Presumption of

Constitutionality
 Presumption: Meaning

• “To “presume” means to suppose that something is probably true.

• Thus, presumption means an act of presuming, assuming or imagining

something is true.

• The legislature is presumed to use appropriate words to manifest its

intention.”
 Presumption of Constitutionality

• “Legislature is presumed to have inserted every part of the statute for

a purpose.

• There is always a presumption of constitutionality in favour of a

statute and the burden is upon him, who attacks it to show that
there has been a clear transgression of the constitutional principles.”
• ”Since the rule-making authority is presumed to enact a law which
does not contravene the constitutional provisions, the court ought
not to interpret the statutory provisions in such a manner as would
involve its unconstitutionality.”
• “The presumption of constitutionality is indeed so strong that in
order to sustain it, the court may take into consideration, matters of
common knowledge, matters of common report, the history of the
time and may assume every state of facts which can be conceived
existing at the time of legislation.

• Interpretation creating unjust and discriminatory situation should be

avoided.”
• “Though presumption is that the Act is constitutional, and that the
legislature understands and appreciates needs of the people, but
when the Act is ex facie(on the face) discriminatory and arbitrary,
such presumption cannot stand.

• The burden of proof lies on him who challenges the vires. (i.e.
constitutionality of the impugned provision)
• “If a provision can be construed in two senses, one making the
provision constitutional and the other unconstitutional, the court
would always lean in favour of the former construction.” (B.M. Gandhi,
Interpretation of Statutes)
 Presumption against exceeding
constitutional powers
• Three lists of the Constitution:

• Union List – Parliament has exclusive powers to make laws

• State List; - State Legislature has exclusive powers to make laws

(subject to certain exceptions); and

• Concurrent List – Both Parliament and State Legislatures have powers

to make laws
• “There is a presumption of constitutionality of the rule or the
legislation, unless ex facie it violates the fundamental rights.

• Thus, there is a presumption that the legislature does not exceed its
jurisdiction and the burden of establishing that the Act is not within
the competence of the legislature, or that it has transgressed some
constitutional mandates, such as those regarding fundamental rights,
is always on the person who challenges the vires.”

• Legislature kabhi galat nhi karta tumhe lagta hai galat to challenge karo
• “Unless it becomes clear beyond reasonable doubt that the legislation
in question transgresses the limits laid down by the organic law of the
Constitution it must be allowed to stand as the true expression of the
national will.”
 Legislature leaves no lacuna
• “The presumption is that legislature does not leave any lacuna.

• Either by negligence, or by lack of foresight, or because it did not

know its job, it (legislature) has left some lacuna – no such
presumption be made.” (B.M. Gandhi, Interpretation of Statutes)
Observations in Hamdard Dawakhana case
• “Another principle which has to borne in mind in examining the
constitutionality of a statute is that it must be assumed that the
legislature understands and appreciates the need of the people and
the laws it enacts are directed to problems which are made manifest
by experience and that the elected representatives assembled in a
legislature enact laws which they consider to be reasonable for the
purpose for which they are enacted. (Hamdard Dawakhana v. Union of
India AIR 1960 SC 554)
 Factors which could be taken into consideration
to sustain presumption of constitutionality
• “In Shri Ram Krishna Dalmia v. Shri Justice S.R. Tendolkar Das, C.J.,
observed:

“that in order to sustain the presumption of constitutionality the

court may take into consideration matter of common knowledge, the
history of the times and may assume every state of facts which can be
conceived existing at the time of legislation.”
• “Thus it is open to the court for the purpose of determining the
constitutionality of the Act to take all these facts into consideration and in
the present case we find that there was the evil of self-medication, which
both in the country and in other countries, the medical profession and those,
who were conversant with its dangers, had brought to the notice of the people
at large and the Government in particular.

• They had also warned against the dangers of self-medication and of the
consequences of unethical advertisement relating to proprietary medicines
particularizing those diseases which were more likely to be affected by the evil.
• There is reason, therefore, for us to assume that the state of facts
existed at the time of the legislation which necessitated the Act.”
(observation in Hamdard Dawakhana case).
• Presumption is, therefore, in favour of the constitutionality of an
enactment. (Hamdard Dawakhana v. Union of India AIR 1960 SC 554)