prasad1
Active member
[h=2]The written Constitution diverges to such an extent from Indian constitutional law that it is not just an incomplete statement but can be positively misleading[/h]
Every written constitution is supplemented by important unwritten principles: the constitutional law of all nations (whether or not they have a codified Constitution) consists of some combination of the written and unwritten. Judges interpret the abstract language of written constitutions and speak where the text remains silent. As a codified constitution grows older, it forms less and less of the constitutional law of a nation, having been supplemented by judicial decisions and political practice over time. But what happens when constitutional law diverges from the written constitution to such an extent that it is not just a ‘radically incomplete statement’ of the higher law but, going a step further, is positively misleading?
...................................
The National Democratic Alliance government has promised to repeal hundreds of obsolete statutes, including many that have been struck down, as part of a legislative clean-up exercise. It is more perilous to envisage the same being done for the Constitution — the concern always being that any government in power will silently remove an inconvenient provision of the Constitution too, appropriately sandwiched between groups of obsolete provisions. Perhaps all that can be done, then, is to encourage people to continue reading the text of the Constitution as a starting point — but warn them that what you see is not necessarily what you get.
India?s deceptive Constitution - The Hindu
Every written constitution is supplemented by important unwritten principles: the constitutional law of all nations (whether or not they have a codified Constitution) consists of some combination of the written and unwritten. Judges interpret the abstract language of written constitutions and speak where the text remains silent. As a codified constitution grows older, it forms less and less of the constitutional law of a nation, having been supplemented by judicial decisions and political practice over time. But what happens when constitutional law diverges from the written constitution to such an extent that it is not just a ‘radically incomplete statement’ of the higher law but, going a step further, is positively misleading?
...................................
The National Democratic Alliance government has promised to repeal hundreds of obsolete statutes, including many that have been struck down, as part of a legislative clean-up exercise. It is more perilous to envisage the same being done for the Constitution — the concern always being that any government in power will silently remove an inconvenient provision of the Constitution too, appropriately sandwiched between groups of obsolete provisions. Perhaps all that can be done, then, is to encourage people to continue reading the text of the Constitution as a starting point — but warn them that what you see is not necessarily what you get.
India?s deceptive Constitution - The Hindu
