The Indian Constitution “outside the Constitution”

The argument that engaging with merely the “Constitution” is not enough to make sense of how constitutional tasks are performed in legal systems may, at first blush, seem surprising to some. Two recent pieces of literature go far in making the interesting argument that one needs to engage with more than just the constitutional text for a greater understanding of constitutionalism: Ernest A. Young, The Constitution Outside the Constitution, 117 Yale L.J. 408 (2007); and Lawrence H. Tribe, The Invisible Constitution (New York: OUP, 2008). Both pieces do make different arguments, and I’ll deal with the first for now. Professor Young argues that constitutions should be interpreted functionally rather than formally. His contention is backed by a comprehensive analysis of how several constitutional functions in the United States are performed by legal texts other than the single canonical document.

I thought it may be interesting to conduct a similar analysis in the Indian context. India is a country which like the United States possesses a single canonical constitutional text. Young lists certain US legislation which are essentially a “Constitution outside the Constitution”, for instance, the Federal Communications Act 2000. Which legislation in India would fit this bill? One legislation which immediately comes to mind is the Representation of the People Act 1951. I also thought that the Right to Information Act 2005, which increases transparency in governance, may perhaps be another such legislation. Any ideas on what else may be included in this list?

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Aditya Swarup
Aditya Swarup
13 years ago

I am currently doing an exchange program at univ of western ontario, Canada.
A few days ago, 18 constitutional scholars that included Leiter, Jeremy Waldron, Grant Huscroft, Jeff Goldsworthy had a round table discussion for 3 days. As a part of the Constitutional theory class that I’m taking here, I partly organised and witnessed this great event.
The subject of the discussion was the interpretation of the Constitution and a relook at the originalist and living tree interpretations.

The reasons I mention this are;
– the failure to have any sort of dicussion on constitutional theory in India, even though in terms of constitutional law decisions, we seem to be way ahead.

– there has been no set pattern in the Supreme Court as to how the Constitution is to be interpreted. it wholly seems to depend on the mood and mindset of the judges and this makes constitutional law highly irrational.

I shall try to send the link of the discussion transcripts as and when available.

Tarunabh Khaitan
Tarunabh Khaitan
13 years ago

Madhav, thanks for the post. The discussions on the topic, as you will imagine, are ver well-developed in the UK because there is no single canonical constitutional text. The most interesting observation I can recall is from Justice Laws in Thoburn (the ‘Metric Martyrs’ Case’) where he drew a distinction between ‘constitutional’ and ‘ordinary’ statutes, and, I think, implying that constitutional statutes cannot be repealed impliedly by a later statute but need express repeal. Can one make a similar argument in the case of Representation of Peoples’ Acts, Protection of Human Rights Act and Right to Information Act in India? Are such rules justiceable or are they constitutional conventions reflecting good practice?

13 years ago

The point floated in the post makes for interesting analysis in terms of comparative constitutional theory but does not have that expansive an application when one considers Indian Constitution.

Young’s piece begins with a quote of Llewellyn –

“There is the notion that the primary source of information as to what our Constitution comes to, is the language of a certain Document of 1789, together with a severely select coterie of additional paragraphs called Amendments. Is this not extraordinary?”

This in part sets the tone of the piece. In the same vein, case of UK is discussed. The nature of these constitutions is such that the role of “Extracanonical Materials and Constitutional Functions” becomes relevant.

But there is little to suggest that constitutions wherein rights have been enumerated and elaborate governance mechanisms are laid out (to varying degrees – India, South Africa et al) would also allow that kind of analogy to apply. Nevertheless, two limited points arise in the context of PIL role of the SC which was actually not envisaged under the constitution. I also feel that this activist role has given rise to some disturbance in classical conception of rights under the Indian Constitution. The same is relevant for the analysis we are attempting to undertake here.

1. Many rights have been declared by the SC through the interpretative process under Part III. The declaration is to the effect that these rights are implicit in the constitutional text. Some of these rights have been subsequently codified through passing of legislations (RTI Act for RTI). Now Right to information is provided by the Act of 2005 but was read by the court in Art. 19 long before. What is the status and character of such rights of mixed origin?

2. This point is more of an illustration. P. Venkatarama Reddi in People’s Union for Civil Liberties (PUCL) and Ors. v. Union of India (UOI) and Anr [(2003)4SCC399] observed:

“102. In Jyoti Basu v. Debi Ghosal MANU/SC/0144/198 2 this Court again pointed out in no uncertain terms that: “a right to elect, fundamental though it is to democracy, is, anomalously enough, neither a fundamental right nor a common law right. It is pure and simple a statutory right.” With great reverence to the eminent Judges, I would like to clarify that the right to vote, if not a fundamental right, is certainly a constitutional right. The right originates from the Constitution and in accordance with the constitutional mandate contained in Article 326, the right has been shaped by the statute, namely, R.P. act. That, in my understanding, is the correct legal position as regards the nature of the right to vote in elections to the House of people and Legislative Assemblies. It is not very accurate to describe it as a statutory right, pure and simple.”

Author of the post very rightly hinted at the illustrations. It remains a good area of research to see if more of Young’s position can be read into Indian context.

Tarunabh Khaitan
Tarunabh Khaitan
13 years ago

Siddharth, thanks for your insightful comment. There clearly is a lot to be said about statutes that implement a constitutional right or a constitutional scheme (aren’t there some constitutional provisions saying the Parliament ‘shall’…?) being ‘constitutional’ rather than ‘ordinary’ statutes. Perhaps the Right to Education Bill, if enacted, will be in the same category.

The trouble, however, in entrenching any statutory framework is – what if it is a terrible framework and should be replaced? Remember the ‘Freedom of Information Act’ passed by the NDA government? The RTI Act was such an improvement over it, aren’t we glad the former wasn’t entrenched? Or, wouldn’t some of us like to see a very different NHRC under an amended PHRA (if this is a ‘constitutional’ statute to begin with)?

And if our purpose in distinguishing constitutional statutes is not to entrench a particular statutory scheme, then what is it? Surely, the underlying right is already entrenched. Or can one imagine a South Africa style ‘progressive realisation’ model, where improvements can be made, but you can’t detract from what is already available?

Aditya Swarup
Aditya Swarup
13 years ago

“A few days ago, 18 constitutional scholars that included Leiter, Jeremy Waldron, Grant Huscroft, Jeff Goldsworthy had a round table discussion for 3 days.”

As part of the first comment, I’d like to make a correction. Mr. Leiter and Mr. Waldron were not present at the conference.

Mr Bradley Miller, my prof (constitutional theory) played a major role in organising this conference. i wasn’t involved to say the least.

Some of the papers of these scholars presented at the conference can be viewed at SSRN.