Reference to the High Court

In one line

A subordinate court that thinks a law is invalid does not simply disregard it; it states a case and asks the High Court.

In exam wording: sections 436 and 437 of the Bharatiya Nagarik Suraksha Sanhita, 2023 provide for a reference to the High Court where a case involves the validity of an Act, Ordinance or Regulation, and, in the case of a Court of Session, any question of law, and for the disposal of the case according to the High Court's decision.

Why the law has this at all

Consider what a Magistrate is being asked to do when an accused says the statute under which he is charged is void.

He cannot ignore the argument, because if the law is void the prosecution collapses. He cannot decide it and act on it either, because a Magistrate holding an Act of a legislature invalid, in a district court, on his own authority, would produce a country in which the same statute is valid in one district and void in the next. And he cannot leave it to an appeal, because the trial has to be conducted now, under some law or none.

So the law gives him a third course. He states a case: he sets out the question, his opinion on it, and his reasons, and sends it to the High Court, which decides. Then he disposes of the case conformably to that decision.

Notice what triggers the duty in sub-section (1). It is not doubt. It is the Court's opinion that the provision is invalid or inoperative, on a question whose determination is necessary for the disposal of the case, where neither the High Court nor the Supreme Court has already declared it so. A court that thinks the Act valid decides the case and moves on. A court that thinks it invalid, and where the point has already been so declared, follows the declaration. The reference exists for the gap between them.

Some words this chapter uses

To state a case is to draw up the question, the Court's opinion and its reasons, in a form the High Court can answer.

Regulation, by the Explanation to section 436(1), means a Regulation as defined in the General Clauses Act, 1897, or in the General Clauses Act of a State.

Inoperative covers a provision that is not void as enacted but cannot operate, for example one never brought into force or covered by a repugnant central law.

Section 436: the reference

Sub-section (1), the compulsory reference. Where any Court is satisfied that a case pending before it involves a question as to the validity of any Act, Ordinance or Regulation, or of any provision contained in one: