Chapter-15 Interpreting constitution-Part-10.2

Constitution of India is an ongoing document. It must be interpreted accordingly

This doctrine is in one sense the doctrine of ultra vires in the constitutional law. In a federal set up the judiciary becomes the guardian of the Constitution. Indeed, in A.K. Gopalan v. The State of Madras[1], Article 13 itself was held to be ex abundante cautela and that even in its absence if any of the fundamentalrights were infringed by any legislative enactment, the court had always power to declare the enactment invalid. The interpretation of the Constitution as a legal instrument and its obligation

is the function of the Courts. "It is emphatically the province and duty of the judicial department to say what the law is". In Re: Special Reference Case, [2] Gajendragadkar, CJ said:

".though our Legislatures have plenary powers, they function within the limits prescribed by the material and relevant provisions of the Constitution.In a democratic country governed by a written Constitution, it is the Constitution which is supreme and sovereign. "

In respect of the construction of a Constitution Lord Wright in James v. The Commonwealth of Australia[3], observed that "a Constitution must not be construed in anynarrow and pedantic sense." Mr. Justice Higgins in Attorney-General of New South Wales v. Brewery Employees' Union , observed: "Although we are to interpret words ofthe Constitution on the same principles of interpretation as we apply to any ordinary law, these very principles of interpretation compel us to take into account the nature and scope of the Act that we are interpreting--to rememberthat it is a Constitution, a mechanism under which laws are to be made and not a mere Act which declares what the law is to be." In In re The Central Provinces and Berar Act XIV of1938 ("'), Sir Maurice Gwyer C.J. after adopting these observations said: "especially is this true of a Federal Constitution with its nice balance of jurisdictions. I conceive thata broad and liberal spirit should inspire those whose duty it is to interpret it; but I do not imply by this that they are free to stretch or pervert the language of the enactment in the interest of any legal or constitutional theory or even for the purpose of supplying omissions or of correcting supposed errors."“Ordinarily when a subject is expressly dealt with in a constitution in some detail, it has to be assumed that the intention was to exclude the application of the general provisions contained therein elsewhere. Express mention of one thing is an exclusion of the other. Expressio unius est exclusio alterius. It was contended that all the articles in the Constitution should be read in an harmonious manner and one article should not be read as standing by itself and as having no connection with the other articles in the same part. It was said that they were all supplementary to one another[4].”” The Court may construe and interpret the Constitution and ascertain its true meaning but once that isdone the Court cannot question its wisdom or policy. The Constitution is supreme. The Court must take the Constitution as it finds it, even if it does not accord with its preconceived notions of what an ideal Constitution should be. Our protection against legislative tyranny, if any, lies in ultimate analysis in a free and intelligent public opinion which must eventually assert itself.”[ibid]

It is true that this Court in interpreting the Constitution enjoys a freedom which is not available in interpreting a statute and, therefore, it will be useful at this stage to reproduce what Lord Diplock said in Duport Steels Ltd. v. Sirs[5]"It endangers continued public confidence in the political impartiality of the judiciary, which is essential to the continuance of the rule of law, if Judges, under the guise of interpretation, provide their own preferred amendments to statutes which experience of their operation has shown to have had consequences that members of the court before whom the matter comes consider to be

injurious to public interest."

The provisions of the Constitution Act which confer legislative powers should be construed liberally[6]. The words " sale of goods " in Entry 48 have to be interpreted in wide sense and not in the narrow sense of the definition of sale of goods contained in the Indian Sale of Goods Act, 1930[7].

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[1] A.K. Gopalan v. The State of Madras, [1950] SCR 88

[2] Re: Special Reference Case, [1965] 1 SCR 413

[3] James v. The Commonwealth of Australia, (1936) A. 0. 578 at 614

[4] A.K. Gopalanvsthe State Of Madras.Union Of India 1950 AIR 27; 1950 SCR 88

[5] Duport Steels Ltd. v. Sirs (1980 (1) ALL ER 529, at p. 542)

[6]see Navinchandra Mafatlal v.Thecommissioner of income Tax, [1955] 1 S. C. R. 829 it 833 ;Broken Hill south Ltd. v. Commissioner of Taxation, v. stronach (55 337 at 379); Love v. Norman Wright (Builder)Ltd. ([1944] 1 K. B. 484); In re the Central Provinces and BerarActNo.XIVof1938[1939FCR18).

[7] lrving's Commonwealth Sales Tax Law and Practice, at pp. 62-77. The Deputy Federal COmmissioner of Taxation v. Stronach (55 C.L.R. 305); M. R. Hornibrook (pty. Ltd.) v. Federal Commissioner of Taxation (62 C. L. R. 272 at 276).