Supreme Court Affirms Writ Courts' Suo Motu Power to Strike Down Unconstitutional Subordinate Legislation

By: AbhishekJat, Advocate

In a landmark judgment delivered on April 2, 2025, the Supreme Court of India has upheld the power of writ courts to exercise suo motu authority to invalidate subordinate legislation that contravenes fundamental rights or binding precedents. The bench comprising Justices Dipankar Datta and Manmohan elucidated this significant principle while dismissing a Special Leave Petition in the case of Bihar Rajya Dafadar Chaukidar Panchayat (Magadh Division) v. State of Bihar.

Background of the Case

The controversy originated from the Bihar Chaukidari Cadre (Amendment) Rules, 2014, specifically regarding a provision that permitted retiring village watchmen (chaukidars) to nominate their dependent family members for appointment to the same position. The Patna High Court, while adjudicating an appeal filed by an aggrieved applicant whose application for such appointment was rejected, struck down this provision as violative of Articles 14 and 16 of the Constitution, despite no formal challenge being laid against the provision itself.

A registered trade union representing chaukidars approached the Supreme Court contending that the High Court exceeded its jurisdiction by invalidating a provision that was not under specific challenge in the proceedings.

Constitutional Principles Reaffirmed

The Supreme Court's judgment reaffirmed several cardinal principles of constitutional jurisprudence:

1. Equality in Public Employment: The Court emphasized that employment in public service cannot be treated as a hereditary right, citing precedents from the 1960s onwards that consistently deprecated such practices.
2. Constitutionality of Subordinate Legislation: While acknowledging that subordinate legislation, like primary legislation, enjoys a presumption of constitutionality, the Court maintained that writ courts may adopt a "more nuanced approach" when examining subordinate legislation.
3. Plenary Power of Constitutional Courts: The judgment recognized the inherent plenary power of constitutional courts to protect fundamental rights, even by acting suo motu in exceptional circumstances.

Jurisprudential Evolution

The Court traced the evolution of jurisprudence on hereditary appointments through landmark decisions, including Gazula Dasaratha Rama Rao v. State of Andhra Pradesh (1961), B.R. Shankarnarayana v. State of Mysore (1966), and contemporary rulings such as Manjit v. Union of India (2021), which consistently held that public employment based on descent violates Article 16.

Justice Datta, authoring the judgment, observed: "Even as we celebrate 75 years of our Constitution and take pride in governance of the country in terms thereof, still we find some of the States following archaic models of employment as if employment in public service is a hereditary right."

Suo Motu Power: Scope and Limitations

The Court carefully delineated the contours of writ courts' suo motu power to strike down unconstitutional subordinate legislation:

1. Such power must be exercised "sparingly and with due care, caution and circumspection."
2. It is applicable primarily to subordinate legislation, not primary legislation enacted by Parliament or state legislatures.
3. The power should be exercised only in "rare and very exceptional" cases where there is "egregious violation of a Fundamental Right."
4. Before exercising such power, courts must grant "full opportunity to the State to defend the subordinate legislation."

Significantly, the Court distinguished between striking down subordinate legislation and primary legislation without a formal challenge, reserving this inherent power primarily for the former category.

Constitutional Duty of Writ Courts

The judgment emphasized that writ courts have a dual responsibility: "it is not only the duty of the writ courts in the country to enforce Fundamental Rights of individuals, who approach them, but it is equally the duty of the writ courts to guard against breach of Fundamental Rights of others by the three organs of the State."

Parameters for Scrutinizing Subordinate Legislation

The Court outlined factors that may influence the level of presumption of constitutionality accorded to subordinate legislation:

1. The nature of the subordinate legislation
2. The extent of derogation from the Constitution or parent legislation
3. The exigencies and manner of implementation
4. Potential impact on individual rights and public interest

Employment on Hereditary Basis: Constitutional Position

The Supreme Court articulated basic principles governing public employment in consonance with constitutional provisions:

1. Public employment must be preceded by appropriate advertisement
2. Fair and transparent selection process
3. Impartial assessment of candidates' merit
4. Preparation of merit list with due regard to reservation rules

The judgment lamented that "even as we near 80 years of independence, generating enough jobs in the public sector to absorb those eager to enter public service remains an elusive goal."

Implications of the Judgment

This ruling has far-reaching implications for constitutional governance and public employment policies:

1. It strengthens constitutional courts' role as guardians of fundamental rights
2. It discourages state policies that treat public employment as hereditary
3. It establishes parameters for writ courts to exercise their inherent powers
4. It reaffirms merit as the primary criterion for public employment

The Supreme Court's unequivocal rejection of hereditary appointments in public service reinforces the constitutional mandate of equality of opportunity enshrined in Article 16. This judgment serves as a significant precedent for constitutional courts across the country in their role as sentinels on the qui vive for protecting fundamental rights against legislative or executive encroachments.

Case Title: BIHAR RAJYA DAFADAR CHAUKIDAR PANCHAYAT (MAGADH DIVISION) VERSUS STATE OF BIHAR AND OTHERS 

Citation : 2025 LiveLaw (SC) 394

 Disclaimer: This analysis is presented for informational purposes only and does not constitute legal advice. Specific legal questions should be addressed to qualified legal counsel.