Can A Central Act Struck Down by any HC Be Binding on other HCs?

In Depth

Can A Central Act Struck Down by any HC Be Binding on other HCs?

Vasan MS | March 2018

The High courts are vested with the power of judicial review under Article 226 and 227 of the Constitution. The High Courts while admitting a writ petition, can strike down any law of the state or any order of executive if it violates any provision of the Constitution or curtails or takes any of the Fundamental Rights of the people of India. However, such power is not absolute. A clear case of constitutional infraction should be established. It was time and again held by the High Courts and Supreme Court that the challenge to the constitutional validity of an enactment must be onthe basis of acertain and definite set of facts and the petition had factual averments as to any adverse or civil consequences resulting from the implementation of t he Act.

CONSTITUTIONAL VALIDITY OF FISCAL LEGISLATION

The Madras High Court in the case of Jayaram and Company vs the Assistant Commissioner [W.P. No 25952 to 25955 of 2010], while commenting on the same ratio held that

“When there is a challenge to the constitutional validity of the provisions of a Statute, Court exercising power of judicial review must be conscious of the limitation of judicial intervention, particularly, in matters relating to the legitimacy of the economic or fiscal legislation. While enacting fiscal legislation, the Legislature is entitled to a great deal of latitude. The Court would interfere only where a clear infraction of a constitutional provision is established. The burden is on the person, who attacks the constitutional validity of a statute, to establish clear transgression of constitutional principle…”.

Thus, it is to be noted that the high courts have power to strike down any central act legislation, however there should be a clear infraction of a constitutional provision. In one of the landmark judgements(in the case of Maneka Gandhi Vs. Union of India dated January 25th, 1978)the Supreme Court ruled that “the mere existence of an enabling law was not enough to restrain personal liberty. Such a law must also be “just, fair and reasonable”

Whether a Decision of One High Court binding on High Courts of Other States?

As recognized by the High Court’s Act and the Constitution, the decision of one high court is only binding on the states to which courts are attached. It is to be said that the high court exercises its jurisdiction within its territory, and the decision of one high court is never binding on the other state.

However, the Supreme Court in Kusum Ingots and Alloys Ltd. v. Union of India [2004 (6) SCC 254] had laid down that the decision of one high court is binding on the other high courts, if that judgement has strike down any central legislation or regulation on ground of contravention of constitution. The court here ruled that:

’A parliamentary legislation when receives the assent of the President of India and published in an Official Gazette, unless specifically excluded, will apply to the entire territory of India. If passing of a legislation gives rise to a cause of action, a writ petition questioning the constitutionality thereof can be filed in any

High Court of the country….” “The court must have the requisite territorial jurisdiction. An order passed on writ petition questioning the constitutionality of a Parliamentary Act whether interim or final keeping in view

The provisions contained in Clause (2) of Article 226 of the Constitution of India, will have effect throughout the territory of India subject of course to the applicability of the Act.”

The decision in case of Kusum Ingots has been subsequently followed by a number of courts. Hence it can be fairly concluded that once the central legislation is struck down by any high court it is binding on other state High Courts as well.

Other Judicial cases on the Matter

ANALYSIS OF DELHI HIGH COURTDECISION LAYING DOWN GUIDELINES ON PNDT ACT

The Delhi HC in one of the landmark judgement Indian Radiological and Imaging Association(IRIA) vs UOI [W.P. (c) 6968/2011] held that all places including vehicles where any equipment capable of determining sex of foetus are used, require registration under Pre- conception and Pre- Natal Diagnostic Techniques (Prohibition of Sect Selection) Act, 1994 (PNDT Act). The Court observed that any clinic/institute/hospital/nursing home or other place, though not proclaiming itself to be carrying out pre-natal diagnostic procedure and thus not a genetic clinic but having ultrasound or other machines “capable of􀀀 viewing/imaging the foetus and other organs of human body for selection of sex before or after conception, would be covered thereby.

The court further issued guidelines on PNDT act. The writ petition filed byIRAI, Indian Medical Association and Sonological Society of India was disposed offby the Division bench providing guidelines and key conclusions.

That section 2(p) of the PNDT act defining a Sonologist or Imaging Specialist, is bad to the extent it includes a person possessing a postgraduate qualification in ultrasonography or imaging techniques – because there is no such qualification recognized by MCI and the PNDT Act does not empower the statutory bodies constituted thereunder or the Central Government to devise and coin new qualification:
That all places including vehicles where ultrasound machine or imaging machine or scanner or other equipment capable of determining sec of the foetus or has the potential of detection of sec during pregnancy or selection of sex before conception require registration under the Act;
That, if the person seeking registration a) makes a declaration in the form to be prescribed by the Central Supervisory board to the effect that the said machine or equipment is not intended for conducting pre-natal diagnostic procedures; b) gives an undertaking to not use or allow the use of the same for pre-natal diagnostic procedures; c) has a “silent observer” or any other equipment installed on the ultrasound machines, as may be prescribed by the Central Supervisory Board, capable of storing images of each sonography tests done therewith such person would be exempt from complying with the provisions of the Act and the Rules with respect to Genetic Clinics, Genetic Laboratory or Genetic Counselling Centre;
If however for any technical reasons, the Central Supervisory Board is of the view that such “silent observer” cannot be installed or would not serve the purpose, then the Central Supervisory Board would prescribe other conditions which such registrant would require to fulfil, to remain exempt as aforesaid.
However, such registrants would otherwise remain bound by the prohibitory and penal provisions of the Act and would remain liable to give inspection of the “silent observer” or other such equipment and their places, from the time to time and in such manner as prescribed by Central Supervisory Board;
The court further held that the Rule 3(3)(1)(b) of the PNDT Rules (as it stands after the amendment with effect from 9th January, 2014) is ultra vires the PNDT Act to the extent it requires a person desirous of setting up a Genetic Clinic / Ultrasound Clinic / Imaging Centre to undergo six months training imparted in manner prescribed in the six months training rules.

Post this decision, in the Madras HC in T.Rajakumari vs Government of Tamil Nadu [AIR 2016 Madras 177] petitions were filed under Article 226 of the Constitution of India praying for the issue of writ of declarationdeclaring the Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) (Six Months Training) Rules, 2014 beyond the scope of the Pre-conceptional and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994, Act 57 of 1995 and inconsistent with Medical Council of India Act, 1956 and Regulations.

However, the court observed that the Supreme Court had not stayed the operation of order Delhi HC order dated dated 17.02.2016 striking down Section 2(p) of Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994, Act (hereinafter called ”PNDT Act”). Consequently, Rule 3(3)(1)(b) of the PNDT Act have also been struck down as ultra vires the Act. Thereafter the court examined an important issue as to whether a central act struck down by high court of one state can be selectively applied in other state and the court held that once the high court has struck down the provisions of central act, it cannot be said that it would be selectively applied in other states.

The court made an important observation that it is an accepted position that the law would be finally laid down by the Hon’ble Supreme Court and thus there is no point in keeping this petition pending and whatever would be the declaration of law by the Hon’ble Supreme Court would be equally applied. The court ruled that “there is no question of applicability of provisions struck down by the High Court as of now until and unless the Hon’ble Supreme Court upsets the Judgment or stays the operation of the Judgment.’

CONCLUSION

The jurisdiction of a High Court to admit a Writ Petition is based on the place of accrual of the cause of action. Whether it is a Central Act enacted by the Parliament or a State Act by a state legislature is irrelevant. In deciding the case, any High Court has jurisdiction to scrutinise the constitutional validity – central as well as state. Hence, any violation of Central Act which is in contravention of the Constitution and struck down by any High Court shall be binding on the High Courts of other states, until Supreme Court intervenes or contradicts the same.

About Author

Vasan MS

Dr. M. S. Vasan is a Senior Vice President – Global Taxation with M/s Hinduja Global Solutions Ltd., He is an advocate and holds doctoral degree in Transfer Pricing. He has authored books on Transfer Pricing and Direct Taxes published by Lexis & Nexis India.