Why Implement Potentially Unconstitutional Laws: When the Executive Implements Laws It Knows Are Unconstitutional
Introduction
For years, individuals were arrested under Section 66A of the IT Act even as serious constitutional doubts about its validity were publicly articulated, long before the Supreme Court eventually struck it down. Preventive detention under the NSA continues to be enforced even though courts are raising constitutional concerns.
This raises the question of whether only courts are permitted to challenge the constitutionality of a statute. Whether the executive is bound to implement any law passed by the legislature. Should the executive object, and what are the impacts if they don’t? But first, let’s find out what converts a constitutional doubt into an unconstitutional law.
Unconstitutional Laws
This article assumes the concerned laws are either prima facie unconstitutional or there is a reasonable anticipation of unconstitutionality. So, accordingly, we will discuss the bare minimum threshold of constitutionality. Although there is no clear compilation threshold, an analysis of judgments over the years reveals a few fields that the courts have consistently considered must be checked.
A Competent Legislature: Constituent Assembly debates clarify this as a non-negotiable and foundational principle. The parliament or the state legislature must have the authority to make laws on that subject. For example, states can not make laws on interstate taxation.
Compliant with Article 14: If a law discriminates, it must be in compliance with Article 14 via reasonable classification. This requires intelligible differentia and rational nexus with the object of the law.
Furthermore, Courts over the years have pointed out some precautions that must be taken while interpreting any contested law.
Presumption of constitutionality: As per the case of Ram Krishna Dalmia,every statute is presumed constitutional, and the burden lies on the challenger to show a clear violation.
Tolerance of imperfections: A law is not considered unconstitutional just because it is imperfect, limited in scope, or implemented gradually. Minor imperfections do not invalidate a law. Mathematical precision is not required.
Non-interference in policy wisdom: The Judiciary should not interfere with the statute merely because it seems unwise, unfair or morally objectionable. As long as the statute is constitutionally sound, it is legal.
A statute is constitutional if it is within legislative competence, presumed valid, and survives Article 14’s reasonable classification test despite imperfections.
Any conflicts with the minimum threshold cast serious constitutional doubts about the statute. Implementing these laws may erode public trust in the state machinery, while also creating uncertainty among the stakeholders. The implementation may result in the unnecessary expenditure of resources, as the law could be potentially struck down. It also expands the resources of the judiciary and stresses the system of checks and balances, as the judgment can potentially lead to judicial overreach.
Then why does the executive implement potentially shady laws? And do they even have the option to choose otherwise?
Why Implement Potentially Unconstitutional Laws
U.S.A. executive sometimes claims independent constitutional judgment, but India has a system of checks and balances. Even if the powers of the three branches overlap, an outright rejection to implement a law is illegal. The executive is expected to practice restraint and avoid stepping on the toes of other branches. This means that the executive cannot declare a law unconstitutional, as that power rests solely with the judiciary.
This administrative duty clashes with the executive’s constitutional duty under Article 51A(a) and the oath they take upon assuming office, namely, the duty to uphold the Constitution. So, the executive upholds the constitution by obeying the structure and executing their duty. In practice, they implement the statute as it is without raising a question, relying on the presumption of constitutionality. They assume the law is constitutional until a court order explicitly says otherwise.
In reality, due to strong political will, rampant corruption, and institutional insensitivity, the executive doesn’t feel the need to take the initiative to “constitutionally” uphold a potentially unconstitutional law. Turning the constitutional virtue of executive restraint to a constitutional loophole.
Constitutional Virtue
The idea of executive restraint was originally conceived as a constitutional virtue, not as a shield against responsibility. Its purpose was institutional humility. The executive was expected to recognise that lawmaking and constitutional interpretation were not its domains, and that overreach could destabilise the balance between branches. Restraint, in this sense, was intended to preserve constitutional order by preventing unilateral assertions of power, rather than suspending constitutional reasoning altogether.
This virtue operates alongside the presumption of constitutionality. Under this presumption, laws passed by the legislature are assumed to be valid until a court holds otherwise. However, this presumption was never meant to demand mechanical obedience. In constitutional systems such as the United States, doctrines like the canon of constitutional avoidance reflect this nuance. Instead of enforcing a statute in its most expansive or coercive form, the executive and courts attempt to interpret and apply it in a manner that avoids constitutional conflict, implementing only those parts that can reasonably be sustained within constitutional limits.
The contrast is instructive. Constitutional avoidance does not empower the executive to strike down laws, but it does allow room for cautious application. It treats enforcement as an interpretive exercise, not a binary choice between obedience and defiance. The underlying assumption is that constitutional fidelity may sometimes require narrowing the reach of a statute in practice, rather than waiting for judicial invalidation after harm has already occurred.
In the Indian context, this idea finds little expression in executive behaviour. Take broadly worded regulatory or penal provisions that raise immediate concerns of overbreadth or arbitrariness. Instead of limiting enforcement to clearly justifiable situations, authorities often apply such provisions at their widest possible scope, citing institutional restraint and presumption of constitutionality. What was designed as a virtue of constitutional humility thus risks becoming a mechanism for avoiding constitutional judgment altogether, leaving courts to intervene only after the consequences of enforcement have fully unfolded.
Admitted Caution
Even so, constitutional avoidance is not completely safe. Morrison argues that when the executive applies only a limited or careful version of a law, it can slowly change how that law works in real life. In India, this usually does not happen through open constitutional reasoning. It happens through executive rules, circulars, guidelines, or selective enforcement. On paper, the law passed by Parliament remains the same. In practice, however, its effect is shaped by how the executive chooses to apply it.
With time, this way of enforcement can become routine. Officials start treating the narrowed version of the law as the normal one, even though Parliament never changed the statute. When courts are later approached, they often examine the law as it is being implemented, not as it was originally written. This creates a gap between what the legislature intended and what the law actually does on the ground. The shift is gradual and rarely acknowledged, which makes it harder to notice and correct.
Recognising this risk does not mean that the executive should stop thinking constitutionally. It only means that such thinking must remain limited and accountable. India’s constitutional system reduces this danger through strong judicial review. Executive rules and circulars can be challenged through writ petitions and PILs, and courts frequently intervene when implementation defeats the purpose of the law. Because of these safeguards, cautious executive restraint is less likely to turn into permanent distortion. Used carefully, it can prevent serious and irreversible harm in cases of clear constitutional doubt, while still leaving the final decision on constitutionality to the courts.
Conclusion
The executive is not a constitutional court, and it cannot be expected to decide the validity of laws in the same manner as the judiciary. At the same time, it is not a neutral machine that must enforce every statute without reflection. The Constitution assigns different roles to the various branches, but it does not exempt any of them from constitutional responsibility altogether.
Blind enforcement of laws that raise serious constitutional doubts may satisfy formal obedience, but it can undermine constitutional values in practice. When enforcement causes irreversible harm, waiting for judicial correction after the fact often comes too late. In such situations, the question is not whether the executive should overrule the legislature, but whether it should exercise caution in how far and how harshly a law is applied.
A limited and accountable form of executive restraint offers a narrow middle path. It does not require the executive to declare laws unconstitutional or to defy legislative authority. It requires only that enforcement be careful, proportionate, and conscious of constitutional limits until courts provide clarity. Used in this way, executive restraint does not weaken the separation of powers. It strengthens it by ensuring that constitutional fidelity is preserved not only in judgments, but also in everyday governance.
This tension between duty and enforcement also plays out in aviation law. Read Aviation Safety Regulation vs Criminal Negligence to see how regulatory obligations intersect with criminal liability.
Great assessment, hope the executives reads this piece !!