Saturday, October 25, 2008

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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