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This article has been written by Oishika Banerji of Amity Law School, Kolkata. This article discusses the importance of unwritten principles of the Indian Constitution. 

Introduction 

The great majority of modern constitutions enshrine the state’s essential concepts, government structures and procedures, and people’ fundamental rights in a higher law that cannot be modified unilaterally by ordinary legislative action. A Constitution is a name given to this higher law. The Constituent Assembly took into consideration a lot of factors while framing the Indian Constitution among which many can be found in form of Articles, Schedules and different parts.

But there exists a few key principles as envisioned by the Constituent Assembly that provide the ground on which the Constitution is functioning and is supposed to function. These principles are not expressly mentioned in the Indian Constitution but the provisions find their reference in some way or the other. The judiciary has time and again reminded the State of such principles while deciding on landmark cases and therefore even if the principles are unwritten, their relevance cannot be ignored while discussing the Indian Constitution. This article aims to put forth some relevant unwritten principles of the Constitution and the importance they hold. 

Federalism

The term ‘federalism’ in relation to the Indian Constitution signifies the relation between the Centre, the state governments and the local governments. There appears no express mention of the term ‘federalism’ in the Constitution of India but the principle is very much embodied in Part XI of the supreme law. This Part of the Constitution discusses two broad relations between the Union and the provinces namely:

  1. Legislative relations (Articles 245-255);
  2. Administrative relations (Articles 256-263).

The Seventh Schedule of the Constitution lays down three Lists which are:

  1. The Union List with 97 subjects providing exclusive powers to the Central Parliament to deal with them;
  2. The State List with 66 subjects providing exclusive powers to the state legislature to deal with them;
  3. The Concurrent List with 47 subjects providing powers to both the Union and the state legislature to deal with them.

From the above three points, it is to be remembered that the Union List will prevail over the Concurrent list which prevails over the State List. Article 245 of the Indian Constitution lays down the provision for territorial distribution of legislative powers between the Centre and the states. While the Centre has the power to make laws for the whole of Indian territory, the states have the powers to make laws for the whole or any part of the state’s territory. 

The Indian Constitution has nearly all of the key characteristics of a federal system, but it also contains safeguards that ensure the Centre retains dominating control over the states even in normal times. Clause (2) of Article 245 expressly provides that the parliamentary law shall not be considered invalid merely because it has an extra-territorial operation. Article 248 of the Constitution needs a special mention here. This provision discusses the concept of residuary powers of the Union. The Article when read with item 97 of the Union List provides that the Parliament is empowered with exclusive right to formulate any law with respect to the items that are not listed in either the State or the Concurrent List under the Seventh Schedule. 

The relevance of federalism in the Indian Constitution 

  1. The unwritten principle of federalism is relevant with respect to the Indian Constitution as it not only promotes equal participation of both Central and the state governments but also provides a check and balance to look after misusing of powers by the Centre over the state and the local governments by means of the test of repugnancy as provided under Articles 254 and 251 of the Constitution. 
  2. The dual system of government imposes limitations upon each other in respect of taxing the instrumentalities of each other. This is known as the doctrine of immunity of instrumentalities. 
  3. Federalism is a key principle in any Constitution adopting it. Along with the distribution of legislative and administrative powers, the Constitution has established financial relations between the two governments under Articles 264 to 289.
  4. Coordination and harmonious relationship between the Centre and the states is promoted by means of the federalism feature of the Constitution. The powers of the governments are limited by means of federalism which India adopted from the Government of India’s Act, 1935 before the Constitution had acquired a definite structure. 

Thus although unwritten, the principle of federalism very much lives in the spirits of the Constitution. 

The doctrine of Basic Structure 

In order to discuss the doctrine of basic structure, one needs to understand the tussle between Article 13 and Article 368 of the Indian Constitution dealing with laws inconsistent with the Fundamental Rights and the power of the Parliament to amend the Constitution respectively. 

In the case of Shankari Prasad v. Union of India (1951), the 1st Constitutional Amendment Act, 1951 which was broadly known for the abolition of the zamindari system was challenged. Articles 31-A and 31-B were brought about that intended to protect the right to property. The question that arose before the Court was whether the Parliament can amend the fundamental right to property or not. The decision made by the Supreme Court of India was that the term ‘law’ under Article 13 (2) signified ‘law in the ordinary sense’ only and therefore, Article 368 does include the power to amend the fundamental rights.

In the case of Sajjan Singh v. the State of Rajasthan (1964), the 17th Constitutional Amendment Act, 1964 was challenged as it was restricting the powers of the High Court. Taking a reference from the aforementioned case, the Apex Court observed that the phrase ‘amendment of the Constitution’ under Article 368 meant amendment of any part of the Constitution including Fundamental Rights. The Court went ahead to observe that even if Article 368 was not vested with the power to amend the Fundamental Rights, the Parliamentarians could at any given time amend the same and include or exclude powers. 

The 17th Constitutional Amendment Act, 1964 was once again challenged in the case of Golaknath v. State of Punjab (1967), where the question was whether the power of the Parliament to amend the Fundamental Rights was limited or unlimited by nature. An 11-judge bench of the Supreme Court observed that the amendment power was limited as it would be subjected to judicial review. The Apex Court went ahead to state that the Parliament did not have any power to amend the Fundamental Rights under Part III of the Constitution. Another important decision made in this case concerned the ambit of Article 13 (2). It stated that the term ‘law’ under the said provision included the word ‘amendment’ and therefore any amendment violating Fundamental Rights would be declared void. 

With the majority of the parliamentarians disagreeing with the fact that the Parliament’s amendment powers were subjected to Article 13, the 24th Amendment Act, 1971 was introduced. The Act brought in three major changes:

  1. Clause 4 was introduced in Article 13 which stated that nothing in Article 13 would apply to Article 368 of the Indian Constitution.
  2. The marginal heading of Article 368 was changed from ‘Procedure for amending the Constitution’ to ‘Power of the Parliament to amend the Constitution and the procedure thereof ’. 
  3. Clause 3 was added to Article 368 which stated that nothing in Article 13 shall apply to Article 368. 

The 24th Amendment Act, 1971 was challenged before the Supreme Court of India in the landmark case of Kesavananda Bharati v. State of Kerala (1973). The issue before the Court was to determine as to what was the scope of the amendment by the Parliament after the aforementioned Amendment Act. The Supreme Court provided a balanced judgment which is provided hereunder:

  1. The power to amend the Constitution was already implicit in the Indian Constitution. It was the 24th Amendment Act, 1971 that made it merely explicit or declaratory. However, the basic features of the Constitution cannot be amended. 
  2. The Parliament can amend the entire Constitution to form a new Constitution altogether, however, the amending power needs to pass through the test of basic features. This test would behave as an implied restriction on the amending power of the Parliament. 
  3. The intention of the Constitution makers was not to use the term ‘amendment’ in its widest sense. They believed that the Fundamental Rights along with the fundamental features would always survive in a welfare State. 

Some addition to the basic features along with the addition of clauses (4) and (5) to Article 368 was made by the case of Indira Gandhi v. Raj Narain (1975). The case ended the long alive controversy as to who was supreme; the Parliament or the Supreme Court of India, by stating that the Parliament was superior as it had been the ‘will of the people’. The theory of basic structure was termed as ambiguous by the top court. 

Clauses (4) and (5) of Article 368 that were introduced by the 42nd Amendment Act, 1976 were challenged in the case of Minerva Mills v. Union of India (1980). Observing that the clauses contravened the basic features of the Constitution namely the limited power of the Parliament to amend and the principle of judicial review, the Supreme Court struck down the clauses by holding them as unconstitutional. After this case, it was finally settled that neither the Supreme Court nor the Parliament was supreme. Instead, it was the Constitution which has been the supreme law of the land. 

The relevance of Doctrine of Basic Structure in the Indian Constitution

The Constitution of India, 1950 does not expressly mention the Doctrine of Basic Structure, instead, it is the judiciary that has coined the term that has immense relevance in the Indian Constitution. A judicial innovation to ensure that the Parliament’s amendment power is not misused, the Doctrine of Basic Structure upholds the basic features of the Constitution of India and ensures that the same should not be altered to an extent that the identity of the Constitution is lost in the process. The conflict between the legislature and the judiciary is laid to rest by the functioning of this doctrine. Why it should be considered as an important unwritten principle of the Constitution is because the Constitution promotes the effective functioning of the three organs of the Indian government thereby guaranteeing that although the organs are independently independent but not interdependently independent. 

Judicial review 

The principle of judicial review is based on the foundation that the judiciary has built the superstructure of control mechanism. Article 13 expressly incorporates this principle although does not mention the term to be specific. Article 13(2) of the Indian Constitution expressly provides that ‘The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void’. Not leaving scope for the judiciary to interpret, the Indian Constitution has included the unwritten principle of judicial review in its very spirit.

The Supreme Court of India while deciding the case of Indian Rly. Construction Co. Ltd v. Ajay Kumar (2003) observed that the current tendency in court rulings is to broaden the scope of judicial review of administrative activities and to limit judicial review immunity to a subset of actions, such as army deployment and signing international treaties. 

In the case of Karnataka Bank Ltd. v. State of A.P. (2008), the Supreme Court had viewed that a court is primarily concerned with the legislature’s legislative competence, not its wisdom, and it will always defend the policy regardless of its own opinions. Therefore, the unwritten principle of judicial review does not create hindrance in the functioning of the different organs of the government, instead, it facilitates effective functioning of the organs. The Supreme Court of India had also clarified in the case of DDA v. Joint Action Committee (2008) that an administrative policy laid down by its rule-making power, or in the exercise of its executive power can be reviewed if:

1. It is unlawful; 

2. It goes beyond the authority of the parent Act or regulation; 

3. The delegate has gone outside the scope of his or her authority; 

4. It goes against the statutory policy or a broader policy.

Scope of judicial review in the Supreme Court of India

The Supreme Court of India had observed in the landmark case of Kesavananda Bharati v. the State of Kerala (1973) that judicial review is not only an important feature of the Constitution but also a fundamental structure of the Constitution that cannot be repealed or reduced even by a constitutional amendment. Judicial review can therefore also be termed as an alternative to force and is founded on the fundamental concepts of the rule of law, separation of powers, federalism, and fundamental rights. Article 32 of the Indian Constitution invests the power of judicial review on the Supreme Court of India as clause (1) guarantees the right to approach the Supreme Court for the enforcement of fundamental rights and clause (2) vesting powers on the Apex Court to issue directions with respect to matters provided in clause (1). 

While discussing the case of Excise and Taxation Officer-cum-Assessing Authority v. Gopi Nath and Sons (1992), the Supreme Court of India discussed the nature and purpose of the principle of judicial review. It was observed that the essence and goal of judicial review is to examine the decision-making process rather than the administrative authority’s decision. As a result, the Supreme Court cannot exercise appellate jurisdiction and reconsider the fact-finding authority’s primary or perspective facts. 

Article 136 of the Constitution of India provides for special leave to appeal by the Supreme Court of India. This provision is in the nature of a residuary reserve power of judicial review in the area of public law. The aforementioned Article does not confer the right to appeal on any party but instead confers a discretionary power on the Apex Court to interfere in special cases with the intent to advance the cause of justice. 

Scope of judicial review in the High Courts 

Article 226 of the Indian Constitution lays down the room for the high courts to issue directions, writs or orders for the enforcement of the fundamental rights guaranteed under Part III of the Constitution along with any other purpose. The latter part ensures that the scope of judicial review will be comparatively wider while talking about the high courts with respect to the Supreme Court of India. The Apex Court while deciding the case of Kailash Chander Sharma v. the State of Haryana (1989) observed that the phrases ‘for any purpose’ under Article 226 allow the high courts to use their judicial review powers to enforce procedural legal rights that are not fundamental rights. While the high courts’ jurisdiction under Article 226 is required for the enforcement of fundamental rights mandatorily, it is optional for the enforcement of ordinary legal rights.

Article 227 gives high courts the authority to supervise administrative entities that have adjudicatory functions. This power is both administrative and judicial in character. The High Courts’ jurisdiction under Article 227 is revisional rather than appellate, hence it is restricted and restrictive by nature. As a result, the Article does not grant unrestricted authority to amend all erroneous rulings made within the jurisdiction of the lower courts and tribunals to that of the high courts.

Alongside being an important unwritten principle of the Indian Constitution, the principle of judicial review holds a significant place in administrative law. It is a judicial review that has given birth to several other doctrines such as the doctrine of public accountability, doctrine of proportionality which has been the pillars of administrative functions in the Indian territory. 

The doctrine of Rule of law

The term “rule of law” should not be confused with the terms ‘rule’ or ‘law’. In any free and civil society, it is typically defined as a concept of ‘state political morality‘ that focuses on the rule of law in quest of a ‘proper balance’ between ‘rights’ and ‘powers,’ between people, and between persons and the State. A ‘law’ founded on freedom, justice, equality, and accountability may be used to strike this balance. As a result, the rule of law maintains a harmonious relationship between societal and individual requirements. Dicey’s theory of Rule of law has been embraced and clearly included in the Indian Constitution.

The Preamble of the Constitution enshrines the Constitution’s principles of justice, liberty, and equality (which is part of the Constitution). The Indian Constitution has been declared as the country’s supreme law and all other laws must be in accordance with it. Any statute determined to be in contravention of the Constitution, particularly the fundamental rights, is deemed null and invalid. The three principles of Dicey’s doctrine of rule of law have been discussed hereunder.

Democratic government vis a vis autocratic government 

The first principle of rule of law formulated by Dicey provides that no government should be vested with arbitrary powers which will make room for misuse resulting in hampering liberty and freedom of the nation’s citizens. Part III of the Indian Constitution guarantees Fundamental Rights to the citizens of the nation and also provides them with the authority to approach the Supreme Court or the high courts whenever such rights are infringed or contravened by the State without any reasonable justification under Articles 32 and 226 respectively, with the former being a Fundamental Right in itself. In order to implement the doctrine of rule of law in a democracy like India, the supremacy of the government over the judiciary or vice versa cannot be encouraged. Therefore, it is the Constitution that acquires the position of supreme law of the land that maintains the equilibrium between the government’s power and the public’s interest. 

Equal subjection of all persons to the ordinary law of the land

Articles 14 to 18 of the Indian Constitution deals with the Right to Equality. While Article 14 states that the State must not refuse any individual within India’s territory equality before the law or equal protection under the law, Article 15 states that the State shall not discriminate against any person solely on the basis of religion, race, caste, sex, birthplace, or any combination of these factors. In regards to employment under the State, Article 16 guarantees equality of opportunity to the Indian citizens only. Article 17 deals with the abolition of untouchability which has been a deep-rooted issue in Indian society for several decades now. Followed by this, Article 18 of the Constitution prohibits Indian citizens from accepting foreign titles. It is impossible to treat everyone equally in the workplace and therefore, equal treatment for equals is the sole definition of equality. All of the Fundamental Rights mentioned above are subjected to reasonable restrictions to be imposed by the State. 

The Supreme Court of India has time and again relied on landmark cases like E.P Royappa v. State of Tamil Nadu & Another (1974) and Maneka Gandhi v. Union of India (1978) in which it had observed that Article 14 is one of the foundations of the Indian Constitution since it prohibits arbitrariness and so cannot be interpreted narrowly and inflexibly. As a result, Article 14 should be given the broadest possible meaning, which encompasses the rationality and arbitrariness of some legislative measures. Arbitrariness is prohibited under the rule of law, which pervades the whole structure of the Indian Constitution. There is a rejection of the rule of law whenever there is arbitrariness or unreasonableness. 

Common law is the source of fundamental freedoms of the people

The two aforementioned principles of the doctrine of rule of law combine to form the third principle of rule of law as has been observed by Dicey. If the source of the people’s Fundamental Rights was any document, Dicey felt that the right may be revoked at any time by altering the Constitution. This was what happened in India during the 1975 Emergency when the Supreme Court ruled that even the government’s illegal acts could not be challenged in court because the source of personal liberty in India was found to be Article 21 of the Constitution, which had been suspended by the Presidential Proclamation, rather than any common law. 

Article 14, Article 19, and Article 21 are all related under the Golden Triangle rule established by the infamous Maneka Gandhi v. Union of India (1978) case. They are complementary to one another and provide the most fundamental rights to Indian citizens and, in some situations, non-citizens of India. The Right to Equality, the Right to Basic Freedoms, and the Right to Life and Personal Liberty must all be read together and construed collectively. According to the Golden Triangle jurisprudence, if someone’s personal liberty has been infringed upon, it must satisfy the test of violating all three criteria to be classified as “infringement of personal liberty.” Thus the fact that common law is the source of fundamental freedoms of the people stands true. 

Principles of Natural Justice

The Supreme Court of India while deciding the case of K.I. Shephard v. Union of India (1987) had observed that natural justice standards have evolved with the advancement of civilization, and their substance is frequently used as a gauge of the level of civilization and rule of law in a given community. Further, the Apex Court while hearing the case of Dharampal Satyapal Ltd. v. CCE (2015) held that natural justice is another term for common-sense justice, and it is founded on a person’s natural sense of right and wrong. The principles of natural justice can be narrowed down to two Latin maxims:

  1. Nemo debet esse judex in propria causa (i.e. ‘no one should be made a judge in his own cause’ which is also popularly known as ‘Rule against Bias’); and
  2. Audi alteram partem (i.e. ‘hear the other side’ which is also popularly known as ‘Rule of Fair Hearing’). 

Natural justice concepts are deeply ingrained and protected in India by Articles 14 and 21 of the Indian Constitution. The main goal of these principles is to help prevent miscarriages of justice by protecting an individual’s rights. They also guarantee that decisions made by competent authorities are just, fair, and reasonable. With the inclusion of due process in Article 21 of the Constitution, fairness embodied in natural justice principles can be observed within Article 21 itself, when a person’s life and personal liberty are taken away. Reasonable constraints on the freedom to carry on trade and commerce, including procedural restrictions, can be imposed under Article 19 (2) to (6). The concepts of natural justice have been used by courts to determine the constitutionality of reasonable limits. Article 311 embodies the Right to Hearing as a basic principle of natural justice. 

Relevance of the principle of natural justice 

Although the principle of natural justice is not mentioned in the Indian Constitution, it is seen as a vital component of the administration of justice. In Hindustan Petroleum Corporation v. H.L. Trehan (1989), the Supreme Court said unequivocally that taking action without hearing would be arbitrary and would violate Article 14 of the Constitution, even if the authority had legislative right to do so, thereby establishing the principles of natural justice. The Apex Court held in D.K. Yadav v. J.M.A. Industries Ltd (1993), that even if statutory standing orders empowered management to terminate the services of an employee who overstayed the leave period, doing so without a hearing would be a violation of Article 21 of the Constitution because a procedure established by law that deprives a person of his livelihood cannot be said to be just, fair, and reasonable under the said Article.

The Court remarked in Asoka Smokeless Coal India (P) Ltd v. Union of India (2006) that natural justice principles are invoked when there is any right that is likely to be harmed by the conduct of the administration, including a genuine expectation. The judiciary has embraced natural justice principles to defend public rights against arbitrary decisions made by administrative bodies. The basic goal of natural justice principles is to prevent miscarriage of justice at all levels of the proceedings. 

Independence of the judiciary and separation of powers 

  1. The rule of law is the core of our democracy as discussed previously, which means we need an independent judiciary composed of judges who can make decisions regardless of the political winds that are blowing. The other branches of the government, namely the executive and legislature, must not obstruct the judiciary’s ability to do justice to the common people of the nation. 
  2. Judges must be able to carry out their duties without fear of reprisal or favour. The primary aim of judicial independence is for judges to be free to settle a matter before them based on the law, without being affected by any other element. The Act of Settlement 1701 guaranteed judicial independence in India. 
  3. Though there is no clear provision in the Indian Constitution expressly mentioning judicial independence, the independence of the judiciary and the rule of law are fundamental characteristics of the Constitution that cannot be changed or abrogated, as the Hon’ble Supreme Court stated in S.P. Gupta v Union of India (1962).
  4. In any country, conflicts will inevitably emerge between people, groups, and individuals or groups and the government. All such issues must be resolved by an independent authority following the rule of law premise. The concept of the rule of law means that all people, wealthy and poor, men and women, progressive and backward castes, are bound by the same set of rules. 
  5. The judiciary’s primary responsibility is to uphold the rule of law and preserve its supremacy. Individual rights are protected, disagreements are resolved according to the law, and democracy does not give way to individual or group rule. In order to effectively carry out such functions, the judiciary needs to be independent. This is the importance of this unwritten principle of the Indian Constitution. 

However, judicial independence does not entail arbitrariness or lack of responsibility. The country’s democratic political framework includes the judiciary. As a result, it is responsible to the Indian Constitution, democratic traditions, and the people of the country. Although judicial independence is not a new notion, its definition remains ambiguous. The notion of separation of powers appears to be the concept’s beginning point and key point. As a result, it largely refers to the judiciary’s independence from the executive and legislative branches.

Article 50 and the concept of separation of powers 

  1. In our Constitution, there are no specific provisions establishing the doctrine of separation of powers. However, the Constitution has some directive principles, such as Parts IV and V, and Article 50, which separates the judiciary from the other organs of the government. Article 50 of the Indian Constitution provides that in the State’s public services, the State must take efforts to separate the judiciary from the executive. 
  2. The Supreme Court has the authority under Articles 142 and 145 of our Constitution to declare void legislation approved by the Legislature and Executive if they contradict any provision of the Constitution or a law passed by the Legislature in the event of Executive activities. 
  3. Even Parliament’s ability to modify the Constitution is subject to the Court’s review. If an amendment alters the fundamental structure of the Constitution, the Court has the authority to declare it void. The President of India, as the country’s supreme executive authority, has the power to make laws through ordinances under Article 123
  4. The President has judicial powers under Article 103(1) and Article 217(3), consult with the Supreme Court of India under Article 143 and pardon people under Article 72 of the Constitution. The Council of Ministers is made up of members of the Legislature, and it is in charge of the same. In situations of breach of privilege, impeachment of the President under Article 61, and removal of judges, the Legislature exercises judicial powers. 
  5. Under Article 105 (3), the legislative body has punitive powers as well. Thus what can be inferred from the above discussion is that, although the organs of the government are independently independent, they are interdependent upon each other for the execution of their functions.

Conclusion 

As we scroll through the article, what one can infer is that every unwritten principle of the Indian Constitution is interlinked with each other. Not only do they work together for better administration of the democratic nation but also complement each other to avoid tensions within the nation. Thus although unwritten, these principles live and breathe in the very spirits of the Constitution. 

References 

  1. https://blog-iacl-aidc.org/unwritten-constitutional-principles.
  2. https://www.wgtn.ac.nz/public-law/publications/nz-journal-of-public-and-international-law/previous-issues/volume-4-issue-2-december-2006/mclachlin.pdf.
  3. https://www.thehindu.com/opinion/op-ed/indias-de.ceptive-constitution/article7295299.ece
  4. http://www.constitutionnet.org/sites/default/files/what_is_a_constitution_0.pdf.
  5. https://www.theleaflet.in/basic-structure-and-unwritten-constitutional-principles-analysing-the-canadian-supreme-courts-recent-ruling-in-relation-to-the-position-in-india/.

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