In India, there are many many unconstitutional provisions of law on statue books, in rules, in regulations. They are either too vague or they are directly against Constitution or Law declared by Supreme Court in other judgements.
1) Normal rule is that such provision need to be challenged first in High Court, even if there is no bar to challenge such provisions directly in Supreme Court.
2) But for many reasons, there is a perceptions among lawyers that no fruitful results come if such rules are challenged first in High Court.
Some Reasons
A ) If it is a central law, such petition may surf in many High Courts.
Then Central govt may file a petition in Supreme Court, saying that all such cases be transferred to SC or to some specific High Court, to avoid inconsistent judgements.
This is a logically fallacious ground.
But in past, I have seen it working many a times.
If the cases gets transferred, the lawyers who have filed such petitions in HC, suffer demotivation.
B) If unconstitutional provision is a State made law, then it may probably involve a direct confrontation between High Court and Legal Department of Government.
If the Chief Justice is under consideration for being elevation to Supreme Court, he may or may not like to decide such a case.
Because when Government is one of the factor which has say in appointment of judges as per proposed law or by way of giving feed back to Collegium through Law Ministry, such perceptions may sometimes arise.
...
There are also other C, D, E etc reasons.
But I think this is a small place to write them all.
Haresh Raichura
17/2/15
Copyright : Haresh Raichura 2014. All Rights reserved.
