Interpretation of Constitutions: A Doctrinal Study: - Arvind P. Datar & Rahul Unnikrishnan
Interpretation of Constitutions: A Doctrinal Study: - Arvind P. Datar & Rahul Unnikrishnan
A Doctrinal Study
—Arvind P. Datar & Rahul Unnikrishnan1
When the text of the Constitution is unambiguous, its sounds can be easily
interpreted. However, when the Constitution is silent on any right, immunity,
privilege or any form of distribution of power, it becomes an exercise to interpret
the ‘sound of the silence’. Laurence H. Tribe has eloquently dealt with silences of
Constitutions in the undernoted article.3
1
Advocates, Madras High Court. An abridged version of this essay was presented by Mr. Datar at
the National Judicial Academy on 4 February, 2017. The authors acknowledge the contribution of
Sarangan Rajeshkumar, a IV year student of National Law School of India University, Bangalore.
2
Lars Vinx, The Guardian Of The Constitution: Hans Kelsen And Carl Schmitt On The Limits Of
Constitutional Law, 28 (Cambridge University Press, 2015).
3
Laurence H. Tribe, Soundings and Silences, 115 Michigan Law R eview, Vol. 115 (2016), http://
michiganlawreview.org/wpcontent/uploads/2016/11/115Mich.L.Rev_Online26_Tribe.pdf.
A. Textualism
4
Craig R. Ducat, Constitutional Interpretation, 80 (Thomson West, 2004).
5
Kent Greenawalt, Statutory and Common Law Interpretation, 293 (Oxford University Press,
2013).
6
Hunter v. Southam Inc., 1984 SCC OnLine Can SC 36 : (1984) 2 SCR 145.
7
Robert C. Post, Theories of Constitutional Interpretation, 30 Faculty Scholarship Series 13, 14
(1990).
8
Caleb Nelson, What is Textualism, 91(2) Virginia Law R eview 347, 347-418 (2005).
On a semantic level, while agreeing with Max Radin, we believe that there is
certainly some merit in saying that a legislature has no intention in connection
with words which some two or three men drafted, which a considerable num-
ber rejected, and in regard to which many of the approving majority might have
had different ideas and beliefs. However, this does not mean that other theories
of interpretation are fallacious. Certainly, the textualist theory of interpretation
is the one with the least scope for imagination, thereby curtailing judicial discre-
tion. One should also keep in mind the fact that a constitution is always a ‘living
document’.
B. Originalism15
In 1971, Judge Robert Bork, then a professor at Yale Law School, argued
that the neutral principles as postulated by Wechsler should be derived from the
Constitution itself.19 Articulating further, Bork, in his seminal book The Tempting
of America, observes that when a judge finds his principle in the Constitution as
originally understood, the problem of the neutral derivation of principle is solved
and he/she need not make unguided value judgments of his own. This was con-
sidered as a safeguard against political judging.20
determinable; that is to say, it is a statement which involves a number of possible events or indi-
vidualizations, any one of which would be correctly described by that determinable. Further, a
determinable of this sort can be made more nearly determinate by reducing the number of possi-
ble individualizations, and it becomes quite determinate when it is so expressed that there is only
one).
15
Also known as ‘interpretivism’/‘preservativism’.
16
John O. McGinnis & Michael B. Rappaport, Originalism and the Good Constitution, 1 (Harvard
University Press, 2013).
17
Robert M. Howard & Jeffrey A. Segal, An Original Look at Originalism, 36(1) Law and Society
R eview 113, 113-118 (2002); Herbert Wechsler, Toward Neutral Principles of Constitutional Law,
73(1) H arvard Law R eview, 1-35 (1959).
18
Brown v. Board of Education, 1954 SCC OnLine US SC 44 : 98 L Ed 873 : 347 US 483 (1954)
(in this case the Supreme Court declared state laws establishing separate public schools for black
and white students to be unconstitutional).
19
Harry H. Wellington, Interpreting the Constitution, 44 (Yale University Press, 1990).
20
Robert H. Bork, The Tempting of America: The Political Seduction of Law, 146 (Touchstone,
1990).
However, it must be stated that originalists have faced serious objections from
academicians. The main criticisms are that the original understanding is unknow-
able, the Constitution must change as society changes and that there is no real
reason for the living to be governed by the dead.22 In our opinion, the origi-
nalist theory of interpretation should be read in a restricted manner. An origi-
nalist interpretation of distribution of powers and other ‘basic structures’ of a
Constitution helps the Constitution survive but an originalist interpretation of the
rights of individuals which results in a narrow interpretation of rights cannot be
justified in any manner whatsoever.
21
Jeffrey Goldsworthy, The Case for Originalism, The Challenge of Originalism: Theories of
Constitutional Interpretation, 42, 42-69 (Grant Huscroft & Bradley W. Miller eds, Cambridge
University Press, 2011). (According to Goldsworthy, utterance meaning is the full meaning of an
utterance, implied as well as expressed, and it depends on what the speaker’s meaning appears
to be, given evidence that is readily available to his or her intended audience, including the sen-
tence meaning of the utterance and other clues such as its context).
22
Bork, supra note 20, at 161.
C. Doctrinalism
D. Structuralism
In this way, structuralist thinking flattens out legal norms, principles and laws
into a single system that works in perfect synchrony and is internally consistent
23
Mark A. Graber, A New Introduction to American Constitutionalism, 80 (Oxford University
Press, 2013).
24
Sotirios A. Barber & James E. Fleming, Constitutional Interpretation: The Basic Questions, 117
(Oxford University Press, 2007).
25
Graber, supra note 23, at 81.
26
Graber, supra note 23, at 81.
27
David Kennedy, Critical Theory, Structuralism and Contemporary Legal Scholarship, 21(2) New
England Law R eview (1985).
in its object. All parts of the system are assumed to be consistent with each other
in the meanings accorded to each of them by the legal language.
The structuralist also firmly believes in the law’s ability to provide answers
to any legal issues that may arise and searches within the system to identify lan-
guage that is capable of being mutated to accommodate situations while contin-
uing to retain the legal character that it is endowed with. The system itself is
merely a diagram that is made up of different connectors that take the shape of
legal concepts, which connect laws that exist in different forms (statutes, rules,
precedents, etc.). It is these relationships that are presented to us in permutations
of ‘rights’, ‘duties’, ‘liabilities’, ‘powers’ and so on.
E. Prudentialism
The prudentialist has the unique distinction of being able to appeal to the pub-
lic sense of conscience as opposed to a textualist, who is seen as an unfeeling
and stoic individual. Moreover, a prudentialist also lies in stark contrast to an
originalist who looks back upon legislative history to interpret laws. A pruden-
tialist instead, focuses on the present rather than the past since the latter is in the
opposite direction of progress. Although one might argue with the prudentialist
that laws have been framed keeping in mind their future implications, the rebut-
tal for this argument would be that there is considerable complexity in applying
them to today’s society and consequently, it is necessary to look for new solutions
to the problem at hand. The primary motivation of prudentialist legal reasoning is
to arrive at conclusions that do not appear to be senseless to society at large. The
strength of prudentialism lies in its emotional appeal. It imparts a human touch
to legal interpretation making it easily understandable for those who have viewed
law as an unapproachable enterprise. It achieves this by stating its object to be
the balancing of costs and benefits of a particular rule rather than strict adherence
to legislative intent or even to the text of the law.31
28
Graber, supra note 23, at 83.
29
Terminiello v. City of Chicago, 1949 SCC OnLine US SC 59 : 93 L Ed 1131 : 337 US 1 (1949).
30
Boumediene v. Bush, 2008 SCC OnLine US SC 46 : 171 L Ed 2d 41 : 553 US 723 (2008).
31
Jack M. Balkin, Constitutional Grammar, Yale Law School Faculty Repository (1994) http://digi-
talcommons.law.yale.edu/fss_papers/269.
F. Purposive Interpretation
Aharon Barak, a former President of the Supreme Court of Israel, is the main
proponent of the doctrine of purposive interpretation. He observed that purposive
interpretation demonstrates its sensitivity to the uniqueness of a Constitution in
the balance it strikes between subjective purpose i.e., the intent of the authors
of the Constitution, and objective purpose i.e., the intent of the system.32 Barak
cites the Canadian Supreme Court33 which used the doctrine of purposive inter-
pretation to observe that the meaning of a right or freedom under the Charter
of Rights and Freedoms must be ascertained by an analysis of the purpose of
such a guarantee. Purposive interpretation can thus be a perfect tool of inter-
pretation for an expansive interpretation of rights owing to the felt necessities of
time but at the same time without deviating from the core principles that shape a
Constitution.
32
Aharon Barak, Purposive Interpretation in Law, 371 Princeton University Press, 2005).
33
R. v. Big M Drug Mart Ltd., 1985 SCC OnLine Can SC 16 : (1985) 1 SCR 295.
34
Barak, supra note 32, at 375.
35
Barak, supra note 32, at 377.
36
David P. Derham, Some Constitutional Problems arising under Part XIII of the Indian
Constitution, 1 Journal of Indian Law Institute, 523, 562 (1959).
A. Textualist Interpretation
In A.K. Gopalan,40 the Supreme Court gave a narrow and literal interpreta-
tion to Article 21 of the Indian Constitution and refused to infuse the concept of
“procedure established by law” with the principles of natural justice. The judicial
uncertainty on the interpretation of the term “compensation” as contained in the
erstwhile Article 3141 of the Constitution of India marked another episode of tex-
tualist interpretation by the Supreme Court. In 1954, the Supreme Court held that
37
Articles 301-307, Constitution of India (Trade, Commerce and Intercourse within the Territory of
India).
38
Derham, supra note 36, at 562.
39
M.P.V. Sundararamier & Co. v. State of A.P., AIR 1958 SC 468 (Venkatarama Aiyar, J. observed
that the provisions of the Constitution must be read in the light of Government of India Act,
1935).
40
A.K. Gopalan v. State of Madras, AIR 1950 SC 27 (This case was overruled in Maneka Gandhi
v. Union of India, (1978) 1 SCC 248 : AIR 1978 SC 597 wherein it was held that the procedure
contemplated in Article 21 of the Indian Constitution must answer the test of principles of natu-
ral justice); See M. Nagaraj v. Union of India, (2006) 8 SCC 212.
41
Article 31(2), Part III, Constitution of India (This article stated that no property, movable or
immovable, including any interest in, or in any company owning any commercial or industrial
undertaking, shall be taken possession of or acquired for public purposes under any law author-
izing the taking of possession of such acquisition, unless the law provides for compensation for
the property taken possession of or acquired and either fixes the amount of compensation, or
specifies the principles on which, and the manner in which, the compensation is to be determines
and given).
Another area where the Supreme Court had used textualist interpretation
was in the interpretation of the word “law” under Article 13(2) vis-à-vis the
Parliament’s power to amend the Constitution under Article 368. The Constitution
was indeed silent on whether this word under Article 13(2) includes a constitu-
tional amendment or not. In 1951, the Supreme Court made a distinction between
ordinary legislative power and the Constituent power of the Parliament. The
Constitution (First Amendment) Act, 1951 was challenged but it was held that the
word “law” in Article 13(2) would not include an amendment to the Constitution
which was made in exercise of the constituent power of the Parliament. It was
held that Article 368 empowered Parliament to amend the Constitution without
any exception.48 This view was later upheld by the Supreme Court in 1965 by
holding that a constitutional amendment could even take away or abridge fun-
damental rights.49 However, it must be noted that two years later, in 1967, the
Supreme Court, vide a bench of 11 judges, took a diametrically opposite view and
42
State of W.B. v. Bela Banerjee, AIR 1954 SC 170.
43
P. Vajravelu Mudaliar v. Collector (LA), AIR 1965 SC 1017.
44
See Union of India v. Metal Corpn. of India Ltd., AIR 1967 SC 637.
45
State of Gujarat v. Shantilal Mangaldas, (1969) 1 SCC 509 : AIR 1969 SC 634.
46
Arvind P. Datar, Commentary on the Constitution of India, 498 (2006).
47
Rustom Cavasjee Cooper v. Union of India, (1970) 1 SCC 248 : AIR 1970 SC 564.
48
Sankari Prasad Singh Deo v. Union of India, AIR 1951 SC 458.
49
Sajjan Singh v. State of Rajasthan, AIR 1965 SC 845.
held that the power under Article 368 could not abridge or take away any of the
fundamental rights in Part III of the Indian Constitution.50
B. Purposive Interpretation
The early 1970s saw a major shift in the approach of the Supreme Court; it
started giving expansive meaning to Part III, which view was based on a cer-
tain set of ‘silent’ features of the Indian Constitution. In Kesavananda Bharati,53
the Supreme Court held that the Parliament’s power to amend the Constitution
included within itself the power to add, alter or repeal the various Articles of the
Constitution but it did not include the power to abrogate the Constitution or alter
50
C. Golak Nath v. State of Punjab, AIR 1967 SC 1643.
51
State of W.B. v. Anwar Ali Sarkar, AIR 1952 SC 75.
52
S. Krishnan v. State of Madras, AIR 1951 SC 301 (In this case, the legality of the Preventive
Detention (Amendment) Act, 1951 was questioned).
53
Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225.
its basic structure. As rightly pointed out by Fali Nariman, the basic structure
theory had evolved from the great silence in our Constitution. He says, “after
all, the Constitution did provide that it could be amended but surely it did not
say that it could be abrogated, or that its basic features could be thrown to the
winds.”54 Kesavananda Bharati is a classic example of Aharon Barak’s notion of
purposive interpretation with respect to the balance it strikes between subjective
purpose (the intent of the authors of the Constitution) and objective purpose (the
intent of the system).
This suit was later worn by the Supreme Court in multiple occasions. In
Maneka Gandhi,55 it was held that the procedure contemplated under Article 21
must answer the test of reasonableness and that such a procedure should also be
in conformation with the principles of natural justice. In Mohinder Singh Gill,56
the Supreme Court interpreted Article 324 in the widest manner possible and
conforming with constitutional ideals, it held that Article 324 is geared to the
accomplishment of free and fair elections expeditiously. Other examples are, inter
alia, Ramana Dayaram Shetty,57 Royappa,58 Hussainara Khatoon59 and Minerva
Mills.60
54
Fali S. Nariman, The Silences in our Constitutional Law, The Supreme Court Cases, J-15, J-23
(2006).
55
Maneka Gandhi v. Union of India, (1978) 1 SCC 248 : AIR 1978 SC 597.
56
Mohinder Singh Gill v. Chief Election Commr., (1978) 1 SCC 405 : AIR 1978 SC 851.
57
Ramana Dayaram Shetty v. International Airport Authority of India, (1979) 3 SCC 489.
58
E.P. Royappa v. State of T.N., (1974) 4 SCC 3 : AIR 1974 SC 555.
59
Hussainara Khatoon (4) v. State of Bihar, (1980) 1 SCC 98.
60
Minerva Mills Ltd. v. Union of India, (1980) 3 SCC 625.
61
See A.K. Gopalan v. State of Madras, AIR 1950 SC 27; State of Travancore-Cochin v. Bombay
Co. Ltd., AIR 1952 SC 366; C. Golak Nath v. State of Punjab, AIR 1967 SC 1643; Har Sharan
Verma v. Tribhuvan Narain Singh, (1971) 1 SCC 616; Union of India v. Harbhajan Singh Dhillon,
(1971) 2 SCC 779; State of Mysore v. R.V. Bidap, (1974) 3 SCC 337 : AIR 1973 SC 2555.
62
S.R. Chaudhuri v. State of Punjab, (2001) 7 SCC 126.
a Constitutional provision because it is the function of the court to find out the
intention of the framers of the Constitution. This is indeed useful when the words
used in constitutional provisions are vague. Alternatively, if the constitutional
provisions are unambiguous yet their interpretation results in a smudged version
of justice, Barak’s purposive theory of interpretation should be used by the judges
to cleanse those smudges. In our opinion, purposive interpretation is the key tool
of interpretation which will stand the test of time.