Chapter-15 Interpretation of constitution-Part-12-4

The general principle was stated in AG of the Gambia v Jobe[1] where LORD DIPLOCK said:

"A constitution and in particular that part of it which protects and entrenches fundamental rights and freedoms to which all persons in the state are to be entitled, is to be given a generous and purposive construction."

The words of LORD WILBERFORCE in Minister of Home Affairs v Fisher [2]are also of value:

"These antecedents... call for a generous interpretation avoiding what has been called 'the austerity of tabulated legalism,' suitable to give to individuals the full measure of the fundamental rights and freedoms referred to. ... Respect must be paid to the language which has been used and to the traditions and usages which have given meaning to that language. It is quite consistent with this, and with the recognition that rules of interpretation may apply, to take as a point of departure for the process of interpretation a recognition of the character and origin of the instrument, and to be guided by the principles of giving full recognition and effect to those fundamental rights and freedoms with a statement of which the Constitution commences."

The Constitution of India is a paramount law which represents the will of the people and is a mechanism under which laws are framed. In interpreting the Constitution, the court has to see that it is a documentation of the founding face of a nation and the fundamental directions for its fulfillment, whereas in interpreting a Statute, its pith and substance has to be looked into & the duty of the Court is to find the legislative intent. The general principle of interpretation and construction of Statute is that a court presumes its constitutionality and prefers an interpretation in favour of competency of the legislature. It is only when two meanings are inferred, whereby one results into the view of the legislature in effective result and the other results into manifest absurdity or futility or palpable injustice or anomaly, the Court should adopt the second view.[3]

A Constitution must be read as a whole, and the whole Constitution has to be examined without giving undue weight to any part[4]. In Tasmania v. Commonwealth[5] on a question as to the meaning of the Constitution of the Australian Commonwealth, O'Conner J. said: I do not think that it can be too strongly stated that our duty in interpreting a statute is to declare and administer the law according to the intention expressed in the statute itself. In this respect the Constitution differs in no way from any Act of the Commonwealth or of a State.‘The Constitution has to be looked at as a whole to see the scope of provisions. It is necessary to consider the context in which a particular provision appears and why it was framed. When an enacted law is said to be incompatible with a right protected by a constitution, the court’s duty remains one of interpretation. If there is an issue (as here there is not) about the meaning of the enacted law, the court must first resolve that issue. Having done so, it must interpret the constitution to decide whether the enacted law is incompatible or not. Decided cases around the world have given valuable guidance on the proper approach of the courts to the task of constitutional interpretation.[6].

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[1]AG of the Gambia v Jobe [1984] AC 689 at 700

[2] Minister of Home Affairs v Fisher [1980] AC 319 at 328

[3] JUGAL KISHORE DHOOT & ORS v STATE & ORS - CW Case No. 4733 of 2004 [2007] INRJHC 5718 (7 December 2007) URL: http://www.commonlii.org/in/cases/INRJHC/2007/5718.html

[4] Madan Mohan v. Carson Cumberbatch & Co Ltd. - SLR - 75, Vol 2 of 1988 [1988] LKSC 7; (1988) 2 Sri LR 75 (3 August 1988

[5] Tasmania v. Commonwealth [1904] I C.L.R. 329

[6] see, among many other cases, Weems v United States (1909) 217 US 349 at 373; Trop v Dulles (1958) 356 US 86 at 100-101; Minister of Home Affairs v Fisher [1980] AC 319 at 328; Union of Campement Site Owners and Lessees v Government of Mauritius [1984] MR 100 at 107; Attorney-General of The Gambia v Momodou Jobe [1984] AC 689 at 700-701; R v Big M Drug Mart Ltd [1985] 1 SCR 295 at 331; State v Zuma 1995 (2) SA 642; State v Makwanyane 1995 (3) SA 391; Matadeen v Pointu [1999] 1 AC 98 at 108