the-four-phases-of-constitutional-interpretation

India entered into the league of Republics, on 26th January 1950  when the Constitution of India came into force. The enactment and adoption of the Constitution were seen as an ambitious political experiment to the user in Political equality in the midst of deep-seated social inequalities.

  • Provisions such as universal adult franchise, federalism in a region consisting of over 550 princely States bear testimony to that. 
  • However, it was equally a unique achievement in terms of constitutional design.

Phases of Constitutional Interpretation:

The interpretation of the text of the constitution over the last seven decades has undergone a metamorphosis in the following manner.

  • Phase One: Textualist Approach
  • Post Independence, In the early years, a textualist approach, focusing on the plain meaning of the words used in the Constitution was adopted by the Supreme Court.
  • On Fundamental Rights: In A.K. Gopalan v. State of Madras (1950) case, it was claimed that preventive detention legislation were inconsistent with Articles 19 (the right to freedom), 21 (the right to life) and 22 (the protection against arbitrary arrest and detention). 
  • In response, the Supreme Court ruled these articles should be seen in silos as they cover entirely different subject matter rather than reading together.
  • On Amending power of Parliament: In its early years, the Court read the Constitution literally, concluding that there were no such limitations on the power of the Parliament.
  • Phase Two: Structuralist Approach
  • Switch to the second phase, the Supreme Court went beyond the interpretation of only Text. It relied on the Constitution’s overall structure and coherence (Structuralist Justifications).
  • On Amending power of Parliament: In Kesavananda Bharati v. State of Kerala (1973) case, the Court ruled that Parliament’s power to amend the Constitution did not extend to altering its “Basic Structure”. A catalog of Features which was left open-ended to be decided by the Court itself on a case to case basis. 
  • On Fundamental Rights: The Court also categorically rejected its Gopalan approach (Textual Interpretation) in favor of a structuralist one in Maneka Gandhi v. Union of India (1978). The Court ruled that  Fundamental rights are a cohesive bill of rights rather than a miscellaneous grouping. 
  • Article 21, was incrementally interpreted to include in its ambit a wide range of rights such as clean air, speedy trial, and free legal aid. 
  • This paved the way for the Supreme Court to play an unprecedented role in the governance of the nation.
  • Phase Three: Eclectic Approach (Drawing from diverse sources) 
  • The increased numerical strength of the Court, which grew from 8 to 31, resulted in the changing structure of sitting in panels of two or three judges. It somehow transformed into a “polyvocal” group of about a dozen sub-Supreme Courts.  
  • Further, the Court began deciding cases based on a certain conception of its own role, whether as a sentinel of democracy or protector of the market economy. 
  • The court overfocuses on Result Oriented Approach came at the altar of thorough reasoning of the issues.
  • It resulted in Methodological and doctrinal incoherence. Inconsistencies across the law. 
  • Phase Four: Taking into account the Purpose of the Constitution
  • In the fourth phase, the Court has acknowledged the purpose of the Constitution in line with its interpretative exercise.
  • The Court is now beginning to interpret the Constitution in accordance with its revolutionary and transformative potential of root-and-branch social revolution and transformation. 
  • In the more recent cases, there has been a renaissance in decision-making by Constitution Benches. For e.g. includes Decriminalisation of Section 377 and Adultery, and Opening itself to scrutiny the scope of the Right to Information Act.

Conclusion:

In the first two phases, significant decisions were entrusted to Constitution Benches (comprising five or more judges of court) and were carefully reasoned. There was limited scope for confusion, because cases in which reconsiderations were sought, referred to larger Constitution benches.

  • We are currently in the midst of transitioning from the third phase of constitutional interpretation to the fourth. 
  • The hangover of the third phase continues to linger on in the courts. 
  • Cases that involve substantial questions of interpretation of the Constitution - National Register of Citizens and the electoral bonds scheme — are still being adjudicated upon by benches of two or three judges. 
  • There remains a latent risk, therefore, that the gains made in the early days of phase four could be lost.

Also readRight To Information (Amendment) Bill, 2019

Fundamental Rights

 

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