Confronting State Power: Constitutional Statutes in India

19 Pages Posted: 29 Apr 2022

Date Written: March 29, 2022

Abstract

This paper argues for the incorporation of the doctrine of constitutional statutes into Indian constitutional law. A constitutional statute is a statute whose purpose is to establish an infrastructure of implementation for fundamental rights that are non self-executing. For example, the Right to Information Act exists for the purpose of implementing the right to information, and the Information Commission - created by the Act - provides the necessary infrastructure for making the right to information effective.

The paper argues that one enacted, constitutional statutes place certain constraints upon Parliament's plenary power to amend or repeal them. In particular, once a constitutional statute establishes an infrastructure of implementation, Parliament cannot amend it in a way that backslides - or retrogresses - to a position where the infrastructure is either removed, or is no longer sufficient for implementation (one common way this is done is to amend constitutional statutes in a way that takes away the independence of the implementing bodies). Doing so would be a breach of Parliament's positive obligation to promote and fulfil fundamental rights.

The paper ends with two notes of caution. First, as the Indian Constitution does not - unlike other modern Constitutions - provide for constitutionally entrenched "guarantor institutions" of the kind discussed here, the foundations of the doctrine are interpretive, and not anchored to specific constitutional text. This makes the doctrine somewhat fragile. Secondly, where the Constitution does provide for such institutions (such as the Election Commission and the CAG), its vision of independence is limited: for example, the power of appointment remains primarily with the executive. Thus, even if the doctrine is successfully incorporated into Indian constitutional law, its success in practice is likely to be limited, under the present constitutional framework.

Keywords: comparative constitutional law, Indian constitutional law, constitutional statutes, fourth branch institutions

Suggested Citation

Bhatia, Gautam, Confronting State Power: Constitutional Statutes in India (March 29, 2022). Available at SSRN: https://ssrn.com/abstract=4069319 or http://dx.doi.org/10.2139/ssrn.4069319

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