In India, the principles for adjudicating the constitutionality of any enactment are held to be well settled. I am publishing extracts and points from the Judgment of the Hon'ble Delhi High Court.
They are as under :
An Act can be declared unconstitutional only if the petitioner makes out a case that the legislature did not have the competence or provisions of the impugned Act violates fundamental rights guaranteed by Part III of the Constitution. While making a reference to Namit Sharma judgment and the book written by D.D. Basu, Hon'ble High Court stated that there are few grounds on which such issues are tested as under :
1. Contravention of any fundamental right.
2. Legislating on a subject not assigned to the relevant legislature.
3. Contravention of any mandatory provisions of the Constitution. (Reference to Atiabari Tea Co. Ltd v State of Assam)
4. In cases of state laws, when they operate beyond the state boundaries. Reference to State of Bombay v R.M.D. Chamarbaugwala).
5. That the concerned legislature has abdicated the essential function as assigned to it by Constitution or made excessive delegation of that power to some other body. Reference to Hamdard Dawakhana v Union of India.
There is, it has been held in the said Judgment of Advantage India v Union of India wherein the validity of S.43 of Foreign Contribution Regulation Act, 2010 and connected Rules were challenged, that there is always a presumption in favour of the constitutionality and the burden is on the petitioner.
They are as under :
An Act can be declared unconstitutional only if the petitioner makes out a case that the legislature did not have the competence or provisions of the impugned Act violates fundamental rights guaranteed by Part III of the Constitution. While making a reference to Namit Sharma judgment and the book written by D.D. Basu, Hon'ble High Court stated that there are few grounds on which such issues are tested as under :
1. Contravention of any fundamental right.
2. Legislating on a subject not assigned to the relevant legislature.
3. Contravention of any mandatory provisions of the Constitution. (Reference to Atiabari Tea Co. Ltd v State of Assam)
4. In cases of state laws, when they operate beyond the state boundaries. Reference to State of Bombay v R.M.D. Chamarbaugwala).
5. That the concerned legislature has abdicated the essential function as assigned to it by Constitution or made excessive delegation of that power to some other body. Reference to Hamdard Dawakhana v Union of India.
There is, it has been held in the said Judgment of Advantage India v Union of India wherein the validity of S.43 of Foreign Contribution Regulation Act, 2010 and connected Rules were challenged, that there is always a presumption in favour of the constitutionality and the burden is on the petitioner.
No comments:
Post a Comment