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The most comprehensive coverage on the construction of Statutes. It includes parts of statutes,Extrinsic-Aids,Intrinsic aids, Reading down, Amendments,Repeals,codifications,Quasi-Judicial agencies,Non-obstante clause,Mandatory/Declatory provisions,Tax ,Beneficial, Criminal,Fiscal Statute's Interpretation and sub-ordinate legislations.Besides it contains the Rules of Interpretation and the Role of Judiciary.Citations are in abundance.

Thursday, May 6, 2010

Chapter-15 Judiciary to interpret Constitution-part-7

Judiciary to interpret the Constitution of India

The constitution of a nation is not simply a statute which mechanically defines the structures of government and the relations between the government and the governed. It is a ˜mirror reflecting the national soul', the identification of the ideals and aspirations of a nation; the articulation of the values bonding its people and disciplining its government. The spirit and the tenor of the constitution must therefore preside and permeate the processes of judicial interpretation and judicial discretion.[see:S v Acheson 1991 (2) SA 805 (Nm HC) at 813 (At that time Justice Mahomed was Acting Judge of Appeal in Namibia, before later becoming Deputy President of this Court and then Chief Justice of South Africa.)]
On the other hand, the Constitution as the supreme law is binding on all branches of government and no less on the Legislature and the Executive. The Constitution requires the courts to ensure that all branches of government act within the law. The three branches of government are indeed partners in upholding the supremacy of the Constitution and the rule of law. 
Cited from
The task of expounding a constitution is crucially different from that of construing a statute. A statute defines present rights and obligations. It is easily enacted and as easily repealed. A constitution, by contrast, is drafted with an eye to the future. Its function is to provide a continuing framework for the legitimate exercise of governmental power and, when joined by a Bill or Charter or rights, for the unremitting protection of individual rights and liberties. Once enacted, its provisions cannot easily be repealed or amended. It must, therefore, be capable of growth and development over time to meet new social, political and historical realities often unimagined by its framers. The judiciary is the guardian of the constitution and must, in interpreting its provisions, bear these considerations in mind[1].

Drafting the text of a Statute or a Constitution is not just an art but is a skill. It is not disputed that a good legislation is that the next of which is plain, simple, unambiguous , precise and there is no repetition of words or usage of superfluous language. The skill of a draftsman in the context of drafting a Statute or the Constitution lies in brevity and employment of appropriate phraseology wherein superfluous words or repetitive words are avoided. It appears that the aforesaid principle was kept in mind while drafting the Government of India Act, 1915, the Government of India Act, 1919, and the Government of India Act, 1935. The draftsman of the Constitution of India has taken care to maintain brevity and the phraseology used is such that there is no ambiguity while making provisions for the Constitutional institutions is the provisions of the Constitution.

The judicial function of the Court in interpreting the Constitution thus becomes anti nomi. It calls for a plea upon a continuity of members found in the instrument and for meeting the domain needs and aspirations of the present. A constitutional court is a nice balance of jurisdiction and it declares the law as contained in the Constitution but in doing so it rightly reflected that the Constitution is a living and organic thing which of all instruments has the greatest claim to be construed broadly and liberally[2] In the interpretation of a constitutional documents words are but the framework of concepts and concepts may change more than words themselves. The significance of the change of the concepts themselves is vital and the constitutional issues are not solved by a mere appeal to the meaning of words without an acceptance of the line of their growth. It is aptly said that the intention of the Constitution is rather to outline principles than to engrave details[3].

[1] Hunter v Southam Inc [1984] 2 SCR 145[Chief Justice Dickson of the Canadian Supreme Court.]
[2] [See M/s Goodyear India Ltd. v. State of Haryana and Anr. (AIR 1990 SCC 781) and Synthetics and Chemicals Ltd. v. State of U.P. and Ors. (AIR 1990 SC 1927)].
[3] (See R.C. Poudval v. Union of India and Ors. (AIR 1993 SC 1804).

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