In the Naz Foundation case,the Delhi High Court partially struck down as being unconstitutional,Section 377 of the Indian Penal Code. Does this judgment have force in the whole of India? In practical terms,the question translates to whether the Delhi High Courts judgment prevents police officials in the rest of India,from acting on Section 377.
The extent of a High Courts powers is to be found in Article 226 of the Constitution. Article 226(1) provides that the writ of a High Court ordinarily runs only within the territory of the state. Article 226(2) provides that the High Court has extra-territorial reach over persons and authorities outside the state territory where the cause of action upon which the writ issues,arises within its state territory.
What we have before us then is,to use an overworked phrase ubiquitous in the legal world,a classic example of a grey area of law. In such cases the best we can do is turn to logic and common sense in the hope that we correctly anticipate what the courts are likely to do in the future about the issue.
There is something odd about both lines of thinking we just encountered. Surely,the plain words of Article 226(2) permit the High Court to issue writs to persons and authorities outside its ordinary territorial state limits. Therefore the second line of thinking which denies this extra territorial reach to a High Court is unacceptable. However ,that need not lead us to accepting the first line of thinking that just because a High Court can issue writs to authorities outside its jurisdiction,its law is binding throughout India.
The trouble with both lines of thinking is similar,namely,the assumption that the bindingness of an individual ruling of a court is the same as bindingness of the general rule on which the ruling is based. A general rule is distilled from individual rulings of the court. For instance if a High Court in a ruling awards compensation to B who was hit by As car which he was driving at 100 kms/hr in a dark crowded street,the general rule distilled from the above is that anyone who drives rashly and negligently will have to compensate for any accident caused by him.
It may come as interesting legal trivia that a ruling of a court in England,in appropriate circumstances,against a party in India (say,on contract law decided according to English contract law ) is binding on the Indian party. But by that token,is the rule of English contract law,on which the courts ruling is based,applicable in India? The answer is an emphatic,No! How does this happen?
In saying that a rule of law is binding we mean that there exists a certain relationship of authority between the rule-maker and the persons to whom it is addressed (i.e. legal officials). This authority is delineated by the Constitution by setting out territorial limits of each High Courts jurisdiction in Article 226(1). Thus the rule laid down by the High Court is law only for its state. However because of Article 226(2) a High Courts individual rulings can bind people beyond its territory just as the English Courts judgments can bind a party in India.
A declaration of unconstitutionality is a rule addressed to all legal officials within the Courts jurisdiction not to apply the law that has been struck down. Hence the Delhi High Courts declaration of unconstitutionality would be valid only for the territory of Delhi. Section 377 of the Indian Penal Code remains intact for the rest of India till the Supreme Court decides to strike it down.
The writer is is reading for a doctorate in Jurisprudence at Oxford University
