By Anmol Jain and Paavni Gupta
The recently introduced three amendment bills – referred to the Joint Parliamentary committee – proposing the disqualification of ministers detained beyond 30 days for offences with a minimum five-year sentence have invoked much debate and scrutiny. They have been criticised for their potential to destabilise opposition-ruled state governments and encourage defections. However, missing from the conversation is how certain Union Territories continue to remain awkward appendages of Indian federalism, rather than equal participants.
Their position in the Indian federal scheme seems to remain unequal to the states, and the survival and design of their legislative assemblies continue to be open to repeal or amendment by way of a simple parliamentary majority. Against this backdrop, the recourse, we argue, is the introduction of the doctrine of constitutional statutes in India, a conversation that remains largely confined to those researching constitutional law in the legal academia. These three bills make this doctrine indispensable to protecting our federalism and democracy.
The Indian constitutional architecture secures state legislatures with a degree of entrenchment and autonomy, arrangements that are integral to a successful federal setup. In contrast, UT assemblies are relatively fragile, as they are established by parliamentary statutes. The Government of Union Territories Act 1963 established the legislative assembly for Puducherry, and the Jammu and Kashmir (Reorganisation) Act 2019 did the same for Jammu and Kashmir. Their design and survival, therefore, depend on the ruling party at the Centre, which can amend these statutes by a simple majority. Delhi, despite being a UT, stands apart: Its assembly is entrenched in the Constitution through Article 239AA of the Constitution, as introduced by the 69th Amendment. These diverse schemes lead to unequal treatment of the states and the UTs.
In 1962, Article 239A was added to the Constitution to enable the Parliament to restore legislative assemblies in certain union territories. These were the erstwhile Part C States (Himachal Pradesh, Tripura, and Manipur) and the newly acquired territories (Puducherry and Goa). The 1963 Act operationalised this, and it continues to provide the basis for Puducherry’s legislature, as the rest of the territories have graduated into states. Delhi, however, given its unique position as the national capital housing central institutions and foreign missions, was kept outside this arrangement. As Lal Bahadur Shastri, then Home Minister, noted in the Lok Sabha, “Delhi, being the capital of India, should be kept in a different category.”
Unlike other UTs, its legislative scheme is constitutionally entrenched and thus, insulated from the whims of transient majorities. The Balakrishna Committee (1987–89) on Delhi’s reorganisation stressed that such constitutional entrenchment would ensure permanence and provide balance between Delhi’s local democratic aspirations and its national role. This sentiment was echoed in the Lok Sabha by then Home Minister SB Chavan.
Jammu and Kashmir’s legislature, following the 2019 reorganisation, was created by a bespoke statute extending the earlier model of 1963, and therefore, remains amendable by a simple majority. Thus, while state legislatures and Delhi’s assembly are constitutionally secure, others remain vulnerable.
Against this backdrop, the idea of constitutional statutes becomes significant. Academic thought, particularly in the UK jurisprudence, distinguishes between constitutional statutes and ordinary statutes, though both are enacted by Parliament. Laws foundational to state institutions and governance are recognised as constitutional statutes and treated as quasi-entrenched to ensure that they are not easily overridden by later parliamentary enactment, akin to how special majority requirements work for constitutional amendments. This theory, therefore, argues for heightened protection of statutes creating indispensable institutional frameworks.
In India, scholars have suggested extending this doctrine, particularly to laws that implement key constitutional rights foundational to democracy. The 1963 and 2019 Acts are prime examples: They establish representative governments, executive councils, and legislatures in Puducherry and Jammu and Kashmir. Like the frameworks of states and Delhi, they too deserve stricter amendment requirements, beyond a simple majority.
Having said that, it is important to note that identifying a statute as “constitutional” remains a political act, fraught with multiple challenges. It risks opening every major governance law to quasi-entrenchment claims and lacks democratic clarity about who decides what deserves heightened protection. There is an inherent tension in defining which laws are truly “foundational” and should be shielded, especially in a diverse, centralised parliamentary system like ours.
Nevertheless, if UT assemblies are foundational to governance, their corresponding parent statutes must be secured from easy repeal or amendment. The doctrine of constitutional statutes provides the only way forward. In the context of the amendment bills and the looming questions over federalism, one must think through the protections and quasi-entrenchment that the UTs need to sustain.
Anmol Jain teaches law at Jindal Global Law School, and Paavni Gupta is a law student at National Law University Jodhpur
