Constitutional Interpretation

Abstract

How do you interpret the world’s lengthiest codified constitution? The Indian Supreme Court shoulders the daunting responsibility of fleshing out meaning from the text that governs 1.2 billion people, in 29 states, speaking 22 constitutionally recognized languages and practicing virtually every mainstream religion of the world. It is perhaps unsurprising, then, that the Supreme Court has had plenty of ‘interpreting’ to do over the years. From 1950 to 2009, the Court sat in benches of five or more judges to decide substantial questions of law involving the interpretation of the Constitution on 1532 occasions. This paper seeks to provide an analytical snapshot of the Supreme Court’s interpretive methodology, focusing on how the Court has dealt with questions of permanence and change, fidelity and dynamism - all of which are central to the functioning of a constitutional democracy.

The paper will argue that the interpretive approaches of the Supreme Court can be expounded through three historical phases. In the first phase, the Court relied heavily on textualism, reading the Constitution word-for-word, without reflecting on its overall structure and coherence. Adopting a form of interpretation that was familiar to British legal training, the Court considered this interpretive methodology as a virtue in itself, and was not dictated by outcomes. In the second phase, the Court’s interpretive approaches were more eclectic, focusing not only on the text of specific constitutional provisions, but also on the structure and themes embodied by the Constitution more broadly. During both of these phases, most significant interpretive decisions were entrusted to five-judge benches and were the product of careful reasoning.

In the third phase, however, the Court moved to an approach that I describe as ‘panchayati eclecticism’. To some extent, it relinquished its responsibility to give reasons. Sitting in benches of two or three judges, the Court (or more fittingly, its smaller ‘sub-courts’) started deciding cases based on self-conceptions of its own role, resulting in the adoption of a variety of internally inconsistent interpretive approaches, and often producing incoherent constitutional jurisprudence. ‘Panchayati eclecticism’ thus conjures the image of a group of wise men and women (or, applying the analogy, sub-Supreme Courts), taking decisions based on notions of fairness that are detached from precedent, doctrine and established interpretive methods.

Keywords: constitutional interpretation, Indian Supreme Court, interpretation