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Principles of Constitutional Interpretation

The Constitution� a mere thing of wax in hands of the Judiciary, which they may twist and shape into any form they please. - Thomas Jefferson

A written constitution is basically a form of statute and many of the principles of the ordinary principles of interpretation. The enactment of the Indian Constitution was an ambitious political experiment whereas the Supreme Court while interpreting the provisions enshrined primarily focused on the plain meaning of the words. It is important for the Constitution has to be interpreted in a liberal and broad manner such that any law does not violate the basic structure of the Constitution. The constitution of India came into force 70 years ago and there have been different phases of constitutional interpretation in these seven decades where the Apex Court decided to take a step back from the political connotations.

The first phase where it was interpreted literally; the second phase where the Courts began to scrutinize all possible methods of interpretation as a result of which the basic structure doctrine came into existence; the third phase can be described as phase of eclecticism where the decisions by the Apex Court were based on fairness; the fourth phase is the current one where the court has begun to interpret the provision in a transformative manner. This article will discuss different approaches adopted by the Court while interpreting the Constitution of India. The approaches are: Doctrinal, Textualist and Purposive.

Principle of Constitutional Interpretation

At the heart of every constitutional decision is the court�s assessment of what the constitution means, why it exists in the shape and form that it does, and, above all, what injustices it is meant to remedy. There are a number of principles used by the courts while interpreting the constitution which will be discussed further in this article. The constitution of India as the preamble suggest is the constitution which the people have given to themselves who is the beneficiary of its provisions and as described by Churchill as:
little man with a little pencil with a little ballot to vote should never be neglected. It is the responsibility of the judiciary to apply its mind in the interpreting any provision in question which affects the individual dignity in any manner. The interpretation by the Judges in an innovative manner has to be continued keeping in mind the historical growth of the India�s constitution.

Doctrinal Approach

Doctrine of Colourable Legislation

The doctrine of colourable legislation basically in common parlance refers to the question of competency of the legislature while enacting the provisions of law. It basically suggest the practice carried out by the legislature whereby it enacts a provision which at the face cannot be authorized by the constitution by the coloring the provisions with a substitute purpose which indirectly allows the original intention.

This doctrine is based upon the legal maxim Quando aliquid prohibetur ex directo, prohibetur et per obliqum which means that what cannot be done directly, cannot be done indirectly. In a nutshell the purpose of this doctrine is to check that the legislature while framing the laws does not transgress the provisions enshrined under the Constitution of India.

The Supreme Court of India in the matter of K.C. Gajapati v. State of Odisha, explained the doctrine and held that:
 if the constitution of a State distributes the legislative spheres marked out by specific legislative entries or if there are limitations on the legislative authority in the shape of fundamental rights, questions do arise as to whether the legislature in a particular case in respect to the subject matter of the statute or in the method of enacting it, transgressed the limits of the constitutional power or not. Such transgression mat be patent, manifest and direct, but may also be distinguished, covered and indirect and it is the latter class of cases that the expression �colourable legislation� has been applied in certain judicial pronouncements.

In our Constitution, this doctrine is usually applied to Article 246 which separates the legislative competencies of the Parliament and the State legislative assemblies by stating the different subject under the different lists under Schedule VII upon which the respective legislature can draft the laws. This doctrine comes into the fore when the legislature drafts a law which it is not competent to draft and the fate of the same law is decided by the courts using the doctrine of colourable legislation.

Doctrine of Pith and Substance

This doctrine highlights or focuses upon to understand the true nature and characteristic of law. The doctrine signifies that it is the real subject matter which is to be challenged and not its incidental effects on another field. The application of this doctrine can be illustrated through Article 246 which enumerates the legislative competency mentioned in the lists under the Seventh Schedule. It is pertinent to the fact that the legislature will make laws on the subject matter enshrined under the lists, but there might be incidental trespass by the legislature which ultimately result in the declaration of that specific law as ultra vires. The rationale behind this doctrine that the Central and State Legislature at any point of time trespass the field protected for each other.

The Supreme Court for the first time applied this doctrine and upheld the same in State of Bombay v. F.N.Balsara. In brief the facts of the case being that the State of Maharashtra restricted the sale and possession of liquor by the provisions of the Bombay Prohibition Act and the same was challenged with the rationale that it was an interference on the act of importing and exporting of the liquor through the borders. The apex court held that the impugned legislation was in pith and substance a State subject even though it incidentally encroached the subject enumerated in List I.

The rationale and the spirit behind being that every law will be declared invalid by citing the reason of it being in conflict with the subject matter mentioned in another list.

Doctrine of Eclipse

The doctrine of eclipse suggests that when any law made by the Legislature is derogatory with Part III of the Constitution of India, then that law will be treated as invalid and inoperative to the extent to which the provisions are inconsistent to the Fundamental Rights. Article 13(1) emphasizes the fact that the State shall not make any law which will be inconsistent with the fundamental rights and any such law made will be void.

The Apex court in the case of the Keshava Menon v. State of Bombay, the facts of the case being that the petitioner was prosecuted under the Indian Press (Emergency Powers) Act, 1931 for publishing a pamphlet without seeking prior permission. The Court held that the provisions mentioned under the Indian Press Act are violative of Article 19(1) (a) and are void to the extent there lies inconsistency.

In I.C.Golaknath v. State of Punjab, it was held that the Parliament had no power to dissect or break the fundamental rights and further the court negated with the absoluteness of Article 368 and concluded that the amending powers under Article 368 are restrictive in nature and therefore Article 368 was eclipsed. However, the I.C.Golaknath was overruled by the Apex Court after the judgement pronounced in the famous case of Kesavananda Bharti v. State of Kerela.

Doctrine of Severability

This particular means where a particular provision is not in parlance with the fundamental rights enshrined under Part III of the constitution and when such provision which is not consistent can be separated and will be declared void by the Court as a result of which the rest provision remains consistent with the relevant provisions.

While applying this doctrine, the court does not declare the whole statute or act as void but only the provision or any part violative of the Part III of constitution and which can be separated from the rest of the provision.

The doctrine was applied by the Apex Court in the case of A.K.Gopalan v. State of Madras, where it was held that Section 14 of the Preventive Detention Act, 1950 was inconsistent with Article 22 of the Constitution only to the part which prohibited the person detained to make representation or even disclose the grounds to the court was ultra vires.
Thus, only the repugnant part of the impugned act will be declared void and not the whole Act.

Purposive Interpretation

Purposive Interpretation as the name suggests means that the court while interpreting the statute or the constitution looks into the purpose for which the the provision or the statute in question was enacted. Thus, the court will delve into the purpose of the enactment in order to derive the correct interpretation such that it result in delivery of justice.

The Supreme Court in the case of State (NCT of Delhi) v. Union of India held:
Constitutional provisions are required to be understood and interpreted with an object-oriented approach and a Constitution must not be construed in a narrow and pedantic sense. The judiciary must interpret the Constitution having regard to the spirit and further by adopting a method of purposive interpretation.

The courts take the aid of the committee reports, constituent assembly debates, early drafts or any materials from the pre-enactment phase.

It is for us not to forget the dissenting judgement by Justice Vivian Bose in the case of State of West Bengal v. Anwar Ali Sarkar, where he stated that 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 hidebound as in some mummified manuscript, but living flames intended to give life to great nation and order its being, tongues of dynamic fire potent to mould the future as well as guide the present.

Textual Approach

Textualism is also called literal interpretation. The general rule of interpretation of statute is that the Court while interpreting the statute or any part of it would use literal rule of interpretation. Literal rule means adherence to the words mentioned in the act. Under this approach the court focuses on the literal meaning of the constitutional provisions. According to this rule, the words, pharases and sentences of a statute are ordinarily to be understood in their in their literal and grammatical meaning.

In A.K.Gopalan:
the Supreme Court gave a narrow and literal interpretation to Article 21 of the Constitution and refused to infuse the concept of procedure established by law with the principles of natural justice. Another area where the Supreme Court had used the textualist interpretation was in the interpretation of the word law under Article 13(2) vis-a-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. It was held that Article 368 empowered the Parliament to amend the constitution without any exception. However this judgement was overruled by 11 judge bench and held that the power under Article 368 could not abridge or take away the fundamental rights in Part III of the Constitution.

The courts interpret the statute or constitution in order to clarify and to see in all cases the intention expressed by the words used. The courts interpret as to ascertain the mind of the legislature from the natural and grammatical meaning of the words or phrases used in the statute. The courts as seen above has adopted different approach to interpret the provisions of the Constitution in order the serve the purpose of the very the provision. There have been landmark judgements where courts have used different doctrines apart from the primary method of literal interpretation to meet the ends of justice.

The principles of interpretation adopted by the Supreme Courts have changed in these seven decades in order to be consistent with the political connotations and changed public policy. Constitution is perceived as the mother of all the laws and it is said that every law takes birth from the Constitution itself so it�s the prime responsibility of the Judges� to maintain and preserve the sanctity of the mother document such that law of land at anytime is not found in a jeopardized state.

According to Salmond:
Interpretation or construction is the process by which the courts seek to ascertain the meaning of the legislature through the medium of the authoritative forms in which it is expressed. The interpretation of the Constitution becomes more important when there is need to harmonize it with the democratic principles of the State. The Indian Constitution is the longest constitution and it is evident that Courts have adopted different principles in interpreting the basic structure, equality, right to privacy etc.

Thus, the courts have never bind themselves with the literal rule of interpretation only while decicidng any matter pertaining to constitutional importance. In the modern times it is evidently seen that the Judges have started adopting the purposive method of interpretation in order to understand and implement the intention of the makers of the constitution.

  • Gautam Bhatia, The Transformative Constitution: A Radical Biography of Nine Acts 11 (2019
  • K.C.Gajapati v State of Odisha, AIR 1953 SC 375(India).
  • India Constitution art.246.
  • Namrata Kandalovi, Constitutional Law: Doctrine of Pith and Substance, Lexlife India (May 9, 2020.),
  • India Constitution Sch. VII.
  • State of Bombay v. F.N.Balsara, AIR 1951 SC 318 (India).
  • India Constitution art.13, cl.1.
  • Keshava Menon v. State of Bombay, AIR 1951 SC 128 (India).
  • I.C.Golaknath v. State of Punjab, AIR 1967 SC 1643 (India)
  • Kesavananda Bharati v. State of Kerela (1973) 4 SCC 225 (India).
  • A.K.Gopalan v. State of Madras, AIR 1959 SC 27 (India).
  • State (NCT of Delhi) v. Union of India, (2018) 8 SCC 501 (India).
  • State of West Bengal v. Anwar Ali Sarkar, AIR 1952 SC 75 (India).
  • A.K.Gopalan v. State of Madras, AIR1959 SC 27 (India).
  • India Constitution art. 21.
  • India Constitution art. 13, cl. 2.
  • India Constitution art. 368.
  • Arvind P. Datar and Rahul Unnikrishnan, Interpretation of Constitutions:Doctrinal Study, 29 NLSI Rev, 136 (2017).

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