Divergence of Written Constitution from Indian Constitutional Law

Divergence of Written Constitution from Indian Constitutional Law

Question: Written Constitution is divergent from Indian constitutional law. Recent instances of these are plenty. Discuss

• Written Constitution diverges from Indian constitutional law considerably

• Each written constitution is supplemented by unwritten principles

• Constitutional law comprises not only the written, but also the unwritten

• Abstract language of written Constitution in India is interpreted by the judges.

• Several constitutional provisions misinterpret existing constitutional position

• For example, A368(4) and (5) hold that there is no limitation on the power of the Parliament to amend the Constitution

• But in the Kesavananda Bharti Versus State of Kerala case, the Court took he power to strike the constitutional amendment that destroyed or altered the basic structure of the Indian Constitution

• Example 2: A31B does not insulate legislation completely from judicial scrutiny and courts can test legislation inserted into the 9th Schedule on the grounds that it abrogates fundamental rights forming part of the basic structure of the Constitution

• Divergence between the Constitution and the law arises due to divergence between text and practices

• The recent instance of challenge to the constitutional amendment sought to change the manner in which judges of SC and HC are appointed

• As per the system, that was there before the amendment, power to appoint judges effectively was in the hands of the collegium of senior most SC judges

• The appointments process was transformed through establishment of a NJAC

• Constitutional text contains provisions of how the Constitution has to perform the task

• Constitution refers to appointments process by a body without a single judge or inaugural meeting

Facts and Stats

• NDA has struck down obsolete statues but the same has not been done for the Constitution

• There was a debate about whether the Constitution of India can be read on its own

• The recent constitutional tussle over appointments of officials and judges points to the nebulous nature of the Indian Constitution

• This Constitution is one of the lengthiest in the world and it has been inspired from the US Constitution, German Constitution, French Constitution, Irish Constitution and many more