The Constitution…..is a mere thing of wax in hands of the Judiciary, which
they may twist and shape into any form they please.
- Thomas Jefferson
A written constitution is basically a form of statute and many of the principles
of the ordinary principles of interpretation. The enactment of the Indian
Constitution was an ambitious political experiment whereas the Supreme Court
while interpreting the provisions enshrined primarily focused on the plain
meaning of the words. It is important for the Constitution has to be interpreted
in a liberal and broad manner such that any law does not violate the basic
structure of the Constitution. The constitution of India came into force 70
years ago and there have been different phases of constitutional interpretation
in these seven decades where the Apex Court decided to take a step back from the
The first phase where it was interpreted literally; the
second phase where the Courts began to scrutinize all possible methods of
interpretation as a result of which the basic structure doctrine came into
existence; the third phase can be described as phase of eclecticism where the
decisions by the Apex Court were based on fairness; the fourth phase is the
current one where the court has begun to interpret the provision in a
transformative manner. This article will discuss different approaches adopted by
the Court while interpreting the Constitution of India. The approaches are:
Doctrinal, Textualist and Purposive.
Principle of Constitutional InterpretationAt the heart of every constitutional decision is the court’s assessment of what
the constitution means, why it exists in the shape and form that it does, and,
above all, what injustices it is meant to remedy. There are a number of
principles used by the courts while interpreting the constitution which will be
discussed further in this article. The constitution of India as the preamble
suggest is the constitution which the people have given to themselves who is the
beneficiary of its provisions and as described by Churchill as:
little man with
a little pencil with a little ballot to vote should never be neglected. It is
the responsibility of the judiciary to apply its mind in the interpreting any
provision in question which affects the individual dignity in any manner. The
interpretation by the Judges in an innovative manner has to be continued keeping
in mind the historical growth of the India’s constitution.
Doctrine of Colourable LegislationThe doctrine of colourable legislation basically in common parlance refers to
the question of competency of the legislature while enacting the provisions of
law. It basically suggest the practice carried out by the legislature whereby
it enacts a provision which at the face cannot be authorized by the constitution
by the coloring the provisions with a substitute purpose which indirectly allows
the original intention.
This doctrine is based upon the legal maxim Quando aliquid prohibetur ex
directo, prohibetur et per obliqum which means that what cannot be done
directly, cannot be done indirectly. In a nutshell the purpose of this doctrine
is to check that the legislature while framing the laws does not transgress the
provisions enshrined under the Constitution of India.
The Supreme Court of India in the matter of K.C. Gajapati v. State of Odisha, explained
the doctrine and held that:
if the constitution of a State distributes the legislative spheres marked
out by specific legislative entries or if there are limitations on the
legislative authority in the shape of fundamental rights, questions do arise as
to whether the legislature in a particular case in respect to the subject matter
of the statute or in the method of enacting it, transgressed the limits of the
constitutional power or not. Such transgression mat be patent, manifest and
direct, but may also be distinguished, covered and indirect and it is the latter
class of cases that the expression ‘colourable legislation’ has been applied in
certain judicial pronouncements.
In our Constitution, this doctrine is usually applied to Article 246 which
separates the legislative competencies of the Parliament and the State
legislative assemblies by stating the different subject under the different
lists under Schedule VII upon which the respective legislature can draft the
laws. This doctrine comes into the fore when the legislature drafts a law which
it is not competent to draft and the fate of the same law is decided by the
courts using the doctrine of colourable legislation.
Doctrine of Pith and SubstanceThis doctrine highlights or focuses upon to understand the true nature and
characteristic of law. The doctrine signifies that it is the real subject matter
which is to be challenged and not its incidental effects on another field. The
application of this doctrine can be illustrated through Article 246 which
enumerates the legislative competency mentioned in the lists under the Seventh
Schedule. It is pertinent to the fact that the legislature will make laws on the
subject matter enshrined under the lists, but there might be incidental trespass
by the legislature which ultimately result in the declaration of that specific
law as ultra vires. The rationale behind this doctrine that the Central and
State Legislature at any point of time trespass the field protected for each
The Supreme Court for the first time applied this doctrine and upheld the same
in State of Bombay v. F.N.Balsara. In brief the facts of the case being that the
State of Maharashtra restricted the sale and possession of liquor by the
provisions of the Bombay Prohibition Act and the same was challenged with the
rationale that it was an interference on the act of importing and exporting of
the liquor through the borders. The apex court held that the impugned
legislation was in pith and substance a State subject even though it
incidentally encroached the subject enumerated in List I.
The rationale and the spirit behind being that every law will be declared
invalid by citing the reason of it being in conflict with the subject matter
mentioned in another list.
Doctrine of EclipseThe doctrine of eclipse suggests that when any law made by the Legislature is
derogatory with Part III of the Constitution of India, then that law will be
treated as invalid and inoperative to the extent to which the provisions are
inconsistent to the Fundamental Rights. Article 13(1) emphasizes the fact that
the State shall not make any law which will be inconsistent with the fundamental
rights and any such law made will be void.
The Apex court in the case of the Keshava Menon v. State of Bombay, the facts of
the case being that the petitioner was prosecuted under the Indian Press
(Emergency Powers) Act, 1931 for publishing a pamphlet without seeking prior
permission. The Court held that the provisions mentioned under the Indian Press
Act are violative of Article 19(1) (a) and are void to the extent there lies
In I.C.Golaknath v. State of Punjab, it was held that the
Parliament had no power to dissect or break the fundamental rights and further
the court negated with the absoluteness of Article 368 and concluded that the
amending powers under Article 368 are restrictive in nature and therefore
Article 368 was eclipsed. However, the I.C.Golaknath was overruled by the Apex
Court after the judgement pronounced in the famous case of Kesavananda Bharti v.
State of Kerela.
Doctrine of SeverabilityThis particular means where a particular provision is not in parlance with the
fundamental rights enshrined under Part III of the constitution and when such
provision which is not consistent can be separated and will be declared void by
the Court as a result of which the rest provision remains consistent with the
While applying this doctrine, the court does not declare the whole statute or
act as void but only the provision or any part violative of the Part III of
constitution and which can be separated from the rest of the provision.
The doctrine was applied by the Apex Court in the case of A.K.Gopalan v. State
of Madras, where it was held that Section 14 of the Preventive Detention Act,
1950 was inconsistent with Article 22 of the Constitution only to the part which
prohibited the person detained to make representation or even disclose the
grounds to the court was ultra vires.
Thus, only the repugnant part of the impugned act will be declared void and not
the whole Act.
Purposive InterpretationPurposive Interpretation as the name suggests means that the court while
interpreting the statute or the constitution looks into the purpose for which
the the provision or the statute in question was enacted. Thus, the court will
delve into the purpose of the enactment in order to derive the correct
interpretation such that it result in delivery of justice.
The Supreme Court in the case of State (NCT of Delhi) v. Union of India held:
Constitutional provisions are required to be understood and interpreted with an
object-oriented approach and a Constitution must not be construed in a narrow
and pedantic sense. The judiciary must interpret the Constitution having regard
to the spirit and further by adopting a method of purposive interpretation.
The courts take the aid of the committee reports, constituent assembly debates,
early drafts or any materials from the pre-enactment phase.
It is for us not to forget the dissenting judgement by Justice Vivian Bose in
the case of State of West Bengal v. Anwar Ali Sarkar, where he stated that the
provisions of the Constitution are not mathematical formulae which have their
essence in mere form. They constitute a framework of Government written for men
of fundamentally differing opinions and written as much for the future as the
present... they are not just dull lifeless words static hidebound as in some
mummified manuscript, but living flames intended to give life to great nation
and order its being, tongues of dynamic fire potent to mould the future as well
as guide the present.
Textual ApproachTextualism is also called literal interpretation. The general rule of
interpretation of statute is that the Court while interpreting the statute or
any part of it would use literal rule of interpretation. Literal rule means
adherence to the words mentioned in the act. Under this approach the court
focuses on the literal meaning of the constitutional provisions. According to
this rule, the words, pharases and sentences of a statute are ordinarily to be
understood in their in their literal and grammatical meaning.
the Supreme Court gave a narrow and literal interpretation to
Article 21 of the Constitution and refused to infuse the concept of procedure
established by law with the principles of natural justice. Another area where
the Supreme Court had used the textualist interpretation was in the
interpretation of the word law under Article 13(2) vis-a-vis the Parliament’s
power to amend the Constitution under Article 368.
The Constitution was indeed
silent on whether this word under Article 13(2) includes a constitutional
amendment or not. In 1951, the Supreme Court made a distinction between ordinary
legislative power and the Constituent power of the Parliament. It was held that
Article 368 empowered the Parliament to amend the constitution without any
exception. However this judgement was overruled by 11 judge bench and held that
the power under Article 368 could not abridge or take away the fundamental
rights in Part III of the Constitution.
The courts interpret the statute or constitution in order to clarify and to see
in all cases the intention expressed by the words used. The courts interpret as
to ascertain the mind of the legislature from the natural and grammatical
meaning of the words or phrases used in the statute. The courts as seen above
has adopted different approach to interpret the provisions of the Constitution
in order the serve the purpose of the very the provision. There have been
landmark judgements where courts have used different doctrines apart from the
primary method of literal interpretation to meet the ends of justice.
principles of interpretation adopted by the Supreme Courts have changed in these
seven decades in order to be consistent with the political connotations and
changed public policy. Constitution is perceived as the mother of all the laws
and it is said that every law takes birth from the Constitution itself so it’s
the prime responsibility of the Judges’ to maintain and preserve the sanctity of
the mother document such that law of land at anytime is not found in a
According to Salmond:
Interpretation or construction is the process by which
the courts seek to ascertain the meaning of the legislature through the medium
of the authoritative forms in which it is expressed. The interpretation of the
Constitution becomes more important when there is need to harmonize it with the
democratic principles of the State. The Indian Constitution is the longest
constitution and it is evident that Courts have adopted different principles in
interpreting the basic structure, equality, right to privacy etc.
the courts have never bind themselves with the literal rule of interpretation
only while decicidng any matter pertaining to constitutional importance. In the
modern times it is evidently seen that the Judges have started adopting the
purposive method of interpretation in order to understand and implement the
intention of the makers of the constitution.
- Gautam Bhatia, The Transformative Constitution: A Radical Biography of
Nine Acts 11 (2019
- K.C.Gajapati v State of Odisha, AIR 1953 SC 375(India).
- India Constitution art.246.
- Namrata Kandalovi, Constitutional Law: Doctrine of Pith and Substance,
Lexlife India (May 9, 2020.),https://lexlife.in/2020/05/09/constitutional-law-doctrine-of-pith-and-substance.
- India Constitution Sch. VII.
- State of Bombay v. F.N.Balsara, AIR 1951 SC 318 (India).
- India Constitution art.13, cl.1.
- Keshava Menon v. State of Bombay, AIR 1951 SC 128 (India).
- I.C.Golaknath v. State of Punjab, AIR 1967 SC 1643 (India)
- Kesavananda Bharati v. State of Kerela (1973) 4 SCC 225 (India).
- A.K.Gopalan v. State of Madras, AIR 1959 SC 27 (India).
- State (NCT of Delhi) v. Union of India, (2018) 8 SCC 501 (India).
- State of West Bengal v. Anwar Ali Sarkar, AIR 1952 SC 75 (India).
- A.K.Gopalan v. State of Madras, AIR1959 SC 27 (India).
- India Constitution art. 21.
- India Constitution art. 13, cl. 2.
- India Constitution art. 368.
- Arvind P. Datar and Rahul Unnikrishnan, Interpretation of
Constitutions:Doctrinal Study, 29 NLSI Rev, 136 (2017).