Legal Articles

The Constitution as Text

On the important question of war time detention, an irate dissecting English judge accused his colleagues of whimsical interpretation by quoting from Lewis Carroll:

“When I use a word,” Humpty Dumpty said in rather a scornful tone, “it means just what I choose it to mean – neither more nor less.”

“The question is,” said Alice, “whether you can make words mean so many different things?” “The question is,” said Humpty Dumpty, “which is to be master – that’s all.” (Alice Through The Looking Glass, c.vi)

Humpty (if I can use first names) is right. Who is the master of the text? That, too, given the fact that the Indian Constitution is massive, consisting of 395 Articles and 12 Schedules. By 2016,100 amendments were made to it. Originally, there were 8 Schedules, four more have been added. Have people lost control of the interpretation of the Constitution’s text or were they never meant to have it? Humpty is right; the question is who’s master— not just for law but every interpretative exercise.

Like any other text, the Constitution invites a multiplicity of meanings. Interpretation (or hermeneutics) is certainly not limited to law, but extends across disciplines – religion, art, literature, music, signs, texts, history, tradition, culture, politics, ideology and its various “isms” and so on. It is a pleasure to discover a meaning by yourself; it is a curse to have someone else’s meaning imposed on you. The struggle over meaning is not an individual sport. Interpretation is a power play carried out in discourse, art, music, literature, protest, propaganda and indeed, violence. Legal hermeneutics are also part of a power play to appropriate the law and the Constitution.

The Original Intent

Do we start with the ‘original intent’ of the framers of the Constitution? The American Supreme Court and academia were sharply divided between the conservative ‘right’ who wanted to invoke the “original intent” and their ‘lefty’ critics, some of whom have ‘left wing’ interpretations of the original intent. To read the challenges of the 21st century with 18th century seems a little daft. But anything will do, to pull a rabbit out of the hat. The elaborateness of the Indian Constitution was intended to minimize interpretation in various areas. There is a quirky provision in the Constitution which says that the Imperial General Clauses Act, 1897 shall apply “for the interpretation of the Constitution” with the caveat: “unless the context otherwise requires” (Article 367). This should not be there; and reduces the Constitution to the status of an ordinary statute. One foreign critic thought that lawyers in the Constituent Assembly “added to the complexity of the Constitution”. Another warned: “We can observe all through the Indian Constitution…..a certain heaviness of the Constitution in conjunction with complicated rules to provide for all foreseeable contingencies; in a word the attempt to rationalize power, to replace the extra-legal fact of power of rigid and extensive rules of positive law”. The Constituent Assembly was hugely critical of the judiciary and, having to trust “five or six gentlemen sitting in the Supreme Court examining laws made by the legislature and by dint of their own individual consciences or their biases and prejudices” (13 December 1948: VII CAD 1000). The narrowest way to interpret the Constitution was the principle of literal interpretation (the text is what it says it does). Subba Rao (later Chief Justice) had a nice twist to this: “We are only concerned with the interpretation of the constitutional provisions but not with the policy underlying it” (Subba Rao: Devadasan (1964) 4 SCR 680). This means: “Welcome Constitution, goodbye Nehru’s socialism”. At first the Supreme Court was wary about looking at debates of the legislature including the Constituent Assembly Debates (CAD). At best, reliance could be placed on the speech of the Minister, but not subjective views from the floor. But, soon they began to look at debates and committee reports randomly – sometimes getting it all wrong. Literal interpretation was never a comprehensive answer even though it still dominates to earn the oft repeated rebuke that the Constitution is not a code of civil procedure. The wider view was to look at text context purpose of a provision read with Constitution as a whole, often producing diverse results. The “original intent” cannot be so sacral or wise so that the ghosts of the Constituent Assembly Debate (CAD) obviated a dynamic interpretation for the future, or the myriad of issues never imagined by the Assembly. In the early days, the judges favoured property owners but suffered constitutional amendments to overrule them. The ‘left’ accused judges of being right wing, the ‘right’ accused them of too much leftism. Jurists and lawyers thought the judges were becoming more and more mediocre.

Reacting to the melee of controversy, Parliament over rode judicial decisions by constitutional amendments. “Enough is enough” said the judges in the landmark Basic Structure case (1973) to rule that even the Parliament’s sovereign constituent power to amend the Constitution cannot violate its “basic structure”. This strange new doctrine was to apply prospectively so as not to affect past amendments. But, what on earth did ‘basic structure’ mean? Broadly, democracy, fundamental rights especially the “golden triangle” of liberty freedom and equality, secularism, federalism, perhaps socialism and even reasonableness were all part of the basic structure. This could be used to judge the validity of the constitutional amendment not ordinary statutes, but influenced judicial interpretation generally. The Basic Structure doctrine, could be taken as a version of the “original intent” spelled out as doctrine but its uses are not all pervasive.

Clearly Humpty Dumpty was in for a lot of fun. At different times, jurists and critics of India’s Supreme Court felt in had Humpty Dumptied the constitution. “No,” said Humpty Dumpty “that is precisely what constitutional interpretation is all about”.

Excerpts from The Constitution of India— Miracle, Surrender, Hope by Rajeev Dhavan, Universal Law Publishing, `325. The Book is available at Universal Book Traders, C-27 Connaught Place, New Delhi – 110001, sales@ubtlawbooks.com

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