Constitutional Law: Effect of Unconstitutionality of a Statute

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The Constitution provides the citizens with the fundamental rights and also incorporates safeguards for them against the acts of the state. Without this protection the fundamental rights would be rendered toothless and these rights would be practically ineffectual.

Thus, our Constitution makers incorporated Article 13 to check the law-making power of the state and to render any ordinance, order, bye law, rule, regulation, notification, custom or usages infringing the fundamental rights to be void. However, the Supreme Court held in its judgment in AK Gopalan v. State of Madras that even without this Article the Courts have the right to declare any law that transgresses the limits of fundamental rights to be invalid and that the Article is a result of abundant caution on part of the drafting committee.


Article 13 does not have a retrospective effect, thus the statutes existing before the commencement of the Constitution were valid and only became void on this supervening event of the Constitution coming into effect. The doctrine of eclipse as invoked in the case of Bhikaji v. State of Madhya Pradesh holds that this shadow casted renders the statute void in the post-Constitutional period but remains valid and enforceable for the acts committed before its enforcement. However, any law enacted post-Constitution would be void-ab-initio and considered still born whether wholly or partially as to any rights or liabilities created by it.

The Supreme Court in the case of ML Kamra v New India Assurance held that a presumption lies in the Constitutionality of every legislation. Any law may be declared unconstitutional by the competent Court if any of the following conditions is satisfied.

  • The first situation in which the law would be declared void if it contravenes any of the fundamental rights granted under Part III of the Constitution.
  • Secondly, if a legislation is formed that exercises any power not present with the legislature passing it as provided under the Seventh Schedule of the Constitution or seeks to operate beyond the boundaries of the state passing it would be invalid to that extent as held in the case of State of Bombay v. Bombay Education Society, it is liable to be held unconstitutional.
  • The third condition under which a law is to be declared unconstitutional is when the legislature has delegated essential functions to some other body. The Apex Court has held in the case of Atibari Tea Co. v. State of Assam that such excess delegation renders the Act liable to be struck down as unconstitutional.
  • Fourthly, any law is to be held invalid to the extent of its contravention of any mandatory provision of the Constitution, say Article 301.

Under any of these situations, the Courts exercise the Doctrine of Severability to determine if the unconstitutional part of the Act can be severed from the rest of the Act, so that the valid part can independently survive, then only the invalid parts are to be declared unconstitutional and not the whole statute as observed in the case of Mahendra v. State of Uttar Pradesh. The Court formulated three principles governing severability in the case of R.M.D. Chamarbaugwalla v. Union of India. The first principle determines if the legislature had omitted the invalid part if it had known it to be unconstitutional and passed the valid part, this test is satisfied. The second principle holds that when the invalid and the valid parts are so inextricably mixed up that they cannot be separated then the whole statute has to be declared unconstitutional. The third principle states that if the valid part though separate and distinct but is part of a single scheme intended to be operated as a whole, even then the whole Act would be held void.


In the case of Shreya Singhal v. Union of India, the Supreme Court declared Section 66A of the Information Technology Act, 2000 to be unconstitutional. The section was found to be an unreasonable restriction on freedom of speech and expression provided under Article 19(1) of the Constitution and was struck down in 2015.

The Supreme Court in 2018 declared Section 377 of the Indian Penal Code (IPC) to be unconstitutional in the case of Navtej Singh Johar v. Union of India. The Court struck down the section as regards consensual acts of homosexuality as being violative of Articles 14 and 21. The invalid part of criminalizing consensual homosexual acts among adults was severable from the other part which was left valid and enforceable.

In the recent case of Joseph Shine v. Union of India, the Apex Court struck down Section 497 of IPC and Section 198(2) of CrPC that penalised adultery as being violative of right to privacy and dignity of the wife. The provision infringed rights guaranteed under Article 14, 15(1) and 21 of the Constitution.

Provisions Involved

Article 245 of the Constitution gives the Parliament the power to make laws for the whole or any part of the territory of India, and the Legislature of a State may make laws for the whole or any part of the State.

Article 13 provides that Laws inconsistent with or in derogation of the fundamental rights shall be void to the extent of such contravention. It also states that law includes any Ordinance, order, bye law, rule, regulation, notification, custom or usages; laws in force includes laws passed or made by Legislature or other competent authority. Thus, this Article is a restriction to the Parliament’s power under Article 245.

Critical Analysis

The presumption in favour of Constitutionality makes it very challenging to show how the statute violates a person’s fundamental rights. Even when such a violation is proved, the Courts tend to strike off the invalid statute only as a last resort and try to uphold its Constitutionality by interpreting it in a way compatible with one’s rights. If this isn’t possible, an attempt is made to sever the invalid part and if even that isn’t possible then the act is declared void as a whole.

Another problem related to an invalid law is that it may be continued to be used even after being struck down as observed even years after the Apex Court declared section 66A, Information Technology Act to be unconstitutional. Cases are still being registered under this section. Recently, Allahabad High Court refused to quash proceedings against the accused under this section in the case of Shiv Kumar v. State of UP. The continuing enforcement of the void provision or act leads to unreasonable harassment and moreover dilutes the Constitutional power under Article 13.


The rights granted by the Constitution are not just directive and can be enforced even against the state. Article 13 carries this power and keeps the powers of legislature and executive under check.  The Supreme Court has since independence struck down hundreds of statutes and overruled its own decisions reflecting the changing standards with time. Such invalidation of unconstitutional laws is crucial for the personal freedom of people and its protection from the state as the governments may change but the fundamental rights of people must remain.

Author: Ashraya Singh from School of law, NMIMS, Mumbai.

Editor: Astha Garg, Junior Editor, Lexlife India


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