UNWRITTEN CONSTITUTIONAL PRINCIPLES – THE UNSUNG HEROES

John Vithayathi, who is currently pursuing his LLM degree from NUALS, Kochi, analyses the role of unwritten Constitutional principles in Indian Jurisprudence, vis-à-vis the Canadian Position.

Introduction

The Canadian Supreme Court passed a historic yet highly controversial judgement [Toronto (City) v. Ontario (Attorney General), 2021 S.C.C. 34 (Can)] recently.

“Unwritten Constitutional Principles cannot be used as a device for invalidating legislation, that does not otherwise infringe the written constitutional provisions.”

Supreme Court of Canada in Toronto (City) v. Ontario (Attorney General)

Paradoxical as it may seem, this very same judgement that negates the value of unwritten constitutional principles also opens up an avenue for contemplating the nature and, more importantly, the function performed by such principles in the modern constitutional setup. This blog seeks to evaluate the status of unwritten constitutional principles in the Indian constitutional jurisprudence and explains how they might, quite ironically, be more deeply entrenched in the Constitution than a few written ones.

A Dichotomy of Opinions

A constitution bench of the Canadian Supreme Court was considering the validity of a provincial legislation that redrew ward boundaries and reduced the number of wards while campaigns were underway for municipal elections in the city of Toronto. The question before the court was whether the legislation could be struck down if found contravening an unwritten constitutional principle such as democracy. 

The majority bench answered the question in the negative, thereby effectively relegating unwritten constitutional principles to merely interpretative tools ‘that may aid in the purposive interpretation of the expressly mentioned provisions.’ The majority gave a very interesting justification for its decision by opining that a legislation that does not infringe the express provisions of the Constitution cannot be considered as being repugnant to the basic constitutional structure. 

In an equally vociferous albeit minority opinion, Justice R.S. Abella endorsed the ‘full legal force’ of unwritten constitutional principles as ’a substantive limitation on all branches of government’, characterising them as ‘the lifeblood of the Constitution’ and ‘the Constitution’s most basic normative commitments from which specific textual provisions derive.’

How then is this judgement, which advances a dichotomy of opinions on the legal force of unwritten principles, relevant to the Indian Constitutional jurisprudence?

The Hydra heads of Unwritten Constitutional Principles – Examining the Indian Jurisprudence

India holds unwritten constitutional principles on a relatively high and unscalable pedestal, courtesy mainly of the thirteen-bench decision in Kesavananda Bharati v. State of Kerala, (1973) 4 S.C.C. 225, which recognised certain unwritten principles as constituting the basic structure of the Constitution and pursuantly inviolable. However, the Kesavananda Bharati decision only pertains to one kind of unwritten constitutional principles. Interestingly, the unwritten principles as such may be categorised into two.

The first category consists of principles such as Rule of Law, Separation of Powers, Federalism, Secularism, Democracy etc. which are not directly attributable to any single constitutional provision but are instead accepted as pervading the very spirit of the Constitution (M. Nagaraj and Ors. v. Union of India, (2006) 8 S.C.C. 212). In so far as their legal force is concerned, the Supreme Court of India has, in a plethora of judgements, adjudged statutes violating the basic structure to be null and void. For instance, in Supreme Court Advocates-on-Record-Association v. Union of India, (2016) 5 S.C.C. 1, the Constitution (Ninety-ninth Amendment) Act, 2014 and the National Judicial Appointments Commission Act, 2014 were declared as unconstitutional and void.

In the decision in Madras Bar Association v. Union of India, (2014) 10 S.C.C. 1, certain provisions of the National Tax Tribunal Act, 2005 were declared unconstitutional for violating ‘Independence of Judiciary’, which is a basic structure. More remarkably, in I.R. Coelho v. State of Tamil Nadu, (2007) 2 S.C.C. 1, the court expressly held that the statutes inserted into the Ninth Schedule of the Constitution would be invalid only if they violate those autocatalytic fundamental rights whose violation would consequently result in the violation of the basic structure. This decision rendered certain fundamental rights as part of the basic structure, and in a matchless irony, categorized the basic structure doctrines as more fundamental than few of the constitutionally mandated fundamental rights.

Adding to this Paean of Praise regarding India’s Constitutional versatility is the second set of unwritten constitutional principles. These principles, such as Right to Privacy, doctrine of manifest arbitrariness, doctrine of pith and substance, doctrine of eclipse etc., emanate from specific constitutional provisions by way of judicial extrapolation. For instance, right to privacy is a facet under Article 21 (Justice K.S. Puttaswamy v. Union of India, (2017) 10 S.C.C. 1), doctrine of manifest arbitrariness falls squarely within the ambit of Article 14 (Shayara Bano v. Union of India, (2017) 9 S.C.C. 1), doctrine of pith and substance finds its source in Article 246 and so on and so forth.

Such a boundless number of unwritten principles and their rather gracious application by the Indian Judiciary, not saying the discretion and power to create new ones, makes it inconceivable that they would meet the fate as in Canada. It may thus be predicted, even without appreciable prescience, that it is impossible to alienate unwritten constitutional principles from Indian constitutional discourse and judicial review.

The Silent Guardian

 Empowered under the aegis of Article 142 of the Constitution of India to do complete justice in any matter pending before it, the Supreme Court of India has very often relied on unwritten constitutional principles when the express provisions found themselves limited to the constraints of expression. These silent guardians, the unwritten principles, have accordingly been used rather emphatically to gag and bind unconstitutional governance.

For instance, in Madras Bar Association v. Union of India, 2021 (377) ELT 305 (S.C.), the Supreme Court struck down certain provisions of the Tribunal Reforms Ordinance, 2021 (which was promulgated under the powers vested by Article 323-B of the Constitution) for violating the principles of Separation of Powers and Independence of Judiciary.

Similarly, in Supreme Court Advocates-on-Record-Association v. Union of India, (2016) 5 S.C.C. 1,  the much controversial National Judicial Appointments Commission was primarily attacked ultimately declared unconstitutional for violating the principle of Independence of Judiciary. Likewise, in Indira Nehru Gandhi v. Raj Narain, 1975 (Supp) S.C.C. 1, Article 329-A (4), inserted by the 39th Constitutional Amendment Act, was found violative of the principles of Democratic Character of the Polity, Rule of Law and Separation of Powers.

The Article barred Judicial Review on the election of the Prime Minister by stating that if such election is declared void by any Court, the Court order and ratio to that effect will be void ab initio, and the election would be valid in all respects

Even though not expressly mentioned, unwritten constitutional principles are as embedded into the Indian Constitutional framework as the constitutional text. Moreover, as corroborated by the aforementioned decisions, they are critical in promoting constitutional governance and supplementing the express provisions whenever called upon to do so.

Conclusion

Unwritten Constitutional Principles have occupied an indispensable position in the current Indian constitutional jurisprudence and have acted as a watchful protector of the Constitution’s basic features. Thus, if the express constitutional provisions epitomise the body of the Constitution, the unwritten principles represent heart and soul that grant it contemporary relevance and continued existence.

In effect, the unwritten constitutional principles accord great powers to the Judiciary in terms of judicial review of state action for safeguarding the constitutional principles and rights. However, with great power comes great responsibility, and therefore it is incumbent upon the Judiciary to exercise self-restraint while applying such unwritten principles. The flexible character of these principles should never be exploited, for such an indiscretion would not bode well for the principle of ‘separation of powers’, which the Judiciary itself has recognized as a basic structure of the Constitution of India.   

Views of the author are personal.

Edited by – Medha Mukherjee