2017 that altered
the procedural component of Section 498A of the Indian Penal Code. The two-judge
bench, consisting of Justice Adarsh Kumar Goel and Justice Uday Umesh Lalit,
stated that Section 498A was frequently abused, resulting in unwarranted arrests
and harassment of the accused husband's family members. The court's
recommendations were issued to prevent such arrests.
Shabrimala JudgmentIndividual freedom prevail over purported group rights, even in the matter of
MC Mehta CaseRight to live in pollution free environment is at par with right to life.
Rangarajan vs. P. Jagjeevan Ram CaseMere threat to public order cannot be the ground to supress freedom of
Kedarnath vs. State of BiharSedition charges can be imposed only if it involves intention to create disorder
or incitement to violence).
Common Cause vs. Union of IndiaComments against government , however strongly worded, if shun violence , are
Continued Invocation of Unconstitutional Provisions out of ignorance
Undoubtedly, the registration of FIRs by the police under the repealed sections
is unquestionably unconstitutional and in violation of the court's orders.
Though such cases may not always be registered intentionally, negligence by
Station House Officers (SHOs) must be nipped in the bud.
The identical problem of invalidated provisions being utilised by the police to
file cases based on complaints was brought to the notice of the court in January
2019. Little appears to have changed since then, and it is strange that police
headquarters and prosecutors across several states failed to disseminate the
effect of the court ruling among officers manning police stations.
According to the People's Union For Civil Liberties (PUCL), 1,307 cases have
been filed across states under the revoked section 66A of the IT Act since 2015.
In 11 states, 745 cases are still pending in district courts.
Rahat Khan, a 22-year-old man, was detained in Dankaur by Greater Noida police
in March 2017 on a report that he had tweeted a modified picture of Uttar
Pradesh Chief Minister for an offence alleged under Section 66A of the IT Act
According to NCRB records, in 2005, 10.56 percent of Section 498A cases were
found to be inaccurate due to a legal and factual error. The Court issued a
series of recommendations in response to its conviction that relatives of the
accused husband should not be wrongly arrested.
Despite the fact that the Supreme Court struck down Section 303 of the Indian
Penal Code in 1982, poor Shyoprakash was charged and convicted under that
provision in 2012, and sentenced to death by a Sessions Court in Rajasthan.
Even though the Supreme Court has ruled that defamation can only be pursued
through private complaints and there can be no FIR, police in Uttar Pradesh
recently booked a journalist for defamation under Section 500 of the IPC.
There are some human errors at the level of SHOs who register FIRs because they
are oblivious to recent judgments and are also holding old statuted books with
repealed provisions still active, though it is impossible to rule out instances
of the sections being used intentionally as a tool of harassment. Checks must be
put into the system to ensure that no FIRs are filed under negated provisions.
Ignorance of law is no excuse for the citizen ,and it must equally be no excuse
for police officers who include invalidated sections in FIRs.
Disabling of the Unconstitutional Sections
To prevent the continued misuse of the legal system through the application of
unconstitutional provisions, necessary legislative and administrative
adjustments are required.
The declaration of unconstitutionality does not imply that the relevant law is
removed from the statutory books. Only by amending statutes can they be
modified. A declaration of unconstitutionality renders a provision void ab
initio, either whole or partially, depending on the circumstances.
The inability of legislators to give court rulings statutory effect has
repercussions, and one would expect the judiciary to keep its house in order by
filtering out unconstitutional clauses.
The judiciary should guarantee that laws are properly implemented, and any
breach should result in contempt of court.
These laws should be scrutinised by
the courts to ensure that:
- Political parties' ideologies are not enforced.
- The rule of law governs the country.
- Complete justice is accomplished.
The simplest way to avoid registration of offences under unconstitutional parts
is to educate police officers of all ranks about such laws at basic training
institutions, make the judgement available on the court's website, and hold
workshops and seminars. Police chiefs and prosecutorial directors must begin a
proactive procedure of notifying subordinate courts and investigators of all
significant decisions and their impact on investigation, prosecution, and charge
framing techniques on a regular basis.
To guarantee full compliance, suitable circulars/advisories should be sent to
the Chief Secretaries of all States and Union Territories, as well as the
Director Generals of Police of all States and Union Territories, or comparable
persons, for distribution to the Police Stations. The police should ensure that
no FIRs are lodged under unconstitutional laws, and that no one is harassed as a
result of the SHOs' ignorance.
The unconstitutional portions of the IPC can be deactivated in the Crime And
Criminal Tracking Network And Systems (CCTNS). When the Supreme Court directed
the states in 2016 to upload FIRs on official websites within 24-72 hours of
registration, CCTNS came handy. In Chhattisgarh, repealed section have been
disabled in the system. It's possible that other states will follow suit.
An accused individual facing prosecution for a provision that has been found
unconstitutional not only prejudices the case but also wastes court time and
resources. Under Article 21 of the Constitution, no one should be subjected to
or incur any penalties that infringe his fundamental rights.
All recent judgements should be made available to the general public via
newspapers, periodicals, and other means. The official text of statutes must be
correctly reproduced by commercial publishers (such as Universal, LexisNexis,
and Commercial), including a mention of section abolished in brackets near the
provision. To avoid further misuse by these legal zombies wandering through the
Indian Legal System , certain legal and administrative reforms are required.
After all ,the dead should rest in peace.
Award Winning Article Is Written By: Ms.Rishu Chauhan
Authentication No: SP35676107972-03-0921