Introduction:
Constitution may be described as the principal law of a rustic, it is not just a document of rights but also provides framework and guidelines from which all statues assume power, the parliament is bound to legislate on the subjects within limits set by constitution. There may be instances wherein a provision is silent or ambiguous and to understand the authentic essence of Constitution, the interpretation is done by the Judiciary, which gives true meaning and aspiration of Constitution makers that why a specific provision has been validated and what is the necessity of the specific provision, various provisions have been explained by the judiciary so far.
The power and duty to interpret the Constitution has been engulfed with the Supreme Court of India under Article 32 and Article 136 and the High Court under Article 226 and Article 227, it would have known to the Constitution makers that there might be a need to change the law, if found ambiguous, to deal with that amending powers have been granted pursuant to Article 368, till now the most interpreted legal text of the Constitution are Article 21(Right to life & liberty) followed by Article 19(1) (a) i.e. Right to Freedom of speech and Expression.
Role of Judiciary in Interpretation
- The Apex Court and High courts are the guardian of the Constitution and it is the responsibility of both to strike down the laws which is derogatory to the Basic Structure as construed in Kesavananda Bharati v. State of Kerala[1], the authority to do so is termed as Judicial Review.
- It also keeps an insight on the laws enacted by the Legislature.
Role of Legislature in Interpretation
- The parliament consisting council of states and House of the people have the power to rectify the Constitution.
- A higher threshold of majority is required to modify and re-write the Constitution as compare to the Ordinary law. Constitutional amendment act requires, a majority of more than half of total membership of the house and at least two third present and voting.
Theories of Constitutional Interpretation
1. Originalism
By “Originalism”, I mean the familiar approach to constitutional adjudication that accords binding authority to the text of the Constitution or the intentions of its adopters[2]. The objective of the makers is considered why a specific provision has been introduced in the Constitution.
2. Stare Decisis
It has been seen that precedents are the best source when there is a constitutional silence as it provides stability and predictability so that people know what has to be expected, the concept is used by the judges when there is legal difference in the bench but there is still less transparency as whether the Ratio decidendi or Obiter dicta has to be applied.
3. Prudentialism
In simple terms, which opinion is more sensible and application of what ought to do by the judges is analysed and the most favourable opinion is taken while interpreting the provision.
In Maneka Gandhi v. Union of India, the Supreme Court interpreted Article 21 to include due process of law reading the Principles of Natural Justice[3]
Article 21 of the Indian constitution says that “No person shall be deprived of his life or personal liberty except according to the procedure established by law, there has been a debate over procedure established by law”[4].
Procedure established by law – It is an English doctrine in which if a person is deprived of his life and personal liberty, the court will examine whether there exists a law that authorises the executive to deprive the individual, then it is examined whether the parliament was competent and due process has been followed, the court however do not examine the legitimacy of the law.
The Due process of law – The court will not only look at the law from the perspective that whether exists a law authorizing executive to act , was the law made by a qualified legislature but also see is the law fair and just or not.
4. Textualism
In strict sense, what has been written in the constitution has to be read as it is, no legal reasoning has to be applied. The advantage of this theory is that it removes Judge’s predisposition but on other hand it leaves in ambiguity for the provision which is silent on specific dispute.
In Shankari Prasad v. Union of India, it was held that the parliament enjoys two types of legislative power,
a) Ordinary Legislative Power
b) Constitutional Legislative power
Any act of parliament using Ordinary legislative power which involves simple process and simple majority is termed as law however Act of parliament under Article 368, i.e. constitutional legislative power will not be falling in the definition of law as given in Article 13(3) as the amendment made is not law, the Parliament can amend any part of the Constitution including the Fundamental Rights[5].
However In Golaknath v. State of Punjab, Supreme Court overruled its earlier decision and held that Article 368 contains only the procedure to amend the constitution but did not confer power on the parliament to amend it or to use the process therefore the parliament has only one type of legislative power and therefore the parliament cannot amend Constitution.[6]
But later on the Parliament responded by enacting 24th Amendment Act, 1971 which amended the title of Article 368 which now read as “The procedure to amend the Constitution and power to amend the Constitution”.
Principles of Constitutional Interpretation
1. Doctrine of Pith and Substance
It means that if an enactment falls within the powers expressly conferred by the constitution upon the legislature, it cannot be held ultra vires merely because its nomenclature shows that it encroaches upon the matters assigned to another heading of legislation.
In Kerala SEB v. Indian Aluminium Co. Ltd.[7] it was held that for deciding under which entry a particular provision falls the theory of Pith and Substance has been introduced by the courts. If in the pith and substance a legislation falls within one list or the other but some portion of the subject matter of that legislation incidentally falls upon the other legislation and might come to fall under another list, the Act as a whole would be valid.
2. Doctrine of Eclipse
Article 13(1) says that all the “Laws” that has been enforced in India before commencement of the Constitution shall be unconstitutional and void if they violate one or more provision of Part III of the Constitution to the extent of such violation.
In Bhikaji Narain v. state of M.P., the Supreme Court applied “Principle of Eclipse” and said that such pre constitutional laws remain dormant or remain under shadow of Fundamental rights but will not be dead and can be revived if any amendment removes the clash between that law and Fundamental right[8].
In Deep Chand v. State of U.P, the court stated that Doctrine of Eclipse can be made applicable to pre-constitutional laws only and post- constitutional laws cannot be revived as they are “void ab initio”[9] .
However in Ambika Mill v. State of Gujarat, Supreme Court reversed its earlier decision and declared that Doctrine of Eclipse can be stretched out to protect a post constitutional law also.[10]
3. Doctrine of Severability
The principle is an English concept, according to Article 13(1) it is not the entire act, which is rendered as null and void, if it is violating any of the Fundamental Rights but only that part is held inoperative which is inconsistent. The entire act minus the part inconsistent will be valid, it has been said that the concept applies only to post constitutional laws but that is not the condition.
In State of Bombay & others v. F.N. Balsara[11], the concept was applied and the provisions of eight sections of the Bombay Prohibition Act, 1949 was held ultra vires on the basis that they are infringing the Fundamental Rights but the act excluding the invalid provisions was allowed to stand.
4. Doctrine of Territorial Nexus
There can be circumstances in which the object to which the law has to be enforced may not physically available in the State Territory, yet the state law will be legitimate and can be applied if there exists a connection between the law and the object. The tests for the sufficiency of the nexus have been advanced in:
State of Bombay v. R.M.D. Chamarbangwala as follows:
- The connection of must be real and not illusory. One cannot tax a dog (outside the state) because its mouth was with him at some point of time during the period of gestation or it cannot even be taxed if its tail is cut off and maintained in the state.
- The liability needed to be imposed must be patient to that connection[12].
5. Colourable Legislation
The principle revolves around the competency of the parliament to enact a law, it says that what cannot be done directly, cannot also be done indirectly. The question of Motive is irrelevant.
Example: if there lies no law making power concerning acquisition of property. But the legislature makes a law to make the property as good as acquired. If it is shown that the outcome of the law is what the legislature does not competence to make law- the law would be rendered invalid.
In K.C. Gajapati Narayan Deo v. State of Orissa [13], the debate over a legislation took place in which state govt. enhanced the rate of tax on agriculture income , it was challenged on the ground that it is a colourable piece of legislation to reduce the net income of the intermediaries so that compensation payable to them Under Orissa Estates Abolition Act, 1952 can be kept as low as possible but the court stated that motives which compel to implement are not valid , if the legislature is competent to enact a legislation.
Conclusion
As the Indian Constitution is the lengthiest in the world, the elucidation of which is a taxing task and every judgement rendered by the judiciary make laws and provisions more clear. The method adopted by the Apex court is to give wider interpretation to the Constitution so that the objective of the forefathers is not defeated while interpreting, the principles and theories given are not constant and continuously evolving and there is no hard and fast rule that the interpretation can only be done with the help of theories and principles given, it is the facts and situations of a particular dispute that attracts the attention of the judiciary if there lies ambiguity on a legal dispute. The courts must give wider interpretation by which greater transparency can be attained and gives a clear understanding of the topic.
References:
[1] Kesavananda Bharati v. State of Kerala, (1973) 4SCC 225
[2] Paul Brest, “the Misconceived Quest for the original Understanding, 60 B.U.L. Rev. 204 at 234(1980).
[3] Maneka Gandhi v. Union of India 1978 AIR 597, 1978 SCR (2) 621
[4] INDIA CONSTITUTION article 21
[5] Shankari Prasad v. Union of India
[6] Golaknath v. State of Punjab, 1967 A.I.R. 1643, 1967 S.C.R. (2) 762.
[7] Kerala SEB v. Aluminium Co. ltd. 1976 1 SCC 466
[8] Bhikaji Narain v. State of Madhya Pradesh AIR 1955 SC 781
[9] Deep Chand v. State of UP 1963 SC
[10] State of Gujarat v. Ambika mills (1974) SC
[11] State of Bombay & others v. F.N. Balsara AIR 1951 SC 318
[12] State of Bombay v. R.M.D. Chamarbangwala AIR 1957 SC 699
[13] K.C. Gajapati Narayan Deo v. State of Orissa AIR 1953 SC 375
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