Constitutional Law: Norms of Constitutional Interpretation

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Constitution is a body of law that determines the roles, structures, powers and functions of the executive, the legislative and the judiciary and also includes the basic rights of the citizens of our country. Not all the nations have a written Constitution. But it is essential to know about it. Constitution is the primary source for many other laws. Constitutional law is a main paper for every law and research student. The Constitution of India came into force on January 26, 1950. Each word in the Constitution is fairly stated and are not that easy to change. But laws enacted by legislature now-a-days are dynamic, and they reflect the current state of the Constitution. To check whether the new laws are consistent with the basic structure of the Constitution, many a times the Constitution is interpreted. In this article we’ll see some of the phases of Constitutional interpretation and in what are the ways it was interpreted in the past seven decades.

Explanation of the Concept

Constitutional interpretation is not like the usual interpretation process done for other statutes. It is defined as the process of creation of a set of rules and regulations which the citizens should abide by. The interpretations done by the Supreme Court of India can be explained by three phases. First phase includes “grammatical/literal interpretation” which can also be stated as textualism. Meaning thereby, reading each word and correlating it with the Constitution.

Second phase includes the “eclectic or conceptual approach” which focuses not only on the text of the Constitution but also the concepts and themes incorporated in it in a broader way.  These two phases act as the product of the third phase known as “careful reasoning”. In the third phase it gives reasons by sitting in two or three Judge benches. Finally, the Court decides cases on self-conceptions which results in the adoption of various internally interpretive approaches and often produce incoherent Constitutional jurisprudence.

Textualism

Supreme Court has taken up the idea of textualist approach to mainly focus on the literal meaning of the words used in the Constitution. In the earlier days, the Court relied explicitly on the views and thoughts of the framers/draftsmen of the Constitution, by relying on Constitutional Assembly Debates. But later the Supreme Court consciously avoided relying too much on the thoughts of the framers. This kind of interpretation was familiar to British legal training. The Court considered this phase of interpretation as a virtue in itself.

Conceptual approach

In the second phase, the Supreme Court started considering other methods of interpretations. Though textualism continued to appeal to the Judges, “structuralism” quickly picked up, and occasionally supplemented other methods of interpretation like ethical approach. Textualist arguments hold sway, both for the Judges who subscribed to the ‘basic structure’ notion and for those who held that there were no substantive limitations on Parliament’s amending power.

Philosophical interpretation

In the third phase, the Supreme Court turned towards the Philosophical approach. This approach involved primarily two features. First, the changing structure of the Court, which may be taken as eight Judges grew into thirty-one Judges. Even though Article 145(3) requires all substantial questions of law involving interpretation of the Constitution to be decided by Constitution benches, this requirement was ignored in practise. There appears to be a little suggestion on what questions can be considered as ‘substantial’.

Examples

In A.K. Gopalan v State of Madras the Court was called upon to interpret the Fundamental rights. It was a Habeas Corpus petition filed by an Indian communist party leader. He contended the Court that the legislation was inconsistent with the Articles 19, 21 and 22 of the Constitution. The Supreme Court was faced with two interpretive questions to be answered. The first question before the Apex Court was the interpretation of the phrase”procedure established by law” as stated under Article 21, which states that “No person shall be deprived of his life or personal liberty except according to procedure established by law”. The second question before the Court was “what is the inter-relationship between article 19, 21 and 22 of the Constitution”, which appear to be on similar grounds.

In answering the first question, the Apex Court found various evidences to suggesr that the framers of the Constitution had deliberately adopted the phrase ‘Procedure established by law’ instead of ‘due process of law’ in order to avoid American Lochner-era experience. For the second question, the Court deciphered that Articles 19,21 and 22 cover entirely different subject matter and are to be read as separate codes.

In Kesavananda Bharati v State of Kerala the Apex Court demonstrated a shift in interpretive methodology and was considered as a watershed moment in India’s Constitutional history. In this case many of the arguments were textualistic. But the major issue was on the basis of conceptual approach. From this case the ethical and historical interpretive approaches also entered Supreme Court Judgements.

In the case of Chief Election Commissioner v Jan Chaukidar, an NGO disclaimed that since prisoners are deprived of the right to vote, they should not be considered as electors. It cited the Patna High Court’s Judgement where the Court had held that a person under legal custody of the Police will neither be a voter nor be an elector. This was a denial of right to vote. Judgements like these result from a lack of emphasis on passing reasoned orders and application of judicial mind.

Provisions Involved

The following provisions of the Constitution indicate the role assigned by the Constitution to the Supreme Court, for the purpose of interpreting the Constitution itself:

  • According to Article 132 of the Constitution – “an appeal shall lie to the Supreme Court from any Judgement decree or final order of a High Court in the territory of India, whether a Civil, Criminal or other proceeding, if the High Court certifies under article 134-A that the case involves a substantial question of law as to interpretation of the Constitution”.
  • According to Article 141the law declared by the Supreme Court shall be binding on all Courts within the territory of India. Under the Constitution, an individual has access to the Supreme Court for interpretation of the Constitution, and the interpretation given by the Supreme Court is binding on all”.

Critical Analysis

Constitutional interpretation has an intricate relationship with Constitutional change. Mostly, interpretations teach us how easy it is to amend a Constitution. Most provisions of the Constitutions can be amended by two-third majority in Parliament. The structure and composition of a Court have an important bearing on its interpretive approach. The aforementioned methods of interpretation are in no manner exhaustive. There are several other mechanisms and techniques used for interpretation of the Constitution besides these methods of interpretation. It is explicitly stated in our Constitution that it can be interpreted at times of need by the Articles 132 and 141. The majority Judgement in cases of Kesavananda Bharati v State of Kerala and Minerva Mills Ltd strongly relied upon the preamble in 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.

Conclusion

In many of the cases Indian Supreme Court’s approach to Constitutional interpretation have induced global interpretive trends. There are many Judgements of the Supreme Court with many more interpretive techniques. Tracking the developing world interpretations also developed from textualism to various techniques and approaches. The exponential growth of judgments interpreting the Constitution has led to increasingly precedent-laden and doctrine-heavy decisions, that sometimes lose sight of the document that is being interpreted.

Author: Subha Shree from Tamil Nadu National Law University

Editor: Astha Garg, Junior Editor, Lexlife India

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