In saying that a rule of law is binding we mean that there exists a certain relationship of authority between the rule-maker and the persons to whom it is addressed (i.e. legal officials). This authority is delineated by the Constitution by setting out territorial limits of each High Court’s jurisdiction in Article 226(1). Thus the rule laid down by the High Court is law only for its state. However because of Article 226(2) a High Court’s individual ‘rulings’ can bind people beyond its territory just as the English Court’s judgments can bind a party in India.

A declaration of unconstitutionality is a ‘rule’ addressed to all legal officials within the Court’s jurisdiction not to apply the law that has been struck down. Hence the Delhi High Court’s declaration of unconstitutionality would be valid only for the territory of Delhi. Section 377 of the Indian Penal Code remains intact for the rest of India till the Supreme Court decides to strike it down.

The writer is is reading for a doctorate in Jurisprudence at Oxford University