Issues with Constitutional Interpretation Styles

In the judiciary, various techniques or styles are deployed when it comes to interpretation of the Constitution. A study of these ‘Constitutional Interpretation’ methods help understand the approach taken, and the reasoning behind, the judgement arrived at in any particular case. Although interpretation styles can be attributed to any judgement, they become especially relevant in judgements where the Constitution is interpreted.

Classification of Constitutional Interpretation

Two classifications of the approaches are popular.

In the first classification, two categories exist: (a) Textualist and (b) Living Constitutionalist. The Textualist approach focuses more on the exact wordings of the particular law in the Constitution. To an extent the original intent of the lawmakers in framing the Constitution in the particular manner also is considered.

In the Living Constitutionalist approach, the Constitution is treated as an evolving document and the social, cultural, political and historical aspects of society, along with the wordings of the Constitution itself is given weightage. This approach gives far more power and leeway to the Judges to interpret a given situation and deliver judgements.

The Living Constitutionalist approach is the foundation of judicial activism. This approach has been detailed quite well in the recent Right to Privacy Judgement (page 280).

A second, equally popular, approach of classification exists. In his work ‘Constitutional Interpretation’, Philip Bobbit has categorized Constitutional Interpretations into six approaches – (1) Historical (2) Textual (3) Prudential (4) Doctrinal (5) Structural and (6) Ethical.

In the Historical approach, the focus is on determining the intent of the Constitution makers behind crafting a particular law the way they did it. The challenge here is to figure out how the makers intended the provision to take effect.

The Textual approach is quite similar to the Historical approach but an equal weightage is given in this style to interpret or suit the exact words of the provision to the current situation.

The Prudential approach revolves around understanding the logic behind a particular provision and thereafter interpreting it to resolve the current issue-at-hand.

The Doctrinal approach uses the text of the Constitution as an aid, along with the list of precedents set by the judiciary itself, in interpreting any provision.

The Structural approach lends focus to the structures of the Government setup by the Constitution and relies on infering what the provision is meant to serve.

The Ethical approach is also very similar to the Structural one but in addition it also tries to account for the cultural and moral aspects of society that potentially reflect (or ought to reflect) in the Constitution.

The Living Constitutionalist Approach

The Living Constitutionalist approach of the first classification can be considered as a combination of the latter 4 styles in the second classification while the Textualist approach is likely a combination of the Historical and Textual approaches of the second classification.

The Indian judiciary has moved from a Textualist interpretation style to an increasingly Living Constitutionalist interpretation style. Such a shift allows the judiciary to exercise greater flexibility and creativity in interpreting the Constitution. In some cases, such an approach allows the judiciary to fill in gaps due to ‘absence of clear laws’.

The most recent example of the product of such an approach is the Right To Privacy judgement where the Supreme Court declared Privacy as a Fundamental Right even though the text of the Constitution does not contain the word privacy, not even indirectly. The said approach also allowed the bench to disregard the doctrinal approach that was established via the M P Sharma and Kharak Singh judgements given by the same Court long ago.

Disadvantages of the Living Constitutionalist Approach

On the other hand, an increasing tendency to deliver judgements using the Living Constitutionalist approach has its own disadvantages. One of the disadvantages, highlighted by Chintan Chandrachud in his essay ‘Constitutional Interpretation’ as part of the book ‘The Oxford Handbook of The Indian Constitution’ (Oxford University Press), is methodological and doctrinal incoherence leading to inconsistency in case law. Chintan Chandrachud gives an example of how the Supreme Court, in the year 2013, gave 3 varying judgements related to electoral jurisprudence in 3 different cases leading to an inconsistent case law on this topic (the 3 cases being CEC vs Jan Chaukidar, Lily Thomas vs UOI and People’s Union for Civil Liberties vs UOI).

As a second example, consider the following

In the The Secretary,Malankara Syrian College vs T.Jose & Ors judgement, the Supreme Court made the following categorical observations with regard to the nature of Article 30(1)

“The right conferred on minorities under Article 30 is only to ensure equality with the majority and not intended to place the minorities in a more advantageous position vis- `-vis the majority.

…..

The right to establish and administer educational institutions is not absolute

However, in 2012, in the Society for Unaided Private Schools of Rajasthan vs Union of India judgement, the Supreme Court ruled thus

“The 2009 Act has been enacted to give effect to Article 21A. For the above reasons, since the Article 19(1)(g) right is not an absolute right as Article 30(1), the 2009 Act cannot be termed as unreasonable…

….

The right established by Article 30(1) is a fundamental right declared in terms absolute unlike the freedoms guaranteed by Article 19 which is subject to reasonable restrictions”

The rights (or the restrictions thereof) under Article 19 were used to hold RTE applicable to non-minority schools while the rights under Article 30(1) were used to decide RTE won’t apply to minority schools. And in this case, the two rights were held unequal.

Thus, the use of Living Constitutionalist approach means that the Courts can end up reversing their own position on the exact same issues.

Judicial Activism

The other main disadvantage of the Living Constitutionalist approach is that it leads very quickly to ‘Judicial Activism’. When judgements move away from the strict role of interpreting law, they naturally get into guaging what’s best for society and what the law therefore ought to be. What the judges see for themselves as their role can be well highlighted by the following words of Justice Chandrachud in the Right to Privacy judgement.

“Hence, it would be an injustice both to the draftsmen of the Constitution as well as to the document which they sanctified to constrict its interpretation to an originalist interpretation. Today’s problems have to be adjudged by a vibrant application of constitutional doctrine and cannot be frozen by a vision suited to a radically different society.”

“Its continued relevance lies precisely in its ability to allow succeeding generations to apply the principles on which it has been founded to find innovative solutions to intractable problems of their times. In doing so, we must equally understand that our solutions must continuously undergo a process of re-engineering”

This approach therefore allows judges to arrive at ‘innovative solutions’ to problems of their times.

However, quite clearly, such an approach is not without the danger of the Judiciary overstepping into the domain of the legislative i.e. ‘Judicial Activism’.

Thomas Sowell, the renowned scholar highlights the following problems with judicial activism (in his seminal book ‘The Vision of the Anointed’)

  • Citizens need to rely on ‘the law of the land’ in their plans and actions, until the time the law is explicitly changed by new statutes and amendments. Judicial activism leaves citizens with a doubt about their understanding of the law, as it stands at a particular point in time.
  • Judicial activism leads to citizens discovering only after the fact that they are violating ‘evolving standards’ – which could be costly in many scenarios such as litigation.
  • Judicial activism allows judges to second-guess the decisions made within the boundaries of governmental power and allows them to call the decisions they dislike “unconstitutional”

One thing is certain – judicial activism, through the Living Constitutionalist approach, allows the judiciary to step into the domain of policy making.

Consider the following two examples.

In the Society for Unaided Private Schools of Rajasthan vs Union of India, the SC passed the following orders with regard to private schools.

“In our view, even the State Government(s), by resorting to the provision of the 2009 Act, must take opportunity to re-organise its financial outflow at the micro level by weeding out the non-performing or under- performing or non-compliance schools receiving grant-in- aid, so as to ensure that only such government funded schools, who fulfill the norms and standards, are allowed to continue, to achieve the object of the 2009 Act of not only providing free and compulsory education to the children in the neighbourhood school but also to provide quality education. Thus, there is a power in the 2009 Act coupled with the duty of the State to ensure that only such government funded schools, who fulfill the norms and standards, are allowed to continue with the object of providing free and compulsory education to the children in the neighbourhood school”

The Court literally made a policy/law which targeted closure of schools which did not adhere to some kind of a defined ‘standard’. At least at the time of this judgement, such an approach was not covered by any statute or law.

In the recent Rajesh Sharma vs The State Of Uttar Pradesh judgement, the Supreme Court, with the intention of preventing false arrests under IPC 498A, passed the following order.

“(a) In every district one or more Family Welfare Committees be constituted by the District Legal Services Authorities preferably comprising of three members. The constitution and working of such committees may be reviewed from time to time and at least once in a year by the District and Sessions Judge of the district who is also the Chairman of the District Legal Services Authority.

(b) The Committees may be constituted out of para legal volunteers/social workers/retired persons/wives of working officers/other citizens who may be found suitable and willing.

…sections (c) to (j)….

(k) It will be open to the District and Sessions Judge to utilize the cost fund wherever considered necessary and proper”

The Court effectively ended up passing a new statute, containing 11 clauses, deciding how the enforcement of IPC 498A will be performed.

Problems of mixing interpretational styles

We have seen above the issues with mixing interpretational styles across judgements, which leads to inconsistency in case laws. However, in some cases, when different interpretational styles are used together in the same judgement, the results can be even more drastic.

Consider the following example.

In the Society For Un-Aided Private Schools Of Rajasthan vs U.O.I, the bench adopted a Living Constitutionalist approach (especially leaning on the ethical interpretation approach) and declared that the RTE Act was applicable for private non-minority schools.

“If education is an activity which is charitable, could the unaided non-minority educational institution contend that the intake of 25% children belonging to weaker section and disadvantaged group only in class I as provided for in Section 12(1)(c) would constitute violation of Article 19(1)(g)? Would such a provision not be saved by the principle of reasonable restriction imposed in the interest of the general public in Article 19(6) of the Constitution?”

By declaring running of schools as charity, for Hindu run institutions, the Court concluded that reserving 25% seats is not a reasonable restriction on them.

However, in the very same judgement, the bench used a more Textual approach of interpretation to decide on the exact same issue for minority schools.

“The right established by Article 30(1) is a fundamental right declared in terms absolute unlike the freedoms guaranteed by Article 19 which is subject to reasonable restrictions. Article 30(1) is intended to be a real right for the protection of the minorities in the matter of setting up educational institutions of their own choice………

…………

Applying the above test in the case of Rev. Sidhajbhai Sabhai v. State of Bombay [1963] SCR 837, this Court held the rule authorizing reservation of seats and the threat of
withdrawal of recognition under the impugned rule to be violative of Article 30(1)”

In this case, the guarantees given by the words of Article 30(1) over-rode any charitable considerations.

Thus, a mix of interpretational styles can lead to orthogonal conclusions even within the same judgement.

Conclusion

Constitutional interpretation styles offer a variety of approaches to judges in deciding cases. Indian judiciary is increasingly moving away from a textual interpretation approach even though our Constitution allows itself to be modified (by the legislature) and thus is amenable to reshaping itself to meet challenges of an evolving society. A Living Constitutionalist approach is very helpful in ‘judicial activism’. However, it comes with its own set of challenges such as inconsistency of case law and dilution of the concept of ‘separation of powers’

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