Principles of Constitutional Interpretation

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Principles of Constitutional Interpretation

Questions Covered:

Discuss the principles of Constitutional Interpretation.
Explain, “In the interpretation of the constitution, the judicial approach should be dynamic than static, pragmatic than pedantic, and elastic than rigid”.
Describe –  Harmonious Construction, Doctrine of Pith and Substance, Colourable Legislation, Proviso, Doctrine of Eclipse, Principle of separation.
What is the proper function of a proviso? Can it affect the enacting portion of a section as well?

The constitution is the supreme and fundamental law of our country. Since it is written in the form of a statute, the general principles of statutory interpretation are applicable to the interpretation of the constitution as well. As is the case with any other statute, the court tries to find out the intention of the framers of the constitution from the words used by them.

For example, in the case of State of Bihar vs Kameshwar Singh AIR 1952, SC used one of the standard principles of interpretation that where more than one reasonable interpretation of a constitutional provision are possible, that which would ensure the smooth and harmonious working of the constitution shall be accepted rather than the one that would lead to absurdity or give rise to practical inconvenience, or make well existing provisions of existing law nugatory while interpreting the constitution.

However, even if an argument based on the spirit of the constitution is very attractive, it must be validated with the spirit of the constitution as reflected by the words of the constitution. In the same case mentioned above, SC observed that the spirit of the constitution cannot prevail if the language of the constitution does not support that view.

It is important to note that the constitution itself endorses the general principles of interpretation through Article 367(1), which states that unless the context otherwise requires, the General Clauses Act, 1897 shall apply for the interpretation of this constitution as it applies for the interpretation of an act of the legislature. Courts have ruled in cases such as Jugmendar Das vs State 1951, that not only the general definitions given in the General Clauses Act but also the general rules of construction given therein are applicable to the constitution.

Having said the above, the fact remains that Constitution is a special act. It is a fact that every provision of the constitution is constitutional and no part of it can be held unconstitutional. This casts an important duty on the interpreters of the constitution to interpret its provisions such that the spirit of the constitution is not maligned.  

In Keshvananda Bharati vs the State of Kerala, AIR 1973, SC identified the basic structure of the constitution that reflects its true spirit and held that nothing that hurts the basic structure of the constitution, is constitutional. In the same case, SC held that one should give the freedom to the parliament to enact laws that ensure that the blessings of liberty be shared with all, but within the framework of the constitution. It is necessary towards that end that the constitution should not be construed in a narrow and pedantic sense.

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.

The following are some of the key principles applied especially in interpreting the provisions of the constitution –

  1. Principle of Harmonious construction
  2. Doctrine of pith and substance
  3. Doctrine of Colourable legislation
  4. Principle of Ancillary powers
  5. Principle of Occupied field
  6. Residuary power
  7. Doctrine of repugnancy
  8. Principle of Territorial Nexus
  9. Doctrine of stare decisis
  10. Doctrine of prospective overruling

Principle of Harmonious Construction
The principle of harmonious interpretation is similar to the idea of a broad or purposive approach. The key to this method of constitutional interpretation is that provisions of the Constitution should be harmoniously interpreted. As per Kelly:
“Constitutional provisions should not be construed in isolation from all other parts of the Constitution, but should be construed as to harmonize with those other parts.” A provision of the constitution must be construed and considered as part of the Constitution and it should be given a meaning and an application that does not lead to conflict with other Articles and which confirms the Constitution’s general scheme. When there are two provisions in a statute, which are in apparent conflict with each other, they should be interpreted such that effect can be given to both and that construction that renders either of them inoperative and useless should not be adopted except in the last resort.

This principle is illustrated in the case of Raj Krishna vs Binod AIR 1954. In this case, two provisions of the Representation of People Act, 1951, which were in apparent conflict were brought forth. Section 33 (2) says that a Government Servant can nominate or second a person in the election but section 123(8) says that a Government Servant cannot assist any candidate in an election except by casting his vote. The Supreme Court observed that both these provisions should be harmoniously interpreted and held that a Government Servant was entitled to nominate or second a candidate seeking election in State Legislative assembly. This harmony can only be achieved if Section 123(8) is interpreted as giving the govt. servant the right to vote as well as to nominate or second a candidate and forbidding him to assist the candidate in any other manner.

Upon looking at various cases, the following important aspects of this principle are evident –

  1. The courts must avoid a head-on clash of seemingly contradicting provisions and they must construe the contradictory provisions so as to harmonize them.
  2. The provision of one section cannot be used to defeat the provision contained in another unless the court, despite all its effort, is unable to find a way to reconcile their differences.
  3. When it is impossible to completely reconcile the differences in contradictory provisions, the courts must interpret them in such as way so that effect is given to both the provisions as much as possible.
  4. Courts must also keep in mind that interpretation that reduces one provision to a useless number or a dead lumbar, is not harmonious construction.
  5. To harmonize is not to destroy any statutory provision or to render it otiose.

Doctrine of Pith and Substance
Pith means “true nature” or “essence” and substance means the essential nature underlying a phenomenon. Thus, the doctrine of pith and substance relates to finding out the true nature of a statute. This doctrine is widely used when deciding whether a state is within its rights to create a statute that involves a subject mentioned in the Union List of the Constitution. The basic idea behind this principle is that an act or a provision created by the State is valid if the true nature of the act or the provision is about a subject that falls on the State list. The case of State of Maharashtra vs F N Balsara AIR 1951 illustrates this principle very nicely. In this case, the State of Maharashtra passed the Bombay Prohibition Act that prohibited the sale and storage of liquor.

This affected the business of the appellant who used to import liquor. He challenged the act on the ground that import and export are the subjects that belong in the Union List and the state is incapable of making any laws regarding it. SC rejected this argument and held that the true nature of the act is the prohibition of alcohol in the state and this subject belongs to the State list. The court looks at the true character and nature of the act having regard to the purpose, scope, objective, and effects of its provisions. Therefore, the fact that the act superficially touches on the import of alcohol does not make it invalid.

Thus, as held in State of W Bengal vs Kesoram Industries, 2004, the courts have to ignore the name given to the act by the legislature and must also disregard the incidental and superficial encroachments of the act and has to see where the impact of the legislation falls. It must then decide the constitutionality of the act.

Principle of Incidental or Ancillary Powers
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 the 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 to in the act is essential to give effect to the main subject of the act. For example, the 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 a 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, the 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.

As held in the case of State of Rajasthan vs G Chawla AIR 1959, the power to legislate on a topic includes the power to legislate on an ancillary matter which can be said to be reasonably included in the topic.

The underlying idea behind this principle is that the grant of power includes everything necessary to exercise that power. However, this does not mean that the scope of the power can be extended to any unreasonable extent. Supreme Court has consistently cautioned against such extended construction. For example, in R M D Charbaugwala vs State of Mysore, AIR 1962, SC held that betting and gambling is a state subject as mentioned in Entry 34 of State list but it does not include the power to impose taxes on betting and gambling because it exists as a separate item as Entry 62 in the same list.

Doctrine of Colourable Legislation
This doctrine is based on the principle that what cannot be done directly cannot be done indirectly. In other words, if the constitution does not permit certain provisions of the legislation, any provision that has the same effect but in a roundabout manner is also unconstitutional. This doctrine is found in the wider doctrine of “fraud on the constitution”. A thing is Colourable when it seems to be one thing in the appearance but another thing underneath.  

K C Gajapati Narayan Deo vs the State of Orissa, AIR 1953 is a famous case that illustrates the applicability of this doctrine. In this case, SC observed that the constitution has clearly distributed the legislative powers to various bodies, which have to act within their respective spheres. These limitations are marked by specific legislative entries or in some cases these limitations are imposed in the form of fundamental rights of the constitution. The question may arise whether while enacting any provision such limits have been transgressed or not.

Such transgression may be patent, manifest or direct. But it may also be covert, disguised, or indirect. It is to this latter class of transgression that the doctrine of colorable legislation applies. In such a case, although the legislation purports to act within the limits of its powers, in substance and in reality, it transgresses those powers. The transgression is veiled by mere pretense or disguise. But the legislature cannot be allowed to violate the constitutional prohibition by an indirect method.

In this case, the validity of the Orissa Agricultural Income Tax (Amendment) Act 1950 was in question. The argument was that it was not a bona fide taxation law but colorable legislation whose main motive was to artificially lower the income of the intermediaries so that the state has to pay less compensation to them under the Orissa Estates Abolition Act, 1952. SC held that it was not colorable legislation because the state was well within its power to set the taxes, no matter how unjust it was. The state is also empowered to adopt any method of compensation. The motive of the legislature in enacting a law is totally irrelevant.

A contrasting case is K T Moopil Nair vs State of Kerala, AIR 1961. In this case, the state imposed a tax under Travencore Cochin Land Tax Act, 1955, which was so high that it was many times the annual income that the person was earning from the land. The SC held the act as violative of Articles 14 and 19(1)(f) in view of the fact that in the disguise of tax a person’s property was being confiscated.

Similarly, in Balaji vs State of Mysore, AIR 1963, SC held that the order reserving 68% of the seats for students belonging to backward classes was violative of Article 14 in disguise of making a provision under Article 15(4).

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