A disclaimer to begin with: As
things currently stand, Indian Courts are perhaps unlikely to accept our idea of
interpretation as being correct. However, we believe that the model we discuss
is a model which should be followed in constitutional interpretation. As things
presently stand, arguments based purely
on the “original intent” of the framers of the Constitution are unlikely to
succeed in Indian Courts in all cases. For example, it is doubtful whether the
most spirited advocate of the Supreme Court’s interpretation of Article 21 will
ever find a way to justify that a right to a mosquito-free existence was part
of the original intent behind the right to life.
Courts are not averse to arriving
at legal conclusions by interpreting the Constitution in light of the “spirit”
of the Constitution; or on the basis of appeals to “constitutional philosophy”.
There is no clear indication as to what exactly this supposed “spirit” or “philosophy”
is. The Supreme Court has observed in recent times, “The primary institutional task of this Court is to clearly understand
the true message that the Constitution intends to convey; second, to assert the
original meaning in that message in the light of the constitutional provisions;
and third, to pronounce what the law is, in harmony with meaningful purpose,
original intent and true spirit of the Constitution.” We submit that instead,
the only institutional task of the Courts is to interpret what the Constitution
means, in and this must be done by sticking to a core of original intent. We further
believe that the original intent is to be arrived at primarily by reading the
text of the Constitution: some might label us, therefore, as adherents of an “original
meaning” school rather than an “original intent” school. We admit however that
there may be certain extrinsic evidence admissible in the interpretative task:
we submit that the only extrinsic evidence which is admissible is limited to
materials which were contemporaneously available at the time of the drafting of
the text. We admit that words are always used in a certain context and that
context can therefore have a bearing on meaning: we believe that the task is to
objectively determine the meaning of words used in the Constitution. Extrinsic
evidence may give some idea as to this context, to enable one to arrive –
objectively – at the meaning. And it is the meaning at the time of the drafting
that is relevant.
We believe that it is
emphatically not the role of judges to make competing choices amongst social
policies. This is a topic which we shall turn to later in the SPICTR series;
when we shall also elaborate further on our model of constitutional
interpretation.
