In the news, we hear about the Supreme Court testing Constitutionality of some law. On 2 February, the Supreme Court decided to test the Constitutionality of Section 377 of Indian Penal Code.
What is Constitutionality?
The Constitutionality is the Litmus test of every law and Rule inside the country. For effectiveness, the law must be according to the Constitutional Articles. That’s why the Parliament sets in every time a new law is proposed to make, that’s why the Judiciary watch over the proper implementation of the laws, that’s why Administrative Machinery use power to implement the law.
Constitutionality is the process through which the righteousness of laws is tested. Of course, a law can be wrong in several ways. When we hear news about people killing LGBT or some couple, we think that law is somehow not right.
What is the basis of Constitutionality?
Article 13 of the Indian Consitution says: –
Laws inconsistent with or in derogation of the fundamental rights :–
(1) All laws in force in the territory of India immediately before the commencement of this Constitution, in so far as they are Inconsistent with the provisions of this Part, shall, to the extent of such inconsistency, be void.
(2) The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void.
(3) In this article, unless the context otherwise requires,-
(a) “law” includes any Ordinance, order, bye-law, rule, regulation, notification, custom or usage having in the territory of India the force of law:
(b) “laws in force” includes laws passed or made by a Legislature or other competent authority in the territory of India before the commencement of this Constitution and not previously repealed, notwithstanding that any such law or any part thereof may not be then in operation either at all or in particular areas.
(4) Nothing in this article shall apply to any amendment of this Constitution made under Art.368 .
The above-noted Article is the litmus test of every law.
In short, a law which is not compatible with the Fundamental Rights, must not remain in existence.