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Subject: Interpretation of Statute

B.A.LL.B-Xth Sem
Subject Teacher: Akhlaqul Azam
Study Material of Unit-V(A)
Topic: Interpretation of Constitution

Interpretation of Constitution

The Constitution is a unique legal document. It enshrines a special kind of norm and stands at
the top of normative pyramid. The Constitution is Supreme lex, the paramount law of the
land. It is the documentation of the founding faiths of a nation and the fundamental
directions for their fulfilment. It sets out principles for an expanding future and is intended to
endure for ages to come and consequently to be adapted to the various crisis of human affairs.
Lord Denning has aptly commented that the Constitution is drafted with an eye to the future.
At the time of the framing of the Constitution Nehru stated:

“We shall frame the Constitution and it will be a good Constitution but does anyone in the
House imagine that when a free India emerges, it will be bound down by anything that even
this House might lay down for it? A free India will see the bursting forth of the energy of a
mighty nation. What it will do and what it will not do, I do not know, but i do know that it will
not consent be bound down by anything.”

In Supreme Court Advocates-on Record Association v. UOI.,(1994) the Court observed:

“The Framers of the Constitution planted in India a living tree capable of growth and
expansion within its natural limits. It lives and breathes and is capable of growing to keep
pace with the growth of the country and its people. Constitutional law cannot be static if it is
to meet the needs of men. New situations continually arise. Changes in conditions may
require a new-look at the existing legal concepts. It is not enough merely to interpret the
Constitutional text. It must be interpreted so as to advance the policy and purpose underlying
its provisions. A purposeful meaning, which may have become necessary by passage of time
and process of experience, has to be given. The Courts must face the facts and meet the needs
and aspirations of the times.”

Rules Regarding Interpretation of Constitution

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The letters of the constitution are fairly static and not very easy to change but the laws
enacted by the legislature reflect the current state of people and are very dynamic. To ensure
that the new laws are consistent with the basic structure of the constitution, the constitution
must be interpreted in a broad and liberal manner giving effect to all its parts and the
presumption must be that no conflict or repugnancy was intended by its framers. Applying
the same logic, the provisions relating to fundamental rights have been interpreted broadly
and liberally in favor of the subject. Similarly, various legislative entries mentioned in the
Union, State, and Concurrent list have been construed liberally and widely.

A Constitutional provision must be construed not in a narrow and constricted sense but in a
wide and liberal manner so as to anticipate and take account of changing conditions and
purposes so that Constitutional provision does not get fossilized but remains flexible enough
to meet the newly emerging problems and challenges.

There are basically three types of interpretation of the constitution.

Historical interpretation

Ambiguities and uncertainties while interpreting the constitutional provisions can be clarified
by referring to earlier interpretative decisions.

Contemporary interpretation

The Constitution must be interpreted in the light of the present scenario. The situation and
circumstances prevalent today must be considered.

Harmonious Construction

It is a cardinal rule of construction that when there are in a statute two provisions which are in
such conflict with each other, that both of them cannot stand together, they should possibly
be so interpreted that effect can be given to both. And that a construction which renders either
of them in operative and useless should not be adopted except in the last resort.
The Supreme Court held in Re Kerala Education Bill(1959) that in deciding the fundamental
rights, the court must consider the directive principles and adopt the principle of harmonious
construction so two possibilities are given effect as much as possible by striking a balance.
In Qureshi v State of Bihar(1958), The Supreme Court held that while the state should
implement the directive principles, it should be done in such a way so as not to violate the
fundamental rights.
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In Bhatia International v Bulk trading SA,(2003) it was held that if more than one
interpretation is possible for a statute, then the court has to choose the interpretation which
depicts the intention of the legislature.
Interpretation of the preamble of the Constitution

The preamble cannot override the provisions of the constitution. In Re Berubari(1960), the
Supreme Court held that the Preamble was not a part of the constitution and therefore it could
not be regarded as a source of any substantive power.

In Keshavananda Bharathi’s case,(1973) the Supreme Court rejected the above view and

held the preamble to be a part of the constitution. The constitution must be read in the light of
the preamble. The preamble could be used for the amendment power of the parliament under
Art.368 but basic elements cannot be amended. 

The 42nd Amendment has inserted the words “Secularism, Socialism and Integrity” in the
preamble.

General rules of interpretation of the Constitution

1. If the words are clear and unambiguous, they must be given full effect.

2. The constitution must be read as a whole.

3. Principles of Harmonious construction must be applied.

4. The constitution must be interpreted in a broad and liberalsense.

5. The court has to infer the spirit of the constitution from the language.

6. Internal and External aids may be used while interpreting.

7. The Constitution prevails over other statutes.

Principles of Constitutional Interpretation

The following principles have frequently been discussed by the courts while interpreting the
Constitution:

1. Principle of colourable legislation

2. Principle of pith and substance

3. Principle of eclipse
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4. Principle of severeability

5. Principle of territorial nexus

6. Principle of implied powers

7. Principle of incidental or ancillary powers

Principle of Colourable Legislation

The doctrine of colourability is the idea that when the legislature wants to do something that
it cannot do within the constraints of the constitution, it colours the law with a substitute
purpose which will still allow it to accomplish its original goal.

Maxim: “Quando aliquid prohibetur ex directo, prohibetur et per obliqum” which means
what cannot be done directly cannot also be done indirectly.

The rule relates to the question of legislative competency to enact a law. Colourable
Legislation does not involve the question of bonafides or malafides. A legislative
transgression may be patent, manifest or direct or may be disguised, covert or indirect. It is
also applied to the fraud of Constitution.

In India ‘the doctrine of colorable legislation’ signifies only a limitation of the law making
power of the legislature. It comes into picture while the legislature purporting to act within its
power but in reality it has transgressed those powers. So the doctrine becomes applicable
whenever legislation seeks to do in an indirect manner what it cannot do directly. If the
impugned legislation falls within the competence of legislature, the question of doing
something indirectly which cannot be done directly does not arise.

In our Constitution, this doctrine is usually applied to Article 246 which has demarcated the
Legislative competence of the Parliament and the State Legislative Assemblies by outlining
the different subjects under list I for the Union, List II for the States and List III for the both
as mentioned in the seventh schedule.

This doctrine comes into play when a legislature does not possess the power to make law
upon a particular subject but nonetheless indirectly makes one. By applying this principle the
fate of the Impugned Legislation is decided.

KC Gajapati v. State of Orissa(1953)

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The petitioners were the owners of estates. The Orissa state Legislature enacted the “Orissa
State Estates Abolition Act, 1952” whose primarily purpose of the Act is to abolish all
zamindary and other proprietary estates and interests in the State of Orissa and after
eliminating all the intermediaries, to bring riots or the actual occupants of the lands in direct
contact with the State Government the compensation would be calculated at a certain number
of years purchase of the net annual income of the estate during the previous agricultural year,
that is to say, the year immediately preceding that in which the date of vesting falls. The other
sum payable as income-tax in respect of any other kind of income derived from the estate
would also be included in the deductions. The amount of compensation thus determined is
payable in 30 annual equated installments commencing from the date of vesting and an
opinion is given to the State Government to make full payment at any time.

Issue

Whether “Orissa State Estates Abolition Act”, 1952 is a piece of colourable legislation?

Legal Proposition

That the doctrine of colourable legislation does not involve any question of bonafides or
malafides on the part of the legislature. The whole doctrine resolves itself into the question of
competency of a particular legislature to enact a particular law. If the legislature is competent
to pass a particular law, the motives which impelled it to act are really irrelevant. On the
other hand, if the legislature lacks competency, the question of motive does not arise at all.
Whether a statute is constitutional or not is thus always a question of power “Malice or
motive is beside the point, and it is not permissible to suggest parliamentary incompetence on
the score of malafides. A distinction, however, exists between a legislature which is legally
important like the British Parliament and the laws promulgated by which could not be
challenged on the ground of incompetency, and a legislature which enjoys only a limited or a
qualified jurisdiction.

Judgment

The validity of this provision has been challenged on the ground that it is a piece of
colourable legislation which comes within the principle enunciated by the majority of this
court in the Bihar case. It is difficult to appreciate this argument of the learned counsel. It is
not a legislation on somethimg which is non-existent or unrelated to facts. It cannot also be
seriously contended that what section 37 provides for, is not giving of compensation but of
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negativing the right to compensation as the learned counsel seems to suggest. There is no
substance in this contention and we have no hesitation in overruling it. The result is that all
the points raised by the learned counsel for the appellants fail and the appeals are dismissed.
Having regard to some important constitutional questions involved in these cases which
needed clearing up, we direct that each party should bear his own costs in these appeals.
Appeal dismissed.

Principle of pith and substance

Pith means ‘true nature’ or essence of something’ and substance means ‘the most important
or essential part of something’. The basic purpose of this doctrine is to determine under
which head of power or field i.e. under which list (given in the seventh schedule) a given
piece of legislation falls.

Union & State Legislatures are supreme within their respective fields. They should not
encroach/ trespass into the field reserved to the other. If a law passed by one trespasses upon
the field assigned to the other—the Court by applying Pith & Substance doctrine, resolve the
difficulty &declare whether the legislature concerned was competent to make the law.

If the pith & substance of law (i.e. the true object of the legislation) relates to a matter within
the competence of the legislature which enacted it, it should be held intra vires—though the
legislature might incidentally trespass into matters not within its competence. The true
character of the legislation can be ascertained by having regard—to the enactment as a whole
-- to its object – to the scope and effect of its provisions.

Profulla Kumar vs. Bank of Khulna (1947)

In this case, the Privy Council applied pith & substance doctrine. S. 100 GI Act 1935 is
similar to Art .246 of the Constitution. The Bengal Money Lenders Act 1940 provided for
limiting the amount and the rate of interest recoverable by any money lender on any loan.
Challenged that the Bengal Legislature has no legislative competence. The High Court held
the Act intra vires. But the Federal Court held it ultra vires. On appeal the Privy Council
reversed and held that Bengal Act in pith & substance is within the provincial legislative
field. Money lending in Entry 27 List two. Promissory Notes in Entry 28 List one. The
interference was incidental.

State of Bombay vs. FN Balsara(1951)

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Bombay Prohibition Act, 1949 which prohibited sale & possession of liquors in the State,
was challenged on the ground that it incidentally encroached upon Imports & Exports of
liquors across custom frontier - a Central subject. It was contended that the prohibition,
purchase, use, possession and sale of liquor will affect its import. The court held that act valid
because the pith & substance fell under Entry 8 of State List and not under Entry 41 of Union
List.

Principle of eclipse

The Doctrine of Eclipse says that any law inconsistent with Fundamental Rights is not

invalid. It is not dead totally but overshadowed by the fundamental right. The inconsistency
(conflict) can be removed by constitutional amendment to the relevant fundamental right so
that eclipse vanishes and the entire law becomes valid.

All laws in force in India before the commencement of the Constitution shall be void in so far
they are inconsistent with the provisions of the Constitution. Any law existing before the
commencement of the Constitution and inconsistent with the provision of Constitution
becomes inoperative on commencement of Constitution. But the law does not become dead.
The law remains a valid law in order to determine any question of law incurred before
commencement of the Constitution. An existing law only becomes eclipsed to the extend it
comes under the shadow of the FR.

Bhikhaji v. State of M.P(1955)

 In this case the provisions of Civil Procedure and Berar Motor Vehicles (Amendment) Act
1948 authorized the State Government to take up the entire motor transport business in the
Province to the exclusion of motor transport operators. This provision though valid when
enacted, but became void on the commencement of the Constitution in 1950 as they violated
Article 19(1) (g) of the Constitution. However, in 1951 Clause (6) of Article 19 was amended
by the Constitution (1st Amendment Act) so as to authorize. The Government to monopolise
any business. The Supreme Court held that the effect of the amendment was to remove the
shadow and to make the impugned Act free from blemish or infirmity. It became enforceable
against citizens as well as non-citizens after the constitutional impediment was removed. This
law was eclipsed for the time being by the fundamental rights. As soon as the eclipse is
removed, the law begins to operate from the date of such removal.

Keshavan Madhava Menon v. The State of Bombay(1961)

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In this case the law in question was an existing law at the time when the Constitution came
into force. That existing law imposed on the exercise of the right guaranteed to the citizens of
India by article 19(1)(g) restrictions which could not be justified as reasonable under clause
(6) as it then stood and consequently under article 13(1) that existing law became void “to the
extent of such inconsistency”.

The court said that the law became void not in to or for all purposes or for all times or for all
persons but only “to the extent of such inconsistency”, that is to say, to the extent it became
inconsistent with the provisions of Part III which conferred the fundamental rights on the
citizens.

Thus the Doctrine of Eclipse provides for the validation of Pre-Constitution Laws that violate
fundamental rights upon the premise that such laws are not null and void ab initio but become
unenforceable only to the extent of such inconsistency with the fundamental rights. If any
subsequent amendment to the Constitution removes the inconsistency or the conflict of the
existing law with the fundamental rights, then the Eclipse vanishes and that particular law
again becomes active again.

Principle of Severeability

Doctrine of severability provides that if an enactment cannot be saved by construing it

consistent with its constitutionality, it may be seen whether it can be partly saved. Article 13
of the Constitution of India provides for Doctrine of severability which states that-

All laws in force in India before the commencement of Constitution shall be void in so far
they are inconsistent with the provisions of the Constitution.

The State shall not make any law which takes away/ shortens the rights conferred in Part III
of the Constitution ie. Fundamental Rights. Any law made in contravention of the provisions
of the Constitution shall be void and invalid. The invalid part shall be severed and declared
invalid if it is really severable. (That is, if the part which is not severed can meaningfully
exist without the severed part.) Sometimes the valid and invalid parts of the Act are so mixed
up that they cannot be separated from each other. In such cases, the entire Act will be invalid.

AK Gopalan v. State of Madras(1950)

In this case, the Supreme Court said that in case of repugnancy to the Constitution, only the
repugnant provision of the impugned Act will be void and not the whole of it, and every
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attempt should be made to save as much as possible of the Act. If the omission of the invalid
part will not change the nature or the structure of the object of the legislature, it is severable.
It was held that except Section 14 all other sections of the Preventive Detention Act, 1950
were valid, and since Section 14 could be severed from the rest of the Act, the detention of
the petitioner was not illegal.

HR Banthia v. Union of India (1970)

In this case, the Supreme Court struck down certain provisions of the Gold Control Act, 1968
and since these were not inextricably bound up with the rest of the provisions of the Act, the
rest were held to be valid. The decision is an illustration of severability in application.

Principle of territorial nexus

Article 245 (2) of the Constitution of India makes it amply clear that ‘No law made by
Parliament shall be deemed to be invalid on the ground that it would have extra-territorial
operation’. Thus a legislation cannot be questioned on the ground that it has extra-territorial
operation. It is well-established that the Courts of our country must enforce the law with the
machinery available to them; and they are not entitled to question the authority of the
Legislature in making a law which is extra-territorial. Extra-territorial operation does not
invalidate a law. But some nexus with India may still be necessary in some of the cases such
as those involving taxation statutes.

The Doctrine of Territorial nexus can be invoked under the following circumstances-

 Whether a particular state has extra-territorial operation.

 If there is a territorial nexus between the subject- matter of the Act and the state
making the law

It signifies that the object to which the law applies need not be physically located within the
territorial boundaries of the state, but must have a sufficient territorial connection with the
state. A state may levy a tax on a person, property, object or transaction not only when it is
situated within its territorial limits, but also when it has a sufficient and real territorial
connection with it. Nexus test was applied to the state legislations also

State of Bombay v. RMDC(1957)

The Respondent was not residing in Bombay but he conducted Competitions with prize
money through a newspaper printed and published from Banglore having a wide circulation
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in Bombay. All the essential activities like filling up of the forms, entry fees etc for the
competition took place in Bombay. The state govt. sought to levy tax the respondent for
carrying on business in the state.

The question for decision before the Supreme Court was if the respondent, the organizer of
the competition, who was outside the state of Bombay, could be validly taxed under the Act.

It was held that there existed a sufficient territorial nexus to enable the Bombay Legislature to
tax the respondent as all the activities which the competitor is ordinarily expected to
undertake took place mostly within Bombay.

Tata Iron & Steel Company vs. Bihar State(1958)

The State of Bihar passed a Sales Tax Act for levy of sales tax whether the sale was
concluded within the state or outside if the goods were produced, found and manufactured in
the state .The court held there was sufficient territorial nexus and upheld the Act as valid.
Whether there is sufficient nexus between the law and the object sought to be taxed will
depend upon the facts and circumstances of a particular case.

It was pointed out that sufficiency of the territorial connection involved a consideration of
two elements- a) the connection must be real and not illusory b) the liability sought to be
imposed must be pertinent to that connection.

Principle of Implied powers

Laws which are necessary and proper for the execution of the power or incidental to such
power are called implied powers and these laws are presumed to be constitutional. In other
words, constitutional powers are granted in general terms out of which implied powers must
necessarily arise. Likewise constitutional restraints are put in general terms out of which
implied restraints must also necessarily establish.

This is a Legal principle which states that, in general, the rights and duties of a legislative
body or organization are determined from its functions and purposes as specified in its
constitution or charter and developed in practice.

Principle of incidental or ancillary powers

Incidental and ancillary powers are an elementary cardinal rule of interpretation that the
words used in the Constitution which confer legislative power must receive the most liberal
construction and if they are words of wide amplitude, they must be interpreted so as to give
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effect to that amplitude. It would not be correct to put a narrow or restricted construction on
the words of wide amplitude in a Constitution.

This principle is an addition to the doctrine of Pith and Substance. What it means is that the
power to legislate on a subject also includes power to legislate on ancillary matters that are
reasonably connected to that subject. It is not always sufficient to determine the
constitutionality of an act by just looking at the pith and substance of the act. In such cases, it
has to be seen whether the matter referred in the act is essential to give affect to the main
subject of the act. For example, power to impose tax would include the power to search and
seizure to prevent the evasion of that tax. Similarly, the power to legislate on Land reforms
includes the power to legislate on mortgage of the land. However, power relating to banking
cannot be extended to include power relating to non-banking entities. However, if a subject is
explicitly mentioned in a State or Union list, it cannot be said to be an ancillary matter. For
example, power to tax is mentioned in specific entries in the lists and so the power to tax
cannot be claimed as ancillary to the power relating to any other entry of the lists.

Navinchandra Mafatlal v. The Commissioner of Income Tax, Bombay City(1955)

The appellant was assessed by the Income Tax officer, Bomaby (by an assessment order
dated 31st March, 1948) for the assssessment year 1947-1948 on a total income of
rs.19,66,782 including a sum of Rs.9,38,011 representing capital gains assessed in the hands
of the4 appellant under section 12(B) of the Indian Income tax Act, 1922. Now, this said
amount of capital gains was earned by the appellant in the following circumstances. The
asppellant had a half share in certain immovable properties that were situated in Bombay,
which were sold by the appellant himself along with his co-owners in the year ending 31 st
December, 1946 to a private limited

Company known as Mafatlal Gagalbhai & Company limited. The profits on the sale of the
said properties amounted to Rs.18,76,023 and there by the appellants half share came to a
sum of Rs. 9,38,011 which was included in the calculation of tax under Section 12(B) of the
Act.

Issue

The main issue of the case is as follows:

Whether the imposition of a tax under the head “capital gains” by the Central Legislature is
ultra vires?
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Now, the principle question arising is that Section 12(B) of the Indian Income tax act, 1922;
which authorized the imposition of tax on capital gains will fall under Entry 82 or Entry 86 of
List 1 of the seventh Schedule of the Constitution of India?

Judgment of the case

Section 12(B) is intra vires the powers of the Central Legislature, acting under Entry 82
(which says, taxes on income other than agricultural income) of list 1 in seventh schedule of
the constitution of India. In this view of the matter, it is completely unnecessary to consider
or express any opinion as to the meaning, scope and ambit of Entry 86 in the same list. The
appeal is therefore dismissed.

Textualist Interpretation of Constitution

In A.K. Gopalan, the Supreme Court gave a narrow and literal interpretation 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 31 of the Constitution of India marked
another episode of textualist interpretation by the Supreme Court. In 1954, the Supreme
Court held that compensation payable must be a just equivalent of what the owner is deprived
of. It rejected the plea that compensation was not used in a rigid sense implying equivalence
in value but referred to what the legislature might think was a proper indemnity for the loss
sustained by the owner. It was held that the basic requirement was of full indemnification of
the expropriated owner and within this limit, the legislature had free play to determine what
principles will guide the determination of the amount payable. This decision led to the
Constitution (Fourth Amendment) Act, 1955 whereby the issue of compensation was put
beyond the scope of judicial review.

In P. Vajravelu Mudaliar v. Collector (LA) (1965) despite the aforementioned amendment, it

was held that the provision for compensation, the laying down of principles for determining
compensation, or the laying down of compensation was a necessary condition for making
laws relating to acquisition. Although the adequacy of compensation was excluded, the law
laid down for determining compensation would be struck down if found to be irrelevant with
reference to the value of the property or if the compensation it provided for was illusory.
Subsequently, in another case, it was held that the observations in P. Vajravelu Mudaliar
were obiter dicta and not binding. In Shantilal, the Supreme Court held that the compensation
could not be challenged on the ground that the just equivalent of what the owner had been
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deprived of was not provided for. Ironically, within a year, the Supreme Court did a judicial
somersault and held that compensation must be a just equivalent.

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 constitutional 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 (Sankari
Prasad Singh Deo v. Union of India-1951). This view was later upheld by the Supreme Court
in 1965 by holding that a constitutional amendment could even take away or abridge
fundamental rights (Sajjan Singh v. State of Rajasthan,-1965). 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 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.

Purposive Interpretation

Often, we tend to forget the existence of dissenting opinions tendered by nonconformist

judges. Justice Vivian Bose, who could be called as a ‘chronic dissenter’, had, on multiple
occasions, tried to give an expansive meaning to Part III of the Constitution. In State of W.B.
v. Anwar Ali Sarkar (1952) he observed in a dissenting view-

“…the provisions of the Constitution are not mathematical formulae which have their
essence in mere form. They constitute a framework of Government written for men of
fundamentally differing opinions and written as much for the future as the present. … They
are not just dull lifeless words static and hidebound as in some mummified manuscript, but
living flames intended to give life to a great nation and order its being, tongues of dynamic
fire potent to mould the future as well as guide the present.”

Equally fascinating is his another dissenting view in S. Krishnan in S. Krishnan v. State of

Madras held-
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“… I hold it, therefore, to be our duty, when there is ambiguity or doubt about the
construction of any clause in this chapter on fundamental rights, to resolve it in favour of the
freedoms which have been so solemnly stressed. Read the magnificent sweep of the Preamble.
… They did not bestow on the people of India a cold, lifeless, inert mass of malleable clay but
created a living organism, breathed life into it and endowed it with purpose and vigour so
that it should grow healthily and sturdily in the democratic way of life, which is the free way.
In the circumstances, I prefer to decide in favour of the freedom of the subject.”

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 certain set of ‘silent’ features of
the Indian Constitution. In Kesavananda Bharati, 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 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.” 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, 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, 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, Royappa, Hussainara Khatoon and Minerva Mills.

Role of precedent — stare decisis

Constitutional disputes typically arise against the background of earlier decisions on similar
subjects. A complete theory of constitutional interpretation, therefore, must deal with the role
of precedent. Interpreting a judicial precedent is different from interpreting a constitutional
provision in itself. The precedent is required to be read, not only in terms of its own social
context but against the background of the precedent it invokes or ignores. The American
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doctrine of stare decisis accords presumptive but not indefeasible authority to precedent.

Precedents are overruled which seem to be inconsistent with contemporary norms.

The process of constitutional adjudication, thus, has a dynamics of its own. It creates an
independent force which, as a doctrine evolves, may create original history as well as with
older precedents. Recourse to precedent and overruling previous precedent is judicial process
which properly accommodates the Constitution to changing needs and values.

Precedents are part of judicial law-making and are necessary for development of law. From
the very nature of judicial process, law-making as precedent through the court is gradual,
tentative and slow. The courts’ contribution to the development of law is typically a “bit-by-
bit” and a “trialand-error” contribution. Those interests not heard today can be heard
tomorrow, and the court will be able to correct, to improve and to mould a “law” but would
not entirely make it. As put by Dean Roscoe Pound several decades ago:

“Judicial finding of law has a real advantage in competition with legislation in that it works
with concrete cases and generalizes only after a long course of trial and error in the effort to
work out a practicable principle.”

The courts’ very functions particularly in interpreting the Constitution, many times, compel
them down to realities, since they are called to decide cases involving live persons, concrete
facts and actual problems of life. In this sense, judicial law-making is highly democratic —
close and sensitive to popular societal needs and desires. To be sure, there are some
conditions to be met before that potential can be realised. Two such conditions are vital. The
first is rooted in the system of judicial selection which should be open to all strata of the
population. The second condition is that all people should have equal opportunity to get
access to the courts. A citizen should have access both to the courts and education which is
necessary for providing equal accessibility to the legal system.

Interpretation based on principles of natural rights or fundamental law: the preferred

freedoms approach

American constitutional tradition recognises practices of non-originalist adjudication

purportedly based on natural rights or fundamental law. These are widely shared and deeply
held human values which are to be culled from the text of a written Constitution. In other
words, this approach is described as “judicial activism”. The expansion of Article 21 to
include in “right to life and liberty”, other rights necessary for a dignified human life can be
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said to be one such approach of interpretation based on “preferred freedoms approach”. The

protagonists of this approach and principle of interpretation believe that such fundamental
rights like rights of speech, press, association, assembly, and other liberties necessary to the
democratic process constitute preferred freedoms. It is said—

“the court is not a majoritarian institution, it has a constitutional responsibility to carefully

scrutinize majority-passed legislation that directly impinges upon the exercise of those rights
by minorities through which their political demands can be expressed. Given the social
isolation and prejudice encountered by easily identifiable minorities, without the guarantee of
these fundamental rights their participation in the political process will be effectively muted
and conditions of exploitation will be perpetuated.”

A “preferred freedoms approach” to a Constitution is judicial interpretation process from

conservatism to liberalism. Here, the court, sometimes, overrules the precedent as if writing
on a clean slate and tries to exalt the spirit of law above its form so that existing principle of
law can be applied in an enforceable new context. The preferred freedoms approach
advocates liberty and order as two balancing interests, the former of the citizen and the latter
of the State, to be weighed and resolved in the best interest of the citizen.

There is some criticism of this strict scrutiny approach based on “preferred freedoms
principle”. It is described as insufficient and objectionable. All kinds of fundamental
freedoms cannot outstrip the democratic process criterion. It is said “Human happiness is the
end and democracy is a method for attaining that end and not vice versa.” This misconception
of democracy as end rather than method has important consequences for the exercise of free
speech and other fundamental liberties as individual rights. Constitutional interpretation, it is
observed, is as much a process of creation as one of discovery. If this view is commonplace
among post-realist academics, it is not often articulated by judges and it probably conflicts
with the view of many citizens that the constitutional interpretation should reflect the will of
the adopters of the Constitution rather than its interpreters. The two modes of strict
interpretation — literalism and strict intentionalism — far from being synergistic strategies of
interpretation, are often antagonistic. A strict originalist theory of interpretation must opt
either for literalism or for intentionalism, or must have some extra-constitutional principle for
mediating between the two.

Indian Constitution enunciates general principles for regulating the relations between the
elected Government and the people, and the people’s fundamental rights and liberty. Since
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the Constitution contains general principles they have to be worked out and applied to
particular conditions. There is, therefore, greater freedom of choice in the interpretation of the
Constitution than in an ordinary statute. Fundamental rights are not merely philosophical
proclamations. When their actual enforcement is entrusted to courts it requires judicial
creativity. The degree of judicial creativity is higher in constitutional adjudication than it is,
usually, in the case of ordinary statutory adjudication. Unlike ordinary statutes, constitutional
provisions, particularly on fundamental rights, have to be short, synthetic and allusive. The
precepts in fundamental rights are often framed in such value-loaded terms as “liberty,
democracy, justice, dignity and equality”. These are to be found in the preamble of the Indian
Constitution and also in other chapters like that of fundamental rights and directive
principles. Indeed, these words or expressions aim at effectuating values more than at
prescribing procedures. Even when they do prescribe or seem to prescribe procedures, they
do so by means of vague value concepts such as “equality of law and equal protection of law”
— (Article 14), in accordance with the law, or “reasonable restrictions” — (Article 19), or
“procedures established by law” — (Article 21).

In People’s Union for Civil Liberties v. Union of India, (2003) M.B. Shah, J. speaking for the
Bench of the Supreme Court on the claim concerning “the right of a voter to know the
antecedents of a candidate contesting election for the legislature” found contents of such
rights in the fundamental rights guaranteed under Article 19(1)(a) of the Constitution.
Relying on the observations of Mathew, J., he observes:

“There is no such concept of derivative fundamental rights. It is established that fundamental

rights themselves have no fixed content, most of them are empty vessels into which each
generation must pour its content in the light of its experience. The attempt of the Court
should be to expand the reach and ambit of the fundamental rights by the process of judicial
interpretation. The Constitution is required to be kept young, energetic and alive. Therefore,
as the phrase “freedom of speech and expression” is given the meaning to include citizens’
right to know the antecedents of the candidates contesting election of MP or MLA, such
rights could not be set at naught by the legislature”.

Constitutional law thus being a higher law, is open to interpretation and evolution, and in
such evolution a knowledge of tradition, history and philosophy being the necessary inputs,
can be certainly useful and should be taken into account. Such knowledge may certainly put
an important consideration leading courts to prefer, at times, bold activism and prudent self-
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restraint at other times. But the vision of a great judiciary has to go much beyond the
temporary, occasional whims and pressures even defiance, rebellions and outbursts, of the
social and political environment in which it operates.

In the Presidential Reference on Gujarat Assembly Election16, Pasayat, J., observes:

“While making such an interpretation the roots of the past, the foliage of the present and the
seeds of the future cannot be lost sight of. Judicial interpretation should not be imprisoned in
verbalism and words lose their thrust when read in vacuo. Context would quite often provide
the key to the meaning of the word and the sense it should carry. Its setting would give colour
to it and provide a cue to the intention of the legislature in using it. A word is not a crystal —
transparent and unchanged; it is the skin of living thought and may vary greatly in colour
and content according to the circumstances and the time in which the same is used....”

In the case of Aruna Roy v. Union of India(2002) Article 28(1) of the Constitution came up

for interpretation when in the National Curriculum prepared by NCERT, study of religions
was sought to be introduced in the State-aided institutions. Prohibition on “religious
instruction” under Article 28(1) of the Constitution came up for consideration before the
Court. It was held:

“The expression ‘religious instruction’ used in Article 28(1) has a restricted meaning. It
conveys that teaching of customs, ways of worship, practices or rituals cannot be allowed in
educational institutions wholly maintained out of State funds. But Article 28(1) cannot be
read as prohibiting study of different religions existing in India and outside India. If that
prohibition is read with the words ‘religious instruction’, study of philosophy which is
necessarily based on study of religions would be impermissible. That would amount to
denying children a right to understand their own religion and religions of others, with whom
they are living in India and with whom they may like to live and interact. Study of religions,
therefore, is not prohibited by the Constitution and the constitutional provisions should not
be read so..”

Therefore, while interpreting the Constitution one must consider not merely logic and context
of the Constitution, but the history of the nation, its customs, and accepted standards of right
conduct. All this cumulatively shapes the progress and are the factors which singly or in
combination should shape the growth of constitutional law. Precedents have great utility in
shaping the constitutional law but precedents in themselves and uniformity in law ceases to
be good when it becomes uniformity of operation. The social interest served by certainty
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must then be balanced against the social interest served by equity and fairness or other
elements of social welfare. These may enjoin upon the court the duty of drawing the line at
another angle, of staking the path along new courses, of marking a new point of departure
from which others who come after its opinion set out upon their journey. A court, therefore,
and especially one dealing with constitutional, federal or generally transnational matters, has
to have the courage to stand against temporary pressures whenever the “higher law”, which is
its mission to enforce, so demands. For it is not the impact analysis, as valuable as it certainly
is, but rather the “higher law” itself the existence of a hierarchy of norms which legitimizes
judicial review and the inevitable activism that is implied by any effective sort of such
review. The growth of the Constitution through interpretation by courts, is a necessity for
protection of the individual rights guaranteed by the Constitution. Power exercised by the
court in interpreting the Constitution through unelected judges is not anti-democratic.
Democracy cannot survive in a system in which civil rights and freedoms have no protection.
The preservation of freedoms requires the elimination of concentration of power and the
distribution of whatever power has to be achieved as a part of a system of “checks and
balances”. The notion of democracy is not merely a simple majoritarian idea. The democracy
also means participation; and it means tolerance and freedom.

Probable Question

1. Explain the basic rules regarding Interpretation of Constitution

2. Discuss in detail the role of Preamble in interpretation of Constitution
3. Explain role of Principle of Harmonious Construction in Interpretation of Constitution
4. Discuss the shift of Constitutional Interpretation from A.K. Gopalan to Maneka
Gandhi in respect of Article 21