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Principle of Constitutional Interpretation:Some Reflections
by Justice D.M. Dharmadhikari*

Cite as : (2004) 4 SCC (Jour) 1

Constitutional adjudication affects several aspects of culture of institutions and life of the people of a nation governed by it. Therefore, there can be no fixed or rigid rules of interpretation of the Constitution. American legal experts on the working of the Constitution of USA which is the oldest of an oldest democracy, have identified certain trends of interpretation in the long working of the Constitution and have identified certain principles — study of which may be beneficial for interpreting our Constitution, which is merely little more than fifty years old.

Textual interpretation — plain meaning rule

Under the textual interpretation, the most important is the language of the Constitution. Justice Marshall wrote in Sturges v. Crowninshield1: (L Ed p. 550)

“[A]lthough the spirit of an instrument, especially of a Constitution, is to be respected not less than its letter, yet the spirit is to be collected chiefly from its words. ... if, in any case, the plain meaning of a provision, not contradicted by any other provision in the same instrument, is to be disregarded, because we believe the framers of that instrument could not intend what they say, it must be one in which the absurdity and injustice of applying the provision to the case would be so monstrous that all mankind would, without hesitation, unite in rejecting the application.”

Justice Marshall did not equate “plain” meaning with “literal” meaning but rather the meaning that it would have for a “normal speaker of English” under the circumstances in which it was used. Even on the principle of textual interpretation, American courts from case to case expressed a consistent view that such is the character of human language that no word conveys to the mind, in all situations, one single definite idea; and nothing is more common than to use words in a figurative sense. The words thus are used in the text of the Constitution in various senses and their construction, the subject, the context, the intention of the person using them, are all to be taken into view. The words of the Constitution are required to be construed in the social and linguistic context of the society. Every nation governed by a Constitution is undergoing changes in social and economic relations, in technology and in values. An interpreter of the Constitution from a long period of time from its original framers, would have discovered the context in which the particular constitutional provision was adopted. The modern interpreter, therefore, should attempt to read the provisions not only in their original social and linguistic context but in its modern context or in case some way that mediates between the two. The question then is always to ascertain “the purpose of the provision” or “the intent of the framers”. The view is that the context of the Constitution has to be read in the social and linguistic context in which it was adopted. So far as our Supreme Court is concerned, it has always held that there is a greater reason in giving to its language a liberal construction so as to include within its ambit the future developments in various fields of human activities than in restricting the language to the state of things existing at the time of passing of the Constitution. A Constitution unlike other Acts is intended to provide an enduring instrument to serve through a long lapse of ages without frequent revision. It is not only designed to meet the needs of the day when it is enacted but also the needs of the altering conditions of the future. The fields of legislation, the ideals and the rights are expressed in general terms which are compressed sentences if not chapters. In the interpretation of constitutional documents “words are but a framework of concepts and concepts may change more than words themselves”. The significance of the change of the concepts themselves is vital and the constitutional issues are not solved by a mere appeal to the meaning of the words without an acceptance of the line of their growth. The Supreme Court said that “the intention of the Constitution is rather to outline principles than to engrave details”2.

Taking recourse to original history or the intention of the framers

The possible sources for interpretation of the Constitution include the text of the Constitution, its “original history” including the general social and political context in which it was adopted, with due regard to the ongoing history of the interpretation of the Constitution and the social, political and moral values of the society. The American tradition of constitutional interpretation accords considerable authority to the language of the Constitution, its adopters’ purposes and the implications of the structures created and recognised by the Constitution. So far as our Court is concerned, the Supreme Court has taken aid of the Debates in the Constituent Assembly to ascertain the meaning of a particular provision of the Constitution which comes before it for interpretation. The Supreme Court, however, also holds that the Court is not bound to accept the meaning of a provision in a Constitution according to the original understanding of its makers because as Justice Marshall asserts: “it is the nature of the Constitution that only its great outlines should be marked”. It is a document intended “to endure for ages” and therefore, it has to be interpreted not merely on the basis of the intention and understanding of the framers of the Constitution but on the experience of the working of the Constitution to deal effectively with current constitutional issue needing a solution in the existing social and political context.

“Trying to understand how the adopters intended a provision to apply in their own time and place is, in essence, doing history. But the intentionalist interpreter must take further step of translating the adopter’s intentions into the present.”

For example, modes of transportation, communications and economic relations which are found today could not have been imagined by the framers. Therefore, in interpreting the Constitution, sometimes, the Court, not accepting the meaning assigned to a provision by the framers, adopts a construction more suited to the existing changed situation. The Supreme Court of India has always treated the constitutional provisions as “great generalities” or “great ambiguities” but not as “vague provisions” to be interpreted from time to time to apply to new and changing situations and thus make the Constitution a living and organic document instead of making it rigid and static by giving its provisions a fixed meaning and content for all times to come.

This freedom and flexibility in interpreting the Constitution is conspicuously present in decisions of the Supreme Court right after the case of A.K. Gopalan v. State of Madras3. Article 21 of the Constitution provides: “No person shall be deprived of his life or personal liberty except according to procedure established by law” which was originally understood, as interpreted in Gopalan case3 to provide merely that no one can be deprived of such right by executive action unsupported by law. In decisions of the Supreme Court in Rustom Cavasjee Cooper v. Union of India4 and Maneka Gandhi v. Union of India5 the approach in Gopalan case3 was disregarded and it was held that the words “procedure established by law” would mean “reasonably valid law which is right, just, fair and reasonable and not arbitrarily fanciful and oppressive”. In Gopalan case3 the words were given restricted meaning by taking recourse to the history of the Constitution and the founders’ approach that “the due process clause of the American Constitution” was not incorporated in the Indian Constitution. By adopting a different approach to Article 21 of the Constitution, which is a very valuable and prestigious right of a citizen, the “procedure established by law” has been construed to mean a “procedure which is just, fair and reasonable” and therefore, valid. Indirectly, thus, contrary to the intention of the framers “due process clause of the American Constitution” was read into Article 21 with the aid of the equality clause in Article 14 of the Constitution. Article 21 has been one single article which by interpretation has been expanded to progressively deduce a whole lot of human rights from it, such as, right to “means of livelihood”; “right to dignity and privacy”; “right to health and pollution-free environment”; “right to education”; “right to legal aid and speedy trial” etc. The more recent additions to this right are “a friend and relative of an arrested person be informed of the arrest and of the place of detention; right of the worker to medical aid, the right to residence and settlement to live with dignity, the right to regulation of traffic in busy cities for ensuring public safety and the right of children to protection against exploitation”.

Thus, expanding the scope and ambit of Article 21 to cover in it the rights which are not expressly enumerated, the Supreme Court has interpreted the word “life” to cover in it “all aspects of life which go to make a man’s life meaningful, complete and worth living”. It will also cover his tradition, culture, heritage and health. Thus, all human rights enumerated above were so derived from Article 21, mainly by reading the directive principles in or with Article 21 and thereby, in effect, the directive principles in Part IV of the Constitution have been made enforceable even though Article 37 provides that these principles shall not be enforced by any court6.

In earlier decisions of the Supreme Court, reference to the Debates in the Constituent Assembly was made to support narrow construction, like to Article 16(3) of the Constitution, but in the later decisions, it was held that Debates or even the speech of the Chairman of the Constituent Assembly Dr B.R. Ambedkar, could not be treated as conclusive or binding on the Court because the framers’ intention has to be ascertained only for the purpose of giving a meaning to the provisions in its application to the present situation. Reference to the Debates is permissible to ascertain the context, background and objective behind a particular provision only if the Court wants to ascertain the original intent of the framers. On this aspect, Justice Holmes’s words on interpretation of the American Constitution, are apt and prophetic—

“When we are dealing with words that are also a constituent Act, like the Constitution of the United States, we must realize that they have called into life a being the development of which could not have been foreseen completely by the most gifted of its begetters. It was enough for them to realize or to hope that they had created an organism; it has taken a century and cost their successors much sweat and blood to prove that they created a nation. The case before us must be considered in the light of our whole experience and not merely in that of what was said a hundred years ago.”

On the same lines are the words of Bose, J., with reference to the Indian Constitution—

“they are not just dull, lifeless words, static and hidebound as in some mummified manuscript, but living flames intended to give life to a great nation and order its being, tongues of dynamic fire potent to mould the future as well as guide the present. The Constitution must, in my judgment, be left elastic enough to meet from time to time the altering conditions of a changing world with its shifting emphasis and differing needs.”

In interpretation of the basic law of the country like a Constitution, the attitude adopted by the Court of Justice of the European Communities in construing the EEC Treaty and Community Legislation should be a guide. The court applies teleological rather than historical methods of interpretation. It seeks to give effect to what it conceives to be the spirit rather than the letter. It views the communities as living and expanding organisms and the interpretation of the provisions of the treaties as changing to meet their growth7.

Preamble of the Constitution

In this context, when the attempt of the interpreter is to understand the “spirit” rather than the “letter” of the Constitution, importance of the preamble of the Indian Constitution deserves to be highlighted. Normally, a preface or a preamble of a statute is not to be read into the contents of the statute. At best, it can be read as an aid to construction of the contents of the statute. This, however, is not the approach of the courts so far as the preamble of the Indian Constitution is concerned. The preamble of the Constitution like the preamble of any statute

“furnishes the key to open the mind of the makers of the Constitution more so because the Constituent Assembly took great pains in formulating it so that it may reflect the essential features and basic objectives of the Constitution”.

The Drafting Committee of the Constituent Assembly formulated the preamble in the light of the Objectives Resolution but restricted it “to defining the essential features of the new State and its basic socio-political objective”. The draft of the preamble was considered by the Assembly last after considering other parts of the Draft Constitution — “to see that it was in conformity with the Constitution” and a motion was adopted by the Assembly that “the preamble stands part of the Constitution”. It is for this that the Constitution including the preamble is read as a whole and in case of doubt interpreted consistent with its basic structure to promote the great objectives stated in the preamble. Courts have repeatedly taken help of the preamble of the Constitution to understand the provisions contained therein. The majority judgment in cases of Kesavananda8 and Minerva Mills Ltd.9 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.

Role of precedent — stare decisis

Constitutional disputes typically arise against the background of earlier decisions on similar subjects. A complete theory of constitutional interpretation, therefore, must deal with the role of precedent. Interpreting a judicial precedent is different from interpreting a constitutional provision in itself. The precedent is required to be read, not only in terms of its own social context but against the background of the precedent it invokes or ignores. The American doctrine of stare decisis accords presumptive but not indefeasible authority to precedent. Precedents are overruled which seem to be inconsistent with contemporary norms.

The process of constitutional adjudication, thus, has a dynamics of its own. It creates an independent force which, as a doctrine evolves, may create original history as well as with older precedents. Recourse to precedent and overruling previous precedent is judicial process which properly accommodates the Constitution to changing needs and values10.

Precedents are part of judicial law-making and are necessary for development of law. From the very nature of judicial process, law-making as precedent through the court is gradual, tentative and slow. The courts’ contribution to the development of law is typically a “bit-by-bit” and a “trialand-error” contribution. Those interests not heard today can be heard tomorrow, and the court will be able to correct, to improve and to mould a “law” but would not entirely make it. As put by Dean Roscoe Pound several decades ago:

“Judicial finding of law has a real advantage in competition with legislation in that it works with concrete cases and generalizes only after a long course of trial and error in the effort to work out a practicable principle.”

The courts’ very functions particularly in interpreting the Constitution, many times, compel them down to realities, since they are called to decide cases involving live persons, concrete facts and actual problems of life. In this sense, judicial law-making is highly democratic — close and sensitive to popular societal needs and desires. To be sure, there are some conditions to be met before that potential can be realised. Two such conditions are vital. The first is rooted in the system of judicial selection which should be open to all strata of the population. The second condition is that all people should have equal opportunity to get access to the courts. A citizen should have access both to the courts and education which is necessary for providing equal accessibility to the legal system11.

Interpretation based on principles of natural rights or fundamental law: the preferred freedoms approach

American constitutional tradition recognises practices of non-originalist adjudication purportedly based on natural rights or fundamental law. These are widely shared and deeply held human values which are to be culled from the text of a written Constitution. In other words, this approach is described as “judicial activism”. The expansion of Article 21 to include in “right to life and liberty”, other rights necessary for a dignified human life can be said to be one such approach of interpretation based on “preferred freedoms approach”. The protagonists of this approach and principle of interpretation believe that such fundamental rights like rights of speech, press, association, assembly, and other liberties necessary to the democratic process constitute preferred freedoms. It is said—

“the court is not a majoritarian institution, it has a constitutional responsibility to carefully scrutinize majority-passed legislation that directly impinges upon the exercise of those rights by minorities through which their political demands can be expressed. Given the social isolation and prejudice encountered by easily identifiable minorities, without the guarantee of these fundamental rights their participation in the political process will be effectively muted and conditions of exploitation will be perpetuated.”

A “preferred freedoms approach” to a Constitution is judicial interpretation process from conservatism to liberalism. Here, the court, sometimes, overrules the precedent as if writing on a clean slate and tries to exalt the spirit of law above its form so that existing principle of law can be applied in an enforceable new context. The preferred freedoms approach advocates liberty and order as two balancing interests, the former of the citizen and the latter of the State, to be weighed and resolved in the best interest of the citizen.

There is some criticism of this strict scrutiny approach based on “preferred freedoms principle”. It is described as insufficient and objectionable. All kinds of fundamental freedoms cannot outstrip the democratic process criterion. It is said — “Human happiness is the end and democracy is a method for attaining that end and not vice versa.” This misconception of democracy as end rather than method has important consequences for the exercise of free speech and other fundamental liberties as individual rights. Constitutional interpretation, it is observed, is as much a process of creation as one of discovery. If this view is commonplace among post-realist academics, it is not often articulated by judges and it probably conflicts with the view of many citizens that the constitutional interpretation should reflect the will of the adopters of the Constitution rather than its interpreters. The two modes of strict interpretation — literalism and strict intentionalism — far from being synergistic strategies of interpretation, are often antagonistic. A strict originalist theory of interpretation must opt either for literalism or for intentionalism, or must have some extra-constitutional principle for mediating between the two12.

The balancing of interests: judicial activism and judicial restraint

In this process of interpretation, the court is more concerned with weighing the competing values of a free society. In the course of rendering decisions, judges are to aim at accommodation or balance of society’s conflicting interests. The proponents of this principle of interpretation maintain that

“balance should be struck so as to maximize as many interests as possible, consistent with the political and ethical postulates that form the society’s principle that is the collection of commonly held values and traditions that make for a community. In a democratic society, governed by the Constitution, such values would presumably include equal opportunity, fair play, private property, decentralization and local control, democracy and individuality, among others”.

Practitioners of interest-balancing have repeatedly affirmed that judges’ decisions ought to mirror society’s values, not their own. In this process, they should eschew their own personal political attitudes13.

This concept of interpretation has been a subject of criticism and disagreement among judges themselves. Justice Douglas of America in the case of Saia v. New York14 (US p. 562) observed—

“Courts must balance the various community interests in passing on the constitutionality of local regulations of the character involved here.”

But Justice Jackson disagreed strongly with this idea of judicial role. According to him, it is for local communities to balance their own interests — that is politics — and what court should keep out of. Our only function is to apply constitutional limitations. The “constitutional limitations” of which Justice Jackson speaks are “abstract political principles”.

The courts are, in a way, political institutions in view of the interest-balancers. The judicial process although different in form is an indirect act of legislating. Every case presents a conflict of competing social interests among which a choice must be made. Latest instance can be the case of alleged breach of privilege of the Tamil Nadu Legislative Assembly by editors and press reporters of the newspaper The Hindu. Article 194 of the Constitution confers powers and privileges as also immunities to the proceedings of the House and the elected members. The legislature has exclusive power to deal with breach of privileges and take punitive action against persons committing breach. On the other side, the editors and the journalists are complaining of abridgement of their fundamental right of “free speech” and “expression” as guaranteed to them under Article 19(1)(a) of the Constitution. The court is now called upon to balance the right of the members of the legislative body and of those claiming encroachment on the freedom of the press. This process of balancing competing social interests, influenced as it is by the constitutional values, demonstrates the essential similarities between judges and other political functionaries. In accordance with the fundamental tenets of democracy and the constitutional principles, the court should strive to satisfy as many of these conflicting claims as is possible, since the happiness of many is to be preferred over the satisfaction of the few. Many times before the court, the question of reasonableness of a particular legislation comes up for consideration. In such situations, the court should focus on the policy alternative indicated by the legislature and then answer the single question, whether a body of reasonable men and women could have selected that policy as reasonable response to the problem. Under no circumstances, the court is entitled to engage in comparing the policy selected by the legislature with other policies it might have chosen, for this would not be a test of whether the policy enacted was reasonable but whether it was the best policy.

The court should, in no case, assume the role of a super-legislature. This is in another way described as “judicial restraint”. This principle of judicial self-restraint should not, however, be stretched too far and too often to convert the court into a virtual rubber stamp of a legislature. The reason is that the concept of democracy includes provision of those rights which make it possible for minorities to become majorities. A system which is founded on a doctrine such as the “separation of powers” and “checks and balances” necessarily calls for cooperation among governing institutions in policymaking. In such a system, the court has a useful — indeed indispensable — role as the legitimator of political claims and as a catalyst for the aggrieved to coalesce and assert themselves in the democratic process. The court is not a majoritarian institution, it has the constitutional responsibility to carefully scrutinize majority-passed legislation that directly impinges upon the exercise of those rights by minorities through which their political demands can be expressed. Given the social isolation and prejudice encountered by easily identified minorities without the guarantees of these fundamental rights, their participation in the political process will be effectively muted and conditions of exploitation will be perpetuated. “Judicial activism” and “judicial restraint” are two expressions generally misunderstood describing one class of judges as progressive and the other as conservative. In judicial process both concepts have their own role to play depending upon the constitutional issues involved. If an issue of policy of legislation is under question, sometimes “judicial restraint” is exercised by the court as the policy is found to be one among various reasonable policies and the choice must be left to the legislation. Where the issue raises encroachment on fundamental rights of citizens the judge may become active and give greater importance to the fundamental freedoms by subjecting the legislation to strict scrutiny and if necessary, declare the same as unconstitutional. The judges cannot, therefore, be classified in watertight compartments in two groups of “activists” and “restraintists”.

Interpretation of the Constitution as part of power of judicial review

Constitution is a supreme law governing conduct of government and semi-governmental institutions and their affairs. It regulates inter se relationship of the Government and the people governed. It is not an ordinary statute enacted on a particular topic of legislation. The history of the Constitution would show that apart from elected representatives of the people, in framing it, views of all sections of society and particularly of learned men with experience in political and social life were formally invited and considered. The Constitution is thus, a permanent document to endure for ages. The words and expressions in the Constitution have to be construed by not only understanding the mind of the framers but on the basis of each generation’s experience in relation to current issues and topics. A Constitution as the Indian Constitution, cannot comprehend, at the time of its framing, all issues and problems that might arise in its working in the times ahead. The Constitution, therefore, contains only basic democratic principles. It contains habits and aspirations of people of that generation, but it is drafted in a way to realize those objectives for future generations.

The immortal words of Justice Holmes — “Spirit of law has never been logic but it has been experience” apply with greater force to constitutional law. We have, therefore, to interpret the Constitution with regard to the framers’ intentions, but more with the aid of our own experiences on current issues. Precedents are an aid to the construction of the Constitution, but more important for guidance in interpreting a document regulating human affairs are basic “human values” which we have imbibed through our religion, customs, philosophy and way of life. In the absence of any other aid, we have to test the constitutional provisions on the basis of fundamental human values as have developed by our tradition, culture and philosophy. When I use the word “religion”, in a pluralistic society as India means ancient “Vedic” or “Hindu” religion and all other religions like “Islam”, “Christianity”, “Buddhism” and “Jainism” and others which have flourished in our country and inspired since centuries people of various sections of our societies. These religions have created a composite culture and a distinct lifestyle of the people of India.

Framing a Constitution and working it are two different processes. Founders framed it not only for India as it existed, when it attained freedom from British rule, but for the India of the future to guide its people from generation to generation. With all the best intellect, talent and foresight, the framers could not have envisaged all situations and problems that might be faced in future in the working of the Constitution. Ours is a comparatively new democracy with no traditions in constitutional principles of our own, except those which we have inherited from the British. We are, therefore, required to develop our own traditions suited to our social conditions, morals and thinking. In this stupendous and difficult task of working of the Constitution, the higher courts have an important role to play. The Constitution nowhere speaks of the theory of balance of power but in its structure and scheme, the three organs — legislature, executive and judiciary, are clearly perceptible. This balance of power in the three organs has to be maintained for the common good of a citizen or individual. A common citizen or individual is the centre or focal point of our Constitution. This is apparent from its “preamble” which among other objectives assures “the dignity of the individual”. In interpreting the Constitution, this common man, who is at the centre and focus of all activities, described by Churchill as “the little man with a little pencil with a little ballot to vote”, should not be forgotten. All the principles of interpretation which lead to the protection and enhancement of the dignity of an individual should be resorted to and all other interpretations, contrary in effect, have to be eschewed. Amongst individuals, those who are the weakest and the most deprived, have to be first looked after. The Father of the Nation — Mahatma Gandhi — has given us a talisman or a test to judge our social and individual actions which should also guide the interpreters of the Constitution and those working it. The advice runs thus:

“when you are in doubt, think of the most weak and deprived member of society and consider whether the line of action you propose to take is going to benefit him in any manner and to what extent”.

Legislature is elected, executive is appointed but the judiciary is selected from amongst men well versed in the knowledge and practice of law. Merely because the judiciary is unelected, it cannot be said that it has no competence to mould the law by interpretation. Framing or amending law and putting it in actual action poses problems and issues of different kinds. They arise from time to time, event to event and case to case. Constitutional law is not intended to remain static. It has to be dynamic and has to grow with each case, each event and each issue. The judiciary which is not an elected body has its strengths and its weaknesses. It is expected to supplement the work of an elected body, the legislature. The legislature, which is elected by the majority, sometimes is found to have erred, as it views problems from its own perspective and based on its own ideology, to which it is wedded. The legislature ruled by its ideology sometimes disregards fundamental principles enshrined in the Constitution. The law made by majority vote has the potential danger of snatching or curtailing the rights of the minority. It is here that the judiciary has to apply its mind when called upon to pronounce whether the law made is in consonance with constitutional principles and philosophy. It is said by some sections of constitutional experts that issues and problems facing a democratic society are better understood by elected representatives in the legislature, who are in close contact with public and social life, whereas judges are too remote from actual reality. This criticism when examined in depth lacks merit. In judicial process and the adversarial system, which we have adopted in law courts, all sections of people involved in an issue are heard. Everyone’s point of view, including those volunteering to assist the court, is given due consideration and weight. The judiciary adopts a participatory process, which is sometimes more effective than the process of law-making adopted by the legislature. Unlike the legislative process, which, as put by Roscoe Pound, is “more than declaratory, when it does more than restate authoritatively what judicial experience has indicated, involves the difficulties and the perils of prophecy”. The judicial process is put in motion, and its basic contents are determined, by the very parties to the legal situations and to the conflict of interests upon which the judge is called upon to adjudicate. In this sense, the judicial process has a great information potential, because parties are usually best informed of the facts relevant to the case; and also, the judicial process has an element of both, a concrete attachment to everyday life and of participation — hence, of democratic legitimacy — which is not necessarily present in either the legislative or the administrative process15.

A Constitution and in particular the Indian Constitution enunciates general principles for regulating the relations between the elected Government and the people, and the people’s fundamental rights and liberty. Since the Constitution contains general principles they have to be worked out and applied to particular conditions. There is, therefore, greater freedom of choice in the interpretation of the Constitution than in an ordinary statute. Fundamental rights are not merely philosophical proclamations. When their actual enforcement is entrusted to courts it requires judicial creativity. The degree of judicial creativity is higher in constitutional adjudication than it is, usually, in the case of ordinary statutory adjudication. Unlike ordinary statutes, constitutional provisions, particularly on fundamental rights, have to be short, synthetic and allusive. The precepts in fundamental rights are often framed in such value-loaded terms as “liberty, democracy, justice, dignity and equality”. These are to be found in the preamble of the Indian Constitution and also in other chapters like that of fundamental rights and directive principles. Indeed, these words or expressions aim at effectuating values more than at prescribing procedures. Even when they do prescribe or seem to prescribe procedures, they do so by means of vague value concepts such as “equality of law and equal protection of law” — (Article 14), in accordance with the law, or “reasonable restrictions” — (Article 19), or “procedures established by law” — (Article 21). On the use of such words and concepts, as merely indicating some principles for further enunciation and expansion, observations of a United States’ Judge, Shirley M. Hufstedler are apt:

“I intend no irony in describing the words from the Bill of Rights as ‘glorious ambiguities’. The very elusiveness of their content has made it possible to shape and reshape constitutional doctrines to meet the needs of an evolving, pluralistic, free society. Precision has an honored place in writing a city ordinance, but it is a death warrant for a living Constitution.”

Inevitably, therefore, a court entrusted with the challenging task of constitutional adjudication is faced with a dilemma of either giving content to such cryptic and vague rules, concepts and values — obviously a highly creative role — or of conceiving as not binding the very core of the Constitution i.e. that part of the Constitution which refers to the basic rights of individuals vis-à-vis State power. The very function of a court is to protect the rights of a citizen as it is given the role of a guardian of the fundamental rights of a citizen. It has been given power under Article 32 to enforce such rights and protect the citizen from their encroachment. Arijit Pasayat, J. speaking as a member of the Constitutional Court observed: (SCC p. 319, para 139)

139. In the interpretation of a constitutional document, words are but the framework of concepts and concepts may change more than words themselves. The significance of the change of the concepts themselves is vital and the constitutional issues are not solved by a mere appeal to the meaning of words without an acceptance of the line of their growth. It is aptly said that the intention of the Constitution is rather to outline principles than to engrave details.”16

M.B. Shah, J. speaking for the Bench of the Supreme Court on the claim concerning “the right of a voter to know the antecedents of a candidate contesting election for the legislature” found contents of such rights in the fundamental rights guaranteed under Article 19(1)(a) of the Constitution. Relying on the observations of Mathew, J., he observes: (SCC paras 42, 55 & 78)

There is no such concept of derivative fundamental rights. It is established that fundamental rights themselves have no fixed content, most of them are empty vessels into which each generation must pour its content in the light of its experience. The attempt of the Court should be to expand the reach and ambit of the fundamental rights by the process of judicial interpretation. The Constitution is required to be kept young, energetic and alive. Therefore, as the phrase “freedom of speech and expression” is given the meaning to include citizens’ right to know the antecedents of the candidates contesting election of MP or MLA, such rights could not be set at naught by the legislature17.

Constitutional law thus being a higher law, is open to interpretation and evolution, and in such evolution a knowledge of tradition, history and philosophy being the necessary inputs, can be certainly useful and should be taken into account. Such knowledge may certainly put an important consideration leading courts to prefer, at times, bold activism and prudent self-restraint at other times. But the vision of a great judiciary has to go much beyond the temporary, occasional whims and pressures even defiance, rebellions and outbursts, of the social and political environment in which it operates. No great court has ever existed without a sense of any historical purpose and a mission, capable of resisting the pressures of the day18.

In the Presidential Reference on Gujarat Assembly Election16 at another place, Pasayat, J., observes:

“While making such an interpretation the roots of the past, the foliage of the present and the seeds of the future cannot be lost sight of. Judicial interpretation should not be imprisoned in verbalism and words lose their thrust when read in vacuo. Context would quite often provide the key to the meaning of the word and the sense it should carry. Its setting would give colour to it and provide a cue to the intention of the legislature in using it. A word is not a crystal — transparent and unchanged; it is the skin of living thought and may vary greatly in colour and content according to the circumstances and the time in which the same is used....” (Gujarat Assembly Election16, SCC pp. 318-19, para 136.)

In the case of Aruna Roy v. Union of India19 Article 28(1) of the Constitution came up for interpretation when in the National Curriculum prepared by NCERT, study of religions was sought to be introduced in the State-aided institutions. Prohibition on “religious instruction” under Article 28(1) of the Constitution came up for consideration before the Court. It was held: (SCC pp. 404 & 406, paras 81 & 84)

81. The expression ‘religious instruction’ used in Article 28(1) has a restricted meaning. It conveys that teaching of customs, ways of worship, practices or rituals cannot be allowed in educational institutions wholly maintained out of State funds. But Article 28(1) cannot be read as prohibiting study of different religions existing in India and outside India. If that prohibition is read with the words ‘religious instruction’, study of philosophy which is necessarily based on study of religions would be impermissible. That would amount to denying children a right to understand their own religion and religions of others, with whom they are living in India and with whom they may like to live and interact. Study of religions, therefore, is not prohibited by the Constitution and the constitutional provisions should not be read so..

* * *

The Constitution was framed by its makers keeping in view the situations and conditions prevailing at the time of its making; but being a permanent document, it has been conceived in a manner so as to apply to situations and conditions which might arise in future. The words and expressions used in the Constitution, in that sense, have no fixed meaning and must receive interpretation based on the experience of the people in the course of working of the Constitution.”
(emphasis in original)

Therefore, while interpreting the Constitution one must consider not merely logic and context of the Constitution, but the history of the nation, its customs, and accepted standards of right conduct. All this cumulatively shapes the progress and are the factors which singly or in combination should shape the growth of constitutional law. Precedents have great utility in shaping the constitutional law but precedents in themselves and uniformity in law ceases to be good when it becomes uniformity of operation. The social interest served by certainty must then be balanced against the social interest served by equity and fairness or other elements of social welfare. These may enjoin upon the court the duty of drawing the line at another angle, of staking the path along new courses, of marking a new point of departure from which others who come after its opinion set out upon their journey20. A court, therefore, and especially one dealing with constitutional, federal or generally transnational matters, has to have the courage to stand against temporary pressures whenever the “higher law”, which is its mission to enforce, so demands. For it is not the impact analysis, as valuable as it certainly is, but rather the “higher law” itself — the existence of a hierarchy of norms — which legitimizes judicial review and the inevitable activism that is implied by any effective sort of such review21.

Eminent jurist Cardozo poses a question for a judge and answers:

“if you ask how he is to know when one interest outweighs another, I can only answer that he must get his knowledge just as the legislator gets it, from experience and study and reflection; in brief, from life itself”.

The court is under a duty, within the limits of its power of innovation to maintain a relation between law and morals, between the perspective of jurisprudence and those of reason and good conscience.

The functions of our courts, as, has been said by one of the acute critics Arthur L. Corbin

“is to keep the doctrines up to date with the mores by continual restatement and by giving them a continually new content. This is judicial legislation, and the judge legislates at his peril. Nevertheless, it is the necessity and duty of such legislation that gives to judicial office its highest honor; and no brave and honest judge shirks the duty or fears the peril.”

Cardozo further states:

“You may say that there is no assurance that judges will interpret the mores of their day more wisely and truly than other men. I am not disposed to deny this, but in my view it is quite beside the point. The point is rather that this power of interpretation must be lodged somewhere, and the custom of the Constitution has lodged it in the judges. If they are to fulfill their function as judges, it could hardly be lodged elsewhere. Their conclusions must, indeed, be subject to constant testing and retesting, revision and readjustment; but if they act with conscience and intelligence, they ought to attain in their conclusions a fair average of truth and wisdom.”22

Insignificant is the power of innovation of any judge, when compared with the bulk and pressure of the rules that hedge him on every side. Innovate, however, to some extent, he must, for with new conditions there must be new rules. All that the method of sociology demands is that within this narrow range of choice he shall search for social justice. This creative work of interpretation of constitutional provisions by the judges has to continue because law and particularly constitutional law is indeed, a historical growth, for it is an expression of customary morality which develops silently and unconsciously from one age to another. The judicial restraint or restraining power of the judiciary does not manifest its chief worth in the few cases in which the legislature has gone beyond the lines that mark the limits of discretion. Rather we shall find its chief worth in making vocal and audible the ideals that might otherwise be silenced, in giving them continuity of life and of expression, in guiding and directing choice within the limits where choice ranges. This function should preserve to the courts the power that now belongs to them, if only the power is exercised with insight into social values, and with suppleness of adaptation to changing social needs.


Having thus identified a few principles for interpretation of the Constitution, the ultimate conclusion that can be deduced is that no fixed principle, can beneficially serve constitutional adjudication. Neither the “originalists’ approach” nor “preferred freedoms approach” nor “balancing of interests” singly or collectively are enough for a sound constitutional adjudication. Its main reason is that a Constitution is composed more significantly of principles than rules. This provides judges some amount of discretion in the matter of interpretation of constitutional provisions but this does not mean that they may rely on their own value preferences in construing constitutional provisions. As has been stated above, constitutional provisions are described by some as “great generalities” and by others as “great ambiguities”. The above descriptions are to a great extent apt. The provisions are ambiguous in the sense that in each case the judge is called upon to furnish his own meaning but they cannot be called “vague” because they are sufficiently meaningful concepts capable of lending guidance to enable the judge to operationalise constitutional guarantees. It is the function of the court to give effect to the logical theory contained in the Constitution that animates and binds together its provisions. The preamble of the Indian Constitution is, therefore, generally taken aid of to understand other provisions of the Constitution because it may be said to contain the “spirit of the Constitution”. The Constitution is a document of liberal principles, predicated on the primacy of a person’s worth. It is the function of judges, as instruments of the Constitution’s logic, to give effect to pre-existing individual rights in the decisions of cases23.

The growth of the Constitution through interpretation by courts, is a necessity for protection of the individual rights guaranteed by the Constitution. Power exercised by the court in interpreting the Constitution through unelected judges is not anti-democratic. Democracy cannot survive in a system in which civil rights and freedoms have no protection. The preservation of freedoms requires the elimination of concentration of power and the distribution of whatever power has to be achieved as a part of a system of “checks and balances”. The notion of democracy is not merely a simple majoritarian idea. The democracy also means participation; and it means tolerance and freedom. A judiciary reasonably independent from majoritarian whims can contribute much to democracy; and so can a judiciary — active, dynamic, and creative enough to be able to assure both the preservation of a system of “checks and balances” vis-à-vis the political branches and adequate controls vis-à-vis those other non-governmental or quasi-governmental centres of power which are so typical of our modern societies. The court’s potential for being accessible is its greater strength over other governmental organs. The key to the “courtroom” is simply a complaint and the judicial business is largely conducted in public. The judicial process is no less democratic than the political ones, for it is essentially participatory in nature. Its commencement and contents being determined by those individuals, agencies or groups which are most directly involved in, hence best informed on, the interests at stake. Legitimacy of judicial interpretation of the Constitution is the recognition that it is an institution with ability to protect minorities against majoritarian political, legal, economic, indeed societal pressure and will. It is an institution which protects and upholds “enduring values” enshrined in the Constitution and this it is able to do more because it is not elected and does not represent any particular group or section of society and being isolated from any kind of pressure is best placed to discover the principles of constitutional law and protect the constitutional rights24

On the basis of principles culled out above, an integrated approach in interpretation of a Constitution is required in the light of social, economic and political necessities of a particular period in which the court is called upon to interpret. Previous precedents of the court are only for guidance. The process of interpretation involves making the Constitution a workable law or instrument by treating it as a dynamic living document which needs to be suitably interpreted to meet exigencies of different periods. Socio-economic context in which the court is called upon to interpret, therefore, always assumes greater importance. The advice of eminent jurist Mauro Cappelletti is:

“To enable the Apex Court, to more effectively deal with important constitutional issues requiring interpretation of Constitution, time and again, I have made the point that it is a basic and most dangerous policy error to design Supreme Courts, national or otherwise, as organs bound to decide legions of cases brought to them, at the cost of overload and superficiality of decisions, rather than providing them with techniques and/or protecting them with access-screening capable of allowing them to concentrate their decision-making activity on cases of greater importance for the uniform interpretation, evolution, and ‘modernization’ of the law. The entire exercise of interpretation of the constitutional provisions by the court is to make the Constitution meaningful to the citizens of this country for whose betterment the Constitution is meant.”

Let me conclude with the hope expressed by an eminent member of the Constituent Assembly late Shri K.M. Munshi who looks at the Constitution not merely as a legal or political document but as one with lofty moral background and spiritual basis:

“The Constitution is not merely a legal document, nor is it a political document either. True, it was drafted by lawyers with the help of the political leaders who had won the battle of freedom. Theirs was a historical role: that of building a framework within which our national unity and democratic way of life might flourish.

Essentially, our Constitution has a moral background — to secure justice for every section of our society; as also a spiritual basis, — to preserve and protect all religions in the exercise of their functions.

The leaders of my generation have left in the Constitution a legacy of freedom, of the rule of law, freedom of speech and religion, and, above all, integrity and stability which the country has never enjoyed for over 1500 years.

India has been the motherland of the spirit. Political changes and economic adjustments are passing phases. What is of permanent value and a source of relief is that she will continue, in spite of difficulties, to inspire men to a higher life through faith, discipline and dedication.”

Let the hopes of the framers of the Constitution and our Father of the Nation Mahatma Gandhi inspire all constitutional functionaries and the people of India to preserve their spiritual heritage and mould their lives on constitutional principles.




Article presented in Symposium held on 22-12-2003 at Symbiosis Society’s Law College, Pune. Return to Text

* Judge, Supreme Court of India. Return to Text

1. 4 L Ed 529 (1819) Return to Text

2. In re: Special Reference No. 1 of 2002, (2002) 8 SCC 237 at 319 c.f. R.C. Poudyal v. Union of India, 1994 Supp (1) SCC 324 Return to Text

3. AIR 1950 SC 27 Return to Text

4. (1970) 1 SCC 248 Return to Text

5. (1978) 1 SCC 248 Return to Text

6. Justice Singh, G.P.: Principles of Statutory Interpretation, 7th Edn., 1999, Ch. 4, Synopsis 3, pp. 207-08. Return to Text

7. R. v. Henn, (1980) 2 All ER 166 Return to Text

8. Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225 Return to Text

9. Minerva Mills Ltd. v. Union of India, (1980) 3 SCC 625 Return to Text

10. Constitutional Interpretation from Encyclopedia of the American Constitution, Vol. 2, pp. 62632. Return to Text

11. Cappelletti, Mauro: The Judicial Process in Comparative Perspective, pp. 45-46. Return to Text

12. Encyclopedia of the American Constitution, Vol. 2, p. 632 and Encyclopedia of the American Judicial System, Vol. III, pp. 981-85. Return to Text

13. Ducat, Craig R.: Modes of Constitutional Interpretation. Return to Text

14. 334 US 558 : 92 L Ed 1574 (1948) Return to Text

15. Cappelletti, Mauro: The Judicial Process in Comparative Perspective, p. 399. Return to Text

16. Special Reference No. 1 of 2002 (Gujarat Assembly Election Matter), (2002) 8 SCC 237 Return to Text

17. People’s Union for Civil Liberties v. Union of India, (2003) 4 SCC 399 Return to Text

18. From the article “Is the European Court running wild?” by Cappelletti, Mauro: The Judicial Process in Comparative Perspective, p. 390. Return to Text

19. (2002) 7 SCC 368 Return to Text

20. Cardozo, Benjamin N.: The Nature of the Judicial Process, 3rd Indian Reprint, 2000, Universal Law Publication, pp. 112 and 113. Return to Text

21. Cappelletti, Mauro: The Judicial Process in Comparative Perspective, at p. 390. Return to Text

22. See in this respect, criticism of the role of the Supreme Court in Chapter 8 under the head “Creative Ambiguity” in the book by Das, Gobind: Supreme Court in Quest of Identity. Return to Text

23. Janosik, Robert J.: Encyclopedia of the American Judicial System, Vol. III, pp. 983-85. Return to Text

24. Cappelletti, Mauro: The Judicial Process in Comparative Perspective. Return to Text


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