Transformative constitutionalism
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This article has been written by Aksshay Sharma, Department of Laws Panjab University, Chandigarh. The article explains the concept of Constitutional Silence and silences in Indian Constitutional system.

Introduction

Constitutions are never complete. No constitution can be said to be comprehensive and perfect. Achieving an idealistic perfection tends to make constitutions rigid. There will always remain some areas which are either deliberately left unaddressed or inadvertently left so. These gaps in the constitution are called constitutional silence. Constitutions are evolutionary and thus silences therein is inevitable.

Meaning

Silences in the Constitution have been explained by Harvard Professor Lawrence H. Tribe in his work “Invisible Constitution”. According to Tribe, the reach and influence of the written constitution are not as conclusive as we think. He further writes that “many principles which Americans rightly consider constitutionally ordained are nowhere to be found in the document’s text”.

He explains silences in the American constitution in the following way: “educated citizens probably believe that constitutions text forbid state succession from the union. It does not. He writes that the prohibition is written in blood on the battlefield like Gettysburg and not in ink on parchment”.

He uses the Invisible constitution to emphasise that there are many essential constitutional aspects that cannot be understood from its bare text or derived by standard legal argument

Thus in simple words, silences can be said to be interpreting what was omitted when a constitution was enacted, but it was not what the framers would have rejected. Silences in Constitutions have been termed by many experts as “gaps and abeyances”. It is a method of adjudication.

Reasons for constitutional silences

Constitutional silences are bound to occur, even if constitutions are regarded as exhaustive one, like the Indian Constitution.  

“Silence will occur even when designers, have engaged in what they believe is a careful enumeration”

Some of the reasons for this are:

  1. Difficulty in formulating textual provisions because every conceivable situation cannot be provided and thought of and thus some matters are left to constitutional conventions eg. appointment of a person who is the leader of the largest party in Lok Sabha as Prime minister is based on English constitutional conventions or
  2. A dispute may seem unlikely. For instance, the Indian Constitution was initially silent on freedom of press because the framers thought that a dispute might not arise. As Dr. Ambedkar said,The press has no special rights which are not to be given or which are not to be exercised by the citizen in his individual capacity and therefore no special mention of freedom of press is necessary
  3. According to Lawrence Tribe said framers have purposely built a skeletal structure for future generations to build upon. The intention of a constitution is to outline principles rather than to engrave details.
  4. Another reason given by many experts is due to prevailing social values at the time of enactment of a constitution, eg. the LGBTQ community had no mention in the Indian constitution, nor did the word “sex” in the constitution was interpreted to include “third gender” until the apex court’s ruling in NALSA v. Union of India and its decriminalisation of section 377 in Navtej Singh Johar v. Union of India (2018) in which consensual sex among adults even homosexuals was decriminalised. In Manoj Narula v. Union of India (2014) court said that Constitutional silence or abeyances is progressive and is applied as an advanced constitutional practice to fill up gaps in certain areas, in the interest of justice and larger public interest.

Framers of Constitutions firstly try to address what is indispensable (absolutely necessary) or what needs immediate attention for a sustained functioning of democracy in a state.

E.g. Post-independence one of the immediate necessities was the upliftment of depressed classes, including women and accordingly provisions for their benefit were added to the constitutions. 

Supreme Court in Manoj Narula v. Union of India (2014) quotes  Michael Foley’s The Silence of Constitutions “abeyances are valuable, not because of their obscurity but because of it. They are significant for the attitudes and approaches to the Constitution that they evoke, rather than the content or substance of their strictures”. Despite the absence of any documentary or material form, these abeyances are real and are an integral part of any Constitution. What remains unwritten and indeterminate can be just as much responsible for the operational character and restraining quality of a Constitution as its more tangible and codified components.

Constitutions must leave gaps for experiences. According to Martin Loughlin, an administrative urge to resolve all ambiguities and doubts will crowd out silences of the constitution. He says that there will be a threat to “openness, indeterminacy and adaptability” if silence is not tolerated. This will result in the degradation of constitutionalism.

Silences and abeyances enable pragmatism, ensure inclusiveness for future ideas and ensure deliberations.

Silence enables a liberal interpretation of constitutional provisions. For instance, the Indian constitution is silent on what constitutes Personal Liberty under Article 21 and this led to the court interpreting it to include various other rights as well. In Maneka Gandhi v. Union of India. It said that personal liberty is of the widest amplitude and covers a variety of rights which go to constitute the personal liberty of a man. Silences and liberal interpretation of the constitutional text is necessary for the evolution and longevity of a constitutional system.

According to Benjamin Constant, constitutions must incorporate silence in order to permit time and experience to improve and complete their( framers of a constitution) work.

Role of judiciary

Judiciary plays a crucial role in interpreting Silences in the constitution since it is the final interpreter of constitutional provisions. It is the role of courts primarily the Supreme court of India to fill the gaps and abeyances through its interpretation. However, at the same time, it has to ensure that it does not result in judicial legislation. Although in extreme cases where there is a legislative vacuum, the courts have cautiously resorted to lawmaking to a certain extent.

In constitutional silence, there is scope for vibrant and liberal interpretation for constitutional courts. When a court refuses to recognize constitutional silence, it can be said that its behaviour is embodying a “constitutional despotism”. This happens when Constitutional courts view law purely as an artefact of the arbitrary will of the supreme lawgiver, similar to Analytical School of Jurisprudence. According to them, law is the command of the sovereign and a law gets the status of law only when it has been recognised as such by the sovereign. This happens when the court adopts a strict textualist approach of reading a constitutional provision as if its meaning is always clear and incontrovertible. In M.P. Sharma v. Satish Chandra (1954) Supreme Court categorically refused to grant a constitutional status to right to privacy by  holding that it isn’t necessary to carve such a  right through a strained construction if the constitution-makers have left it out. However, a progressive interpretation in Justice K.S.Puttaswamy (Retd.) v. Union Of India (2018) resulted in recognition of Right to privacy as inherent in right to Life under Article 21.

It is the duty of Constitutional courts to interpret the constitutional text with the normative substantive conception of justice. Constitutional despotism reduces constitutional law to merely “a set of ultimate commands whose only function is to resolve conflicting commands within the law”. (See here). It is against the living tree doctrine which treats the constitution as a living document which changes with time to be inclusive as much as possible.

In India, courts have used the doctrine of constitutional silence to expand the ambit of rights and to make democracy substantive. It has kept in mind the constitutional morality while dealing with silence. However, courts must keep in mind that interpreting silence must be done from an objective sense and should not be based on subjective satisfaction i.e. on the subjective understanding of the judge. This is because the purpose of courts is not to make law but to declare it.

According to Fali S Nariman, the basic structure document emanates from constitutional silence. Interpreting constitutional silence has resulted in Basic structure doctrine and recognition of various aspects of Life and Liberty under article.

Recent initiatives to fill the silences

As stated earlier Judiciary plays a crucial role in eliminating and construing silence in the constitution. The Lawrence Tribe in Invisible Constitution writes that much of the constitution, including some of its important parts, is invisible. Many of our most cherished principles and propositions of constitutional law cannot be found in the text.

It must be noted that the constitution does not say that whatever is not found in the constitution cannot become part of it, basic structure doctrine is a textbook example of this idea, which to a great extent, restricted the power of the parliament to amend the constitution.

Elimination of silences in the constitution depends to a great degree on what type of interpretation does the courts employ, most prominent among it is purposive (what the purpose of the law was) and liberal interpretation, which is in contrast to strict textual interpretation i.e. going by what the text of the law says.

Basic Structure

The basic structure doctrine propounded In Kesavananda Bharati v. State of Kerala (1973) in which the court in order to keep the spirit of constitutionalism i.e. state must be restricted in its power, ruled that certain provisions cannot be amended by the parliament even by a constitutional amendment act under article 368. There was no such provision or any aid for the supreme court to propound this doctrine. 

Fundamental Rights

Further, most of the provisions of the constitution like fundamental rights have no fixed content and are silent on many aspects. Fundamental rights have been described as empty vessels into which each generation pours its content by judicial interpretation

Article 21 is one such article whose text is silent on many aspects but has been interpreted by courts to be of the widest amplitude. In multiple cases, Court has interpreted Right to life to include the right to live with human dignity in Olga Tellis v. Bombay Municipal Corporation 8, Right to privacy in Justice K Puttaswamy v. Union of India (2018) Right to free legal aid, right to pollution-free environment, right to speedy trial and even inclusion of Prisoner rights jurisprudence. Importance of silence in constitutional law can be gauged from Justice D.Y. Chandrachuds opinion in Puttaswamy judgement in which he held that non-inclusion of right to privacy by constituent assembly indicates that framers did not intend to expressly include privacy under article 21, but from this, we cannot infer that they did not intend to have privacy as a fundamental right.

Further, one of the most crucial points in dealing with silence was the Supreme court adopting the absolute liability principle in M.C. Mehta v. Union of India (1986). In this case, Oleum gas was leaked from a fertiliser industry. Before this, the concept of Strict liability was followed when an accident happened due to any hazardous activity. However, it was subject to some exceptions. To remedy this Justice PN Bhagwati propounded Absolute liability which was subject to no exceptions. This was a landmark judgement as the constitution does not provide for absolute liability. Justice Bhagwati justified it on the grounds that enterprises have a social obligation to compensate for the sufferings caused by their activities.

Similarly, recognition of Transgenders as Third gender and decriminalisation of consensual of section 377 of IPC to the extent to which it criminalised LGBTQ relationship despite constitution is silent on what constitutes sex, is the testimony of the power of silence in constitutional law and recognition of living tree doctrine.

                   

Role of the legislature

Legislature plays an important role in democracy as it makes them do their only function i.e to make laws. Silence is a function in the sense that it enables the legislature to amend the constitution as per changing social, political or economic dynamics. Thus part of the success of a constitution comes from gaps left in it.

Conclusion

Written constitutions have become the standard instrument to establish and regulate the relationship between citizen and state. Courts interpreting silences in constitutions to enlarge the scope and number of rights ensure constitutionalism and welfare state. It is necessary to utilise silences in constitutions to accommodate the interests of as much and truly make constitutions a living and organic document which grows and adapts itself with changing social and political dynamics.

References

  •  R.C. Poudyal v. Union of India, 1994 
  • The Silences of Constitutions

 


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