This article is written by Abhinav Narayan Jha, a law student of Amity Law School, Amity University, Noida, Uttar Pradesh and Anurag Tiwary, a law student of National Law University, Visakhapatnam.
How does one flesh out meaning from a Constitution that is supposed to govern 1.3 billion people, regulate the functions and powers of governments in 28 States and 8 Union Territories. How high are the stakes of such an attempt in a nation where people speak 22 constitutionally recognized languages and practice almost every religion in the world? With different ideologies, political outfits, widespread poverty, and illiteracy, the task of interpreting the lengthiest constitution of the world becomes daunting and an equally interesting task at first blush.
It is the Supreme Court under Article 32 and 136 and the High Courts under 226 and 227, that are vested with the power of ‘Judicial Review’ where state actions or inactions are put through a constitutional Litmus test. The court engages in an endeavor where it has to figure out a particular meaning of a provision in the constitution. During this pursuit, the court employs various methods and modes of interpreting those provisions to realize the goal of equitable justice.
Constitutional Interpretation is important for several reasons. Firstly, Constitutions are broadly worded documents and have been drafted in as general terms as possible. To apply them to particular legal and factual circumstances, rules of constitutional interpretation becomes necessary.
Secondly, Constitutions were drafted decades and sometimes centuries earlier. Such a document may be ill-equipped at times to answer certain specific questions which the drafters ratifying the document could not have easily foreseen. It, therefore, becomes important for the courts to propound theories of constitutional interpretation that makes the document a “living constitution” – one that caters to the society of today and tomorrow. Constitutions must evolve and adapt to new challenges and circumstances without being formally amended.
Thirdly, it is difficult to identify the ‘Spirit of the Constitution’ by reading a single provision in the document. Rules of Constitutional Interpretation helps identify the overall spirit of the text. Fourthly, Constitutional Interpretation is crucial in identifying ‘Constitutional Symbolism’. A written Constitution is in many senses a symbolic document and to identify its symbolism is an important legal venture. It helps address philosophical questions of legal importance which reaffirms constitutional values and helps build a nation’s own constitutional identity.
However, at the risk of initial oversimplification, it is important to state that constitutional interpretation, is subject to continuous adjustment. The meaning of Constitutional provisions does not remain static. We know that they evolve and adapt to changing circumstances. The courts are tasked with the responsibility to interpret these provisions according to those circumstances. The task of Interpreting the Constitution therefore continues unendingly. However, the modes adopted, and the meanings propounded keeps changing.
This could, therefore, mean that reading the various modes and methods of Constitutional Interpretation embraced by the courts becomes even more significant as this will uncover the times we lived in or the values that the court felt were indispensable and had to be respected and protected. It will disclose the societal context of these decisions at a certain point in history followed by an understanding of how the courts adopt those rules today and their relevance in adjudicating or deciding issues of constitutional importance.
It must be stated that there is and will always be considerable debate over which method of interpretation should the court apply while deciding constitutional questions. This is a controversy that exists similarly like other general disputes in Constitutional Law and therefore is no different from the rest.
The first of the approaches we refer to here is the Categorical Approach. This is also known as ‘Textualism’ or the ‘Grammatical’ approach to interpreting the Constitution. While following this approach, the court pays a lot of attention to the language of the constitution. All that it does is interpret only what is the plain meaning of the text. It does not inquire into the ‘intention of the framers’ or the ‘purpose’ behind the adoption of the provision. They derive meaning from a plain reading of the text.
The categorical approach also encompasses within its fold a slightly different rule of Interpretation called ‘Originalism’. On one hand, where textualism refers to focusing solely on the plain text, originalists consider the meaning of the provision as understood by the citizenry at the time when it was adopted. Originalism believes that constitutional provisions are objectively identifiable and therefore they never change. The categorical approach, therefore, gives judges less discretion and assumes more sacredness for the constitution’s bare provisions. The duty of a judge, therefore, in the categorical approach is to simply apply the provisions to the given facts and situations and decide the case based on that.
The Consequentialist Approach on the other hand places a lot of importance on the consequences that may transpire after a court’s decision. This is also called the “Pragmatism” approach where the court essentially weighs in the probable consequences of one interpretation over another. These are situations when the court is tasked with deciding major questions of constitutional law and the impact that it is going to have on society. A case on point is the Ratlam Municipality judgment by the Apex Court where Justice Krishna Iyer was tasked with deciding whether a municipal corporation that had no funds could claim a valid defense for not carrying out its statutory duties. Financial inability could validly exonerate the defendants, but the court could sense that accepting such an argument could lead to a profligate statutory body defying its duties and urging in self-defense a self-created bankruptcy. The court ruled that fundamental rights and human rights under the constitution had to be respected by the state regardless of budgetary constraints.
The third rule is the Rule of Morality. Moral considerations and notions of morality play an important role in judicial decision making occasionally. The debate over law and morality and their integration or alleged agnosticism towards each other is a classic case of jurisprudential inquiry but what’s important is how often do courts adopt this rule to decide cases of constitutional importance. However, a distinction needs to be drawn at this point between Social Morality and Constitutional Morality – the former is an idea of morality as proposed by the society without any rational justification and isn’t universal whereas the latter is characterized by its paramount reverence to the forms and provisions of the constitution including the values enriched within the text. For example, in the Sabarimala Verdict, the Apex Court refused to accept social morality that did not allow women’s entry into the temple based on biological reasons like menstruation. The court instead identified Constitutional morality and based on Articles 14, 21, and 25 allowed the entry of women into the temple. The concern with this rule of interpretation, however, is that it has not been clearly defined and therefore leaves the scope of its subjective interpretation.
Next in line is The Identification Approach under which the court is tasked with recognizing National Identity, Culture, and National ethos or such relevant consideration in deciding cases. The court under this approach also relies on customs and historical practices and their relevance in deciding issues of legal significance. Many times, courts do not allow customs to override Constitutional law. The Triple Talaq judgment serves as an example where the court rightly held the practice as unconstitutional. The court usually makes a distinction between a national culture vis-à-vis a parochial one wherein the former is characterized by respect for human dignity, equality, right to life, and fundamental freedoms.
Preamble as a source of Constitutional Interpretation is equally interesting. The preamble is an introductory statement to the constitution that explains the document’s philosophy and its objectives. It acts as a source of identifying Historical Narratives, supreme goals of the Constitution, and envisioned National Identity among other things. The preamble isn’t just Ceremonial and symbolic. It’s growing use in constitutional interpretation is intended to protect the overall structure of the constitution. The philosophy behind the constitution is manifested in the preamble thereby emphasizing the values and guiding principles of the constitutional text. Using the preamble as an aid to constitutional interpretation, the supreme court has held on several occasions, including the Basic Structure Case, that the document forms the basis of our constitutional design and therefore is an important part of the Constitution.
Other approaches to Constitutional Interpretation include ‘The Teleological Approach’ where the court enquires into the purpose and aim of the provision and ‘The Comparative Interpretation Approach’. Where references are made to International law and foreign judicial decisions.
Has the question of Constitutional Interpretation and its application been sorted out? The answer lies in the negative. Are there any fixed boundaries or limitations or a system of checks and balances concerning when the courts can apply their power of Judicial review and interpret constitutional provisions? The answer, again, is No.
However, as we can see above, there are various methods of Constitutional Interpretation. The ultimate conclusion that can be deduced is that no fixed principle of Interpretation can serve as a singular rule for constitutional adjudication. At least not in a diverse and extremely complex society like ours. Choosing one of the above will curb the power of courts to grant equitable justice and uphold values and freedoms that are very dear to modern constitutions. The growth of any constitution through interpretation by courts shows how courts have adjudicated and propounded constitutional jurisprudence with alacrity and due regard for the founding fathers. This is probably why the constitution is still alive and continues to serve as a weapon against state arbitrariness, unlawful exercise of power, and violation of fundamental rights of the citizens.
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