High Court order staying a law applies to entire India
In 2004, the Supreme Court (SC) in Kusum Ingots and Alloys Ltd. v Union of India [(2004) 6 SCC 254] held that a High Court can pass an order in regard to the constitutionality of a Law of Parliament, it will have effect in the entire territory of India, where the law is applicable.
In the above case, the Division Bench of the SC held that an order passed on a writ petition questioning the constitutionality of a Parliamentary Act whether interim or final, keeping in view the Clause (2) of Article 226 of the Constitution of India, will have effect throughout the territory of India subject to the applicability of the Act.
It was not the core issue in the case
The above stipulation was, in fact, an obiter dictum of the court in that case but was not the main issue of the case. The term obiter dictum means, ‘that which is said in passing’. It is an observation made by a judge. Therefore, that need not be legally binding on other courts.
Observation in Kusum Ingots seems to be bad in law
The observation in Kusum Ingots case appears to be bad in law.
But even if it is a bad decision, it is binding in nature. It can only be superseded by availing the remedies available in law.
Later SC Benches reaffirmed the above dictum
In Harshal N. Mirashi v The State of Maharashtra the SC reaffirmed the above said position. The court held that the petition to challenge a central law can be filed in the High Court.
In Devendra Dwivedi v Union of India & Others also, the SC pointed out that the petitioners have an efficacious remedy in the form of proceedings under Article 226 of the Constitution to challenge the constitutional validity of the provisions of the statute which are placed in issue.
The SC added that following such a course of action is desirable. In such a scenario the SC, when it considers the issue later, will have the benefit of a considered view emanating from the High Court.
Such a decision may create problems
If a central law is declared unconstitutional by one high court, it will have to be followed by other states and the high courts as well.
Similarly if an act or provision has been upheld as constitutional by one High Court then the other High Courts are precluded from taking a contrary view, even if that decision would be much suited in that jurisdiction.
However as of now, the obiter dicta in Kusum Ingots is to be followed by the High Courts as it is part of a SC judgment. An SC judgment, even if it is wrong, is binding on all courts. It becomes a precedent as well.
In fact, the question Whether a central law declared unconstitutional or invalid by a high court is applicable in the jurisdiction of other high courts is to be decided by the apex court so as to remove the confusion as of now.
Plus, point of the decision in Kusum Ingots
It actually prevents a situation where a Central Legislation becomes applicable to certain states and does not apply to certain other states in the country, thereby resulting in inevitable discrimination whenever a High Court declares it as unconstitutional.
On that count the decision in Kusum Ingots serves some useful purpose in terms of equity.
In conclusion
A High Court now declares a central law unconstitutional and it would be applicable in the entire territory of India as of now.
This position will change only when the SC comes out with a different decision.
