Monday, 7 October 2013

SPICTR No. 1: Approaching Interpretation

A disclaimer to begin with: As things currently stand, Indian Courts are perhaps unlikely to accept our idea of interpretation as being correct. However, we believe that the model we discuss is a model which should be followed in constitutional interpretation. As things presently stand, arguments based purely on the “original intent” of the framers of the Constitution are unlikely to succeed in Indian Courts in all cases. For example, it is doubtful whether the most spirited advocate of the Supreme Court’s interpretation of Article 21 will ever find a way to justify that a right to a mosquito-free existence was part of the original intent behind the right to life.

Courts are not averse to arriving at legal conclusions by interpreting the Constitution in light of the “spirit” of the Constitution; or on the basis of appeals to “constitutional philosophy”. There is no clear indication as to what exactly this supposed “spirit” or “philosophy” is. The Supreme Court has observed in recent times, “The primary institutional task of this Court is to clearly understand the true message that the Constitution intends to convey; second, to assert the original meaning in that message in the light of the constitutional provisions; and third, to pronounce what the law is, in harmony with meaningful purpose, original intent and true spirit of the Constitution.” We submit that instead, the only institutional task of the Courts is to interpret what the Constitution means, in and this must be done by sticking to a core of original intent. We further believe that the original intent is to be arrived at primarily by reading the text of the Constitution: some might label us, therefore, as adherents of an “original meaning” school rather than an “original intent” school. We admit however that there may be certain extrinsic evidence admissible in the interpretative task: we submit that the only extrinsic evidence which is admissible is limited to materials which were contemporaneously available at the time of the drafting of the text. We admit that words are always used in a certain context and that context can therefore have a bearing on meaning: we believe that the task is to objectively determine the meaning of words used in the Constitution. Extrinsic evidence may give some idea as to this context, to enable one to arrive – objectively – at the meaning. And it is the meaning at the time of the drafting that is relevant. 

We believe that it is emphatically not the role of judges to make competing choices amongst social policies. This is a topic which we shall turn to later in the SPICTR series; when we shall also elaborate further on our model of constitutional interpretation.

Wednesday, 2 October 2013


India does not have a strong body of legal literature commenting on Indian Constitutional Law from perspectives similar to, for example, the Federalist Society. The Society for the Promotion of Indian Constitutional Thought & Research (SPICTR) has been recent set up as a means to promote thinking about the Constitution and the law in India. This is SPICTR's blog.

SPICTR understands that Indian Constitutional case-law has meant that many of the arguments made by SPICTR will not be useful to lawyers arguing in Courts: from out perspective, much of the Indian Constitutional cases (especially since the 1970s) do not represent the correct position.

We believe that Indian Constitutional thinking must subscribe to the following principles (listed in no particular order):
1. Separation of powers is central to our constitutional scheme.
2. Judges in constitutional cases must, as far as may be, desist from going beyond interpretation and should not engage in making 'new' law.
3. Interpretation of the Constitution must be guided by a core of the original intent of the framers of the Constitution.
4. The State exists to preserve freedom and at the same time to promote the common good. Where the two aims conflict, the preservation of freedom must prevail. 

We understand that these principles may be controversial. For example, Indian lawyers may take exception to the very first principle we have listed. We shall attempt to point out that the structure of the Indian Constitution does recognise the principle of separation of powers. Limited encroachments are permissible under the Indian constitutional scheme; those limited areas of encroachment must be kept strictly in check.

We shall, in the course of our discussions, attempt to defend these principles; and to comment on Indian law in the light of these principles.

We propose to post on fresh post every week.