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Explained: The ‘presumption of constitutionality’ in the case of the new citizenship law

The term ‘presumption of constitutionality’ is a legal principle that is used by courts during statutory interpretation — the process by which courts interpret and apply a law passed by the legislature, such as Parliament.

Written by Om Marathe , Edited by Explained Desk | New Delhi |
Updated: January 13, 2020 7:31:07 am
Explained: The 'presumption of constitutionality' in the case of the new citizenship law Chief Justice of India Sharad Arvind Bobde said that the court’s role was to examine the validity, and not declare a law constitutional. (Express Photo/File)

On Thursday (January 9), the Supreme Court declined urgent hearing on a plea seeking to declare the Citizenship (Amendment) Act as constitutional and said that there was already a “presumption of constitutionality” to a law passed by Parliament. Chief Justice of India Sharad Arvind Bobde said that the court’s role was to examine the validity, and not declare a law constitutional. “How can we declare it constitutional? There is anyway a presumption of constitutionality. If you had been a student of law, you would know,” Bobde said while rejecting the plea.

The term ‘presumption of constitutionality’ is a legal principle that is used by courts during statutory interpretation — the process by which courts interpret and apply a law passed by the legislature, such as Parliament.

In the 1992 Supreme Court case ‘ML Kamra v New India Assurance’, Justice K Ramaswamy said: “The court ought not to interpret the statutory provisions, unless compelled by their language, in such a manner as would involve its unconstitutionality, since the legislature of the rule making authority is presumed to enact a law which does not contravene or violate the constitutional provisions. Therefore, there is a presumption in favour of constitutionality of a legislation or statutory rule unless ex facie it violates the fundamental rights guaranteed under Part III of the Constitution. If the provisions of a law or the rule is construed in such a way as would make it consistent with the Constitution and another interpretation would render the provision or the rule unconstitutional, the Court would lean in favour of the former construction. ” (“ex facie” meaning ‘on the face’)

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A Bench of Justices G B Pattanaik and M Srinivasan in the 1998 case ‘K Anjaiah vs K. Chandraiah’, observed: “It is a cardinal principle of construction that the Statute and the Rule or the Regulation must be held to be constitutionally valid unless and until it is established they violate any specific provision of the Constitution. Further it is the duty of the Court to harmoniously construe different provisions of any Act or Rule or Regulation, if possible, and to sustain the same rather than striking down the provisions out right.”

The presumption is not absolute, however, and does not stand when there is a gross violation of the Constitution.

In ‘Githa Hariharan v RBI’ (1999), Justice U Banerjee said, “…It is to be noted that validity of a legislation is to be presumed and efforts should always be there on the part of the law courts in the matter of retention of the legislation in the statute book rather than scrapping it and it is only in the event of gross violation of constitutional sanctions that law courts would be within its jurisdiction to declare the legislative enactment to be an invalid piece of legislation and not otherwise…”

A three-judge Bench in ‘NDMC v State of Punjab’ (1996) spoke of the limitations to the doctrine.

The Bench observed, “The Doctrine of Presumption of Constitutionality of Legislations is not one of infinite application; it has recognised limitations… this Court has consistently followed a policy of not putting an unnatural and forced meaning on the words that have been used by the legislature in the search for an interpretation which would save the statutory provisions. We are not “free to stretch or pervert the language of the enactment in the interests of any legal or Constitutional theory”…”

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