P RE S UMP T I O N OF CO NS T I T UT I O NAL I T Y

Preface
[T]he existence of facts supporting the legislative judgment is to be
presumed, for regulatory legislation affecting ordinary commercial
transactions is not to be pronounced unconstitutional unless in the light of
the facts made known or generally assumed it is of such a character as to
preclude the assumption that it rests upon some rational basis within the
knowledge and experience of the legislators.1
The reason for such an assertion is the fact that the Court presumes that the Constitution
granted plenary powers to legislature, unless that presumption is rebutted in a way that
meets the standards set by the proposition itself. Murphy J. argued for a presumption of
constitutionality of legislation as an attribute of the respect which the judiciary, the
unelected branch of government, accords to the acts of the elected representatives of the
people.2 The reason for the same is clear when Dawson J asserts that the framers chose
to trust the democratic process as opposed to the judiciary to protect individual
rights.3 The present paper attempts to examine this proposition of presumption of
constitutionality of statues.4

1 J. Stone in United States v. Carolene Products, 304 U.S. 144 (1937) at 152. See also Geoffrey P.
Miller, The True Story of Carolene Products, 1987 Supreme Court Review 397.
2 Attorney-General (WA) v Australian National Airlines Commission (1976) 138 CLR 492 at 528

(Murphy J); see also Henry Burmester, The Presumption of Constitutionality (1983) 13 FL Rev 277.
Cited by Jeremy Kirk, Rights, Review and Reasons for Restraint, 23(19) Sydney Law Review 19
(2001)
3 Political Advertising (1992) 177 CLR 106 at 182186; Cunliffe v Commonwealth (1994) 182 CLR

272 at 361363; Kruger v Commonwealth (1997) 190 CLR 1 at 61, cited by ibid.
4 See also Walton H. Hamilton, The Jurist's Art, 31 Colum. L. Rev. 1073 (1931) at 1074-75 who

comments on the decision of Justice Brandeis in O'Gorman and Young v. Hartford Insurance Co.
282 U.S. 251 (1931) as follows;
[T]he simple lines of [this] short opinion presents a superb example of the jurist's
art. The catalogue of precedents is left to the dissent; the technique of distinction
would do no more than serve the current need. There is no attempt to make out a
case; an elaborate argument, concerned with the insurance business, filled with
citations, and buttressed in footnotes would save a single statute. The demand is to
find an escape from the recent holdings predicated upon "freedom of contract" as
"the rule," from which a departure is to be allowed only in exceptional cases. The
occasion calls not for deft use of tactics, but for a larger strategy. The device of
presumption is almost as old as law; Brandeis revives the presumption that acts of
a state legislature are valid and applies it to statutes regulating business activity.

Electronic copy available at: http://ssrn.com/abstract=1087388

Introduction
Although the authority of federal courts to review legislative and executive
actions was effectively asserted early in the nineteenth century, bitter
struggles have continued into the present day on whether federal and
state legislation enjoys a presumption of constitutionality. After decades of
intricate manipulation, this phrase has become virtually meaningless, but
the underlying concept figures heavily in contemporary debate over-
judicial activism. Under Chief Justice Warren in the 1950s and 1960s, the
United States Supreme Court to inject more authority and flexibility into
judicial review, while trying to maintain the Court's traditional image as an
impartial tribunal. Much of that flexibility came from adjusting the
presumption of constitutionality.5
Thus it is aptly clear that the doctrine of presumption of constitutionality has come up or
rather originated as a necessary evil; (a) to avoid a head on collision of the judiciary with
the legislature on every statute challenged, (b) to practically reflect the equal standing of
the various organs of the state, (c) to disallow frivolous and frolic challenges made to the
statutes on diverse grounds, without a legal backing or actual challenge to the
constitutionality of the statute. The preface to this article asserts the same. Therefore
there is a need to examine the doctrine from its true and veritable perspective. The
present article makes an attempt to examine the same.

The factual brief has many times been employed to make a case for social
legislation; Brandeis demands of the opponents of legislative acts a recitation of fact
showing that the evil did not exist or that the remedy was inappropriate. He appeals
from precedents to more venerable precedents, reverses the rules of presumption
and proof in cases involving the control of industry; and sets up a realistic test of
constitutionality. It is all done with such verisimilitude that a discussion of
particular cases is unnecessary; it all seems obvious- once Brandeis has shown how
the trick is done. It is attended with so little of a fanfare of judicial trumpets that it
might have passed almost unnoticed, save for the dissenters, who usurp the office of
the chorus in a Greek tragedy and comment upon the action. Yet an argument
which degrades "freedom of contract" to a constitutional doctrine of the second
magnitude is compressed into a single compelling paragraph.
5 Richard H. Gaskins, Burdens Of Proof In Modern Discourse (1992), cited by Randy Barnett, The

Power of Presumptions, 17 Harvard Journal of Law and Public Policy 613 (1994)

Electronic copy available at: http://ssrn.com/abstract=1087388

Presumption of Constitutionality: What it means?
Unlike most presumptions, the presumption of constitutionality is not a rule of evidence.
Normally, presumptions are evidentiary rules that require certain facts to be presumed
when other facts have been proven. Such presumptions shift the burden of producing
evidence to the party seeking to rebut them. More infrequently, a presumption also may
shift the burden of persuasion. For instance, the common-law presumption of the
legitimacy of a child born during wedlock, which may be rebutted only by clear and
convincing evidence, effectively shifts the burden of persuasion to the opposing party.
The presumption of constitutionality, by contrast, does not deal with factual proof,
because constitutionality is a question of law, not of fact. Nor is it truly a rule of
construction, because a different rule dictates that "'where constitutional questions are
raised, [a court] will liberally construe a statute to save it from constitutional infirmities."'
Rather, it is a method of allocating and heightening the burden of legal persuasion,
requiring the party challenging the statute to make a legal argument so convincing that
unconstitutionality is shown "beyond a reasonable doubt."
According to what the Court calls the 'presumption of constitutionality," legislation will be
upheld if any "rational basis' for its passage can be imagined, unless it violates a
"fundamental" right-and liberty has not been deemed by the Court to be a fundamental
right.6 In the case of Ram Prasad v. State of Bihar7 wherein the facts were that the
Supreme Court held that the Sathi Land Restoration Act, 1950 was void as it singled out a
particular individual from his fellow subjects and visited him with a disability which was not
imposed on others and against which even the right to complain was taken away. The
Court also held that the Act was highly discriminatory. The Act sought to nullify a
settlement made by the Court of Wards which was in management of the Bethiah Raj, it
would appear under political pressure, as it was found on evidence that other settlements
of lands belonging to the Bethiah Raj on similar terms had not been proceeded against, or
sought to be invalidated.
The Court observed that while good faith and knowledge of the existing conditions on the
part of a legislature are to be presumed, if there is nothing on the face of law or the

6 See United States v. Carolene Products, 304 U.S. 144 (1937)

7 1963 SCR 1129
surrounding circumstances brought to the notice of the court on which the classification
may be reasonably be regarded as based, the presumption of constitutionality cannot be
carried to the extent of always holding that there must be some undisclosed and unknown
reasons for subjecting certain individuals or corporations to hostile or discriminatory
legislation. In the absence of a reasonable basis for special treatment, there is a violation
of Article 14, if an individual is deprived of his right to access to a Court of Law for the
vindication of just grievances, a right belonging to every individual.8
In the case of All Saints High School v. State of A.P.9 the Supreme Court, deciding upon
the question whether the A.P. Recognised Private Education Institutions Control Act,
1975 violated the fundamental rights of minorities under Article 30(1) of the Constitution of
India, observed,
It is a well settled rule that in interpreting the provisions of a statute the
court will presume that the legislation was intended to be intra vires and
also reasonable. Maxwell10 states,
sometimes, to keep the Act within the limits of its scope, and
not to disturb the existing law beyond what the object
requires, it is construed as operative between certain
persons, or in certain circumstances, or for certain purpose
only, even though the language expresses no such
circumscription of the field of operation.
The enactment must be interpreted consistent with the presumption which
imputes to the legislature an intention of limiting the direct operation of an
enactment to the extent that is permissible.
Thus we find that the matter is settled that whenever a statute is challenged on the vires
of its constitutionality, there shall be a prime facie presumption to the contrary and shall
have to be rebutted in order to challenge it successfully.
However, drawing the limits to this doctrine of presumption of constitutionality, the
majority of the Supreme Court in Minerva Mills v. Union of India11 observed that the

8 Ibid
9 (1980) 2 SCC 478
10 12th edition, p. 109, as quoted by their Lordships.
principle of reading down an impugned provision to save it from unconstitutionality would
not apply if the clear intention behind it is unconstitutional. Thus it is clear that the
presumption of constitutionality is only a rebuttable presumption and not a conclusive
one12.

Importance of presumption of constitutionality

This doctrine of presumption of constitutionality of statute is of seminal importance in
question of challenge to the vires of the state for the following reasons;13
(a) Deference to the acts of coordinate branches of government is both appropriate
and necessary to the proper functioning of the system established by the
constitution. While the fundamental principle of judicial review dictates that the
judiciary must have the last word in constitutional matters, the other branches
consider the matter first, and their conclusions deserve deference.
(b) The presumption of constitutionality is grounded in a realistic appreciation of the
limits of judicial power. As Hamilton observed in Federalist No. 78, the judiciary
has no control over the government's fiscal powers or its administrative machinery-
-it has only the respect its judgment's command. But if the reasoning behind the
court's constitutional judgments is not trenchantly and lucidly explained, that
respect is dissipated. Using the strong presumption of constitutionality as a rule of
decision, by contrast, allows the Court to forcefully state its doubts about an act's
constitutionality without overturning it.
(c) Strict adherence to the presumption of constitutionality helps minimize even the
appearance that the judiciary is making policy-based decisions. Although the
court routinely disclaims any role in judging the wisdom of legislation, the
disclaimer rings hollow when three members of the bench accuse the majority of
usurping legislative power. And when the court's opinion does not articulate a

11 (1980) 3 SCC 625; See also B.B. Rajwanshi v. State of U.P. (1988) 2 SCC 415 wherein similar
observations have been made.
12 See generally the Indian Evidence Act, 1872 in order to understand the difference between the

different types of presumptions.

13 As summerised by Michael L. Stokes, Judicial Restraint and the Presumption of
Constitutionality, 35 University of Toledo Law Review 347 (2003)
 compelling basis for overruling a prior constitutional decision, the obvious
inference is that the change of heart resulted from a change in judges.
(d) Lasting social change must be based on consensus, not mandate, and the branch
of government entrusted with achieving consensus is the legislature.

Presumption of Constitutionality increases the power of judicial review?

Taking a critical view, the CATO Policy Report14 argues that the introduction of the
doctrine of presumption of constitutionality bestowed further powers of judicial review
upon the courts as they now could preside over the constitutionality of statute which was
hitherto not amenable to the jurisdiction of the Courts. It states, as the Supreme Court
gutted the textual limits on the federal government provided by the Commerce Clause,
the Necessary and Proper Clause, and the Ninth and Tenth Amendments, and on state
governments by the Privileges or Immunities Clause, it adopted in their place what it
called a presumption of constitutionality an innovation first employed in the 1931 case
of OGorman & Young v. Hartford Fire Insurance. As Justice Brandeis wrote, [T]he
presumption of constitutionality must prevail in the absence of some factual foundation of
record for overthrowing the statute. OGorman shows that, well before the so-called
Revolution of 1937, the Court was deferring to state legislatures.
As the Brandeis quotation suggests, initially the presumption of constitutionality could be
rebutted, at least in theory, by those objecting to a statutes constitutionality. By the
1940s, however, the presumption became irrebuttable for all practical purposes, at least
with respect to economic regulation. Thus, in the 1956 case of Williamson v. Lee Optical,
the Court upheld a state statute prohibiting anyone but a licensed optometrist or
ophthalmologist from selling prescription glasses. When restricting liberty, wrote Justice
William O. Douglas, the legislature need not have actually had good reasons; it is enough
that it might have had good reasons:
The legislature might have concluded that the frequency of occasions
when a prescription is necessary was sufficient to justify this regulation of
the fitting of eyeglasses. Likewise the legislature might have concluded

14 CATO Policy Report, January/February, 2004, Volume 26 No. 1. at page 15.

 that one was needed often enough to require one in every case. Or the
legislature may have concluded that eye examinations were so critical, not
only for correction of vision but also for detection of latent ailments or
diseases, that every change in frames and every duplication of a lens
should be accompanied by a prescription from a medical expert.
Thus it is argued that what started as a rebuttable presumption because an irrebuttable
one with the passage of time and accumulation of judicial opinion, as has been argued
above. However, reality and practice says otherwise.
(A) In Attorney-General & Anor v Goodwin & Ors15 the Court agreed that in judging
the validity of ordinary legislation there is a presumption of constitutionality16 but
simultaneously, declaring the statute in question unconstitutional, the Court held
that such was only a rebuttable presumption or else no statute could ever be
declared unconstitutional.
(B) In State of Bihar v. Bihar Distillery Ltd17 the Supreme Court observed, Now
coming to the reasoning in the impugned judgment, we must say with all respect
that we have not been able to appreciate it. 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 extent 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 validity/constitutionality of the enactment. After all, an Act
made by the legislature represents the will of the people and that cannot be lightly
interfered with. The unconstitutionality must be plainly and clearly established
before an enactment is declared as void. The same approach holds good while
ascertaining the intent and purpose of an enactment or it scope and application.
Now, the result of the impugned judgment is that the Amending Act has become

15 [1999] Interights Commonwealth Human Rights Law 143

16 Relying upon A-G & Anor v Antigua Times [1975] 21 WIR 560
17 (1997) 2 SCC 453 at para 17; See also B.R. Ranad, A Comment on U.P.S.T.C. v. Trilok Chandra,

(1998) 6 SCC (Jour) 15

 an exercise in futility - a purposeless piece of legislation. And this result has been
arrived at by pointing out some drafting errors and some imperfection in the
language employed. ... To call the entire exercise a mere waste is, to say the
least, most unwarranted besides being uncharitable. The court must recognise the
fundamental nature and importance of legislative process and accord due regard
and deference to it, ...."
(C) In B.R.Enterprises v State of U.P.18 the Supreme Court observed, First attempt
should be made by the courts to uphold the charged provisions and not to
invalidate it merely because one of the possible interpretation leads to such a
result, howsoever attractive it may be. Thus, where there are two possible
interpretations, one invalidating the law and the other upholding, the latter should
be adopted. For this, the courts have been endeavoring, sometimes to give
restrictive or expansive meaning keeping in view the nature of the legislation.
Cumulatively, it is to sub serve the object of the legislation. Old golden rule is of
respecting the wisdom of the legislature, that they are aware of the law and would
never have intended for an invalid legislation. This also keeps the courts within
their track and checks. Yet inspite of this, if the impugned legislation cannot be
saved, the courts shall not hesitate to strike it down. Here the courts have to play
a cautious role of weeding out the wild from the crop, of course, without infringing
the Constitution. The principle of reading down, however, will not be available
where the plain and literal meaning from a bare reading of any impugned of any
impugned provision clearly shows that it confers arbitrary or unbridled power
(D) Further, the Supreme Court in P.U.C.L v. Union of India19, has held that It must be
appreciated that a statute carries with it a presumption of constitutionality. Such a
presumption extends also in relation to a law, which has been enacted for
imposing reasonable restrictions on the fundamental rights. These presumptions
have to be rebutted before an allegation of unconstitutionality of a statute can be
sustained.

18 (1999) 9 SCC 700

19 (2004) 2 SCC 476
 (E) Also, in Kramer v. Union School District20 the United States Supreme Court
observed, "The presumption of constitutionality and the approval given `rational'
classifications in other types of enactments are based on an assumption that the
institutions of state government are structured so as to represent fairly all the
people. However, when the challenge to the statute is in effect a challenge of this
basic assumption, the assumption can no longer serve as the basis for presuming
constitutionality."
Thus it is clear that the presumption of constitutionality is not an irrebutable presumption
and is capable of being severed. In fact, judicial self-restrain in relation to legislative
power manifests itself in the form the there is a presumption of constitutionality when the
validity of the statute is challenged.21 In the words of Fazl Ali, "the presumption is
always in favour of the constitutionality of an enactment, and the burden is upon him who
attacks it to show that there has been a clear transgression of the constitutional
principles"22 In applying the presumption of constitutionality the Courts sometimes apply
an interpretational device called reading down. The essence of the device is that "if
certain provisions of law construed in one way would make them consistent with the
constitution, and another interpretation would render them unconstitutional, the court
would lean in favour of the former construction."23

Conclusion
The courts regularly defer to the legislature by according to its statutory acts the
"presumption of constitutionality. When the Courts declares a statute to be
unconstitutional (as formulated or implemented) they seek justification under a broader
set of values embodied or inherent in the Constitution which are assume to express
deeply anchored, general value commitments of the society concerning the rights of
individuals, social categories, organizations, or governments.

20 (1969) 395 U.S. 621

21 Gurram Ramachandra Rao, India: Judical Review in India, Available at
<http://www.mondaq.com/article.asp?articleid=20649&searchresults=1> (Last Visited on
October 15th, 2005)
22 Chiranjit Lal v. Union of India, AIR 1951 SC 41 at 45
23 Per Sinha CJ in Kedar Nath v. State of Bihar, AIR 1962 SC 955
From a legal standpoint, the presumption is based on the judiciary's recognition that a
coordinate branch of the legislature determined that the law was constitutional before
enacting it. In a related way, the presumption is also based on the principle of separation
of powers; it "upholds the doctrine of separation of powers by preserving the integrity of
the legislative function" and "protect[s] the domain of the legislature from encroachment
by the judiciary." Giving effect to this presumption, the court marked out a high standard
to test a statute's constitutionality.24

Reference
(1) Bruce W. Burton, Predatory Municipal Zoning Practices: Changing the Presumption
of Constitutionality in the Wake of the "Takings Trilogy", 44 Arkansas Law Review 65
(1991)
(2) David M. Burke, The "Presumption Of Constitutionality" Doctrine and the Rehnquist
Court: A Lethal Combination for Individual Liberty, 18 Harvard Journal of Law and
Public Policy 73 (1994)
(3) Dean Alfange, Jr., The Relevance of Legislative Facts in Constitutional Law, 114
University of Pennsylvania Law Review 637 (1966)
(4) Douglas G. Smith, Does the Constitution Embody a "Presumption Of Liberty"?, 2005
University of Illinois Law Review 319
(5) Henry Burmester, The Presumption of Constitutionality, 13 FL Rev 277 (1983)
(6) Jeremy Kirk, Rights, Review and Reasons for Restraint, 23(19) Sydney Law Review
19 (2001)
(7) Judicial Approaches to Direct Democracy, 118 Harv. L. Rev. 2748 (2005)
(8) Leslie J. Harris, Constitutional Limits on Criminal Presumptions as an Expression of
Changing Concepts of Fundamental Fairness, 77 Journal of Criminal Law and
Criminology 308 (1986)
(9) Michael L. Stokes, Judicial Restraint and the Presumption of Constitutionality, 35
University of Toledo Law Review 347 (2003)
(10) Praveen Dalal, Judicial Review: Nuisance or Absolute Necessity, Available at

24Michael L. Stokes, Judicial Restraint and the Presumption of Constitutionality, 35 University of

Toledo Law Review 347 (2003)
 <http://www.naavi.org/praveen_dalal/judicial_review_aug06_04.htm> (Last Visited
October 15, 2005)
(11) Randy Barnett, The Power of Presumptions, 17 Harvard Journal of Law and Public
Policy 613 (1994)
(12) Randy E. Barnett, A Ninth Amendment for Today's Constitution, 26 Valparaiso
University Law Review 419 (1991)
(13) Susan M. Marcella, When Preventive Detention is (Still) Unconstitutional: The
Invalidity of the Presumption in the 1984 Federal Bail Statute, 61 Southern California
Law Review 1091 (1988)