The unconstitutional state of affairs doctrine, having its roots in a 1998 judgement of the Colombian Constitutional Court (CCC), has gained immense popularity due to the systemic, policy-based, manifestly illegal acts of executive branches of governments worldwide. Calls for recognizing the existence of an unconstitutional state of affairs have persistently been made in the Latin American context, and literature suggesting the presence of such a state in India has also begun to emerge. In this explainer, I evaluate the emergence and meaning of the doctrine, its evolution in Colombia, and its invocation by other constitutional courts. In addition, I also evaluate the wisdom of calling for judicial recognition of an unconstitutional state of affairs in India and the legitimacy thereof if one is recognized.

Emergence and Meaning of an Unconstitutional State of Affairs

Inhumane prison conditions, desperation- and hunger-related violence, and an uncooperative executive branch led the CCC to declare the existence of an unconstitutional state of affairs in Colombian prisons in the case T-153/1998. The court gave a series of orders to various bodies, directing one to prepare a plan for prison reconstruction and renovation, another to construct new prisons within four years, and telling the President of Colombia to “take the necessary measures to guarantee fundamental rights of inmates in prisons in the country”. Some scholars have identified the nature of such a declaration as providing structural solution to a similarly structural problem, given the impracticality of compelling each litigant to petition the court individually. If a single structural remedy in the form of directing public authorities to fundamentally change their behaviour is available, why must each aggrieved person be compelled to make their case against the state?

This conception, however, doesn’t capture the emotive content of such a declaration. Once a court declares the existence of an unconstitutional state of affairs, a sense of shock and alarm ensues. It indicates either the executive’s absolute incompetence, its utter insensitivity, or a bad-faith use of state power. The declaration means that it is now time for the court to take over the executive’s functions with regard to the particular incident leading to the declaration, meaning that executive authorities have caused such grave violations of human rights that they are now institutionally incapable of addressing the issue themselves. Such a declaration, therefore, is symbolic of executive failure, and must not be made imprudently.

Evolution of the Doctrine and the Implications of Its Pronouncement

The first case recognizing the existence of an unconstitutional state of affairs, as discussed in the above section, pertained to inhumane prison conditions in Colombia. There have been several more cases in Colombia that recognize the existence of an unconstitutional state of affairs. The CCC has declared the existence of an unconstitutional state of affairs in 1998 when municipalities failed to affiliate teachers to a pension program, when prison authorities failed to maintain a minimal healthcare system, and when human rights activists were indefinitely detained. Most notably, the court also did so in 2004 when the state failed to aid internally displaced persons. What, however, do such declarations imply?

While the implications of the declaration were different in different judgements, the broad similarity was the temporary restructuring of control over the particular set of events leading to the declaration. The court didn’t remain solely an adjudicatory body anymore, it took on the additional role of assessing compliance with its past orders and issued more orders as circumstances unfolded. Colombian legal scholar César Rodríguez-Garavito has distinguished the nature of the court’s work following such declarations into two types: dialogic and monologic. He proposes that while some declarations involved a series of inter-institutional dialogues spanning many years, some were declarations simpliciter. The efficacy of the former was immense, leading to empirically verifiable changes in the incidents prompting the declaration. The efficacy of the latter, however, was doubtful, given that the task of monitoring implementation was outsourced to other bodies.

Following the declaration, the court is at liberty to model its remedy according to what it deems fit, and it may also choose whether or not to monitor its remedies. In the case concerning prison systems, the court chose only to direct the construction of prisons without assessing compliance, while in the internally displaced person’s case, it conducted twenty-one hearings over seven years until it was satisfied with a reasonable resolution. The implications of the declaration, therefore, depend largely on judicial will.

Brazil’s Experiences With the Doctrine

Brazilian prisons found themselves under severe stress in 2015, leading to a plethora of petitions alleging human rights violations before the Brazilian Supreme Federal Court. The court proclaimed an unconstitutional state of affairs in the case APDF-347, borrowing from the Colombian ruling. The petitioners’ request contained eight items, out of which only one was directed against the executive. The remaining items were directed against the judiciary itself, seeking changes in its incarceration-centric approach towards even trivial offences. Despite the primary complaints against the judiciary, the court still declared an unconstitutional state of affairs, holding that the restoration of prisoners’ fundamental rights necessitates the same. The state argued that the declaration is unnecessary, given that the executive is already actively working on prison redevelopment programs. An uncooperative executive was key in the CCC’s declaration in T-153/1998, while in this case, cooperation from the state was largely present.

On this basis, the Brazil Supreme Federal Court’s invocation of the doctrine has led to many allegations of democratic illegitimacy given the absence of an uncooperative executive and the petitioners’ claims being largely concentrated against the courts. An imprudent or complacent invocation of the doctrine, therefore, may lead to widespread questions of the court’s democratic legitimacy.

Considering the Doctrine of an Unconstitutional State of Affairs in India

If the doctrine is considered solely a mode of providing structural solutions to a structural problem, it can be considered to have marked its presence in India from the 1980s onward. In the well-known series of cases in Hussainara Khatoon v. State of Bihar, the Supreme Court of India took cognizance of widespread human rights violations in prisons, where persons had served long periods without the commencement of their trials. The court directed various state bodies to examine prison conditions and report to it for the prisoners’ expeditious release. The case, by some estimates, was monitored by the court for fifteen years, with seven different orders passed. Environmental law litigation in India has also occurred in this way, with courts passing regular orders and monitoring their implementation via the continuing mandamus.

Environmental law litigation and the judgement in Hussainara Khatoon, however, do not constitute a formal invocation of the doctrine, converging only in the manner of judicial intervention. The shock and alarm associated with the doctrine, therefore, are lacking.

There have been recent calls for recognizing an unconstitutional state of affairs in the recent illegal demolition of protestors’ homes and the exploitation of the preventive detention framework in India. When large-scale protests begin to bubble and crowds begin collecting, the state identifies the protestors and pulls out evidence of their houses having been constructed illegally. It then proceeds to destroy their houses, which authors have referred to as a form of collective punishment. In the context of preventive detention, the Madras High Court has recently held that the circumvention of constitutional authorities in undertaking mass preventive detention to constitute “callous indifference” and an “apathy towards the violation of fundamental rights”.

In the internally displaced person’s case, the CCC set out some general criteria to determine whether an unconstitutional state of affairs exists:

(i) a massive and generalized violation of several constitutional rights, which affects a significant number of people; (ii) a protracted omission by the authorities in complying with their obligations to secure rights; (iii) the adoption of unconstitutional practices…

When the state commits to demolishing houses to punish protestors, reducing the rule of law to rubble, a judicial takeover is called for. The state’s actions show, of course, utter insensitivity, along with a bad-faith use of state power. A systemic exploitation of preventive detention laws may also be a ripe ground for the doctrine’s invocation, given the adoption of an unconstitutional practice to undertake regular governance. There is not, however, much utility in a mere declaration. As Garavito shows, judicial will to monitor is key in introducing behavioral change in institutions.

Conclusion

The unconstitutional state of affairs doctrine, therefore, is a useful instrument to address a systemic, state-sponsored deployment of unconstitutional practices. It introduces a sense of shock and alarm, indicating that a judicial takeover is necessitated due to an incompetent, insensitive or bad-faith functioning of the executive. A declaration of its existence must not be made imprudently, for allegations of democratic illegitimacy are soon to follow as Brazil’s case shows. Even when conditions are such that a declaration is necessitated, it must be noted that a simple declaration won’t suffice. Constant monitoring is key to changing institutional behaviour, and a successful intervention demands that courts issue regular orders and monitor their implementation.