India’s Constitutional Crossroads
The opinions expressed in this article are the writer’s own and do not reflect the views of Her Campus.
This article is written by a student writer from the Her Campus at MUJ chapter.
“Constitution is not a mere lawyer’s document; it is a vehicle of life and its spirit is always the spirit of the age”-as quoted by Dr. B. R. Ambedkar is much relevant in the context of the topic. Constitutional Interpretation is in itself a complex and time taking process. There is no hard and fast as to the interpretation of the constitution. There are various principles and doctrines which have developed over a period of time to assist the judiciary to evaluate the meaning contained in the constitutional provisions. Various doctrines include the Doctrine of Harmonious Construction (Re Kerala Education Bill case, 1957), Doctrine of Pith and Substance (State of Bombay v. F.N. Balsara), Doctrine of colourable legislature, Doctrine of Repugnancy ( M. Karunanidhi v. Union of India) and Doctrine of territorial nexus ( State of Bombay v. RMDC, 1957) . These doctrines are applicable in different cases depending upon the circumstances of the cases involved. However, since it has been 75 years since our country, India got independence and hence there has been a distinctive journey of our constitution from textual approach to liberal approach used in interpretation the constitution. Interpretation was used a measure in reducing the divide between judiciary and legislature as was held in Kesavananda Bharati v. State of Kerala. This case tried to balance the interest of both judiciary and legislature by giving the basic structure doctrine. Constitutional interpretation is a dynamic process and will continue to grow and develop with passage of time.
Constitutional interpretation is a process of deducing valuable meaning and conclusions from the text and cold words of the constitution. Supreme Court is tasked as a supreme interpreter of the constitution. The words can have multiple meaning depending upon on the perception of the interpreter. Constitutional interpretation has a dynamic and complex role as it varies from case to case basis. There can be various controversies about different methods of constitutional interpretation which are of prime interest for journalist, legal philosophers and legal scholars. The importance of constitutional interpretation in a democratic country is self-explanatory. Democracy is based on separation of power and it is the prima facia responsibility of the judiciary to establish a system of checks and balance over the legislative and constitutional interpretation is an apt and suggestive tool to exercise the system. Judiciary is an important organ in a democratic nation is thus given the power of constitutional interpretation under article 141 of the Indian Constitution .
Textual/ Literal Approach
Textual approach was the first kind of approach used by the apex court of the nation to interpretation the constitution where more emphasis was placed on the words and the literal meaning of the words was used to deduce the conclusions from the text of the constitution. This approach does not focus on the intention and motive of the drafters of the constitution while interpreting. In this context, words said by Blackstone are relevant as-“the duty of the Court is not to ‘pronounce a new law but to maintain and expound the old one.” This approach advocates the treatment of constitutional provisions as ordinary legislative acts and statutes. This approach is taken from the Privy Council as it was the highest law interpretation body pre-independence.
Some provisions are easy to interpret and they usually have only one set of derivable logical conclusion and thus textual approach works perfectly there, for example, provision which restricts people of age less than 35 years to become the president. However, most of the provisions have a much loose language which can be knitted in various forms depending upon the way the interpreter perceives it, for example the basic structure doctrine may include different characteristics which the judiciary may think fit, irrespective of the fact that no such classification was given in the constitution, this is become this doctrine itself was not part of constitution and the task comes on the shoulder of judiciary to specify its elements. In such complex and modern situations, textual approach usually fails to do justice.
Text written is static while the society is dynamic, society’s needs and desire changes over a period of time and for such changing times the interpretation needs to change to complement the ways of the world in these times. The text was written about 70 years ago is hardly applicable and relevant in today’s world. Correct and modern interpretation is required to meet the demands of the nation in this point of time. Topics like cyber-security, Crypto-currency, data protection, National register of Citizens, electoral bonds issue, section 377 and various rights which are now covered under article 21 were not even thought of when the constitution was drafted. Hence, changing the approach from textual approach to living constitution concept was much needed.
US constitution was prepared during 1780’s but it is very relevant inspite of various drawbacks like the compactness of the document, difficult and complex method of amending the constitution etc. Then, how is it relevant even today? The answer lies in the art of judicial creation which is nothing but the art of interpretation of the terms of the constitution in such a well-crafted manner that it serves today’s needs. One of the best specimens of use of textual approach in India is the case of- A. K. Gopalan and State of Madras– This case revolved around the preventive detention of Indian Communist Leader. Protection under article 21, article 22 and article 19 along with natural justice was claimed. The Supreme Court observed that article 21 and article 19 cannot be read together and there is no connection between the two and hence the claim was rejected. This judgement was based on textual approach. This approach played a major role in deducing the scope of the term ‘procedure established by law’ within article 21.
Also, there has been a tug of war between legislature and judiciary when it comes to the topic of amenability of the fundamental rights. Initially, in the case of- Sajjan singh v. State of Rajasthan – It was held that under article 368 of the constitution even fundamental rights can be amended, this decision was based on literal approach as the words of the provision suggested that amendment includes amendment even in the fundamental Rights i.e. Part 3 of the Constitutions. However, after realizing the importance of liberal approach to interpret the constitution, the Supreme Court overruled its judgement in Golaknath V. State of Punjab , where it stated that part 3 of constitution cannot be amended, based on the understanding of the article 368 and interpreting in a broader context using living constitution approach.
Transition phase
The movement from literal to liberal approach was a slow process, developed over years and during the transition there are other methods used by Supreme Court which are as follows- This phase was characterized by the Kesavananda Bharati v. State of Kerala where coherence was sought to be found out in the constitutional document as a whole. In order to end the competition between judiciary and legislature, this judgement pronounced the ‘Doctrine of Basic Structure’ which is an open ended dialogue and can be extended to any limits depending upon the will of the judges. This judgement is one of the landmarks judgements when it comes under the category of liberal approach. This judgement actually found out a solution and midway between judiciary and legislature. However, this judgement is also criticised as this judgement gives power in the hands of judiciary to actually create law as it has the sole power to decide what constitutes essential and basic structure of India and what not. Additionally, this is the decision over which the amenability of that particular subject would depend. Hence, the court by not clearly defining the boundaries of basic structure doctrine has taken the job of judicial creation rather than judicial interpreter. Another argument is that this is excess use of power by the judiciary to interpret the constitution beyond its limit. Judiciary by adopting the liberal approach is trying to play the legislature. Nevertheless, this judgement was the first case which symbolized the smooth transition of judiciary from literal approach to legal approach.
Another case which was delivered focusing on liberal concept was that of Maneka Gandhi v. Union of India. This case greatly enlarged the horizon of Article 21 of the Indian Constitution. It broadened the scope to include the right to clean environment, right to means of livelihood under Article 21. This paved the way for the judges to interpret the constitution to include the very basic human rights and give judgement in a more outcome-oriented way, focusing on the extend of impact of the judgement on the society. The textual approach was much more direct and pointed, in contrast to the liberal approach which offers place for adjustment of today’s needs along with the constitutional provisions.
Living Constitution and Liberal Approach
In the words of Barack Obama- “Constitution is a living document; no strict constructionism.” , these words are significant in the current context. The words of the constitution cannot cater to the need of the hour and this is the prime cause of development of living constitution concept accompanied by liberal approach of interpretation. Judicial review and judicial precedents can be two useful tools to implement the liberal approach. The bare law does not grows along with the society and then to walk with time, the constitution needs to evolve, there are two suggestible ways of evolution either by amendments and enactments of laws by legislature or modified interpretation of the constitution to accommodate today’s needs. People’s faith lies in the judiciary so it is essential for judiciary to ensure the interest of the people while interpreting the constitution, on the other hand, the executive and legislature is more politically motivated and often shatters people’s dreams based on their promises, so, in such a conditions it is appropriate for the judiciary to mould the constitution by treating it is a living and organic document. This approach is often criticised as a ‘judicial outreach’. This method is more value-based, outcome oriented, supports judicial creation, liberal and have a specific aim to muster justice among the masses while keeping up with the current trends.
As per Schwartz-“A constitution is naught but empty words if it cannot be enforced by the courts. It is judicial review that makes constitutional provisions more than mere maxims of political morality.” The significance of the approach lies in the fact that constitutional interpretation affects the society as a whole and the target audience is actually the whole country along with the future generations so a limited interpretation would defeat the ultimate objective of attaining justice for every individual. The Privy Council supported the textual approach as it treated the interpretation of the statues similar to that of constitution, which is completely fair on its part as the constitution which guided India at that point of India was only an amalgamation of various other pieces of legislation like that of The Government of India Act, 1935 and others, which were nothing but statutes made by them. In contrast, today’s judiciary has a well framed distinction between constitutional provision and statues so a different approach in the name of living constitutionalism is applied rather than textual approach used while interpretation of statues. Statues affect a certain population but constitution affects the complete set of people, not the present but also upcoming generation. Countries like USA, Canada, UK and France etc. continue to implement living constitution concept in the light of the fact that their constitutions were drafted years ago and so these can be used as a set example. Considering the landmark judgement given in Navtej Singh Johar v. Union of India where liberal approach was used to enforce the societal acceptance towards the social change in sexual orientation.
The liberal approach leaves room for incorporation of moral characteristics and constitutional morality as well. At the same time, a better version would be to make the historical approach guide the liberal approach and lead not the judges on pathless woods of interpretation but rather an open-purposive approach guided by the thinking and beliefs of the framers of the constitution. This type of approach supports the judiciary to enforce its role as a custodian of fundamental rights and perform its function effectively. Constitutional interpretation is a dynamic and continuous process so it should be the aim of the judiciary to develop it as a system that supports development of new legislation without violating the previous ones. “Constitution need not be interpreted in a narrow sense but rather with widest connotation possible”, this was held in the case of Goodyear India Ltd. v. State of Haryana . The application of this approach is widely made while interpreting the three lists mentioned under seventh schedule. Social interest must be used as a parameter for effective interpretation.
Constitution is like a dream of providing justice, equality and liberty to all individuals, but also at the same time, this dream has to evolve and develop to answer and envisage questions which were never raised in the history before. Constitution represents the will of the society and for the betterment of society and so for achieving this goal it is important for the constitution to modify the interpretation to retort back to today’s needs. Constitution must grow with the world and should open its arms to welcome different perspective interpretation. The problem that existed when India got independence included poverty, inequality, unemployment etc. and so the provisions were made according to those prevalent situations, but now the dimensions are highly different from that scenario needing modern solution which indeed possible by modern interpretation and by setting up a nexus between new emerging issues and pre drafted solutions of constitution.
At the same time, the textual approach talks about the thinking of the drafters of the constitution and attempts to implement it. However, it is essential to note that why is it even necessary to think in a similar way as the thinking of a prudent person who existed almost seven decades ago. Does that kind of mentality thinking and belief actually work, after years and years of progress? Many words used in the constitution are open ended and it is a good assumption they are left purposely open ended by the visionaries to provide the court wide horizon to interpret those words and the intention behind using such words. Interpretation by the courts using the concept of living constitution, focusing more on liberal approach, rather than the literal approach is quite apt and suggestive.
