Abstract

This research paper ventures to explore the complex yet subtle relationship between the
framers’ original intent, the doctrine of Constitutional Avoidance (CAD), and their combined
influence on the interpretation of the constitution. The study aims to explain the complexities
of how the framers’ underlying motivators, historical circumstances, and intended meanings
of constitutional provisions continue to shape the contemporary legal landscape of India.
Inside this research paper we are going to analyse landmark cases, scholarly discourse, and
historical records to investigate where the Constitutional Assembly Debates are invoked to
guide judicial interpretations in the Indian Context. This paper explores how loyal is the
Indian Judiciary to the framers’ original intent while keeping in mind the evolving needs of a
diverse and rapidly changing society.
 Background

Overview of the Constitutions drafting process

India gained independence in 1947, the next thing on the plate was replacing the law-and-
order setup by the Britishers. The Indian National Congress being the authority lead the way
and appointed the Constituent Assembly to draft a constitution. The constitution was drafted
by the Constituent Assembly which took almost three years to do the historic task which
involved intense debates, negotiations, and the collaborative efforts of prominent leaders and
legal experts. India is the largest democracy in the world, with it comes the lengthiest
constitution in the world containing 448 articles in 25 parts and 12 schedules. The idea of
framing a constitution was incepted by Mr. M. N. Roy, after which shaping of a constitution
took the centre stage when the Indian National Congress demanded to make a constituent
assembly for drafting in 19351. The demand was accepted by the British Government in 1940
but, the draft proposal sent was rejected by the Muslim League. At last, it was the Cabinet
Mission that proposed the idea of Constituent Assembly which was the beginning of
composing the Indian Constitution. The constitution was drafted by the constituent assembly
from 1946 to 1950 which was accepted on 26th November 1949 with effect from 26th January
1950, celebrated as the Republic Day.
Stages of making of the Constitution of India
 Constituent Assembly’s first session:
The constituent assembly started with the framing of the constitution on 13th
December 1946. Jawaharlal Nehru introduced the Objectives Resolution in order to
transform India into an Independent Sovereign Republic and write a constitution to
direct its future. The general ideas set forth in the Resolution shall serve as the basis
for the work of the Constituent Assembly. On January 22, 1947, the Constituent
Assembly approved the Resolution.
 Second Session of Constitutional Assembly Debates and Committee stages
Following the inaugural meeting of the Constituent Assembly, a number of
committees were established to look into and report on various aspects of the
Constitution. In addition to the Advisory Committee on Fundamental Rights,
Minorities, Tribes, and Excluded Areas (which included the Sub-Committee on
Fundamental Rights and the Sub-Committee on Minority Rights), these bodies
included the Union Powers Committee, Union Constitution Committee, and
Provincial Constitution Committee. These committees submitted their reports to the
Constituent Assembly between April and August 1947. As the committees submitted
their reports, the Constituent Assembly thought about the broad concepts outlined in
the recommendations. On August 30, 1947, these deliberations came to an end.
 Draft constitution by the constitutional advisor
Based on the suggestions of various committees and discussions in the Constituent
Assembly expressed in earlier phases, B.N. Rau, the Constitutional Adviser to the

1
'Making of the Constitution of India: A Detailed Analysis' (IPLeaders, 14 February 2020)
https://blog.ipleaders.in/making-constitution-india-detailed-analysis/.
 Constituent Assembly, drafted a Draft Constitution. The Draft Constitution was
prepared and given to the Drafting Committee by October 1947.
 First Draft Constitution
On October 27, 1947, the Drafting Committee began to examine the Draft
Constitution prepared by the Constitutional Advisor, as well as supplementary notes,
reports, and memos. The committee presented the head of the Constituent Assembly
with its amended final Draft Constitution on February 21, 1948.
 Publication of the First Draft
The Draft Constitution was handed to the President of the Constituent Assembly and
then published and made available to the public. The numerous suggestions,
criticisms, and ideas were evaluated by a Special Committee made up of members of
the Union Constitution Committee, Provincial Constitution Committee, Union Powers
Committee, and the Drafting Committee itself. On March 23, 24, 27, and October 18,
the Drafting Committee met to discuss these ideas. On October 26th, 1948, the
Committee reprinted and resubmitted the version of the Draft Constitution that had
been submitted on February 21st, 1948, along with a set of amendments appended to
the paragraphs it wished to amend.
 Debates on the Draft Constitution
B.R. Ambedkar, the chairman of the drafting committee, presented the draft
constitution to the Constituent Assembly on November 4th, 1948. The Assembly was
now free to discuss the Draft Constitution.
 Second reading of the Draft Constitution
The Constituent Assembly thoroughly discussed each Article during the second
reading of the Draft Constitution, clause by clause. The most significant and drawn-
out discussions in the Constituent Assembly's history took place during this period,
which lasted until October 17, 1949. During this time, Assembly members frequently
made changes to the Draft Constitution, aiming to add or remove specific articles or
clauses. However, the majority of the amendments were ultimately rejected.
 Revision of the Draft Constitution
Once the debates around it were concluded, the Drafting Committee kept revising the
Draft Constitution in conformity with the decisions made by the Constituent
Assembly. This required labour that includes renumbering articles, adding or
removing clauses, and making minor linguistic changes. The revised Draft
Constitution was delivered to the President of the Constituent Assembly on November
3, 1949. It was then presented before the Assembly on November 14, 1949.
 Third reading of the Draft Constitution
Only a few noteworthy discussions took place during the third reading of the Draft
Constitution, and the majority of the speeches focused on general observations about
the document as a whole. While some members voiced their happiness with the
Constitution's final draft, others voiced their reservations.
 Enactment and adoption of the Constitution of India
The resolution proposed by Ambedkar earlier in the process was passed by the
Constituent Assembly, ending the third reading of the Constitution on November 26,
1949. The Constitution's final draft was signed by Assembly members on January 24,
1950, and it went into effect on January 26, 1950.
Different types of methods of Interpretation of the Constitution2
The different types of methods used in the Interpretation of the Constitution of India are as
follows:
 Textualism: Textualism is a method of legal interpretation that bases its conclusions
on the plain meaning of the text. The focus of textualism is often on the context of
terms used in the Constitution as well as how those words would have been
understood at the time the Constitution was ratified. Textualists typically assume that
there is an objective meaning to the text, and they infrequently take the drafters',
adopters', or ratifiers' intentions into account when reading the Constitution and its
amendments.
 Original Meaning: Contrary to textualist approaches, which focus solely on the text of
the instrument, originalist approaches to constitutional interpretation consider the
meaning of the Constitution as it was understood by at least some segment of the
population at the time of its founding. This original meaning is created by judges,
justices, and other responsible interpreters. Most originalists agree that the
Constitution's text had a "objectively identifiable" or public meaning at the time of its
founding that hasn't changed through time.
 Judicial Precedent: The most commonly cited source of constitutional meaning is
prior Supreme Court decisions on relevant constitutional law problems. For the vast
majority of Justices, if not all, judicial precedent gives prospective rules, benchmarks,
or standards to guide court rulings in future cases with hypothetically similar facts.
 Pragmatism: The Court routinely compares or considers the likely practical effects of
various constitutional interpretations using pragmatic methodologies. After assessing
the potential benefits and drawbacks of each interpretation for society or the political
branches, one sort of pragmatism choose the interpretation that may lead to the
perceived optimal conclusion. Another pragmatic approach would be for a court to
consider the extent to which the judiciary could assist in resolving a constitutional law
issue.
 Moral Reasoning: According to this theory, specific constitutional clauses were
intended to reflect certain moral concepts or ideals (such as "equal protection" or "due
process of law"), and judges' interpretations of the Constitution should be influenced
by these ideas.
 National Identity (or “Ethos”): Occasionally, judicial reasoning will refer to the
concept of a "national ethos," which draws on the specific character and ideals of the
American national identity and the country's institutions to better explain the meaning
of the Constitution.
 Structuralism: The way the Constitution was created can be used to infer relationships
between the three branches of the federal government (commonly known as the
separation of powers), the federal and state governments (also known as federalism),
and the relationship between the government and the people.
 Historical Practices: The earlier decisions of the political branches, particularly their
long-standing, historical customs, are a key source of constitutional significance.
Courts have referred to historical practices as a basis of the Constitution's
2
‘Modes of Constitutional Interpretation’(EveryCRSReport)
https://www.everycrsreport.com/reports/R45129.html
 interpretation in cases regarding the division of powers, federalism, and individual
rights, particularly when the wording is vague.

Historical debates on Originalism vs. living Constitutionalism

As things stands now the Indian Constitution favours living constitutionalism but this was not
the case since the beginning, the cases that were determined right away after the Constitution
went into effect show that the Constitution was construed in accordance with the framers'
intentions.
A.K. Gopalan v. State of Madras3, one of the Supreme Court's first decisions, found that
Article 21 of the Constitution did not require Indian courts to adopt the due process of law
standard. The Court noted the original version of the Constitution's "due process" clause,
which was rejected by its writers. The word "law" in Article 21 has been used to refer to
State-made legislation rather than to encompass the principles of natural justice in an abstract
or wide sense, according to Mukherjea, J., who wrote a concurring opinion.
The Supreme Court overturned A.K. Gopalan and accepted the idea that a system "which is
just, fair, and reasonable" was what the word "procedure established by law" genuinely meant
only 28 years later, in Maneka Gandhi v. Union of India4. According to Krishna Iyer, J., who
agreed with Bhagwati, J., "procedure" in Article 21 refers to fair rather than formal
procedure, and "law" is reasonable law rather than any legislative component.
A clearer and more telling example is the "right to privacy". Despite prohibiting police
personnel from making nightly house visits to those considered habitual criminals, the
Supreme Court held the following in Kharak Singh v. State of U.P.5:
“17. … the right of privacy is not a guaranteed right under our Constitution and therefore the
attempt to ascertain the movements of an individual which is merely a manner in which
privacy is invaded is not an infringement of a fundamental right guaranteed by Part III.”
The Supreme Court went farther in M.P. Sharma v. Satish Chandra6 and declared that there is
no need to impose a basic right to privacy into another fundamental right by stretched
construction when the Constitution's framers did not find it necessary to do so.
A nine-judge Supreme Court bench examined this topic in K.S. Puttaswamy v. Union of
India7. The Attorney General contended that the architects of the Constitution expressly
disapproved of the right to privacy being included in the chapter on fundamental rights based
on the aforementioned two judgments. The court, however, dismissed it and said that the
Constitution "must be interpreted to respond to the changing needs of society at different
points in time." After Kharak Singh and M.P. Sharma were reversed by the Supreme Court in
2017, the "right to privacy" was at last acknowledged as a basic right.

3
A.K. Gopalan v. State of Madras [1950] INSC 1; AIR 1950 SC 27 (India).
4
Maneka Gandhi v. Union of India [1978] 2 SCR 621; AIR 1978 SC 597 (India).
5
Kharak Singh v State of U.P [1963] 2 SCR 22; AIR 1963 SC 1295 (India)
6
M.P. Sharma v. Satish Chandra [1954] SCR 1077; AIR 1954 SC 300 (India).
7
K.S. Puttaswamy v Union of India (2017) 10 SCC 1; AIR 2018 SC 328 (India).
The Supreme Court expressly rejected the originalism method of interpretation in Supreme
Court Advocates-on-Record Assn. v. Union of India8:
“16. The proposition that the provisions of the Constitution must be confined only to the
interpretation which the framers, with the conditions and outlook of their time would have
placed upon them is not acceptable and is liable to be rejected for more than one reason —
firstly, some of the current issues could not have been foreseen; secondly, others would not
have been discussed and thirdly, still others may be left over as controversial issues i.e.
termed as deferred issues with conflicting intentions. Beyond these reasons, it is not easy or
possible to decipher as to what were the factors that influenced the mind of the framers at the
time of framing the Constitution when it is juxtaposed to the present time. The inevitable
truth is that law is not static and immutable but ever increasingly dynamic and grows with the
ongoing passage of time.”
In the well-known ruling Kesavananda Bharati v. State of Kerala9, the Supreme Court
acknowledged that a:
“634. Constitution is expected to endure for a long time. Therefore, it must necessarily be
elastic. It is not possible to place the society in a straitjacket. The society grows, its
requirements change. The Constitution and the laws may have to be changed to suit those
needs. No single generation can bind the course of the generation to come.”
The constitution is a living thing. The meaning of an expression is highlighted and
demonstrated by the periods, not that a word's meaning changes with the times. The meaning
of words used in evolving, dynamic contexts take on shape and colour. The Constitution
would become stale and a lifeless testimony in the absence of a dynamic, active, and useful
interpretation.
US Constitution- Living Constitution Precedents
The great John Marshall, C.J. asserted that because the Constitution is "intended to endure for
ages to come," it must change to account for a future that is "seen dimly."
The Supreme Court upheld the freedom to obtain and use contraceptives in Griswold v. State
of Connecticut10, therefore establishing the "right to privacy" that the Constitution implicitly
guarantees but never expressly states.
Anthony Kennedy, J. added that "...changed understandings of marriage are characteristic of a
nation where new dimensions of freedom become apparent to new generations" in Obergefell
v. Hodges11, upholding same-sex marriages." The Court specifically disregarded the claim
that the Fourteenth Amendment "must be defined in a most circumscribed manner, with
central reference to specific historical practices" based on Washington v. Glucksberg 12. The
Supreme Court decided that the Constitution does not indefinitely fix the initial
understanding of what those rights guarantee or how they apply. In National Labor Relations

8
Supreme Court Advocates-on-Record Assn. v Union of India (1993) 4 SCC 441 (India).
9
Kesavananda Bharati v State of Kerala [1973] 4 SCC 225 (India).
10
Griswold v State of Connecticut [1965] 381 US 479.
11
Obergefell v Hodges (2015) 576 US 644.
12
Washington v Glucksberg [1997] 521 US 702.
Board v. Noel Canning13, the Supreme Court recently said that "the Founders knew they were
writing a document designed to apply to ever-changing circumstances over centuries."

CADs and their Importance

What is Constituent Assembly? What are CADs?

The Constituent Assembly of India initially created the Indian Constitution. The individuals
on this committee were chosen by the Provincial Assembly. The first proposal for the
Constituent Assembly was made in 1934 by M. N. Roy, a prominent member of the
Communist movement in India. This recommendation was subsequently made in 1935 by the
Indian National Congress.
Pt. Jawahar Lal Nehru presided over the Indian National Congress meeting in Lucknow in
April 1935. During this session, Congressmen formally requested the Constituent Assembly.
However, this request was declined.
In 1938, Pt. Jawahar Lal Nehru made an important statement regarding the Constitution and
Assembly: "The constitution of free India must be framed, without outside interference, by a
constituent assembly elected based on adult franchise."
Later, on November 15, 1939, Indian statesman, author, and lawyer C. Rajagopalachari raised
his hand in support of the establishment of the Constituent Assembly of India. He was also an
advocate for Indian independence.
The British gave in to the demand for a Constituent Assembly with their 'August offer' of
1940. The first Assembly elections were held in 1946 when the Cabinet Mission Plan was put
into effect. The Constituent Assembly created the Indian Constitution, which went into effect
on May 16, 1946 and accomplished its goal.
CADs
The CADs, often referred to as the Constitutional Assembly Debates is a record of the
intensive debates, discussions and deliberations that took place while framing the contents of
the constitution. These records are invaluable historical resources that provides an
opportunity to the reader to delve into the minds of the framers of the constitution.
Some key points of the constitution:
1. Comprehensive Record: All the debates that took place were recorded in great detail,
including speeches, discussions, amendments, and resolutions. These debates covered
a very wide range of topics, including federalism, fundamental rights, structure of the
government and other constitutional provisions.
2. Constituent Assembly: It is a group of elected delegates which was tasked with
creating and ratifying the Indian Constitution. It started its work in 1946 and
continued till 1949, when the constitution was adopted.

13
National Labor Relations Board v Noel Canning [2014] 573 US 513.
 3. Diverse Participants: Members in the discussions came from a variety of background,
representing different geographical areas, faiths, and political philosophies. These
discussions featured prominent figures including Dr. B.R. Ambedkar, Jawaharlal
Nehru, Sardar Patel, and many others.
4. Transparency and Public Record: The debates took place openly, and the records were
made available to all. The constitution making process was open to public
examination and participation thanks to this transparency.
5. Historical Significance: The Constitutional Assembly Debates are regarded as a
valuable source of political and legal ideas. They are frequently cited by academics,
jurists, and attorneys to comprehend the original intent of the constitutional framers
behind various constitutional clauses.

Role and Significance of CADs

Today, when the constitutional cases are taken up, the courts ignore the Constitutional
Assembly Debates and their formation. This is a huge mistake on the part of the judiciary as
these debates provide valuable insights into the framers and acts as abridge to fill the gaps of
any constitutional matter and its text.
When interpreting any statute, our judges no longer frequently consult the published multi-
volume sets of the Constitutional Assembly Debates. It is argued that the written words and
phrases count more than the meaning or rationale of any constitutional provision in resolving
disputes. One of the largest collections is the one of Indian founding documents. Judges and
lawyers want to avoid the complexities they feel would eventually result in different,
potentially even competing, narratives regarding the assembly's final conclusions since they
find it difficult to read these mass narratives. In order to reconcile conflicting stories,
concerned judges and attorneys should read these "debates" more than once to make them
more engaging and pertinent as well as to speed up the decision-making process.
Any ambiguities can be clarified during this discussion on any given day in any Legislature.
It was hoped that the outcome of the Keshavananda Bharti case would alter the judges'
viewpoints and motivate them to pay attention to remarks made on the floor during the
ratification of the Constitution, but this has not happened. The arguments put out during the
Constitutional Assembly's debates are now consistently rejected by our Indian judges. In
addition, the Supreme Court restricts the scope of its constitutional interpretation to the
Constitution's text and stays within it.
Significance of the CADs
First off, one may claim that these debates were a vital source of knowledge for our founding
and our founders' contrasting viewpoints. The US Constitution is the first and most important
statute. The Constitution serves as the source of authority for all laws, whether they be
general laws or specific pieces of legislation. Because these discussions reveal the objectives,
aspirations, and ideals of our Constitution's framers, it would be advantageous for our
legislators to include the same goals and principles throughout legislation.
Second, these conversations help to settle regular disagreements, whether they relate to the
debate over adopting a specific form of governance or the process for choosing justices
through Collegiums or NJAC. The debates can outline the basics. clauses of the
Constitution's text, which are not subject to constitutional amendments.
Finally, it can reduce conflict between the judicial and legislative branches, obviating the
need for constitutional modifications and facilitating quick adjustment to changing
conditions. Furthermore, current challenges that the courts have not yet experienced or
predicted can readily be covered in these conversations. For instance, if there is ever a social
media issue again. Although the drafters of our Constitution at the time could not have
predicted the advent of the digital age and the widespread use of Facebook and Twitter, they
nonetheless had strong views on the importance of free expression, which today ensures that
we are able to post whatever we want on social media. These discussions were advantageous
to the Courts. These debates and their accompanying arguments can be used to settle future
disputes.
For instance, because it demonstrates how extensively the Constitutional Assembly
deliberations were relied upon to come to a conclusion and make the proper decision, the
ruling in Naban Rebia and Bamang Felix v. Deputy Speaker and Others14 might be viewed as
a good precedent for judges and attorneys. When the Supreme Court inquired about the
authority of a Governor and the Speaker to conduct the State Legislative Assembly, the
learned Counsel in the Nabam Rebia case referred to individuals including B.R. Ambedkar,
Mohd. Tahir, and others when discussing the issue of passing resolutions in Legislative
Assemblies. When rendering its decision in the case, the Hon. Supreme Court stated that "the
actions of the Governor were certainly not in the language of the law or the spirit of
parliamentary democracy and responsible Government which was duly imbibed by our
founding members in the Constitutional Assembly debates." The court also discussed the
features of parliamentary democracy and the reasons why the founding fathers chose this
form of government. In evaluating the Governor's actions, the Court added the following
statement: "Founding Fathers had desires, as the debate would reflect, the Speaker can be
removed by the resolution passed by majority of all the then members and not by majority of
the members present and voting, and the Governor was obliged to adhere to and follow the
constitutional principle as proposed by our founding fathers."
This ruling has improved Indian constitutional law and added a new viewpoint with the help
of the Constitutional Assembly, especially in regards to the general application of Article 356
and the governor's position in particular. We believe that the Constitutional Assembly's
discussions were among the most important in India's legal history and that our esteemed
judges and attorneys would act in a similar manner when resolving any constitutional
concerns.
The constitution is recognized as a magnificent democratic accomplishment and is credited to
our founding fathers. merit the highest respect. They were a diverse mix of people from many
communities, but they were all committed to finishing the important task of establishing a
democratic republic in India. Additionally, the fact that it took more than three years to
discuss and consider every issue, allowing all types of people to openly express their
thoughts, shows that the assembly truly reflects the wishes of the country. Our courts should
be firmly rooted in the founding fathers' intentions, and they should regularly be consulted on
constitutional questions that no longer hold any sway in the contemporary world.
14
Naban Rebia and Bamang Felix v Deputy Speaker and Others [2016] 8 SCC 1 (India).