The doctrine of Constitutional Statutes: Its Application in India

  • Siddhant Singh, 3rd-year student, HNLU.

Recently concluded Parliament session of the newly constituted Lok Sabha has once again ignited the old and never-ending debate of the role of the judicial system in containing the insatiable desire of power of the Executive and Legislature. It is commonly accepted that in India there is no strict separation of power among the three organs of the Democracy, thereby to balance the same, the principle of checks and balances is embedded in the Constitution. However, unlike the US, in India, there is as such no difference of membership between the Legislature and Executive, as in India the minister needs to be a part of the legislature[1], therefore when there is a majority government like in contemporary time, then the principle of checks and balances relies heavily on Judiciary.

At this time the question arises that, whether the Judiciary has enough tools to encounter the ever-changing tactics used by the government to seize power.  In this particular article, I shall advocate the use of the doctrine of Constitutional Statute/Instruments, by the Indian Judiciary as a weapon to protect the rule of law in the society from the ever-craving desire of the legislature to seize power.

Constitutional Statutes/ Instrument

As per British Administrative Court[2], a constitutional statue is one that conditions our relationship as citizens with the state or alters the scope of basic rights, in addition to it as per the court these statutes are more difficult to repeal than an ordinary one. Taking the view forward as per the UK Supreme Court, the Constitutional Statutes (Scotland Act in question)  cannot be implied repealed, under any circumstances due to its “Fundamental Constitutional” status.[3] However, there had been debates related to the constitutional validity of the said decision and obiter respectively as according to some the said decisions are flawed as these doctrines put a bar on the Parliamentary sovereignty and decision making.

Nevertheless, the dictum in H[4]case is significant for several reasons. First, whereas Thoburn was a decision of the Administrative Court, H is a Supreme Court decision and, on the issue of competency, it was unanimous. Second, whereas Thoburn said that a constitutional statute can be impliedly repealed by a particularly clear implication and the principle of legality says that a common-law constitutional right can be overridden by necessary implication, Hsays that the Scotland Act cannot be impliedly repealed – no exceptions.[5]

Doctrine of Implied Repeal and Constitutional Statutes in India

Though after analysis of the above said decisions of the court, it can safely be assumed that a Constitutional statute cannot be impliedly repealed by the Parliament. According to the doctrine of implied repeal, if a later Act makes contrary provision to an earlier, Parliament (though it has not expressly said so) is taken to intend the earlier to be repealed’.[6] Therefore, the recent RTI Amendment bill passed by the Parliament could be safely be assumed to be violating the Constitutional Statue/ Instrument as it is enacted in pursuance of the State’s positive obligation to fulfill a constitutional right and thereby is fundamental to the Constitution of India.[7] Further, as per the Supreme Court of India in Alok Verma v. Union of India[8] it was held by the court that if the function performed by the body include implementing a constitutional right and standing between the individual and the State, then certain further requirements flow from that, one specific requirement is that of independence and autonomy (a characteristic feature of constitutionalfunctionaries)[9]. Thereby, by the interpretation of the Apex Court Judgment, it can be inferred that certain statutory functionaries are quite fundamental to the Constitution and so should be preserved and protected by the Judiciary so that they can function independently for the betterment of the citizens and people at large.

The above said provision could be applied in the recent Amendment bill passed by the Parliament thereby infringing the independence of the Chief Information Commissioner, Information Commissioners and State Information Commissioners, which as an institution is an oversight body to see the functioning of the Right to Information Act, 2005 and thereby an instrument for the effective implementation of a constitutional right of Freedom of Speech and Expression[10] and should not be impliedly repealed or amended by the Parliament as an ordinary statute.

In the UK there are constitutional statutes, such that subsequent statutes ought to be interpreted strictly so as not to repeal or amend those earlier constitutional statutes.[11] Nevertheless, whatever the reason, H[12] raises the strong possibility that courts in the future will take a new approach to constitutional statutes. Unless there is a change in judicial thinking, courts will not treat constitutional statutes as exempt from express repeal, but they will treat them as exempt from implied repeal. Constitutional statutes will thus not be fully entrenched, but they will be quasi-entrenched.[13]

[1]Art. 75(5), the Constitution of India.

[2] Thoburn v Sunderland City Council, [2002] EWHC 195 (Admin), [2003] Q.B. 151.

[3] H v. Lord Advocate, [2012] UKSC 24, [2013] 1 A.C. 413.

[4] Ibid.

[5]Farrah Ahmed, Adam Perry, THE QUASI-ENTRENCHMENT OF CONSTITUTIONAL STATUTES, 73 Cambridge Law Journal 514, 520 (2014).

[6]Francis Bennion,  Bennion on Statutory Interpretation: A Code, 304 (LexisNexis, 5th ed, 2008).

[7]Gautam Bhatia, The Amendments to Right to Information Act are Unconstitutional, Indian Constitutional Law and Philosophy ( last seen on 25/08/2019)

[8]Alok Verma v. Union of India, (2019) 3 SCC 1.

[9] Supra 6.

[10]Art. 19 (1), The Constitution of India.

[11]Bruce Chen, The Principle of Legality: Protecting Statutory Rights from Statutory Infringement, 41 Sydney Law Review 73, 75 (2019).

[12]Supra 3.

[13]Supra 4.

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by Archi Agrawal


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Continue reading Aadhaar, As It Stands Today

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Continue reading A brief review of the Supreme Courts jurisprudence on the death penalty

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Continue reading The NJAC and an unconventional constitutional convention

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Continue reading Examining the constitutionality of re-promulgating the land acquisition ordinance