A written constitution is basically a form of statute and many of the principles of the ordinary principles of interpretation. 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 political connotations.
Principle of Constitutional Interpretation
At 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 preamble cannot override the provisions of the constitution. In Re Berubari the Supreme Court held that the Preamble was not a part of the constitution and therefore it could not be regarded as a
source of any substantive power.
In Keshavananda Bharati’s case, the Supreme Court rejected the above view and held the preamble to be a part of the constitution. The constitution must be read in light of the preamble. The preamble could be used for the amendment power of the parliament under Art.368 but basic elements cannot be amended. The 42nd Amendment has inserted the words “Secularism, Socialism, and Integrity” in the preamble.
General rules of interpretation of the Constitution
1. If the words are clear and unambiguous, they must be given the
2. The constitution must be read as a whole.
3. Principles of harmonious construction must be applied.
4. The Constitution must be interpreted in a broad and literal sense.
5. The court has to infer the spirit of the Constitution from the language.
6. Internal and External aids may be used while interpreting.
7. The Constitution prevails over other statutes.
Principles of Constitutional Interpretation
The following principles have frequently been discussed by the
courts while interpreting the Constitution:
I. Principle of Colourable Legislation
The doctrine of colourability is the idea that when the legislature wants to do something that it cannot do within the
constraints of the constitution, it colours the law with a substitute purpose which will still allow it to accomplish its
Maxim: “Quando aliquid prohibetur ex directo, prohibetur et per obliqum” which means what cannot be done directly cannot also be done indirectly.
In India ‘the doctrine of colourable legislation’ signifies only a limitation of the law-making power of the legislature. It comes into the picture while the legislature purporting to act within its power but in reality, it has transgressed those powers. So the doctrine becomes applicable whenever legislation seeks to do in an indirect manner what it cannot do directly.
II. Principle of pith and substance
Pith means ‘true nature or essence of something’ and substance means ‘the most important or essential part of something. This 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.
III. Principle of eclipse
The Doctrine of Eclipse says that any law inconsistent with Fundamental Rights is not invalid. It is not dead totally but
overshadowed by the fundamental Rights. The inconsistency (conflict) can be removed by a constitutional amendment to the relevant fundamental right so that eclipse vanishes and the entire
law becomes valid. All laws in force in India before the commencement of the Constitution shall be void in so far they are inconsistent with the provisions of the Constitution. Any law existing before the commencement of the Constitution and inconsistent with the provision of the Constitution becomes inoperative on commencement of the Constitution. But the law does not become dead. The law remains a valid law in order to determine any question of law incurred before the commencement of the Constitution. Existing law only becomes eclipsed to the extent it
comes under the shadow of the FR.
IV. Doctrine of Severability
This 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 relevant provisions.
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
V. Purposive Interpretation
Purposive 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.