Courts cannot by themselves question the constitutionality of a statute; it must be specifically prayed for by petitioners

Asmita Kuvalekar | Government Law College, Mumbai | 27th April 2020. 



The High Court of Meghalaya, under Article 226, took suo motu cognizance of the Executive’s failure to establish a State-level Human Rights Commission as envisaged by the Meghalaya Lokayukta Act, 2014 (hereinafter referred to as ‘the Act’). In doing so, it examined the provisions governing eligibility for appointment of Chairperson of the Commission. By its own volition, it proceeded to stay the implementation of Sections 3 (2) (a) and 3 (3) (b) of the Act for possible violation of Constitutional values. 

Aggrieved by the High Court’s actions, the appellant approached the Apex Court on the principal argument of grave error in taking suo motu decisions on constitutionality of statutes when the same had not been specifically averred or asked for by the Appellant. 

This case hinges entirely on one question of law: Is judicial review wide enough to declare a statute null and void even when that was not pleaded in a Public Interest Litigation? In other words, can Constitutional Courts determine the validity of law of their own accord, whenever they wish to do so? 


  1. Whether the High Court’s suo motu stay on certain provisions of the Act can be upheld, so as to set a precedent for all Constitutional Courts in the future? 


First and foremost, regard being had to numerous past judgements, the Apex Court clarified that in the interest of public welfare, Courts can issue suo motu litigations. As long as the intention is the alleviation of a large-scale societal problem, such voluntary judicial interventions would be justified. In its own words, “Suo motu public interest litigation can be initiated to ameliorate the conditions of a class of persons whose constitutional or otherwise lawful rights are affected or not adequately looked into.”

However, with respect to the present case, the Court took note of the Appellant’s claim that the High Court of Meghalaya decided upon the constitutionality of provisions in the 2014 Act when it had not been invited to do so. The conflict that arose therefore was the limitation of judicial review despite altruistic intentions behind it. The judges explained that once voluntary judicial cognizance has been taken, provisions of a particular Act and its state of implementation can be scrutinized in detail. But stretching that scrutiny to adjudicate upon the constitutionality of law is far too much power in the hands of the Judiciary. 

Judges should wield enough authority to ensure that justice is done but by no means can that authority be seen to include an uncalled for challenge to any law purporting to be exercise of judicial review. Judicial review is essential and indispensable to India’s democratic structure but it includes the respect of law duly passed by the Legislature. Put simply, statutes can be overturned or declared null and void only through a traditional public interest litigation, not suo motu action taken by a Court. 

Referring to State of Uttar Pradesh v Kartar Singh1, the judges reinforced the importance of data, scientific analysis and strong evidence to be brought forth by a party alleging unconstitutionality of law. It is for the party alleging inadmissibility of a statute to prove such a flaw. The Courts are not empowered to do so on their own. 

  1. AIR 1964 SC 1135

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