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Justice Necessitates Enforcement

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When laws become outdated, they must be modified in accordance with current morality, which aids in the advancement of rights morality.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 Singhal

    Section 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 Punjab

    Section 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 Indian Constitution.
  • Navtej Singh Johar vs Union of India

    The 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 reasonable classification.

    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 interests."
  • Joseph Shine vs. Union of India

    Section 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 UP

    The 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 Judgment

    Individual freedom prevail over purported group rights, even in the matter of religion.
  • MC Mehta Case

    Right to live in pollution free environment is at par with right to life.
  • Rangarajan vs. P. Jagjeevan Ram Case

    Mere threat to public order cannot be the ground to supress freedom of expression.
  • Kedarnath vs. State of Bihar

    Sedition charges can be imposed only if it involves intention to create disorder or incitement to violence).
  • Common Cause vs. Union of India

    Comments against government , however strongly worded, if shun violence , are not sedition.

  • 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 (repealed).

    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.


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