Pre-constitutional Laws in India: Beyond Presumption of Constitutionality.

The article examines the recent Supreme Court of India rulings that have removed the presumption of constitutionality for pre-constitutional laws—those enacted before the Constitution came into force—altering judicial scrutiny of such laws. Traditionally, courts presumed these laws constitutional, placing the burden on challengers to prove otherwise; now, the burden shifts to the State to demonstrate constitutionality, and courts will no longer favor interpretations that uphold validity when alternative unconstitutional readings exist. Using section 124A of the Indian Penal Code, 1860, which criminalizes sedition and is a pre-constitutional law enacted by British rulers, the article illustrates how this shift could lead to such laws being declared unconstitutional if challenged under current standards. This change marks a significant shift in constitutional law interpretation, reducing judicial deference to pre-constitutional statutes and potentially impacting numerous laws enacted before India's Constitution.