Page 91 - GSTL_2nd July 2020 _Vol 38_Part 1

2020 ] TVL. TANSTONNELSTORY AFCONS v. UNION OF INDIA 9
60. Similarly in Union of India v. Elphinstone Spinning and
Weaving Co. Ltd., and another, AIR 2001 SC 724 (vide para 9) a Constitu-
tion Bench of this Court observed :
“There is always a presumption that the legislature does not ex-
ceed its jurisdiction and the burden of establishing that the legislature
has transgressed constitutional mandates such as, those relating to fun-
damental rights is always on the person who challenges its vires. Unless
it becomes clear beyond reasonable doubt that the legislation in ques-
tion transgresses the limits laid down by the organic law of the Consti-
tution it must be allowed to stand as the true expression of the national
will Shell Company of Australia v. Federal Commissioner of Taxation, 1931
AC 275 (Privy Council). The aforesaid principle, however, is subject to
one exception that if a citizen is able to establish that the legislation has
invaded his fundamental rights then the State must justify that the law
is saved. It is also a cardinal rule of construction that if one construction
being given the statute will become ultra vires the powers of the legisla-
ture whereas on another construction which may be open, the statute
remains effective and operative, the Court will prefer the latter, on the
ground that the legislature is presumed not to have intended an excess
of jurisdiction”. (emphasis supplied)
61. In State of Bihar and Others v. Bihar Distillery Ltd., AIR 1997
SC 1511 (vide para 18) a Constitution Bench of this Court observed :
“The approach of the Court, while examining the challenge to the
constitutionality of an enactment, is to start with the presumption of
constitutionality. The Court should try to sustain its validity to the ex-
tent possible. It should strike down the enactment only when it is not
possible to sustain it. The Court should not approach the enactment
with a view to pick holes or to search for defects of drafting, much less
inexactitude of language employed. Indeed, any such defects of drafting
should be ironed out as part of the attempt to sustain the validi-
ty/constitutionality of the enactment. After all, an Act made by the Leg-
islature represents the will of the people and that cannot be lightly inter-
fered with. The unconstitutionality must be plainly and clearly estab-
lished before an enactment is declared as void.”
62. The same view has been taken by the Constitution Bench
of this Court in Hamdard Dawakhana and Another v. Union of India, AIR
1960 SC 554 (vide para 9) which observed :
“Another principle which has to be borne in mind in examining
the constitutionality of a statute is that it must be assumed that the legis-
lature understands and appreciates the need of the people, that the laws
it enacts are directed to problems which are made manifest by experi-
ence, and that the elected representatives assembled in a legislature en-
act laws which they consider to be reasonable for the purpose for which
they are enacted. Presumption is, therefore, in favour of the constitu-
tionality of an enactment. Charanjit Lal v. Union of India, 1950 SCR 869 :
(AIR 1951 SC 41); State of Bombay v. F.N. Baulsara, 1951 SCR 682 at p. 708;
(AIR 1951 SC 318 at p. 326); AIR 1959 SC 942.”
(xi) In Namit Sharma v. Union of India reported in 2013 (1) SCC 745, the
Hon’ble Supreme Court, held as follows :
“46. To examine constitutionality of a statute in its correct
perspective, we have to bear in mind certain fundamental principles as
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