4 Constitutional Interpretatiosdcsdcdscscn 2025.pptx

sdv

1. Constitutional Interpretation - Positivism, Textualism & Living Tree

2. INTERPRETATION Interpretation as meaning : semantic (analytical), conventional or practical (use), causes & consequences, hermeneutic (private), sources, arguments, justification, authority (formal, epistemic, charismatic, trust); Mathematical , axiomatic, syllogistic approach. [ Fourth Judges’ Case (NJAC) ] Basic Structure = constitutionalism + democracy 🡪 Constitutionalism + democracy = f (judicial independence); Appointments + transfer = f (judicial independence) 🡪 Collegium = appointments + transfers 🡪Collegium = Basic Structure. Six-members NJAC may suffer decisional deadlock. (even number body) Supreme Court’s caution against “ mathematical niceties ” in Agency Test [Art. 12], Reasonable classification [Art. 14], territorial nexus [Art. 245] Relativism & scepticism 🡪 impossibility of definition ; [ NJAC Case ] 🡪 “ eminent person ” as vague term incapable of specific definition. Fallacy of disintegration : clause-bound literalism 🡪 Eg. Art. 1 India as “Union of States” excludes union territories. Eg. Right to equality as antithetical to private property or freedom of contract. (ideological determinism).

3. Ideological Ideals: Substantive vs. Procedural Four interpretive implications: Complex text + long historical life + embedded reflexive relation with conventions-institutional practices + political & philosophical ideals . Sources of interpretation: text, structure, doctrine, history, policy, ethics (moral philosophy); [ Phillip Bobbit ] It is a single entity, but produced by “ series of enactments across generations ”- a complicated collage of political compromises attained incrementally over time. [ Tribe & Dorf ] Simplicity + practicality : Constitution: no “ prolixity of legal code”, to “be understood by the public ”. [ Marshall, CJ. In McCulloch v. Maryland ] Fallacy of hyper-integration or reductivism : “constitutional identity”, telos , “seamless web”, “brooding omnipresence”. JH Ely’s DEMOCRACY & DISTRUST : conceives the constitutional identity in procedural ideal of perfecting democracy through representative government. Conflicting visions : natural law vs. positive law; liberal individualism vs. civic republicanism; unitary govt. vs. states’ rights. No unitary expression of meta-vision: Newtonian checks-balances, or Darwinian moral progressivism. “Constitution is not a coherent political theory of private property [ Richard Epstein , TAKINGS], or diversity and toler ation [ David Richards , TOLERATION & THE CONSTITUTION]

4. Illustrations: Textual & Structural Interpretation Textualism/ Structuralism: “ industry ” [Entry 52(I), 26-28(II)] ITC Ltd. V. APMC, Bihar [SC 2002] 🡪 trade-commerce + supply-distribution + market-fairs . “Industry” includes life cycle of a product or service 🡪 primary meaning (production/ manufacture), secondary meaning (supply/ distribution); “ Market ”: congregation/ meeting place for sale-purchase in public forum on notified schedules. “ Fair ”: mela/ exhibition as intermittent market. Tobacco’s quality regulation for the Union List [Entry 52], but levy of market fee in agri mandis for State List [Entry 28]. Textualism/ semantic meaning/ practical reason: “terrorism” Kartar Singh v. State of Punjab [SC 1994] High-impact planning : surcharged violence in vulnerable, border, or sensitive areas. Intensity: “ gruesome and gratuitous killings”, including high collateral damage , like women and children. Inadequacy of local administration and infrastructure, with violence intending to incapacitate and overawe the govt. institutions. Psychological warfare: To alienate people towards its government, with learned helplessness, fear paralysis and depressive stasis.

5. Illustration: Textual, Structural, Historical & Policy Interpretation Eminent domain: Sovereign’s power to acquire private property for public interest in lieu of fair compensation and prior notice . Eminent domain shared between Union & state governments; Scope for Union Parliament to legislate for acquisition of state property; State of WB v. UoI [1963 SC] (sources of constitutional interpretation- text, structure, history, precedents, policy, morality) Parliamentary power to enact acquisition law for property situated in states; Coal Bearing Areas Act 1957 concerning undeveloped coal mines; To acquire lessee right for the Union over such mines without impeding ownership rights of state government; (commercial tenancy for use of property)

6. Illustration: Textual, Structural, Historical & Policy Interpretation Structural recognition of government’s property rights under Part XII- legal capacity of government to enter into contract, trade and legal suits; [Art. 298, 299 & 300] Scd. 7: List III : Entry 42 - “acquisition & requisition of property” (power available to both Union & states) General power under List III, but special powers under List I: Entry 54 : “mine & minerals” in “public interest”; Art. 246- In cases of irreconcilable conflict, List I & III (for Union) has priority over List II & III (for states); Constitutional division of power NOT an index of political sovereignty ; Historical bases: mode of British governance in colonial India; Independence : lapse of British paramountcy 🡪 not led to provinces lapsing into original position of independence; Rex was transferred from British monarchy to the Indian Union; States had no independent contractual position ; Policy rationale : nationalisation as instrument for industrialisation and economic development; Union’s property (railways, armed forces, telecommunication etc) resides within states; State government subject to Union directives under Arts. 256-257;

7. J&K sovereignty and Art. 370 status Royal Proclamation 1949 declared India-J&K relation to be governed by the Indian Constitution. Indian Constitution “shall… supersede and abrogate ” all other inconsistent provisions in force, including the Instrument of Accession (IoA). IoA preserved J&K sovereignty and rejected enforcement of Indian Constitution to J&K. Art. 370 applied Art. 1 without modifications . J&K Constitution, Sec. 3 declares J&K as “integral part of the UoI” 🡪 Sec. 147 prohibits any amendments to Sec. 3. Preamble of State Constitution is silent on sovereignty status. Art. 370 under Part XXI “temporary and transitional provisions”. J&K was Part-B state (princely state) under original Constitution, later obliterated princely states category under Scd. 7. Asymmetric federalism may imply greater autonomy, but no sovereignty. State Constituent Assembly (CA) recommendation not binding upon President [Art. 370] Dissolution of State “CA” does not limit Presidential power [Art. 370(3)] to abrogate Art. 370. Complete integration of J&K is not contingent upon existence of state “CA”. Prem Nath Kaul v. UoI (1959): J&K retained some internal sovereignty, e.g. art. 370 provides for state Constituent Assembly [ Kaul & Khanna, JJ. ]

8. Constitutional Validity of Presidential Proclamations [Art. 356] Art. 356 purpose : to “restore the functioning of constitutional machinery in the state” [ SR Bommai case] Presidential actions should be geared towards fulfilling this objective, but not every such action. Several decisions taken by the Union to manage daily administration in the state and opening it to litigation floodgates would “lead to chaos and uncertainty”. Art. 357(2) allows state to reverse or modify such actions upon expiry of President’s Rule. Presidential action must bear reasonable nexus to Proclamation objectives. Irreversibility of such actions is not a sufficient ground to invalidate it in judicial review. Petitioner must establish prima facie “ mala fide or extraneous exercise of power”- intent to deceive through colourable exercise of power. Constitutional Order (C0-272) was invalid for amending Art. 367 (interpretation clause) to significantly change Art. 370 (by replacing “Constituent Assembly” in Art. 370 Proviso with “Legislative Assembly”. CO-272 amends Art. 370 without following Art. 370(3) procedure, and without concurrence of state government under Art. 370(1)(d). Maqbool Damnoo v. State of J&K (1972) does not apply because it concerned marginal changes like replacing “Sadar-i-Riyaasat” with “Governor”. But this defect of CO-272 does not invalidate the entire order as President has power to apply “all or part of Constitution” to J&K [Art. 370(1)(d)] Application of all Constitutional provisions to J&K [Art. 370(1)(d)] has same effect as abrogating Art. 370 [Art. 370(3)] Application of whole Constitution , being unilateral power of President, does not require concurrence of state government, as Union government was representing the state during President’s Rule.

9. Constitutional Validity of J&K Reorganisation Act 2019 2019 Act enacted under Art. 3 did not comply with Art. 3 procedure and changed the character of state by “reducing” into UTs. Constituent units mirrored British India categorisation of provinces and Art. 3 empowered the Union Parliament to re-classify the regions. Reclassification was based upon careful evaluation of administrative, cultural, linguistic, financial etc. factors beyond expediency of colonial government. Since Parliament assumed the role of state legislature under President’s Rule , President sough the opinion of both the Houses under Art. 3. Parliament has non-legislative powers [Art. 356], like giving opinion or consent under Art. 3. States have significant autonomy from the Union compared to UTs, which are not “ viable administrative units ”. Administrative unit can lose its character by complete conversion to UT. Union government has submitted that J&K statehood will be restored in reasonable time . Court ordered the Election Commission to conduct legislative assembly elections before 30 th Sept 2024.

10. Ideological Vision: Growth (Futuristic) vs. Limits (Past) Whig progressivism : thesis of expanding rights and constricting policy actions: constitution as “break from the past”. Unmitigated economic development and environmental externalities [ Narmada Bachao Andolan case] Expansive privacy regime in an overcrowded and dependent culture vs. Hobbes’ “private man” and privacy as choice [ Puttaswamy case] Dworkin’s “ best possible interpretation ” thesis as expanding regime of rights . Judiciary cannot be the exclusive determinant of societal progressivism . [ Scalia, J. ] Originalism or Historical determinism : constitution as “dead hands of the past”; Constitution as strict contract with entrenched limitations upon all stakeholders- govt, citizens, judiciary. Or constitution as inter-generational contract capable of iterative updates and evolving meaning .

11. Common Law Constitutionalism Four features of Common Law: Code vs. stare decisis + statutory interpretation + academic influence + legal realism. [ Scalia, J .] “Common Law”: comparative difference between English vs. Continental; epistemological difference in custom vs. code 🡪 judicial reasoning; Creationist agency (statutory) vs. traditional authority ( stare decisis ) 🡪 public policy reforms vs. stable legal doctrines. Common law’s relation with customary norms severed by 16th century adjudication. Interpretation as “science of constructing legal text”- science as discernible method. Common law now signifies technical expertise and closeness of the legal system: lawyer’s world. Academic and scholarly influence: Anglophone law schools & the new world of common law reasoning (case law method) in contract, property, tort and criminal law. Common law standards involve policy considerations (realist consequentialism ), not strict statutory construction- not limited to immediate dispute, but as policy guide for future judgments. Common law standard of reasonableness [ Hadley v. Baxendale (1854)]: breach of contract is compensated to the extent “fairly and reasonably contemplated by both parties”. Common law as “ intellectual creationism ”, God-like judge, entertaining and empowering . Federalist Papers conception of common law as legitimate source for constitution: stable rules evolved over long period.

12. BASIC STRUCTURE AS “HIGHER LAW” Questionable doctrinal / regulatory value of the BSD? 🡪 doctrinal/ regulatory utility does not determine political value of “Higher Law”. [BSD as a mirror to constitutional contradictions] Our life-projects (including constitutional ideals) are fragile to ravages of time 🡪 “ Infant democracy” [CAD]; goodness as a “ sapling” [ Pindar ] Extrinsic standards matching in ordinary review vs. intrinsic-reflexive challenge in amendments. (Amendment is part of Constitution) 🡪 Problem of internal threat or self-sabotage . Immediate context in rights’ paradox: Land reform laws annulled by court for violation of Arts. 14 & 19(1)(f ); Higher Law (BSD) as practical guard rails (hedge) of pre-commitments against time-ravages (entropy), our akrasia (weak will power), and epistemic blindness (knowledge limits). [ Jon Elster’s ULYSSUS BOUND] Constitution as republican basic structure . (pre-commitments as foundational limits) Is constitutional amendment part of higher law? 🡨🡪 Can amendment modify higher law?

13. The Election’s Case & Anti-Defection law 39 th Amendment effect: legal vacuum or absence of legal standard to regulate PM election. Ousted court jurisdiction upon PM election, voided all existing election laws on the subject; KK Mathew, J: structuralism & comparative constitutionalism; Meta value (basic value): democracy 🡪 derivative value (practical attribute): free & fair election; Textualism: “free & fair election” requires substantive role of all 3 branches of government 🡪 legislation + administration + adjudication of election laws; 39 th amendment absolute ouster of derivative value, but lacks quality of adjudication in absence of considerations of relevant facts and laws; Morally and historically deficient single person law , like Bill of Attainder; Chandrachud, J : Meta values of rule of law (judicial review) and equality (Art. 14); State action review on technical grounds, not moral judgment on tyranny ; Free and fair election is “ unnecessary alarmism ”; “One swallow does not make a summer…” [ Aristotle, NICOMACHEAN ETHICS ] Election of one PM does not portend tyranny. Constitutional validity of 52nd amendment introducing Scd. X ( Kihoto Hollohan v. Zachilhu ) [1992 SC] Meta value: parliamentary democracy  derivative value: freedom of expression & political parties;