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Canadian Supreme Court on Legislation based on Unwritten Constitutional Principles

The debate about place for unwritten constitutional principles in legislation and policy making has been adorned with the recent judgment delivered by the Canadian Supreme Court. The 5:4 verdict delivered by the court in City of Toronto v. Attorney General of Ontario on 1st October held that unwritten constitutional principles should not be used as the basis to invalidate legislations. With an impactful dissent, the minority’s stance on the question of such permissibility holds a reasonable ground and therefore is worth considering. Minority holds that unwritten constitutional principles such as judicial independence and rule of law can positively be a ground for invalidation of legislation. The court was deciding on a challenge against Better Local Government Act, 2018 which reduces the size of Toronto City Council wards from 47 to 25. The Act was challenged on the ground that it restricts the Charter rights of electoral participants and violates constitutional principle (unwritten) of democracy. The majority judgement held that, “The democratic principle is relevant as a guide to the interpretation of the constitutional text. It supports an understanding of free expression as including political expression made in furtherance of a political campaign. But it cannot be used in a manner that goes beyond this interpretive role. In particular, it cannot be used as an independent basis to invalidate legislation.” The dissenting opinions found mention of Indian judgement in Kesavananda Bharati case and observed that many Parliamentary systems identify the legal force of unwritten constitutional principles and use them as substantive limitation of all branches of the government. They also highlighted that constitutional texts are not just supplemented by unwritten principles; they rest upon them. The judgment holds a special relevance for India considering that legislations often come under constitutional scrutiny and the question of violation of unwritten constitutional principles is debated. The legislations in India usually can be struck down on the ground of violation of fundamental rights or constitutional restriction or if it is beyond the legislative competence. The Canadian Supreme Court’s judgment has enriched the discussion and provides room for much reconsideration which demand relook at constitutional understanding.

Image Credits: Bar and Bench

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