C H A P T ER - II

CONCEPTUAL STUDY OF DEVELOPMENT OF CONSTITUTION

AND RELATED MATTERS

In any research, conceptual study is undertaken at the threshold of the

work because the concepts forming part of the topic of research need to be

understood in their right perspective, and such an insight enables the researcher

later to identify the specific issues, which need to be enquired into.

Such an approach is based on the theory that- the rules of substantive

and procedural laws pertaining to any transaction emanate from the legal

concepts and the matters related to the concept.

The theorists believe that the terminology used for expressing a concept

has more than one meaning and, at times, it is used in regard to more than one

situation. If such an approach is adopted in the beginning itself, the particular

sense in which the term is used would enable the researcher to know properly

the nature and scope of the law. There will be no confusion going to arise later

on, as to the particular matter, which is intended to be enquired.

Like the basic concepts, in regard to which the study is focused, there is

need to study the related concepts because several legal terms which have their

relationship with the main concepts and may occur in the later stage of research.

17
It is necessary to have an insight into the true meaning and extent in which the

related terms are used.

In the context of this particular research also, the researcher believes that

it is essential to devote a chapter on the conceptual study of the legal terms

mainly representing the topic of research and certain other terms related to the

topic.

Keeping the above matters in view, with regard to the topic of research,

following are the matters, which require a clear insight into the basic concepts

such as-

I. The concept of ‘Development’:

The very first expression used in the topic of research, which needs a

clarification is that – ‘what is the meaning in which the term ‘development’ has

been used’ AND whether it refers to every event which results in a change or it

refers to a particular ‘growth and development’, and if so; which particular

growth and development is covered by the expression.

‘Development’ is a term, which is used very frequently in the ordinary

conversation and in the disciplines of law, medicine, engineering, literature and

other disciplines as well. The ordinary meaning of the term ‘Development’ in

English language, in day-to-day conversation is- ‘the gradual growth of

something so that it becomes more advanced, more stronger etc’.1 According to

Princeton’s Word Net, the term ‘development’ refers to ‘the act of improving
1
Oxford Advanced Learner’s Dictionary, Seventh Edition, 2005, P 418

18
by expanding or enlarging or refining’.2 It signifies the evolution, growth or

exploitation.

According to Webster, the term ‘development’ refers to ‘the act of

developing or disclosing that which is unknown, a gradual unfolding process

by which anything is developed’.3

In law, the term ‘development’ is used in almost the same sense as it is

used in the ordinary sense in English language, namely, the act of improving or

growing or evolving the system so as to make the system more advanced and

more stronger.

The concept of development has received recognition at the

International level also. The resolution of the General Assembly adopted on

January 4, 1986 gives an idea of the broad scope of the term ‘development’. In

the view of international organizations, the term ‘development’ is concerned

with the achievement of international cooperation in solving international

problems of an economic, social, cultural or humanitarian nature and in

promoting and encouraging respect for human rights and fundamental

freedoms or all without distinction as to race, sex, language or religion.4

Taking cue from the elements of development; noted in the legal

definition and the resolution of the UN General Assembly, the researcher has

2
Legal Definitions from Google’s Legal Dictionary
3
Webster’s Dictionary, reproduced in ‘Translations for Development’, from ‘Our Multilingual
Translation Dictionary
4
Declaration on the Right to Developed adopted by the General Assembly in December 1986
(A/RES/41/128)

19
picked up the following concepts which are so popular in modern legal systems,

namely, the process of Constitutional amendment, the process of Codification

and the judicial legislation which arises as a result of interpretation of the law

by the Apex Court of our country.

II. Development of the Constitution:

(a) Development through Constitutional Amendment-

In almost every legal system, there is provision for the development of

Constitution because no Constitution can boast to be perfect in every respect

and be good for all times to come. On the other hand, the shortcoming in the

system, the vagueness and ambiguity, the inadequacy to meet the challenges of

the time require an amendment to be made to the Constitution.5

The rationale for the public bodies to take the initiative of suggesting

amendments to the Constitution is that a Constitution embodied in a document

framed at a particular time would not and should not try to address every

situation that the future might hold, which means that the Constitution should

be allowed to have flexibility in both its interpretation and future application.

As a result, changes are made to the Constitution and in its response to the new

situations arising. Therefore, most Constitutions prescribe procedures for the

amendment of the Constitution.

A Constitutional amendment refers to the modification of the

Constitution of a nation or state. In many jurisdictions, the text of the

5
Constitutional Law, Stanford Literature Review, 7, 1-2 (Spring Fall 1990) 53

20
Constitution itself is altered, and in others, the text is not changed, but the

amendment changes its effect. The method of modification is typically written

into the Constitution itself. Most Constitutions require that the amendments

cannot be enacted unless they have passed a special procedure that is more

stringent than that required for an ordinary legislation. Examples of such

special procedures include super majorities in the legislature or direct approval

by the electorate in a referendum or even a combination of two or more

different special procedures. A referendum to amend the Constitution may also

be triggered in some jurisdictions by popular initiatives. A few of the

illustrations of such a system are the following -

(i) Under the current Constitution of Bulgaria (1991) there are two

procedures for amendment, depending on the part of the Constitution

to be amended.6

In Normal Amendment procedure (Articles 153 -156), the

Parliament can amend the Constitution for minor issues with a two-

third majority.

In Special Amendment procedure (Articles 157-163), the

procedure is the only way to revise the international borders of

Bulgaria; change the form of government in the country; change the

form in which the Constitution and International treaties applied in

Bulgaria (Article 5).

6
Bulgarian Constitution text (http: //www.parliament.bh)

21
 (ii) In Czech Republic, the rule is that - the passage of a Constitutional

Act can only be accomplished through the agreement of three-fourth

of all Deputies and Senators present at the time the proposed Act is

laid before each house of Parliament. It is the only type of legislation

that does not require the signature of the President to become law.

Further, it is the only type of legislation for which the President

cannot veto.7

(iii) The Constitution of Estonia can only be modified by three-fifth

majority in two successive complements of Parliament and a

referendum for certain chapters.8

(iv) Amendments to the Constitution of France must first be passed by

both houses with identical terms and then need approval either by a

simple majority in a referendum or by a three-fifth majority of the

two houses of the French Parliament jointly convened in Congress.

(v) In Italy, Article 138 of the Constitution provides for the special

procedure through which the Parliament can adopt Constitutional

laws including laws to amend the Constitution of Italy.9

Constitutional Law starts by following the ordinary legislative

procedure, which requires both houses of Parliament to approve the

law in the same text, with a simple majority i.e. the majority of votes

cast. However, after having been approved for the first time, they

need to be voted for; by both houses and for the second time, which

7
Constitution of the Czech Republic, Articles 39, 50, and 62
8
Chapter 15 of the Constitution of Estonia
9
Bin. Roverto and Piruzella, (2008), Diritto constituzionale, G. Giaoejeo Edotpre, Trorin, P 322

22
 can happen no sooner than three months after the first. In the second

reading, no new amendments to the Bill may be proposed. The Bill

must be either approved or rejected in its entirety.

(vi) The procedure for amending the Constitution of Australia is that the

Constitution requires that the proposal passed by absolute majority in

the House of Representatives. This means that out of 150 members

of the House, at least 76 of them must agree to the proposal.10

(vii) In South Africa, the Constitution can be amended by an Act of

Parliament, but special procedures and requirements apply to the

passage of Constitutional amendments. A Bill amending the

Constitution must be introduced in the National Assembly and

cannot contain any provisions other than Constitutional amendments

and directly related matters.11

(viii) The Constitution of United States of America also recognizes the

concept of ‘development of Constitution’ in view of the changes

which occur very frequently in the society. The method envisaged in

the Constitution to deal with the problems arising from changing

conditions is the method of introducing ‘amendments’ to the

provisions of the Constitution by which the lacunae in the

Constitutional system may be rectified and the document is

improved so as to meet the challenges of the time.

10
Section 128 of the Constitution of Australia
11
Constitution of The Republic of South Africa, chapter 4

23
Proposal to amend the Constitution:

In United States, the Constitution describes the process whereby the

Federal Constitution may be altered. Amendment proposal may be adopted and

sent to the states for ratification by either-

 A two-third (super majority) vote of members present; assuming that

a quorum exists – in both the Senate and the House of

Representatives of the United States Congress; or

 A two-third (super majority) vote of a National convention called by

Congress at the request of the legislatures of at least two-third of the

States.12

The proposal to amend the Constitution is discussed threadbare at

various levels of the national and state level conventions and then the decisions

are taken by these bodies to formulate a Constitutional policy and they are

finally approved by the relevant organs of the State.

Thus, an amendment made to the Constitution of United States revises,

corrects and improves the original document, which was approved by the

people of the United States in 1788. Indeed, the process is very tardy, very

laborious and very cumbersome. While thousands of amendments were

12
Article 5 of the Constitution of United States of America, 1787

24
discussed over the years, only 27 have been approved and six have been

officially rejected.13

The important process of changing the Constitution by means other than

the formal amendment process has historically taken place and will continue to

take place in five basic ways-

1. Legislation enacted by the Congress;

2. Actions of the President of the United States.

3. Decisions of the federal courts;

4. Activities of the political parties; and

5. The application of custom.

(1) Legislation: The framers clearly intended that - Congress through the

legislative process add meat to the skeletal bones of the Constitution as

required by the many unforeseen future events they knew were to come.

(2) Presidential Actions: Over the years, the actions of various Presidents of

the United States have essentially modified the Constitution. For example,

while the Constitution specifically gives Congress the power to declare war, it

also deems the President to be the ‘Commander in Chief” of all US armed

forces. Acting under that title, several Presidents have sent American troops

into combat without an official declaration of war enacted by Congress.

(3) Decisions of the federal courts: In deciding many cases that come before

them, the federal courts, most notably the Supreme Court are required to

13
David R Berman, State and Local Politics, 7th edition, M E Sharpe (2000) P 77-78

25
interpret and apply the Constitution. The purest example of this is the case of

Marbury Vs. Madison decided by the Supreme Court in 1803.

In his historic majority opinion in Marbury case, Chief Justice John

Marshall said, “… It is emphatically the province and duty of the judicial

department to say what the law is.”

(4) Political Parties: Despite the fact that the Constitution makes no mention

of political parties, they have clearly forced Constitutional changes over the

years. For example, neither the Constitution nor federal law provides for a

method of nominating Presidential candidates. The entire primary and

Convention process of nomination for electing a leader has been created and

often amended by the leaders of the major political parties.

(5) Customs: History is full of examples of how custom and tradition have

expanded the Constitution. For example, the existence, form and purpose of the

vitally important President’s Cabinet itself is a product of custom rather than

Constitution.

An amendment to the Constitution in United States is not an easy task.

An example of the difficulty faced by the authorities involved in the process of

amending the Constitution may be explained. The procedure laid down in the

Constitution for an amendment is such that it has to be discussed first at a

convention convened for the purpose and after it is approved, it has to be sent

to the states for their ratification and the condition is that at least half of the

states should ratify the amendment. When President George Washington was

26
President and had Alexander Hamilton as his Secretary of the Treasury under

him, he wanted to establish the First Bank of the United States. But this

proposal rekindled a debate about the proposal. There were philosophical

differences between the Federalists and the Anti-Federalists during the

Constitutional Convention. The proposal had to pass through a rough weather

because of the division among the politicians into the two groups of the

Federalists and the Anti Federalists, i.e. the States’ Rights men. The Congress

ultimately approved the proposal but the process of ratification of amendment

of the Constitution took a long time of three to four years.

A similar problem had arisen at the time of the Equal Rights

Amendment (ERA), which was designed by the Government of United States

to guarantee equal rights for all citizens regardless of sex. It sought to end the

legal distinction between men and women in terms of divorce, property,

employment and other matters.14 The ERA was introduced in Congress for the

first time in 1923 and has prompted conversations about the meaning of

equality for women and men. In its early history, middle-class women were

largely supportive, while those speaking for the working class were often

opposed, arguing that employed women needed special protections regarding

working conditions and employment hours. With the rise of the women’s

movement in the United States in 1960s, the ERA garnered increasing support

and after being reintroduced by Representative Martha Griffiths in 1971, it

passed both houses of Congress in 1972 and was submitted to the State

14
Olson James S & Mendoza Abraham O dtd. (2015-04-28) American Economic History

27
legislatures for ratification. Thus, it took a long time from 1923 to 1972 for the

Congress to enact a law. However, the next problem was that of ratification of

the Amendment by the State Legislatures. This also took a long time and it so

happened that even the State, which had once ratified the amendment, went

back on the same and rescinded the ratification. A process, which was

unknown to the Constitutional system and the struggle by Women’s Movement,

went on for several years up to 1970s to get the ratification.15

As far as the Constitution of United Kingdom is concerned, an

interesting thing is that there is no difference between Constitutional Law and

Ordinary Law. The British Parliament can pass a law for amending the

Constitutional provision in the same way as it can pass a law for amending the

provisions of any Statute. A provision dealing with matters other than

Constitutional matters fall within the definition of ‘ordinary laws’ and a

Constitutional law and ordinary law may be enacted or amended in the same

manner. The result is that there is no such difficulty as has been noted in the

context of the Constitutional amendment of United States of America.

In India, the position is that - the framers of the Constitution enacted

necessary provisions in Article 368 of the Constitution for the amendment of

the Constitution. The leaders of our country particularly Pandit Jawahar Lal

Nehru believed that the Constitution of a free nation should not be so rigid so

as to make it difficult to change in any matter; rather it should be flexible in

certain cases and rigid in certain cases. Hence, it is provided in Article 368 that
15
Neale & Thomas, ‘The Proposed Equal Rights Amendment: Contemporary Ratification Issues:
Congressional Research Services, May 2017

28
any provision of the Constitution may be amended by alteration, repeal or

revision of the provision. The procedure outlined in the Constitution is as

follows -

(I) An amendment of the Constitution may be initiated only by the introduction

of a Bill in either House of Parliament and when the Bill is passed in each

House by a majority (i.e. more than 50%) of the total membership of that

House and by a majority of not less than two third of the members of that

House present and voting. It shall be presented to the President for his assent

and upon such assent being given to the Bill; the Constitution shall stand

amended in accordance with the terms of the Bill.

(II) However, if such amendment seeks to make any change in the following

provisions, namely,

The manner of election of the President (Articles 54, 55);

Extent of the executive power of the Union and the States (Articles 73, 162);

The Supreme Court and the High Courts (Articles 241, Chapter IV of Part V,

Chapter V of Part VI);

Distribution of legislative power between the Union and the States (Chapter I

of Part XI);

Any of the Lists in the 7th Schedule;

Representation of the States in Parliament (Articles 80-81, 4th Schedule);

Provisions of Article 368 itself…..

then, the amendment shall require to be ratified by the Legislatures of not less

than one half of the States by resolutions to that effect passed by those

29
Legislatures before the Bill making provision for such amendment is presented

to the President for assent.16

According to the above procedure, the Bill for amendment of the

Constitution may be introduced in either House, by any Member of Parliament.

The elements of flexibility and rigidity may be noticed from the requirement of

special majority; a special procedure for amendment of the Constitution in

certain cases and an ordinary procedure for the amendment of certain other

provisions of the Constitution. Yet another aspect of the amending process is

that certain amendments require the ratification by half of the States of the

Union.

Apart from the ad hoc bodies; set up for the purpose of studying the

need for changes in the Constitution, there is a permanent body, namely, the

Union Parliament, which in the transitional period of making of the

Constitution worked as a Constituent Assembly and since the commencement

of the Constitution, it has a duty and a responsibility to introduce necessary

changes in the provisions of the Constitution by way of Constitutional

amendments. The framers of our Constitution were inspired by the need for the

sovereignty of the Parliament elected by universal suffrage to enable it to

achieve a dynamic national progress. Therefore, they prescribed an easier mode

for changing those provisions of the Constitution, which did not primarily

affect the federal system. This was done in two ways-

16
Article 368 of the Constitution of India.

30
 (a) By providing that the alteration of certain provisions of the

Constitution were ‘not to be deemed to be amendment of the

Constitution’. The result is that such provisions can be altered by the

Union Parliament in the ordinary process of legislation, that is, by a

simple majority.

(b) Other provisions of the Constitution can be changed only by the

process of ‘amendment’ which is prescribed in Article 368. But a

differentiation has been again made in the procedure for amendment

according to the nature of the provisions sought to be amended.17

The procedural difficulties come in the way of the Union Government in

making necessary amendments to the Constitution. In regard to several

amendments, the Union Government has faced the problem of amending the

Constitution though it wanted to take necessary steps under the law for the

development of the country. For example, the Act for acquisition of land, in the

view of Union Government was quite necessary for adopting the necessary

measures for the socio-economic development of the people. Since so many

years, the Government has been introducing the Bill for Acquisition of Land

but the Government has not so far succeeded in its efforts and this has been due

to the opposition against the amendment for which the Bills were introduced. If

an Executive order is issued, there is apprehension of the same being

challenged in a court of law.

(b) Development of the Constitution through Progressive

Development and Codification-

17
Durga Das Basu, ‘Introduction to the Constitution of India’, 22nd Edition, 2015, LexisNexis P 177

31
 The most significant branch of Public Law, namely, Public International

Law provides for improving the law relating to International relations through

the method of ‘codification and progressive development’. Among the greatest

achievements of the United Nations is the development of a body of

International law - conventions, treaties and standards - Central to promoting

economic and social development, as well as to advancing International peace

and security. Many of the treaties brought about the United Nations form the

basis of the law that governs relations among nations. While the work of the

United Nations in this area does not always receive attention, it has a daily

impact on the lives of the people everywhere.

In many areas, the legal work of the United Nations has been pioneering,

addressing problems as they take on an international dimension. The United

Nations has been at the forefront of efforts to provide a legal framework in

such areas as protecting the environment, regulating migrant labour, curbing

drug trafficking and combating terrorism. This work continues today as

International law assumes a more central role across a wider spectrum of issues,

including human rights law and international humanitarian law.

(i) Progressive Development: According to the Charter of the United Nations,

the General Assembly is mandated to encourage the progressive development

of International law and its codification.18 The progressive development of

International Law encompasses the drafting of legal rules in fields that have not

yet been regulated by International Law or sufficiently addressed in State

18
Article 13 Paragraph 1 (a) of the Charter of United Nations

32
practice. In contrast, the codification of International Law refers to the more

precise formulation and systematization of rules of International Law on

subjects that have already been extensively covered by State practice,

precedent and doctrine.

(ii) Codification: The Codification Division of the United Nations Office of

Legal Affairs assists the General Assembly in carrying out the above-

mentioned mandate, in particular, by providing substantive secretariat

services to relevant bodies established by the Assembly, such as

the International Law Commission as well as the Assembly’s Sixth Legal

Committee and to Diplomatic Conferences of plenipotentiaries convened to

negotiate multilateral treaties. The Codification Division also assists in the

precise formulation and systematization of rules of International law by

preparing analytical research studies in various fields of International law. It

promotes the universal respect for International law, especially by providing

the legislative (legal bodies) of the General Assembly with assistance in

enhancing compliance of States with their obligations under the Charter or

other legal instruments or under general International law. The Codification

Division also encourages and facilitates the teaching, study, dissemination

and wider appreciation of International law, by planning and implementing

the Programme of Assistance in the Teaching, Study, Dissemination and

Wider Appreciation of International Law.

The official agency entrusted with the responsibility of pursuing the

matter of codification on behalf of United Nations is the International Law

33
Commission. The International Law Commission was established by the

General Assembly in 1947 to promote the progressive development of

International Law and its codification. The Commission is composed of 34

members who collectively represent the world’s principal legal systems and

serve as experts in their individual capacity, not as representatives of their

governments. They address a wide range of issues relevant to the regulation

of relations among states and frequently consult with the International

Committee of the Red Cross, the International Court of Justice and UN

Specialized agencies, depending on the subject being examined. Most of the

Commission’s work involves the preparation of drafts on aspects of

International Law.

Some topics are chosen by the Commission and others are referred to it

by the General Assembly. When the Commission completes work on a topic,

the General Assembly sometimes convenes an International Conference of

plenipotentiaries to incorporate the draft into a convention. The Convention is

then opened to states to become parties; meaning that such countries formally

agrees to be bound by its provisions. Some of these conventions form the very

foundation of the law governing relations among states.

(c) The Process of Codification adopted at the national level: At

the national level also, the process of effecting changes in the law

is such that the authorities who are given vast powers have to

consult some other entities like the Codification Conferences,

34
 Revision Commissions, Enquiry Committees or the Reformatory

bodies.

Such a mechanism is envisaged in the legal systems in order to secure

transparency and objectivity. For example, Codification signifies a detailed

process of studying the pros and cons of a proposed provision of law and after

due consultation with the stake holders come up with a certain proposal of

changing the law. For the purpose of conducting the process of codification on

proper lines, International Law at present has the Institution of International

Law Commission which carries a detailed discussion of the matter and comes

out with a reformatory idea.

The process of codification is adopted in the context of the reform of

law. India has since several years, the Institution of National Law Commission;

as a permanent body to study the new situations, which call for a change in the

legal system. There are also ad hoc bodies set up by the State for a specific

purpose. For example, the Constitution Review Commission, to suggest

changes in the existing provisions of the Constitution, the Mallimath

Commission for a revision of the Criminal Justice System; the Bhagwathi

Committee Report to introduce changes in the legal procedure and introduced

the system of Legal Aid; the Varma Committee Report to study the

shortcomings in the existing Criminal Law on the crime of Rape etc.

(d) Constitution Review Commission: The last occasion when the

Government of India entrusted the work of examining the question of the

revision of Constitution was in the year 2000; when it entrusted the work of

35
reviewing the revision of the Constitution on a very vast scale. The

Government in the exercise of its executive power, set up a Constitution

Review Commission under the chairmanship of the former Chief Justice of

India, Justice M. N. Venkatachalliah in February 2000. In setting up the

Review Commission, the Government was guided by the idea that-

Constitution on one hand should not be amended too frequently and on the

other hand, it reflects the changing dynamisms of the society. Therefore, it

should not be static.

The background to the Constitution of a Review Commission was that

ever since the Constitution came into force in 1950, the ruling party of the day

had sought to amend the document - out of political or administrative necessity

after obtaining Parliamentary approval. The original text has been amended

about 100 times. While most changes have occurred in piece-meal fashion,

some amendments such as the Forty Second and the Forty Fourth have been

more comprehensive in their impact. Talk of engineering a complete overhaul

of the Constitution raged during the general elections. In 1971, in the face of a

power struggle between a Parliament impatient to bring about a socio-

economic revolution and an over-watchful judiciary applying the brakes by

upholding the spirit of the Constitution.

The National Commission; to review the working of the Constitution,

was set up to examine, in the light of the experience of the past 50 years, as to

how best the Constitution can respond to the changing needs of efficient,

smooth and effective system of governance and socio-economic development

36
of modern India within the framework of Parliamentary democracy and to

recommend changes, if any, that are required in the provisions of the

Constitution without interfering with its basic structure or features.19

The terms of reference were approved by the Cabinet, which reads as -

“The Commission shall examine, in the light of the experience of the past 50

years, as to how best the Constitution can respond to the changing needs of

efficient, smooth and effective system of government and socio-economic

development of modern India within the framework of parliamentary

democracy and to recommend changes, if any, that are required in the

provisions of the Constitution without interfering with its basic structure or

features”.20

(d) Development of Constitution through Judicial

Interpretation-

Yet another method by which changes in the provisions of the

Constitutional provisions and ordinary laws is carried through Judicial

interpretation based on the conventional principles of statutory interpretation

and the strategic notions of judicial legislation. The decisions of the courts

based on interpretation of the Constitution and the laws call upon the relevant

authorities to do a certain thing or desist from doing it. This, the court does

notwithstanding a written provision of law existing already on the subject.

Technically speaking, judicial interpretation is not to enforce the idea of the

Judge to enforce its own will and aspiration, but to uphold the high ideals of the
19
Government Resolution dated 22nd February2000
20
Resolution of the Cabinet approving the appointment of Constitution Revision Commission

37
Constitution as embodied in its basic principles. In this section, the discussion

is first about the Principles of Judicial Interpretation and then about the concept

of Judicial Legislation.

(i) Judicial Interpretation:

In the current legal systems, the procedure for law making function is

assigned to certain representative bodies. The function of enforcing the law is

assigned to the Executive or administrative agencies and the function of

interpreting the law to the Judiciaries.

The last mentioned function originally belonged as a prerogative to the

person or body of persons who actually made the law, but afterwards it fell to

the lot of Executive and the Judiciary to perform the task of interpretation.

The reason why Judiciary is entrusted with the task of interpretation was

that - since a long time, the members of Judiciary were somehow associated

with the process of law making; the judiciary was at home with the task of

interpretation of the new rules as they evolved in the legal systems.

The circumstances in which there was need for interpretation of law was

- when there was ambiguity in the provisions of law or uncertainty in its

meaning of the words used in the provision and due to such shortcomings or

deficiencies; there was an apprehension of the cause of justice being defeated.

Keeping the supreme object of justice in view, the interpreter performed

his function by applying reasonable standards to the situation and today these

standards are known as principles of Judicial Interpretation.

38
 Another thing that needs to be pointed out is that in the complex system

of State administration today, judiciary is not the only institution to monopolize

the system of interpretation; even certain other institutions like the quasi-

judicial bodies, the tribunals, the governmental institutions etc. which, on the

basis of the mandate of the legal system, perform the task of interpreting the

law because of which the system of interpretation has expanded by leaps and

bounds.

Whatever be the nature of the institution and nature of the law which is

the subject matter of interpretation, the basic tenets of interpretation still remain

the same.

The Judiciary today is the one institution which performs the bulk of the

task of interpretation and has developed a huge mass of principles on the

subject. These principles earlier were in an un-codified form but today most of

them are in a codified form. On the subject of Interpretation, there is at the

national level the Statute called the General Clauses Act or the Interpretation

Act, and at the International level there are various conventions for the

interpretation of various matters. But, the one Convention which is concerned

with the interpretation of agreements between States is the Convention called

the Vienna Convention of 1969.

Despite so many changes around, the task of interpretation is still the

concern of the Judiciary, more particularly in the legal systems which have

grown in the Common Law traditions. The title ‘Judicial Interpretation of the

39
Law’ as used in this chapter therefore refers to the task of the Courts at the

national level.

Principles developed by the Common Law Judges for the

Interpretation of Statutes:

The Judges of the Courts of Common Law formulated certain principles

for the interpretation of the legal instruments, legal documents like the deeds of

contract, lease deed, wills etc. which have been followed for several years by

the successive judges of the Courts of Common Law. When there was a change

in the political system of England and the Parliament assumed the authority of

making laws on all matters, it started legislating for the people and in the

process of making laws, repeal some of the rules of common law; modified

some of them and replaced some others. However, what has survived in spite

of such a transformation is -the system of Interpretation in which the principles

of interpretation that were once formulated by the Common Law Judges. A

Constitution adopted by a State in the exercise of its sovereign power is also a

kind of statute and there is some similarity in the principles of interpretation of

the ordinary statute and the Constitution statute. The principles of interpretation

relating to these two forms of Statute are discussed below-

Interpretation of Statutes is a subject on which the Common Law as well

as the Civil Law systems has made their contribution. Of course, the

contribution of the Common Law is the most significant. In this section, the

rules developed by the two systems have been described as-

Principles of Statutory Interpretation:

40
 The following are the three rules of statutory interpretation

traditionally applied by the English courts -

(1) The Literal Rule :

The primary and important rule of interpretation called the Literal Rule

that was followed by the English court in the Sussex Peerage Case21 stated that

“The only rule for the construction of Acts of Parliament is that they should be

construed according to the intent of the Parliament which passed the Act. If the

words of the statute are in themselves precise and unambiguous, then no more

can be necessary than to expound those words in their natural and ordinary

sense. The words themselves alone do, in such case, best declare the intention

of the lawgiver. But, if any doubt arises from the terms employed by the

legislature, it has always been held a safe means of collecting the intention to

call in aid the ground and cause of making the statute and to have recourse to

the preamble, which, according to Chief Justice Dyer is “a key to open the

minds of the makers of the Act, and the mischief which they intend to redress”.

The literal rule, in its purest form has an inflexibility which places

particular strain on the draftsperson, requiring language which expressly covers

all eventualities. This extreme inflexibility can be seen in the words of Lord

Esher MR in R Vs. the Judge of the City of London Court22 wherein he stated

that “if the words of an Act are clear you must follow them, even though they

lead to manifest absurdity. The Court has nothing to do with the question

whether the Legislature has committed an absurdity.

21
(1844) 11 Clark and Finnelly 85, ER P 34
22
(1892) 1 QB 273 9 CA

41
 This rule is followed by the courts in their decisions in relation to

statutes. Here judges rely on the exact wording of the statute for the case. They

do not interpret the meaning. About the nature and scope of this rule, it is said-

“Where the meaning of the statutory words is plain and unambiguous, it is not

then for the judges to invent fancied ambiguities as an excuse for failing to give

effect to its plain meaning because they consider the consequences for doing so

would be inexpedient or even unjust or immoral”.23

(2) The Golden Rule :

The rule enunciated in the famous case Grey Vs. Pearson24 came to be

known as the Golden Rule of interpretation. According to this rule, a court

could construe a statute by departing from the literal meaning of the words if to

do would avoid consequences, which are absurd. It stated that, “In construing

wills, and indeed statutes and all written instruments, the grammatical and

ordinary sense of the words is to be adhered to, unless that would lead to some

absurdity, or some repugnance or inconsistence with the rest of the instrument,

in which case the grammatical and ordinary sense of the words may be

modified so as to avoid the absurdity and inconsistency but no further.”

According to this rule “the grammatical and ordinary sense of the words

is to be adhered to unless that would lead to some absurdity or some

repugnance or inconsistence with the rest of the instrument in which case the

23
Per Lord Diplock in Duport Steel Vs. Sirs case (1980)
24
(1857) 6 HL Cas. 61;

42
grammatical and ordinary sense of the words may be modified so as to avoid

the absurdity and inconsistence, but no further”.25

The golden rule is still referred to by the courts today as a means of

modifying stringent application of the literal rule. It was set out by Lord

Blackburn in River Wear Commissioners Vs. Adamson.26 The golden rule, he

stated, enabled the courts “to take the whole statute together and construe it all

together, giving their words their ordinary significance, unless when so applied,

they produce an inconsistency or an absurdity or inconvenience so great as to

convince the court that the intention could not have been to use them in their

ordinary significance, which though less proper, is one which the court thinks

the words will bear”.

(3) The Mischief Rule :

This rule is also known as the Rule in Heydon’s case27 in which case it

was laid down in a 16th century ruling. In this case, the Court ruled that there

were four points to be taken into consideration. The Barons of the Exchequer

who dealt with the Heydon’s case said- “That for the sure and true

interpretation of all statutes in general (be they penal or beneficial, restrictive

or enlarging of the common law) four things are to be discerned and

considered-

First, what was the common law before the making of the Act?

Second, what was the mischief and defect for which the common law did not

provide?

25
Lord Wensleydale in the Grey Vs. Pearson case (1857)
26
(1877) 2 Appeal Cases 743
27
76 ER 637

43
Third, what remedy the Parliament has resolved and appointed to cure the

disease of the commonwealth? And

Fourth, the true reason of the remedy and the core principle of the last of his,

‘and then the office of all the Judges is always to make such construction as

shall suppress mischief and enhance the remedy, and to suppress subtle

inventions and evasions for continuance of the mischief, and pro privato

commodo, and to add force and life to the cure and remedy, according to the

true intent of the makers of the Act, pro bono publico.

(ii) Principles of Constitutional Interpretation:

While the principles of interpretation of Constitution generally are the

same as they are in the case of interpretation of statutes, because a Constitution

also is a document. However, at the same time there are certain principles

different from those relating to the statutory instruments. On the subject of

Constitutional interpretation, quite a good number of authors have offered their

views and expounded the principles, but one particular writer, who more than a

hundred years ago reflected on this important matter was Justice Joseph Story;

who in his treatise has first expounded the rules of interpretation as far as legal

instruments are concerned and then stated the rules relating to the interpretation

of the Constitution.28 In his treatise, Justice Story has first pointed out the

difficulty experienced by people in the matter of interpreting the law and the

deficiency, which is there on such an important subject in the discipline of law.

He has stated- “... Much of the difficulty, which has arisen in all the public

28
Justice Story on Rules of Constitutional Interpretation, in his “Commentaries on the Constitution
of the United States, Brown, Shattuck & Co., (1833)

44
discussions on this subject, has had its origin in the want of some uniform rules

of interpretation, expressly or tacitly agreed on by the disputants. Very

different doctrines on this point have been adopted by different commentators;

and not unfrequently very different language held by the same parties at

different periods. In short, the rules of interpretation have often been shifted to

suit the emergency; and the passions and prejudices of the day, or the favour

and odium of a particular measure, have not unfrequently furnished a mode of

argument, which would, on one hand, leave the Constitution crippled and

inanimate or on the other hand, give it an extent and elasticity, subversive of all

rational boundaries”.

Let us then endeavour to ascertain what are the true rules of

interpretation applicable to the Constitution; so that we may have some fixed

standards to measure its powers, limit its prohibitions, guard its obligations and

enforce its securities of our rights and liberties.

The first and fundamental rule in the interpretation of all instruments is,

to construe them according to the sense of the terms and the intention of the

parties. Justice Blackstone has remarked that the intention of a law is to be

gathered from the words, the context, the subject matter, the effects and

consequence or the reason and spirit of the law. He goes on to justify the

remark by stating that words are generally to be understood in their usual and

most known signification and not so much regarding the propriety of grammar.

As their general and popular use, that, if words happen to be dubious, their

45
meaning may be established by the context or by comparing them with other

words and sentences in the same instrument; that illustrations may be further

derived from the subject-matter, with reference to which the expressions are

used; that the effect and consequence of a particular construction is to be

examined, because, if a literal meaning would involve a manifest absurdity, it

ought not to be adopted; and that the reason and spirit of the law, or the causes,

which led to its enactment, are often the best exponents of the words and limit

their application.

Where the words are plain and clear, and the sense distinct and perfect is

arising on them, then, there is generally no necessity to have recourse to other

means of interpretation. It is only, when there is some ambiguity or doubt

arising from other sources, that interpretation has its proper office. There may

be obscurity as to the meaning, from the doubtful character of the words used,

from other clauses in the same instrument, or from an incongruity or

repugnancy between the words, and the apparent intention derived from the

whole structure of the instrument, or its avowed object. In all such cases,

interpretation becomes indispensable....29

Then, Justice Story highlights the rules, which in his view are relevant to

the interpretation of the Constitution of United States of America. He says, “...

In construing the Constitution of the United States, we are, in the first instance

are to consider, what are its nature and objects, its scope and design, as

apparent from the structure of the instrument, viewed as a whole, and also
29
The Rules of Interpretation

46
viewed in its component parts. Where its words are plain, clear, and

determinate, they require no interpretation; and it should, therefore, be admitted,

if at all, with great caution, and only from necessity, either to escape some

absurd consequence, or to guard against some fatal evil. Where the words

admit of two senses, each of which is conformable to common usage, then, that

sense is to be adopted, which, without departing from the literal import of the

words, best harmonizes with the nature and objects, the scope and design of the

instrument. Where the words are unambiguous, but the provision may cover

more or less ground according to the intention, which is yet subject to

conjecture; or where it may include in its general terms more or less, than

might seem dictated by the general design, as that may be gathered from other

parts of the instrument, there is much more room for controversy; and the

argument from inconvenience will probably have different influences upon

different minds. Whenever such questions arise, they will probably be settled,

each upon its own peculiar grounds and whenever it is a question of power, it

should be approached with infinite caution and affirmed only upon the most

persuasive reasons. In examining the Constitution, the antecedent situation of

the country and its institutions, the existence and operations of the state

governments, the powers and operations of the confederation, in short all the

circumstances, which had a tendency to produce or to obstruct its formation

and ratification, deserve a careful attention. Much also, may be gathered from

contemporary history and contemporary interpretation to aid us in just

conclusions.

47
 Contemporary construction is properly resorted to, to illustrate, and

confirm the text, to explain a doubtful phrase or to expound an obscure clause;

and in proportion to the uniformity and universality of that construction and the

known ability and talents of those, by whom it was given, is the credit, to

which it is entitled. It can never abrogate the text; it can never fritter away its

obvious sense; it can never narrow down its limitations; it can never enlarge its

natural boundaries”.30

(iii) Judicial Legislation:

By judicial legislation is meant the work of the courts in the form of

their decisions on a contentious issue. By such decisions, the courts add to the

body of the law and consequently add new rights and remedies in favour of the

individuals or entities or modify the procedure that has to be followed by the

Executive, Legislative or Judicial branches of government in regard to any

matter. A good number of techniques have been developed by the Courts in the

exercise of their function of judicial legislation.

The Courts, where Constitutional litigation takes place apply a variety of

methods to interpret the Constitutional provision, which is in issue. The method

adopted by the courts in interpreting the Constitution, in most of the cases, is

different from the method adopted for interpreting a statute or a legal

instrument. The lawyers presenting the case for interpretation assert that the

proper method would be to consult the Constitutional text; the intent of the

30
The Rules of Interpretation

48
drafters of the Constitutional provision at issue; the structure of the

Constitution as a whole; precedent and deeply held values or notions of social

policy.

(iv) The Concept of Living Constitution:

Today the courts are called upon to examine the merits of three main

methods of interpretation: Originalism (based on the intentions or purposes of

the Framers; Textualism (which stresses the precise language used in the

Constitution; and Evolutionary approaches (which view Constitutional law as

changing with the times).

In United States of America, within a few years after the Constitution

was adopted, conflict arose as to whether the Constitution was to be interpreted

strictly so as to give the federal government the least power possible, or

broadly, so as to give the federal government the greatest power that the words

would permit. These two views were given the names - (a) the bedrock view,

and (b) the living document view.

By the bedrock view, the purpose of a Constitution is to state certain

fundamental principles for all time. By living document view, a Constitution is

merely a statement of goals and objectives and is intended to grow and change

with the time.

It was because of the method of interpretation adopted as considering

the Constitution to be a living document; the principle that has arisen is one of

49
the Living Constitution. The living Constitution has the following

characteristics-

(a) Strong Government: The characteristic of the new Constitution is

a strong government.

(b) Strong President: Instead of being merely an officer who carries

out the laws, the President has become the political leader of his

party. As such, he exerts strong influence on the lawmaking

process.

(c) Eclipse of States: Under the new Constitution, all governments

have powers which they never possessed before. But the centre of

gravity of power has shifted from the states to the nation.

(d) Administrative agencies: These were virtually unheard of in 1789

and no mention is made of them in the Constitution of 1789. The

vast powers of the new Constitution are exercised to a very large

degree by administrative agencies. They are in effect a fourth

branch of the government not provided for; in the written

Constitution. Most importantly, for the vast majority of people, it

is the administrative agencies which come in contact with the

business person and the citizen. The agencies are the

‘government’ for most people.

(e) Human Rights: The scope of human rights protected from

governments has dramatically broadened. These rights are

protected not merely from invasion by the federal government, but

50
 by any government. Most significant of all, ‘unwritten’ rights are

protected although not guaranteed by any express Constitutional

provision.

(v) Impact of changing trends in interpretation:

In the exercise of new principles and new techniques, in the process of

interpretation like Judicial Activism etc. the courts in United States of America

and India have given very important decisions about the nature and scope of

the authority of the State agencies. While some have been appreciated, others

have been criticized by the analysts. Reference may be made to a few of the

decisions of the US and the Indian Courts as follows –

(a) The Courts generally exercise their jurisdiction when there is an actual

invasion or infringement of the right of a person. They do not interfere in any

case when there is a possibility of infringement or threatened infringement of

the right of a person. In S. M. D. Kiran Pasha Vs. Government of Andhra

Pradesh & others31 which was concerned with the rights of a citizen under

Article 21 of the Constitution, the Supreme Court observed that Article 26 of

the Constitution of India would be maintainable also, when a right is threatened

as contra-distinguished from the right when infringed. The Court held, in the

language of Hans Kelsen, the right of an individual is either a mere reflex right;

the reflex of a legal obligation existing towards this individual or a private right

in the technique sense – the legal power bestowed upon an individual to bring

about by legal action the enforcement of the fulfilment of an obligation existing

31
MANU/SC/483/1989

51
towards him, that is, the legal power. From the above analysis, it is clear that in

the instant case the appellant’s fundamental right to liberty is the reflex of a

legal obligation of the rest of the society, including the State, and it is the

appellants legal power bestowed upon him to bring about by a legal action the

enforcement of the fulfilment of that obligation existing towards him. Denial of

the legal action would, therefore, amount to denial of his right or enforcement

of his right to liberty.

(b) It is well settled that interpretation of the Constitution of India or Statutes

would change from time to time. Being a living organ, it is ongoing and with

the passage of time, law must change. New rights may have to be found out

within the Constitutional scheme. Horizons of Constitutional law are expanding.

The necessity to take recourse to such interpretative change found favour with

a Division Bench of the Supreme Court in State of Maharashtra Vs. Dr. Praful

B. Desai.32 One needs to set out the approach which a court must adopt in

deciding such questions. It must be remembered that the first duty of the court

is to do justice. As has been held by this Court in the case of Sri Krishna Gobe

Vs. State of Maharashtra33, courts must endeavour to find the truth. It has been

held that there would be failure of justice not only by an unjust conviction but

also by acquittal of the guilty for unjustified failure to produce available

evidence. Of course, the rights of the accused have to be kept in mind and

safeguarded, but they should not be over emphasized to the extent of forgetting

that the victims also have rights. It must also be remembered that the Criminal

32
MANU/SC/ 0268/ 2003
33
MANU/SC/0182/1972

52
Procedure Code is an ongoing statute. The principles of interpreting an ongoing

statute have been very succinctly set out by the leading jurist, Francis Bennion.

In his commentaries, thus, he has stated- “…it is presumed, the Parliament

intends the court to apply to an ongoing Act a construction that continuously

updates its wordings to allow for changes, since the Act was initially framed.

While it remains law, it has to be treated as always speaking. This means that

in its application on any day, the language of the Act though necessarily

embedded in its own time, is nevertheless to be construed in accordance with

the need to treat it as a current law. … In construing an ongoing Act, the

interpreter is to presume that Parliament intended the act to be applied at any

future time in such a way as to give effect to the original intention. …

Accordingly, the interpreter is to make allowances for any relevant

changes that have occurred since the Act’s passing, in law, in social conditions,

technology, the meaning of words and other matters… That today’s

construction involves the supposition that Parliament was catering long ago for

a state of affairs that did not then exist in any argument against that

construction. Parliament, in the wording of an enactment, is expected to

anticipate temporal development. An enactment of the former days is thus to

be read today, in the light of dynamic processing received over the years, with

such modification of the current meaning of its language as will now give

effect to the original legislative intention. The reality and effect of dynamic

processing provides the gradual adjustment. It is constituted by judicial

53
interpretation, year in and year out. It also comprises processing by executive

officials”.34

Similar ideas were expressed by Justice Bhagwati in the case of

National Workers’ Union Vs. P. R. Ramakrishnan35, thus, “…We cannot allow

the dead hand of the past to stifle the growth of the living present. Law cannot

stand still; it must change with the changing social concepts and values. If the

bark that protects the tree fails to grow and expand along with the tree, either it

will choke the tree or if it is a living tree, it will shed that bark and grow a new

living bark for itself. Similarly, if the law fails to respond to the needs of

changing society, then either it will stifle the growth of the society and choke

its progress or if the society is vigorous enough, it will cast away the law,

which stands in the way of its growth. Law must, therefore, constantly be on

the move adapting itself to the fast changing society and lag behind.”

The American Supreme Court, by its decision, has held that corporations

and unions can spend unlimited amounts of money in election campaigns; this is

considered to be a stunning example of judicial activism by its five most

conservative justices. In striking down a federal statute and explicitly

overturning prior decisions, the court has changed the nature of elections in the

United States. At the same time, the conservative justices have demonstrated that

decades of conservative criticism of judicial activism was nonsense.

34
Francis Bennion, ‘Statutory Interpretation’, 2nd Edition, P 617
35
MANU/SC/0025/1982

54
Conservative justices are happy to be activists when it serves their ideological

agenda.36

By another decision, the Supreme Court delivered a huge victory for the

White House by saving a crucial component of Obamacare in a 6 as to 3 (6:3)

vote.

The US' highest court ruled that - President Barack Obama's signature

healthcare law could provide subsidies to millions of people who were insured

through federal exchanges. The dissenting justices argued that the language of

the Affordable Care Act indicated that only people insured through state-based

exchanges should be eligible for the subsidies.

In a fierce statement, Huckabee, the former Governor of Arkansas State,

said that the decision was “an out-of-control act of judicial tyranny”. Huckabee

clearly agreed with the dissent… “Our Founding Fathers didn't create a 'do-

over' provision in our Constitution that allows unelected, Supreme Court

justices; the power to circumvent Congress and rewrite bad laws,” his

statement continued. “The Supreme Court cannot legislate from the bench,

ignore the Constitution and pass a multitrillion dollar ‘fix’ to Obamacare,

simply because Congress misread what the states would actually do”.

36
Article of Erwin Chemerinsky, Dean of the UC Irvine School of Law, in ‘The Los Angeles Time’
Dtd. January 24, 2010

55
 He added- “The architects and authors of Obamacare were intentional in

the way they wrote the law. The courts have no Constitutional authority to

rescue Congress from creating bad law."

Huckabee has long been critical of what he describes as the Supreme

Court's overreaching its legal authority. When discussing the court potentially

ruling in favour of same-sex marriage, for example, he has argued, “the court

cannot change what God has created”.

56