Vaibhav Yadav, Gujarat National Law University
ABSTRACT
The legal doctrine of presumption of constitutionality, favouring enactments, constitutional amendments, ordinances, and secondary legislations, is a well- established principle within jurisprudence. This presumption finds its basis in the perceived legitimacy of legislative actions. This article explores the foundational underpinnings of this principle and argues against its application in challenges to the constitutional validity of ordinances issued by the President and Governors, secondary legislations enacted by the executive, and pre-constitutional laws. Furthermore, the paper delves into the three-tier scrutiny tests employed in the United States of America, alongside their underlying rationales and objectives, and considers their potential adaptation within the Indian legal framework. The central contention of this paper asserts that secondary legislations should not benefit from the presumption of constitutionality and should instead undergo rigorous scrutiny tests. Similarly, ordinances and pre-constitutional laws should not enjoy this presumption and should be subjected to varying degrees of scrutiny. In this paper it is maintained that the application of strict scrutiny is not inconsistent with Indian jurisprudence and represents a logical extension of the standards set forth by the Supreme Court of India for assessing the constitutionality of laws.
Keywords: Constitutionality, Enactments, Ordinances, Secondary legislations, Scrutiny tests, Jurisprudence
Comments