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the view forward as per the UK Supreme Court, the Constitutional Statutes (Scotland Act in question)  cannot be implied repealed, under any circumstances due to its “Fundamental Constitutional” status.[3] However, there had been debates related to the constitutional validity of the said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 Second, whereas Thoburn said that a constitutional statute can be impliedly repealed by a particularly clear implication and the principle of legality says that a common-law constitutional right can be overridden by necessary implication, Hsays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.

The Right To Be Forgotten: A Struggle Between Memory And Forgetting

by Archi Agrawal

Introduction

The Right to be forgotten as described by the European Commission is essentially ‘the right of individuals to have their data fully removed when it is no longer needed for the purposes for which it was collected’.[1] When the data appears to be “inadequate, irrelevant or no longer relevant, or excessive in relation to those purposes and  in the light of the time that has elapsed”,[2] the individuals under certain conditions can ask the search engines to remove links with personal information about them.[3] Continue reading The Right To Be Forgotten: A Struggle Between Memory And Forgetting

Aadhaar, As It Stands Today

by Joshita Pai

Despite formalizing a legislative structure for the ambitious Aadhaar project, several grave concerns surrounding the project remain unresolved. The recent passage of the Aadhaar Bill in the Lok Sabha, which rejected crucial amendments proposed by the Rajya Sabha, displays an utter disregard to the plea of balancing social welfare schemes with protection of several other rights.

Continue reading Aadhaar, As It Stands Today

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

by Akhil Deo

The trial of Yakub Memon, who was convicted for the 1993 blasts in Mumbai, and his subsequent execution has again re-invigorated the debate that surrounds the death penalty, raising interesting questions regarding the constitutional and criminal procedure that attempts to safeguard the interests of those on ‘death row.’

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

The NJAC and an unconventional constitutional convention

by Akhil Deo

The Supreme Court of India(SC) has finished hearing arguments on the constitutional validity of the 99th Amendment to the Constitution which introduces the National Judicial Appointments Commission (NJAC) replacing the existing collegium system. One of the issues for consideration, which  this note will focus on, is whether or not giving primacy to the recommendation of the Chief Justice in the matter of appointments to the judiciary should be regarded as a constitutional convention.

Continue reading The NJAC and an unconventional constitutional convention

Intermediary liability in the context of the Shreya Singhal judgment

by Joshita Pai

The ruling of the Supreme Court in Shreya Singhal marked the demise of the draconian section 66A of the Information Technology Act 2000. The impugned provision caught nationwide attention after the arrest of two girls over a facebook post. The post was a comment on the inconvenience caused by the shutting down of the city during the death procession of the then Shiv Sena Chief, Mr. Bal Thakeray. The nullification of the provision which was sought after in a string of petitions owing to its vagueness and scope of misuse, reinstated the extension of the right to free speech in the virtual media.

Continue reading Intermediary liability in the context of the Shreya Singhal judgment

Monitoring paid news in the context of electoral reforms

by Joshita Pai

Paid News characteristically is content which results not from the efforts of a journalist but from the consideration given to the media houses for its publication. In certain instances, it is poorly veiled since the content acts as a de facto mouth piece of an electoral candidate or a political party.

Continue reading Monitoring paid news in the context of electoral reforms

Examining the constitutionality of re-promulgating the land acquisition ordinance

by Akhil Deo

On the 1st of June, the National Democratic Alliance(NDA) Government promulgated the Right to Fair Compensation and Transparency  in Land Acquisition, Rehabilitation and Resettlement (Amendment) Ordinance (“land acquisition ordinance”) for the third time, while the Amendment Bill itself is being considered by a Joint Parliamentary Committee. Naturally this has opposition parties up in arms-calling it a “fraud on the constitution.” In fact several former bodies have already challenged the  re-promulgation of the ordinance as unconstitutional before the Supreme Court (“SC”).

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