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Interpretation of Constitutional Provisions: Case Law

Development in India

Name : Alvira.M

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CONTENTS Page
I. Introduction 5
II. Principles governing interpretation of a constitutional provision 5
III. Preamble of The Constitution 7
IV. Legislative Entries, Lists of Schedule 7 of the Constitution 8
V. Role of Precedent- Stare Decisis 9
VI. Textual Interpretation- Plain Meaning Rule 10
VII. Provisions relating to Fundamental Rights 11
VIII. Intention of the Framers 12
IX. Directive principles of State Policy 14
X. Pith and Substance Theory 15
XI. Colourable Legislation 15
XII. Doctrine of Implication 15
XIII. Doctrine of Eclipse 16
XIV. Constitutionality of Statutes and Legislation 16
XV. The balancing of Interests: Judicial Activism and Restraints 17
XVI. Conclusion 18
XVII. Bibliography 20

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CASES:
1. Kesavanand Bharti case - A.I.R 1973 S.C. 1461
2. Bengal Immunity co.ltd v State of Bihar - 1955 2.S.C.R. 603 : A.I.R. 1955 S.C.85
3. Dred Scott v Landford - 19 How. 393, 426 (US 1857)
4. Mechuloch v Maryland - 4 wheat 316 (US 1819)
5. Sturges v. Crowninshield - 4 L.Ed 529 (1819)
6. A.K. Gopalan v. State of Madras - A.I.R 1950 SC 27
7. K.C Gajapati Narayan Dev v State of Orissa – A.I.R 1953 S.C 375
8. R.M.D Chamrabaugwalla v Union of India - A.I.R 1957 S.C. 628
9. Walz v New York City Tax, Comm’n - U.S.24, L.Ed. 2nd 697, 707,90 S.cr.
1409
10. Rustom Cavasjee Cooper v. Union of India - (1970) 1 SCC 248
11. Maneka Gandhi v. Union of India - (1978) 1 SCC 248
12. Minerva Mills Ltd. v. Union of India - (1980) 3 SCC 625
13. Saia v. New York - 334 US 558 : 92 L Ed 1574 (1948)

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ABBREVIATIONS:
1. A.I.R - All India Reporter
2. S.C - Supreme Court
3. S.C.R - Supreme Court Reports
4. EEC - European Economic Community

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INTRODUCTION:

Constitutional Law is the body of those legal rules which determine the constitution of our
country and provides for the working and detailing of how the executive, legislature and
judiciary are to function and allocates power to them. It also delineates the rights, liberties
and duties of the citizens. It is the epitome of the national aspirations of a free political
society Constitutional adjudication affects several aspects of culture of institutions and life of
the people of a nation governed by it. Therefore, there can be no fixed or rigid rules of
interpretation of the Constitution. American legal experts on the working of the Constitution
of USA which is the oldest of an oldest democracy, have identified certain trends of
interpretation in the long working of the Constitution and have identified certain principles —
study of which may be beneficial for interpreting our Constitution, which is merely little
more than fifty years old. For an effective functioning of democracy where, the will of the
people is the supreme, the power should not be allowed to be concentrated in one place.
Thus, the Constitution allocates power for each its pillars-The function of the legislature is to
produce laws. It is the duty of the executive, namely the government to administer the laws
and it is the judiciary which is entrusted with interpretation of laws. Though often, for the
prosperity of the nation and also for upholding the rule of law, the judiciary proactively
interprets the constitution for protecting the basic structure

Common law is known as case law or precedent is law developed by judges through
decisions of courts and similar tribunals, as opposed to statutes adopted through the
legislative process or regulations issued by the executive branch. A "common law system"
is a legal system that gives great precedential weight to common law, on the principle that it
is unfair to treat similar facts differently on different occasions. The body of precedent is
called "common law" and it binds future decisions. If a similar dispute has been resolved in
the past, the court is bound to follow the reasoning used in the prior decision. India, being a
common law country, derives most of its modern judicial framework from the British legal
system. There exists a uniform system of justice dispensation, with the Supreme Court at the
apex and High Courts in the States as well as numerous other subordinate courts. Thus, in the
strict sense, the Indian judicial system does not operate on wholly federal lines, as may be
seen in the United States. For an effective functioning of democracy where, the will of the
people is the supreme, the power should not be allowed to be concentrated in one place.
Thus, the Constitution allocates power for each its pillars-The function of the legislature is to
produce laws. It is the duty of the executive, namely the government to administer the laws
and it is the judiciary which is entrusted with interpretation of laws. Though often, for the
prosperity of the nation and also for upholding the rule of law, the judiciary proactively
interprets the constitution for protecting the basic structure

PRINCIPLES GOVERNING INTERPRETATION OF A


CONSTITUTIONAL PROVISION:
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A Constitution is to be interpreted in the same manner as any other statute by reference to its
terms and language and these alone. The ordinary rules of statutory construction apply
through their application is of necessity conditioned by the subject-matter of the enactment

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M.P Tandon, “Interpretation of Statutes” Allahabad Law Agency, Tenth Edition 2002, Page:183

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itself. A broad and liberal spirit should inspire those who interpret the Constitution but they
are not free to stretch or prevent the language of the enactment in the interests of legal or
constitutional theory. Where any particular provision is open to more than one construction, it
is only the logical one and the one that naturally flows from it which has to be accepted.
For this purpose it is often necessary to enter the mind of the framers of the constitution, and
to achieve this, it is dangerous to import anything not inherently present in it. It is well settled
and the view is founded on established principle that Courts have not to go into questions of
the policy of the legislature or they cannot question the motive for which an Act has been
enacted. There is also presumption in favour of the constitutionality of laws so long as they
are not struck down by courts as being “Ultra Vires” of the legislature. To re-write the
Constitution by the art of Construction, Passionately impelled by contemporary events, is
unwittingly to distort the judicature scheme our founders planned with thoughtful care and to
wish into words what plain English and plainer context cannot sustain. The primary principle
of interpretation is that a constitutional or statutory provision should be construed “according
to the intent of they that made it”. Normally such intent is gathered from the language of
the provision. If the language or the phraseology employed by the legislation is precise and
plain and thus by itself, proclaims the legislative intent in unequivocal terms, the same must
be given effect to, regardless of the consequences that may follow. But if the words used in
the provision are imprecise, protean, or evocative or can reasonably bear meaning more than
one, the rule of strict grammatical construction ceases to be a sure guide to reach at the
legislative intent. In such a case, in order to ascertain the true meaning of the terms and
phrases employed, it is legitimate for the Court to go behind the arid literal confines of the
provision and to call in aid other well-recognised rules of construction, such as its legislative
history, the basic scheme and framework of the statute as a whole, each portion throwing
light on the rest, the purpose of the legislation, the object sought to be achieved, and the
consequences that may flow from the adoption of one in preference to the other possible
interpretation.

When two alternative constructions are possible, the Court must choose the one which will be
in accord with the other parts of the statute and ensure its smooth, harmonious working, and
eschew the others which leads to absurdity, confusion, or friction, contradiction and conflict
between its various provisions, or undermines or tends to defeat or destroy, the basic scheme
and purpose of the enactment. These canons of construction apply to the interpretation of our
constitution with greater force because the constitution is a living integrated organism, having
a soul and consciousness of its own. As Chandrachud,J put it in “Kesavanand Bharti’s
Case” (A.I.IR 1973 S.C. 1461) : “While interpreting words in a solemn document like
the Constitution, one must look at them not in a school-masterly fashion, not with the
cold eye of a lexicographer, but with the realisation that they occur in ‘ a single complex
instrument in which one part may throw light on the other’ so that the construction
must hold a balance between all its parts”. A cardinal rule is to look to the preamble to the
constitution as the guiding light and to directive principles of state policy as the book of
interpretation. The Supreme Court which lays down the law of the land under “Article 141”
of the Constitution must be extremely careful and circumspect in interpreting statutes, more
so constitutional provisions, so as to obviate the necessity of a constitutional amendment
every time which is an extremely onerous task. S.R Das, C.J in the case of “Bengal
immunity Co.Ltd v State of Bihar, expressly referred to this aspect of the matter and
observed as follows:“An erroneous interpretation of the Constitution may quite
conceivably be perpetuated or may at any rate remain unrectified for a considerable
time to the great detriment to public well being”. The Constitution is what the Judges say
it is. That is because the power to interpret the Constitution vests in the Judges. A heavy

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responsibility lies on the judges when they are called upon to interpret the Constitution, the
responsibility is all the more heavier when the provisions to be construed relate to the powers
of the Judiciary.
There are two theories regarding interpretation of a constitution. These are the mechanical
and the organic theories. The mechanical method of interpretation of a constitution was most
authoritatively laid down by the U.S Supreme Court in Dred Scott v Landford, wherein
Chief Justice Taney said that the “Constitution must be construed now as it was
construed at the time of its adoption”. In Norman v Baltimore, Brewer J. Declared that
the meaning of the Constitution never alters “that which it meant when adopted it means
now”. Thus the mechanical method requires that in interpreting a constitutional provision the
Court should try to put itself in the shoes of the founding fathers of the constitution and
should seek to read their minds and gather their intention. For this purpose we should seek to
read the Constituent Assembly debates and look into other contemporaneous material to
gather the intent of the Constitution makers. As justice Marshal observed in Meculoch v
Maryland: “This provision is made in a constitution, intended to endure for ages to
come and consequently to be adapted to the various crises in human affairs”.

View: The constitution which is being framed by the legislature is what the judges say as the
power to so interpret is vested by the Judges. The court should adopt a construction such that
it can strengthen the fundamental aspects and features of the constitution without the
violation of any other right in consistent to it. Thus the Judges should rather put themselves
into the shoes of the framers to comply with their objects and purpose.

PREAMBLE OF THE CONSTITUTION:


The Preamble of the constitution is an integral part of the Constitution. Democratic form of
Government, federal structure, unity and integrity of the nation, secularism, socialism social
justice, and judicial review are basic features of the Constitution.2In this context, when the
attempt of the interpreter is to understand the “spirit” rather than the “letter” of the
Constitution, importance of the preamble of the Indian Constitution deserves to be
highlighted. Normally, a preface or a preamble of a statute is not to be read into the contents
of the statute. At best, it can be read as an aid to construction of the contents of the statute.
This, however, is not the approach of the courts so far as the preamble of the Indian
Constitution is concerned. The preamble of the Constitution like the preamble of any statute
“furnishes the key to open the mind of the makers of the Constitution more so because
the Constituent Assembly took great pains in formulating it so that it may reflect the
essential features and basic objectives of the Constitution”. The Drafting Committee of
the Constituent Assembly formulated the preamble in the light of the Objectives Resolution
but restricted it “to defining the essential features of the new State and its basic socio-
political objective”. The draft of the preamble was considered by the Assembly last after
considering other parts of the Draft Constitution — “to see that it was in conformity with
the Constitution” and a motion was adopted by the Assembly that “the preamble stands
part of the Constitution”. It is for this that the Constitution including the preamble is read as
a whole and in case of doubt interpreted consistent with its basic structure to promote the
great objectives stated in the preamble. Courts have repeatedly taken help of the preamble of
the Constitution to understand the provisions contained therein. The majority judgment in
cases of Kesavananda and Minerva Mills Ltd. strongly relied upon the preamble in

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Justice D.M. Dharmadhikari, “Principle of Constitutional Interpretation :Some Reflections” Cite as :
(2004) 4 SCC (Jour) 1 <http://www.ebc-india.com>

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reaching the conclusion that power of amendment conferred by Article 368 was limited and
did not enable Parliament to alter the basic structure or framework of the Constitution.

View: Initially the Supreme Court of India held that the preamble does not constitute an
integral part of the Indian Constitution based on the rule laid down in the case of berubari
and that therefore it cannot be enforceable. However this rule was over ridden from the
kesavananda case and since then it was to be recognized that the preamble could be used to
interpret the ambiguous areas of the constitution where differing interpretations present
themselves though it was subjected to the amendment which provided the inclusion of
"sovereign socialist secular” from "sovereign democratic republic”.

LEGISLATIVE ENTRIES, LISTS OF SCHEDULE 7 OF THE


CONSTITUTION:
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It is settled law of interpretation that entries in the seventh schedule are not powers but fields
of legislation. The legislation derives its powers by Article 246 and other related Articles of
the Constitution. Therefore the power to make the Amendment Act is derived not from the
respective entries but under Article 246 of the Constitution. The language of the respective
entries should be given the widest scope of their meaning fairly capable to meet their
machinery of the Government settled by the Constitution. Each general word should extend
to all ancillary or subsidiary matters which can fairly and reasonably comprehended in it.
When the vires of an enactment is impugned, there is an initial presumption of its
constitutionality and if there is any difficulty in ascertaining the limits of the legislative
power, the difficulty must be resolved, as far as possible, in favour of the legislature putting
the most liberal construction upon the legislative entry so that it may have the widest
amplitude. Burden is on them who claim such interpretation to be invalid to prove
affirmatively of its invalidity. The broad and liberal spirit should inspire those whose duty is
to interpret the Constitution to find whether the impugned Act is relatable to any entry in the
relevant list. Reference to legislative practice may be admissible for cutting down the
meaning of a word in order to reconcile two conflicting provisions in two legislative lists.
The cardinal rule of interpretation, is that words should be read in their ordinary natural and
grammatical meaning.

View: The rule of interpretation that the statute must be read in an ordinary and grammatical
meaning is valid as it lays more emphasis on the natural and ordinary meaning of a particular
provision in a statute. The constitution should be interpreted in such a way that the legislature
does not mean what the constitution does not permit, in other words the Constitution must be
easily found from the language used.

An exclusionary cause in any of the entries should be strictly and narrowly construed.
Constitutional adjudication is not strengthened by such an attempt but it must seek to declare
the law and it must not try to give meaning on the theory of what the law should be, but it
must look upon a constitution that it is living and organic thing and must adapt itself to the
changing situations and changing situations and pattern in which it has to be interpreted. It
has also to be borne in mind that where division of powers and jurisdiction in a federal
constitution is the scheme, it is desirable to read the constitution in harmonious way. It is also
necessary that in deciding whether any particular enactment is within the purview of one
legislature or the other, it is the PITH and SUBSTANCE of the legislation in question that
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M.P Tandon, “Interpretation of Statutes” Allahabad Law Agency, Tenth Edition 2002, Page:187

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has to be looked into. It is well settled that various entries in the three lists of the Indian
Constitution are not powers but fields of legislation. The power to legislate is given by
Article 246 and other articles of the constitution. The three lists of the Seventh Schedule to
the Constitution are legislative heads or fields of legislation. These demarcate the area over
which the appropriate legislatures can operate. It is well settled that widest amplitude should
be given to the language of the entries in three lists but some of these entries in different lists
or in the same list may over ride and sometimes may appear to be indirect conflict with each
other, then only the duty of the court comes to find the true intent and purpose and to
particular legislation in question. In interpreting an entry would it would not be reasonable to
import any limitation by comparing or contrasting that entry with any other in the same list.

ROLE OF PRECEDENT – STARE DECISIS:


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Constitutional disputes typically arise against the background of earlier decisions on similar
subjects. A complete theory of constitutional interpretation, therefore, must deal with the role
of precedent. Interpreting a judicial precedent is different from interpreting a constitutional
provision in itself. The precedent is required to be read, not only in terms of its own social
context but against the background of the precedent it invokes or ignores. The American
doctrine of stare decisis accords presumptive but not indefeasible authority to precedent.
Precedents are overruled which seem to be inconsistent with contemporary norms. The
process of constitutional adjudication, thus, has a dynamics of its own. It creates an
independent force which, as a doctrine evolves, may create original history as well as with
older precedents. Recourse to precedent and overruling previous precedent is judicial process
which properly accommodates the Constitution to changing needs and values. Precedents are
part of judicial law-making and are necessary for development of law. From the very nature
of judicial process, law-making as precedent through the court is gradual, tentative and slow.
The courts’ contribution to the development of law is typically a “bit-by-bit” and a
“trialand-error” contribution. Those interests not heard today can be heard tomorrow, and
the court will be able to correct, to improve and to mould a “law” but would not entirely
make it. As put by Dean Roscoe Pound several decades ago:“Judicial finding of law has a
real advantage in competition with legislation in that it works with concrete cases and
generalizes only after a long course of trial and error in the effort to work out a
practicable principle.” The courts’ very functions particularly in interpreting the
Constitution, many times, compel them down to realities, since they are called to decide cases
involving live persons, concrete facts and actual problems of life. In this sense, judicial law-
making is highly democratic — close and sensitive to popular societal needs and desires. To
be sure, there are some conditions to be met before that potential can be realised. Two such
conditions are vital. The first is rooted in the system of judicial selection which should be
open to all strata of the population. The second condition is that all people should have equal
opportunity to get access to the courts. A citizen should have access both to the courts and
education which is necessary for providing equal accessibility to the legal system.

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Justice D.M. Dharmadhikari, “Principle of Constitutional Interpretation :Some Reflections” Cite as :
(2004) 4 SCC (Jour) 1 <http://www.ebc-india.com>

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TEXTUAL INTERPRETATION - PLAIN MEANING RULE:
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Under the textual interpretation, the most important is the language of the Constitution.
Justice Marshall wrote in Sturges v. Crowninshield: “Although the spirit of an
instrument, especially of a Constitution, is to be respected not less than its letter, yet the
spirit is to be collected chiefly from its words. ... if, in any case, the plain meaning of a
provision, not contradicted by any other provision in the same instrument, is to be
disregarded, because we believe the framers of that instrument could not intend what
they say, it must be one in which the absurdity and injustice of applying the provision to
the case would be so monstrous that all mankind would, without hesitation, unite in
rejecting the application.”Justice Marshall did not equate “plain” meaning with “literal”
meaning but rather the meaning that it would have for a “normal speaker of English” under
the circumstances in which it was used. Even on the principle of textual interpretation,
American courts from case to case expressed a consistent view that such is the character of
human language that no word conveys to the mind, in all situations, one single definite idea;
and nothing is more common than to use words in a figurative sense. The words thus are used
in the text of the Constitution in various senses and their construction, the subject, the
context, the intention of the person using them, are all to be taken into view.

The words of the Constitution are required to be construed in the social and linguistic context
of the society. Every nation governed by a Constitution is undergoing changes in social and
economic relations, in technology and in values. An interpreter of the Constitution from a
long period of time from its original framers, would have discovered the context in which the
particular constitutional provision was adopted. The modern interpreter, therefore, should
attempt to read the provisions not only in their original social and linguistic context but in its
modern context or in case some way that mediates between the two. The question then is
always to ascertain “the purpose of the provision” or “the intent of the framers”. The
view is that the context of the Constitution has to be read in the social and linguistic context
in which it was adopted. So far as our Supreme Court is concerned, it has always held that
there is a greater reason in giving to its language a liberal construction so as to include within
its ambit the future developments in various fields of human activities than in restricting the
language to the state of things existing at the time of passing of the Constitution. A
Constitution unlike other Acts is intended to provide an enduring instrument to serve through
a long lapse of ages without frequent revision. It is not only designed to meet the needs of the
day when it is enacted but also the needs of the altering conditions of the future. The fields of
legislation, the ideals and the rights are expressed in general terms which are compressed
sentences if not chapters. In the interpretation of constitutional documents “words are but a
framework of concepts and concepts may change more than words themselves”. The
significance of the change of the concepts themselves is vital and the constitutional issues are
not solved by a mere appeal to the meaning of the words without an acceptance of the line of
their growth. The Supreme Court said that “the intention of the Constitution is rather to
outline principles than to engrave details”.

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Justice D.M. Dharmadhikari, “Principle of Constitutional Interpretation :Some Reflections” Cite as :
(2004) 4 SCC (Jour) 1 <http://www.ebc-india.com>

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PROVISIONS RELATING TO FUNDAMENTAL RIGHTS:
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It may be stated that an article embodying a fundamental right may exclude another by
necessary implication, but before such a construction excluding the operation of one or other
of the fundamental rights is accepted, every attempt should be made to harmonise the two
articles so as to co-exist, and only if it is not possible to do so, one can be made to yield to the
other. Barring such exceptional circumstance, any law made would be void if it infringes any
one of the fundamental rights. On a careful consideration of the legal and historical aspects of
the directive principles and the fundamental rights there appears to be complete unanimity of
judicial opinion of the various decisions of the Supreme Court on the point that although the
directive principles are not enforceable yet the court should make a real attempt at
harmonising and reconciling the directive principles and fundamental rights and any collision
between the two should be avoided as far as possible. American constitutional tradition
recognises practices of non-originalist adjudication purportedly based on natural rights or
fundamental law.

These are widely shared and deeply held human values which are to be culled from the text
of a written Constitution. In other words, this approach is described as “judicial activism”.
The expansion of Article 21 to include in “right to life and liberty”, other rights necessary
for a dignified human life can be said to be one such approach of interpretation based on
“preferred freedoms approach”. The protagonists of this approach and principle of
interpretation believe that such fundamental rights like rights of speech, press, association,
assembly, and other liberties necessary to the democratic process constitute preferred
freedoms. It is said—“the court is not a majoritarian institution, it has a constitutional
responsibility to carefully scrutinize majority-passed legislation that directly impinges
upon the exercise of those rights by minorities through which their political demands
can be expressed. Given the social isolation and prejudice encountered by easily
identifiable minorities, without the guarantee of these fundamental rights their
participation in the political process will be effectively muted and conditions of
exploitation will be perpetuated.”A “preferred freedoms approach” to a Constitution is
judicial interpretation process from conservatism to liberalism. Here, the court, sometimes,
overrules the precedent as if writing on a clean slate and tries to exalt the spirit of law above
its form so that existing principle of law can be applied in an enforceable new context. The
preferred freedoms approach advocates liberty and order as two balancing interests, the
former of the citizen and the latter of the State, to be weighed and resolved in the best interest
of the citizen. There is some criticism of this strict scrutiny approach based on “preferred
freedoms principle”. It is described as insufficient and objectionable. All kinds of
fundamental freedoms cannot outstrip the democratic process criterion. It is said — “Human
happiness is the end and democracy is a method for attaining that end and not vice
versa.” This misconception of democracy as end rather than method has important
consequences for the exercise of free speech and other fundamental liberties as individual
rights. Constitutional interpretation, it is observed, is as much a process of creation as one of
discovery. If this view is common place among post-realist academics, it is not often
articulated by judges and it probably conflicts with the view of many citizens that the
constitutional interpretation should reflect the will of the adopters of the Constitution rather
than its interpreters. The two modes of strict interpretation — literalism and strict
intentionalism — far from being synergistic strategies of interpretation, are often
antagonistic. A strict originalist theory of interpretation must opt either for literalism or for

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M.P Tandon, “Interpretation of Statutes” Allahabad Law Agency, Tenth Edition 2002, Page:189,190

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intentionalism, or must have some extra-constitutional principle for mediating between the
two.

INTENTION OF THE FRAMERS:


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The possible sources for interpretation of the Constitution include the text of the
Constitution, its “original history” including the general social and political context in
which it was adopted, with due regard to the ongoing history of the interpretation of the
Constitution and the social, political and moral values of the society. The American tradition
of constitutional interpretation accords considerable authority to the language of the
Constitution, its adopters’ purposes and the implications of the structures created and
recognised by the Constitution. So far as our Court is concerned, the Supreme Court has
taken aid of the Debates in the Constituent Assembly to ascertain the meaning of a particular
provision of the Constitution which comes before it for interpretation. The Supreme Court,
however, also holds that the Court is not bound to accept the meaning of a provision in a
Constitution according to the original understanding of its makers because as Justice
Marshall asserts: “it is the nature of the Constitution that only its great outlines should
be marked”. It is a document intended “to endure for ages” and therefore, it has to be
interpreted not merely on the basis of the intention and understanding of the framers of the
Constitution but on the experience of the working of the Constitution to deal effectively with
current constitutional issue needing a solution in the existing social and political
context.“Trying to understand how the adopters intended a provision to apply in their
own time and place is, in essence, doing history. But the intentionalist interpreter must
take further step of translating the adopter’s intentions into the present.”For example,
modes of transportation, communications and economic relations which are found today
could not have been imagined by the framers. Therefore, in interpreting the Constitution,
sometimes, the Court, not accepting the meaning assigned to a provision by the framers,
adopts a construction more suited to the existing changed situation. The Supreme Court of
India has always treated the constitutional provisions as “great generalities” or “great
ambiguities” but not as “vague provisions” to be interpreted from time to time to apply to
new and changing situations and thus make the Constitution a living and organic document
instead of making it rigid and static by giving its provisions a fixed meaning and content for
all times to come. This freedom and flexibility in interpreting the Constitution is
conspicuously present in decisions of the Supreme Court right after the case of A.K.
Gopalan v. State of Madras. Article 21 of the Constitution provides: “No person shall be
deprived of his life or personal liberty except according to procedure established by
law” which was originally understood, as interpreted in Gopalan case to provide merely that
no one can be deprived of such right by executive action unsupported by law. In decisions of
the Supreme Court in Rustom Cavasjee Cooper v. Union of India and Maneka Gandhi v.
Union of India the approach in Gopalan case was disregarded and it was held that the words
“procedure established by law” would mean “reasonably valid law which is right, just,
fair and reasonable and not arbitrarily fanciful and oppressive”. In Gopalan case the
words were given restricted meaning by taking recourse to the history of the Constitution and
the founders’ approach that “the due process clause of the American Constitution” was

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Justice D.M. Dharmadhikari, “Principle of Constitutional Interpretation :Some Reflections” Cite as :
(2004) 4 SCC (Jour) 1 <http://www.ebc-india.com>

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not incorporated in the Indian Constitution. By adopting a different approach to Article 21 of
the Constitution, which is a very valuable and prestigious right of a citizen, the “procedure
established by law” has been construed to mean a “procedure which is just, fair and
reasonable” and therefore, valid. Indirectly, thus, contrary to the intention of the framers
“due process clause of the American Constitution” was read into Article 21 with the aid
of the equality clause in Article 14 of the Constitution. Article 21 has been one single article
which by interpretation has been expanded to progressively deduce a whole lot of human
rights from it, such as, right to “means of livelihood”; “right to dignity and privacy”;
“right to health and pollution-free environment”; “right to education”; “right to legal
aid and speedy trial” etc. The more recent additions to this right are “a friend and relative
of an arrested person be informed of the arrest and of the place of detention; right of
the worker to medical aid, the right to residence and settlement to live with dignity, the
right to regulation of traffic in busy cities for ensuring public safety and the right of
children to protection against exploitation”. Thus, expanding the scope and ambit of
Article 21 to cover in it the rights which are not expressly enumerated, the Supreme Court
has interpreted the word “life” to cover in it “all aspects of life which go to make a man’s
life meaningful, complete and worth living”. It will also cover his tradition, culture,
heritage and health. Thus, all human rights enumerated above were so derived from Article
21, mainly by reading the directive principles in or with Article 21 and thereby, in effect, the
directive principles in Part IV of the Constitution have been made enforceable even though
Article 37 provides that these principles shall not be enforced by any court. In earlier
decisions of the Supreme Court, reference to the Debates in the Constituent Assembly was
made to support narrow construction, like to Article 16(3) of the Constitution, but in the later
decisions, it was held that Debates or even the speech of the Chairman of the Constituent
Assembly Dr B.R. Ambedhkar, could not be treated as conclusive or binding on the Court
because the framers’ intention has to be ascertained only for the purpose of giving a meaning
to the provisions in its application to the present situation. Reference to the Debates is
permissible to ascertain the context, background and objective behind a particular provision
only if the Court wants to ascertain the original intent of the framers. On this aspect, Justice
Holmes’s words on interpretation of the American Constitution, are apt and prophetic—
“When we are dealing with words that are also a constituent Act, like the Constitution
of the United States, we must realize that they have called into life a being the
development of which could not have been foreseen completely by the most gifted of its
begetters. It was enough for them to realize or to hope that they had created an
organism; it has taken a century and cost their successors much sweat and blood to
prove that they created a nation. The case before us must be considered in the light of
our whole experience and not merely in that of what was said a hundred years ago.”

On the same lines are the words of Bose, J., with reference to the Indian Constitution—“they
are not just dull, lifeless words, static and hidebound as in some mummified
manuscript, but living flames intended to give life to a great nation and order its being,
tongues of dynamic fire potent to mould the future as well as guide the present. The
Constitution must, in my judgment, be left elastic enough to meet from time to time the
altering conditions of a changing world with its shifting emphasis and differing
needs.”In interpretation of the basic law of the country like a Constitution, the attitude
adopted by the Court of Justice of the European Communities in construing the EEC Treaty
and Community Legislation should be a guide. The court applies teleological rather than
historical methods of interpretation. It seeks to give effect to what it conceives to be the spirit
rather than the letter. It views the communities as living and expanding organisms and the
interpretation of the provisions of the treaties as changing to meet their growth.

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View: The provisions in the constitution consisting of the fundamental rights must be
construed broadly and liberally by the Courts in favour of those on whom that particular right
is being conferred by the Constitution itself. The constitution if interpreted from the angle of
the constitution makers then view that is obtained as a result will be completely outdated and
unrealistic in reality, thus when the courts should function dynamically so as to met the
requirements of the present scenario.

DIRECTIVE PRINCIPLES OF STATE POLICY:


8
For a quarter of a century, the Directive Principles in the Indian Constitution have been
regarded as non-justiciable. How they came to be so regarded is not easy to understand, as
nothing which leads to such a conclusion can be found in the constitutional document. But
the fact, however, remains that they have been so held. On November 1, 1947, the Drafting
Committee of the Constitution inserted into their draft two clauses taken from Sir B. N. Rau's
draft of the Constitution. One of them which was inserted as Clause 30-B read: “The
principles of policy set forth in this part are intended for the guidance of the State.
While these principles are not cognizable by any Court, they are nevertheless
fundamental in the governance of the country and it shall be the duty of the State to
apply these principles in making laws”. Article 45 of the Irish Constitution provides: “The
principles of social policy set forth in this Article are intended for the general guidance
of the Oireachtas Irish Parliament. The application of those principles in the making of
laws shall be the care of the Oireachtas exclusively and shall not be cognizable by any
Court under any of the provisions of the Constitution”. The words "not cognizable by
any Court" in Rau's draft are bodily borrowed from the Irish Constitution. About three
months later on January 20, 1948, the Drafting Committee revised a few clauses of the draft.
Clause 33-B was revised as follows: “The provisions contained in this Part shall not be
enforceable by any Court, but the principles therein laid down are nevertheless
fundamental in the governance of the country and it shall be the duty of the State to
apply these principles in making laws”. It requires more than average dumbness to assume
that the change from 'cognizable' to 'enforceable' was made in a fit of absentmindedness
and that the eminent legal luminaries who formed the majority of the members of the
committee were innocent of the different implications of the two expressions.

In interpreting such a piece of legislation which is in furtherance of the directive principles of


sate policy in Article 39 (b) and (c) of the Constitution, the Courts cannot adopt a doctrinaire
or pedantic approach. It is a well known rule of construction that in dealing with such
beneficent piece of legislation, the court ought to adopt a construction which would subserve
and carry out the purpose and object of the Act rather than defeat it. The Foreign exchange
Regulation Act is clearly a statute enacted in the national economic interest. When
construing statutes enacted in the national interest, one has necessarily to take the broad
factual situations contemplated by the act and interpret its provisions so as to advance and not
to thwart the particular national interest whose advancement is proposed by the legislation.
Traditional norms of statutory interpretation must yield to broader notions of the national
interest.

8
Joseph Minattur,The unenforceable directives in the Indian Constitution, Cite as : (1975) 1 SCC (Jour) 17
< http://www.ebc-india.com/lawyer/articles/75v1a2.htm>

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PITH AND SUBSTANCE THEORY:
9
The pith and substance of the Act and its reasonable intent must be the guiding factors. If the
legislature purports to enact in regard to an item with a wide connotation, the said enactment
may be confined to the subject matter with its legal competence. Where the act contains valid
as well as invalid provisions and the latter are severable from the former, effect should be
given to the former. The doctrine of pith and substance postulates that the impugned law is
substantially within the legislative competence of the particular legislature that made it, but
only incidentally encroached upon the legislative field of another Legislature. The doctrine
saves this incidental encroachment, if only the law is in pith and substance within the
legislative field of the particular legislature which made it. The test of pith and substance is
generally applied when a dispute arises as to legislative competence of the Legislature and it
has to be resolved by reference to the entries to which the impugned legislation is relatable.
When there is a conflict between two entries in the legislative lists, and legislation by
reference to one entry would be competent but not by reference to the other, the doctrine of
pith and substance is invoked for the purpose of determining the true nature and character of
the legislation in question.

COLOURABLE LEGISLATION:
If the constitution of a state distributes the legislative powers amongst different bodies, which
have to act within their respective spheres marked out by specific legislative entries, or if
there are limitations on the legislative authority in the shape of fundamental rights questions
do arise as to whether the legislature in a particular case has or has not in respect of the
subject matter of the statute or in the method of enacting it, transgressed the limits of the
constitutional powers. Such transgression may be patent, manifest or direct but it may also be
disguised covert and indirect and it is to this latter class of cases that the expression
“Colourable Legislation” has been applied in certain judicial pronouncements. The doctrine
of colourable legislation postulates that legislation attempts to do indirectly what it cannot do
directly. The doctrine of colourable legislation does not involve any question of bona fides or
mala fides on the part of the legislature. The doctrine confines itself to the question of
competency of a particular legislature to enact a particular law. In K.C Gajapati Narayan
Dev v State of Orissa, Mukherjee J, observed that the whole doctrine of colourable
legislation is based upon the maxim that you cannot do indirectly what you cannot do
directly.

DOCTRINE OF IMPLICATION:
The doctrine of implication involves reception of a legal inference of something not directly
declared. The justification for invoking the doctrine of implication in a constitution rests
primarily on the principle that normally a constitution is not prolix legislative code. If a
constitution like the Indian Constitution has gone into such details, then there is no scope for
implication and notions and ideas cannot be implied into such constitution. The doctrine of
implication with respect to a written constitution is limited by another consideration, viz., that
such implication should be read only when without such implication the constitution would
be either reasonably hampered in its execution or handicapped in its functions to achieve its
declared object.

9
M.P Tandon, “Interpretation of Statutes” Allahabad Law Agency, Tenth Edition 2002, Page:190,191

15
DOCTRINE OF ECLIPSE:
A valid law becomes inoperative and void for certain purposes by reason of some
adventitious circumstance, but the inoperative law is not deed and only a shadow is cast on it
on account of some supervening circumstances tending to eclipse it for the time being and
until the shadow is removed. Thus, a law made prior to the commencement of the
Constitution of India may remain dormant to the extent it is inconsistent or conflicts with the
fundamental rights enshrined in it but may again revive and become effective by virtue of the
doctrine of eclipse if the amendment of the constitution removes inconsistency. If the
inconsistent provision is subsequently amended so as to remove the inconsistency with the
fundamental right, the inoperative part will again be deemed to be a good law since the
amendment, and the amended provision could not be assailed on the ground that the
impugned law had become dead or void ab initio or for all purposes at the commencement of
the Constitution and could not be revived by the amendment. The doctrine of eclipse applies
only to pre-constitution laws as the amendment of the constitution to the extent of removing
the inconsistency will revive such laws. The pre-existing laws were not still born and would
still exist though eclipsed on account of the inconsistency to govern pre-existing matters.

CONSTITUTIONALITY OF STATUTES AND LEGISLATION:


The well established principle underlying the interpretation of a provision in a statute is that,
the court should try to hold in favour of its constitutional validity and the provision need be
declared unconstitutional only if it is not possible to salvage it. Even when it comes to a
question of holding the provision unconstitutional it must be considered whether the whole
provision should be struck down if there are some words or expressions therein which are
unconstitutional. In other words, should the rule “bad in part, bad in whole" be applied?
The answer to this question is that it need not be done in all cases. If some words or
expressions in a provision offended the constitution and if the offending words or expressions
can be excised, it can be done leaving the offending portion intact. But if the valid and invalid
portions are so inextricably mixed up that it may not be possible to separate one from the
other, then the invalidity of a portion must result in the invalidity of the whole; in other
words, in such a case the rule “bad in part, bad in whole” applies. This process of separating
the valid from the invalid is what is called the rule of separability. The invalidity of a statute
may depend upon the limitation of the powers of the legislature which enacts it, and such
limitation may be of two kinds as pointed out by Venatarama Ayyar, J. In R.M.D
Chamrabaugwalla v Union of India, the limitation may be with reference to the subject
matter on which the legislature could legislate, or it may be with reference to the character of
the legislation which it could enact. “The job of a judge is judging and not law making” .
In Lors Devlins’s words: “Judges are the keepers of the law and the keepers of
thesesboundaries cannot also, be among outriders” A statute is not constitutionally infirm
simply because the legislature could have achieved the same result by some other means.
While neither the antiquity of a practice nor the fact of steadfast legislative and judicial
adherence to it through the centuries insulates it from the comstitutional attack, these factors
should be weighed in the balance. In Walz v New York City Tax, Comm’n, it was
observed: Newly 50 years ago Mr.Justice Homless stated: “if a thing has been practiced
for two hundred years by common consent it will need a strong case for the fourteenth
amendment to affect it”.

16
THE BALANCING OF INTERESTS: JUDICIAL ACTIVISM
AND JUDICIAL RESTRAINT:
10
In this process of interpretation, the court is more concerned with weighing the competing
values of a free society. In the course of rendering decisions, judges are to aim at
accommodation or balance of society’s conflicting interests. The proponents of this principle
of interpretation maintain that “balance should be struck so as to maximize as many
interests as possible, consistent with the political and ethical postulates that form the
society’s principle that is the collection of commonly held values and traditions that
make for a community. In a democratic society, governed by the Constitution, such
values would presumably include equal opportunity, fair play, private property,
decentralization and local control, democracy and individuality, among others”.
Practitioners of interest-balancing have repeatedly affirmed that judges’ decisions ought to
mirror society’s values, not their own. In this process, they should eschew their own personal
political attitudes. This concept of interpretation has been a subject of criticism and
disagreement among judges themselves. Justice Douglas of America in the case of Saia v.
New York observed “Courts must balance the various community interests in passing
on the constitutionality of local regulations of the character involved here.”But Justice
Jackson disagreed strongly with this idea of judicial role. According to him, it is for local
communities to balance their own interests that is politics and what court should keep out of.
Our only function is to apply constitutional limitations. The “constitutional limitations” of
which Justice Jackson speaks are “abstract political principles”. The courts are, in a way,
political institutions in view of the interest-balancers. The judicial process although different
in form is an indirect act of legislating. Every case presents a conflict of competing social
interests among which a choice must be made. Latest instance can be the case of alleged
breach of privilege of the Tamil Nadu Legislative Assembly by editors and press reporters of
the newspaper The Hindu. Article 194 of the Constitution confers powers and privileges as
also immunities to the proceedings of the House and the elected members. The legislature has
exclusive power to deal with breach of privileges and take punitive action against persons
committing breach. On the other side, the editors and the journalists are complaining of
abridgement of their fundamental right of “free speech” and “expression” as guaranteed to
them under Article 19(1)(a) of the Constitution. The court is now called upon to balance the
right of the members of the legislative body and of those claiming encroachment on the
freedom of the press. This process of balancing competing social interests, influenced as it is
by the constitutional values, demonstrates the essential similarities between judges and other
political functionaries. In accordance with the fundamental tenets of democracy and the
constitutional principles, the court should strive to satisfy as many of these conflicting claims
as is possible, since the happiness of many is to be preferred over the satisfaction of the few.
Many times before the court, the question of reasonableness of a particular legislation comes
up for consideration. In such situations, the court should focus on the policy alternative
indicated by the legislature and then answer the single question, whether a body of reasonable
men and women could have selected that policy as reasonable response to the problem.
Under no circumstances, the court is entitled to engage in comparing the policy selected by
the legislature with other policies it might have chosen, for this would not be a test of whether
the policy enacted was reasonable but whether it was the best policy. The court should, in no
case, assume the role of a super-legislature. This is in another way described as “judicial

10
Justice D.M. Dharmadhikari, “Principle of Constitutional Interpretation :Some Reflections” Cite as :
(2004) 4 SCC (Jour) 1 <http://www.ebc-india.com>

17
restraint”. This principle of judicial self-restraint should not, however, be stretched too far
and too often to convert the court into a virtual rubber stamp of a legislature. The reason is
that the concept of democracy includes provision of those rights which make it possible for
minorities to become majorities. A system which is founded on a doctrine such as the
“separation of powers” and “checks and balances” necessarily calls for cooperation among
governing institutions in policymaking. In such a system, the court has a useful — indeed
indispensable — role as the legitimator of political claims and as a catalyst for the aggrieved
to coalesce and assert themselves in the democratic process. The court is not a majoritarian
institution, it has the constitutional responsibility to carefully scrutinize majority-passed
legislation that directly impinges upon the exercise of those rights by minorities through
which their political demands can be expressed. Given the social isolation and prejudice
encountered by easily identified minorities without the guarantees of these fundamental
rights, their participation in the political process will be effectively muted and conditions of
exploitation will be perpetuated. “Judicial activism” and “judicial restraint” are two
expressions generally misunderstood describing one class of judges as progressive and the
other as conservative. In judicial process both concepts have their own role to play depending
upon the constitutional issues involved. If an issue of policy of legislation is under question,
sometimes “judicial restraint” is exercised by the court as the policy is found to be one
among various reasonable policies and the choice must be left to the legislation. Where the
issue raises encroachment on fundamental rights of citizens the judge may become active and
give greater importance to the fundamental freedoms by subjecting the legislation to strict
scrutiny and if necessary, declare the same as unconstitutional. The judges cannot, therefore,
be classified in watertight compartments in two groups of “activists” and “restraintists”.

CONCLUSION:
The identification of principles for interpretation of the Constitution, can be concluded that
no fixed principle can beneficially serve constitutional adjudication. The main reason is that a
Constitution is composed more significantly of principles than rules. This provides judges
some amount of discretion in the matter of interpretation of constitutional provisions but this
does not mean that they may rely on their own value preferences in construing constitutional
provisions. The provisions are ambiguous in the sense that in each case the judge is called
upon to furnish his own meaning but they cannot be called vague because they are
sufficiently meaningful concepts capable of lending guidance to enable the judge to
operationalise constitutional guarantees. It is the function of the court to give effect to the
logical theory contained in the Constitution that animates and binds together its provisions.
The preamble of the Indian Constitution is, therefore, generally taken aid of to understand
other provisions of the Constitution because it may be said to contain the spirit of the
Constitution. The Constitution is a document of liberal principles, predicated on the primacy
of a person’s worth. It is the function of judges, as instruments of the Constitution’s logic, to
give effect to pre-existing individual rights in the decisions of cases. The growth of the
Constitution through interpretation by courts, is a necessity for protection of the individual
rights guaranteed by the Constitution. Power exercised by the court in interpreting the
Constitution through unelected judges is not anti-democratic. Democracy cannot survive in a
system in which civil rights and freedoms have no protection. The preservation of freedoms
requires the elimination of concentration of power and the distribution of whatever power has
to be achieved as a part of a system of checks Legitimacy of judicial interpretation of the
Constitution is the recognition that it is an institution with ability to protect minorities against
majoritarian political, legal, economic, indeed societal pressure and will. It is an institution
which protects and upholds enduring values enshrined in the Constitution and this it is able to

18
do more because it is not elected and does not represent any particular group or section of
society and being isolated from any kind of pressure is best placed to discover the principles
of constitutional law and protect the constitutional rights and balances. An integrated
approach in interpretation of a Constitution is required in the light of social, economic and
political necessities of a particular period in which the court is called upon to interpret.
Previous precedents of the court are only for guidance. The entire exercise of interpretation of
the constitutional provisions by the court is to make the Constitution meaningful to the
citizens of this country for whose betterment the Constitution is meant. The process of
interpretation involves making the Constitution a workable law or instrument by treating it as
a dynamic living document which needs to be suitably interpreted to meet exigencies of
different periods. Socio-economic context in which the court is called upon to interpret,
therefore, always assumes greater importance. India has been the motherland of the spirit.
Political changes and economic adjustments are passing phases. What is of permanent value
and a source of relief is that she will continue, in spite of difficulties, to inspire men to a
higher life through faith, discipline and dedication. I hereby conclude that Let the hopes of
the framers of the Constitution and our Father of the Nation Mahatma Gandhi inspire all
constitutional functionaries and the people of India to preserve their spiritual heritage and
mould their lives on constitutional principles.

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BIBLIOGRAPHY:
PRIMARY SOURCES
a) European Economic Community Treaty
b) The Foreign Exchange Regulation Act

SECONDARY SOURCES
a) M.P Tandon - Interpretation of Statutes Allahabad Law Agency, Tenth
Edition 2002
b) Prof. T. Bhattacharya -The Interpretation of Statutes, Central Law Agency, 7th
edition 2009
c) Dr.Avtar Singh - Introduction to Interpretation of Statutes, Wadhwa
Nagpur, Edition 2001
d) Ravulapati Madhavi -Textbook on Interpretation of Statutes, Asia Law
House, New Edition 2007
e) Justice D.M. Dharmadhikar - Principle of Constitutional Interpretation:Some
Reflection, Cite as : (2004) 4 SCC (Jour) 1, http://www.ebc-
india.com/lawyer/articles/2004v4a1.htm
f) Joseph Minattur, Barrister-at-law - The Unenforceable Directives in the Indian
Constitution, Cite as : (1975) 1 SCC (Jour) 17, http://www.ebc-
india.com/lawyer/articles/75v1a2.htm

20