Interpretive Constitution

 

“The Sovereignty of Parliament runs in tandem with the rule of objective law”

-Lord Simon

The Courts of the country are empowered with a sacred power to interpret the laws made by the legislature, From the language used, the Court of Law must gather what can be called as the spirit of the constitution. Well established rules of statutory interpretation mention that for the courts to ascertain the meaning of the act, It ought to require the true meaning and the intention of the law making body. However, in understanding the intention of the act it is not a matter of concern for the courts to enquire with the motive of the law makers, If a law made by the legislature with a mala fide or bona fide motive, The court of law has restrained from such discussions.

In Interpreting a document or a piece of legislature the first and foremost thing a court of law will dwell into the intention of the legislature. The word intention here, signifies the true reason for the enactment of law according to parliament and intention of an individual law maker, to whom the people have given a chance to legislate, is not considered as an binding intention for the courts to interpret. This creates a doubt as to what actually is considered to determine the intent, answering the doubt , the eminent constitutional scholar H.M.Seervai  writes,

                 ‘‘Parliament is treated as though it was an individual law maker whose intention is to be ascertained from the language which he has used in making and promulgation the law.’’[1]

Here, the entire legislative organ is considered as an single person who has a certain reason for enacting a legislation. Determining the intention of the parliament is helpful in considering the nature of the statute, methods used for construction of such statute and speeches made by members of the parliament or Constituent Assembly. The principles on which our constitution was interpreted, initially, was in the same manner in which the Government of India Act 1935 was interpreted. The reason for that is simple, most of the constitutional provisions were adopted by the 1935 act and considering that point it is fair to apply same rules of interpretation to the present constitution too.

When a statute is constructed, it ought to be done in a strict manner. It must not be absurd or have multiple possible interpretation or any other chances of loopholes in it. The legislature must manifest its intention with reasonable clearness. There can be various rules of interpretation but it should not result in absurd of vague construction of statute. As stated above, It is duty of the court to merely interpret the laws made and not to determine the motive. Similarly, the court ought not to presume what is not intended by legislature. The courts cannot make its own assumption as to legislative intent and what has not been clearly expressed.

One of the rules followed to interpret a legislation is the Golden Rule which was established by Lord Wensleydale's remarks in Grey v. Pearson, where he said

            “The grammatical and ordinary sense of the words is to be adhered to, unless that would lead to some absurdity, or some repugnance or inconsistency.[2]’’

The Golden rule of interpretation is that the words of a statute must be read in their ordinary, natural manner and in construing words in constitution, the most liberal interpretation should be put upon the words. In one of the cases[3] the question of interpretation of an act where the meaning of certain words is changed by passage of time. The word which was discussed was the word ‘Family’ in the expression ‘members in the family’. The learned judges held that words like the above must be used in a popular sense and not technical sense. It ought to be interpreted as a nomal prudent man would understand when he come across these expressions. A similar question was considered as to interpreting word ‘child. The privy Council held that the word “child” must be given a large and liberal construction and therefore the word “child” included an illegitimate child.[4] This was propounded on an assumption that if a statute is constructed in such manner then the effect will be in widest sense however, a restricted meaning may also be given to prevent conflict between Acts of Two exclusive jurisdictions. A restricted meaning may have to be given considering the language of conflicting provisions.

A Constitution like ours, which is essentially rigid in nature, and laws made under it are subject to doctrine of ultra vires. Laws can be declared unconstitutional either for lack of legislative competence or for violating the fundamental rights. It is not necessary to understand the distinction between unconstitutional for lack of competence and violation of rights at this stage. When a statute is constructed, it must be in a manner in which it would stand as on the day after it was enacted. One of the principles which was propounded was by Justice Venkatarama Aiyar. He formulated a doctrine called doctrine of flexible construction. The core of this doctrine was based on an assumption that when law makers enacted a particular act, they were not aware and had not been directed to its future developments of the enacted statute. Hence while interpreting the power of the statute remains same, however, the ambit of the act may grow with time. The learned Judge puts it in his words

            ‘‘It is not the meaning of the words changes, but the changing circumstances illustrate and illuminate the full import of the meaning. The question then would be not what the framers understood by those words, but whether those words are broad enough to include the new facts’’

If a literal construction would not promote the object of an act but would produce an absurd result, the court would avoid such a result if another construction of relevant provision is possible. The Golden rule of interpretation cannot be applied where the words of Constitution are ambiguous. A word or a phrase is considered ambiguous when it has more than one meaning or different shades of meaning. The question of Ambiguity was considered in Hanover’s case with reference to preamble of an act where Lord Davey held that “ambiguity must not be created or imagined in order to bring in the aid of the preamble” After the case of Harrison v. Northern Trust Co.[5] the rule of literal construction was modified by the principle that words, however clear they appear to be , must be read in the ‘context in which they appear’. The whole legislative process assumes importance for statutory interpretation. The first approach emphasises the realities of legislative process, second, the close relationship between the draftsman of the act and the court of construction and thirdly practical grounds.  In interpreting the act of parliament, the court sometimes asked itself what the draftsmen have intended. This was reasonable, because the draftsman would know the intention of the legislative initiator.

Let us discuss the admissibility of speeches of constituent assembly as aids to interpretation. Whether the speeches in Constituent Assembly can be used to interpret the provisions of our constitution. There are cogent reasons given by the courts against admitting such speeches  as they fall in different category. The five law lords in Black-Clawson have agreed that speeches in parliament cannot be admitted for interpreting a statute. So far as the Indian Courts are concerned, The Supreme Court in Trav-Cochin v. Bombay Company Ltd[6]. ruled that speeches made in constituent assembly in the course of debates on draft constitution could not be use as aids for interpretation of any article of the Constitution. Justice Patanjali Shastri referred to A.K.Gopalan’s Case[7]    

            “A speech made in the course of the debate on a bill could at best be indicative of the intent of the speaker, but it could not reflect the inarticulate mental process lying behind the majority vote which carried the bill. Nor is it reasonable to assume that the minds of all legislators were in accord”

Yet another reason for not admitting speeches can be on the ground of conflicting speeches. Sometimes, on the same article there could be different speeches by different members  which cannot be reconciled.

A distribution of legislative powers between the union and the states  in mutually exclusive lists at times gives rises to the question whether a law purporting to be interpreted. According at Article 246 (1) & (2) and 254 (1) A state law is in conflict or repugnant to a union law, which parliament is competent to enact, the Union law shall prevail and the State law shall be void to the extent of such repugnancy. The question now is What is Repugnancy? The Courts have broadly described the concept of repugnancy in three principles[8] 1) Is There a direct conflict between the two provisions 2) Whether parliament intended to lay down an exhaustive code in respect of the subject matter replacing the act of the state legislature and 3) Whether the law made by parliament and the law made by State legislature occupy the same field.

If there is an apparent or real conflict between two provisons of constitution, that conflict be resolved by principle of Harmonious Construction. According to this rule, a statute should be read as a whole and one provision of the Act should be construed with reference to other provisions in the same Act so as to make a consistent enactment of the whole statute. Such an interpretation is beneficial in avoiding any inconsistency or repugnancy either within a section or between a section and other parts of the statute.[9] The general proposition it that there must be an actual not a possible conflict. Justice Bhagawati in considering the test of repugnancy referred to a extract from Shayamakanth Lal v. Rambhajan Singh and held that

            “The onus of showing repugnancy and extent to which a statute is repugnant, there ought to be a presumption in the favour of its validity and care should be taken to see whether the two do not really operate in different fields without encroachment ”

 It is well settled that once  a law is held to violate a constitutional limitation, it is void and of no effect. The presumption of validity requires that the impugned provision should be challenged in court. But once the highest court holds that a provision is invalid, it is void and has no legal effect from the time it was enacted.

    “In statutory construction, the court is not solely concerned with what the citizens, through their parliamentary representatives, meant to say, It is also concerned with reasonable expectation of those citizens who are affected by the statute, and whose understanding of the meaning of what was said is therefore relevant ”

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[1] HM Seervai, Constitutional Law of India, 4^th edition

[2] Grey v. Pearson (1857). 6 H.L.C .61.10 E.R.1216.

[3] Dyson Holdings Ltd V. Cox (1976) Q.B.503

[4] Minister of Home Affairs V. Fisher, (1980) AC  319 (P.C.)

[5] (1942) 317 US 476

[6] (1952) SCR 112

[7] (1950) SCR 88

[8] (1959) Supp 2 S.C.R

[9] Acharya, I., & Das, R. (n.d.). THE DOCTRINE OF HARMONIOUS CONSTRUCTION IN THE INTERPRETATION AND CONSTRUCTION OF STATUTES.