Introduction: Why This Lecture Matters to India
A Clarendon Lecture delivered by a Justice of the UK Supreme Court may appear, at first sight, to belong to a different constitutional universe. Yet Lord Philip Sales’ lecture on constitutional agency speaks directly to contemporary Indian constitutional concerns: executive dominance, judicial review, delegated legislation, democratic legitimacy, and the limits of judicial control.
India, like the United Kingdom, is a constitutional democracy that must constantly reconcile effective governance with accountability, rights protection, and public trust. For Indian advocates, judges, and law students, this lecture offers a conceptual framework for understanding not merely what constitutional institutions do, but why they do it—and how constitutional balance is preserved or lost.
What Is Meant by “Constitutional Agency”?
Lord Sales uses the term constitutional agency in a deliberately dual sense:
- Agency created by the Constitution – the authority conferred upon the executive, legislature, and courts to perform their respective roles.
- Agency to shape the Constitution – the capacity of these institutions, through practice, interpretation, and convention, to modify constitutional meaning over time.
This idea resonates strongly with the Indian constitutional experience, where constitutional evolution often occurs not only through formal amendments under Article 368, but through judicial doctrine, executive practice, and legislative design.
A Constitution Is More Than a Written Text
A central insight of the lecture is that a constitution cannot be understood purely as a written document or a set of enforceable legal rules. Instead, it is a living system shaped by:
- Political culture and institutional habits
- Conventions and unwritten norms
- Judicial values and modes of reasoning
- Public expectations and legitimacy
Although India possesses a comprehensive written Constitution, its day-to-day operation similarly depends on conventions, administrative practices, and judicial interpretation. Concepts such as constitutional morality, proportionality, and institutional comity reflect this deeper constitutional reality.
Liberal Democracy and Its Inherent Tensions
Lord Sales describes liberal democracy as resting on two foundational but competing principles:
- The liberal principle – protection of individual liberty and rights under the rule of law.
- The democratic principle – collective self-government through elected legislatures.
Indian constitutional law continuously navigates this tension, whether in cases involving fundamental rights, parliamentary sovereignty, judicial review, or socio-economic governance. The lecture emphasises that there is no permanent or natural reconciliation between these principles. Constitutional stability is achieved through pragmatic compromise rather than abstract perfection.
The Executive: The Most Underestimated Constitutional Actor
One of the most valuable contributions of the lecture is its insistence that the executive is the most important—and yet most overlooked—constitutional institution. The executive:
- Controls parliamentary business and legislative priorities
- Manages taxation, budgeting, and public expenditure
- Implements judicial decisions and statutory schemes
- Exercises delegated legislative power
- Conducts foreign affairs and treaty negotiations
- Operates through a professional civil service
In the Indian context, this insight helps explain the constitutional significance of ordinances, rules, executive policies, budgetary allocations, and administrative circulars—often more impactful than statutes themselves.
Executive Accountability: Why Law Alone Is Insufficient
Lord Sales cautions against the assumption that courts or legislatures can exercise continuous supervision over the executive. Judicial review is necessarily episodic, and parliamentary scrutiny is constrained by time and political priorities.
As a result, much constitutional governance depends upon internal executive discipline, administrative culture, and adherence to legality within government itself. For Indian public law, this reinforces the importance of doctrines such as non-arbitrariness under Article 14, legitimate expectation, reasoned decision-making, and proportionality.
Delegated Legislation and Democratic Control
The lecture provides a realistic assessment of delegated legislation. Modern governance makes delegation unavoidable due to:
- Limited parliamentary time
- Need for technical expertise
- Demand for flexibility and speed
However, Lord Sales highlights a critical weakness: parliamentary scrutiny of subordinate legislation is often minimal in practice. This concern is equally relevant in India, where rules and regulations frequently escape meaningful debate, raising difficult questions for courts regarding deference and intervention.
Public Finance: The Hidden Core of Constitutional Power
A particularly important insight is that constitutional sovereignty is hollow without effective control over taxation and spending. The executive plays a decisive role in matching legal duties imposed by legislation with available financial resources.
For Indian judges and lawyers, this has implications for cases involving welfare entitlements, fiscal policy, and judicial directions requiring expenditure. The lecture underscores the need for constitutional realism when law intersects with public finance.
Legitimacy Beyond Law: The Emotional Dimension of the Constitution
Lord Sales stresses that constitutional authority ultimately depends on public legitimacy. A constitution survives because citizens trust it, feel protected by it, and believe it delivers security and fairness.
This emotional dimension is especially significant in systems like India’s, where constitutional faith is essential to democratic stability. Courts, legislatures, and executives must act in ways that reinforce, rather than erode, public confidence.
Practical Lessons for Indian Legal Professionals
For Lawyers
- Engage seriously with executive power and administrative practice
- Frame constitutional arguments with institutional competence in mind
- Appreciate fiscal and governance constraints
For Judges
- Balance rights protection with the need for effective governance
- Exercise principled restraint where democratic accountability exists
- Maintain legality without paralysing administration
For Law Students
- Study constitutions as living systems, not just legal texts
- Read public law alongside political theory
- Understand legitimacy as a constitutional value
Conclusion: A Constitution That Cannot Act Cannot Endure
Lord Philip Sales’ lecture ultimately conveys a clear message: a constitution that cannot act cannot survive. Effective executive action, democratic accountability, and judicial oversight must coexist in a careful balance.
For India, the lecture offers a mature constitutional vision—one that recognises authority, liberty, and responsibility as mutually reinforcing rather than mutually exclusive. It is a framework well worth close study by anyone engaged in constitutional law and governance.
