Dialogue October-December, 2009 , Volume 11 No. 2
Misinterpretation of the Constitution due to Disregard of Interpretation Clause
R. C. Jha*
The Constitution of India embodies a built-in rule of interpretation in Clause 1 of Article 367. This rule of interpretation distinguishes it from the Constitutions of the USA, France, Ireland, Japan, etc. which the founding fathers of the Indian Constitution had consulted before framing the Constitution.
Clause 1 of Article 367(1) reads:
“367. Interpretation (1).Unless the context otherwise requires, the General Clauses Act, 1897, shall, subject to any adaptations and modifications that may be made therein under article 372, apply for the interpretation of this Constitution as it applies for the interpretation of an Act of the Legislature of the Dominion of India.”
In regard to the expression, namely “unless the context otherwise requires”, the apex court has held that, where the definition or expression in an enactment is preceded by the words “unless the context otherwise requires,” the said definition or expression, set out in the section, is to be applied and given effect to, but this rule, which is the normal rule, may be departed from if there be something in the context to show that the said definition or expression could not be applied.1 By the same token, since the provision in Article 367(1) of the Constitution is preceded by the words “unless the context otherwise requires,” the rule of interpretation, set out in it, has to be applied and given effect to, but it may be departed from if there be something in the context to show that the said rule could not be applied. But it is shocking to note that, while construing the Constitution in Shankari Prasad’s case (AIR (38) 1951 SC 458) , Sajjan Singh’s case(AIR 1965 SC 845), Golak Nath’s case (AIR 1967 SC 1643) and Kesavananda’s case (AIR 1973 SC 1461), the apex court has neither applied the rules of construction laid down in the General Clauses Act, 1897, as mandated by Article 367(1), nor has it shown that the context required that the said rules could not be applied to the interpretation of the Constitution in any of these cases. As the Constitution has to be interpreted on the terms of the Constitution, the disregard of Article 367(1) calls into question the very constitutionality of the rulings made by the apex court in Shankari Prasad’s case, Sajjan Singh’s case, Golak Nath’s case and Kesavananda’s case on the amending power under the Constitution of India.
In this regard the following observation in a recently published work on the misinterpretation of the Indian Constitution also deserves attention:
“The fact that numerous new articles, clauses, sub-clauses, parts and schedules have been incorporated into the Constitution from 1951 onward in flagrant violation of Articles 366, 394, 60 and 367(1) of the Constitution, hardly leaves any room for doubt that the Constitution has neither been construed as a whole, nor has it been interpreted on its own terms. The result is that, in India, right from 1951, the amending laws masquerade as the Constitution”2
Underlining the supremacy of the Constitution, Cooley, a noted writer on Constitutions, observes: “For the Constitution of the State is higher in authority than any law, direction, or order made by anybody or any officer assuming to act under it since such body or officer must exercise a delegated authority, and one that must necessarily be subservient to the instrument by which delegation is made. In any case of conflict the fundamental law must govern, and the act in conflict with it must be treated as of no legal validity”.3
In view of the fact that the apex court has construed the provision of amendment in Shankari Prasad’s case, Sajjan Singh’s case, Golak Nath’s case and Kesavananda’s case without observing the rule of interpretation laid down in Article 367(1), it is high time a de novo interpretation of the amending power was undertaken by the apex court by constituting a bench larger than the one that had decided Kesavananda v. State of Kerala.
The point deserving attention is that the General Clauses Act, 1897,
which, in terms of Article 367(1), applies for the interpretation of the Constitution as it applies for the interpretation of an Act of the Legislature of the Dominion of India, distinguishes the expression amendment from the expression repeal and re-enactment with or without modification. In other words, by laying down the rule of interpretation in Article 367(1) that, unless the context otherwise requires, the General Clauses Act, 1897, shall apply for the interpretation of the Constitution, the founding fathers of the Constitution have made it obligatory for an interpreter to distinguish in the Constitution the expression, namely ‘amendment’ from the expression, namely repeal or re-enact with modification. In this regard, it would be pertinent to recall here the judgment in Emperor v. Rayangouda Lingangouda Patil wherein Justice Macklin of Bombay High Court, speaking for himself and Justice Sen, has pointed out that there is a clear distinction between an amendment simpliciter of a provision of an Act and an amendment which goes so far as to provide in terms for the substitution of one provision for another. In latter case, it is “mere juggling with words” to say that it does not amount to repeal and re-enactment within the meaning of S. 8(1) of the G.C. Act (1897).4
As Article 367(1) ordains that, unless the context otherwise requires, the General Clauses Act, 1897, shall apply for the interpretation of the Constitution as it applies for the interpretation of an Act of the Legislature of the Dominion of India, the expression, namely ‘amendment’, that has been used in the Constitution, has to be viewed as amendment simpliciter, in contradistinction to the expression, namely repeal and re-enactment in Section 8(1) of the General Clauses Act, 1897. Moreover, the amendment simpliciter in Article 368 has to take colour from the text as well as from the context.
There can hardly be two opinions on the point that we can succeed in discerning the meaning of the expression “amend” in the Constitution only when we construe the Constitution as a whole and on its own terms. Here it would be pertinent to point out that Article 357(2) delegates to Legislature the power to enact law to repeal or re-enact with or without modification the delegated legislation made in terms of Article 357(1) of the Constitution. Had the founding fathers of the Constitution intended that the provisions of the Constitution be repealed or re-enacted with modification by a creature of the Constitution, they, instead of using the expression ‘amendment’ in Article 368, would have used the same expression which they have used in Article 357(2) in respect of a delegated legislation under the Constitution.
In this regard it would also be useful to pay attention to the rule of
construction in Section 20 of the General Clauses Act, 1897, which reads:
“Where, by any Central Act or regulation, a power to issue any notification, order, scheme, rule, form or bye-law is conferred, then expressions used in the notification, order, scheme, rule, form, or bye-law, if it is made after the commencement of this Act, shall, unless there is anything repugnant to the subject or context, have the same respective meanings as in the Act or regulation conferring the power.”
The principle underlying the above rule of construction is that an Act is the genus and the order, scheme, rule, etc., issued in exercise of power conferred by the said Act are the species of the same genus; and, since the power to issue order, legislative scheme, rule, notification, form or bye-law is derived from the enabling Act, the expressions used in the said scheme, rule, order, notification, etc., issued in exercise of power conferred by the Act, shall have the same respective meanings as in the Act conferring the power, unless there is anything repugnant to the subject or context.
Had the expression, namely ‘amendment’ connoted repeal or re-enactment with modification, the founding fathers of the Constitution would have used in Article 357(2) the expression amendment, rather than the expression, namely repeal or re-enact with modification, in view of the express rule of construction laid down in Section 20 of the General Clauses Act, 1897. The fact that they did not use the expression, namely amend in Article 357(2), lends further credence to the contention that the expression amend does not connote repeal or re-enactment with modification; and, bound by Article 367(1), read with Section 20 of the General Clauses Act, 1897, the founding fathers of the Constitution have used the expression, namely repeal or re-enact with modification in Article 357(2) so as to ensure that the expression in the rule\order under this Article has the same respective meaning as in the Constitution conferring the power to issue the said rule/order.
Unfortunately, the Constitution was not interpreted on the terms laid down in Article 367(1), read with Section 20 of the General Clauses Act, 1897, in Shankari Prasad’s case, Sajjan Singh’s case, Golak Nath’s case and Kesavananda’s case. Had the apex court interpreted the amending power in these cases on the terms laid down in Article 367(1), it would have detected without any difficulty that Article 368 provides procedure to amend, rather than procedure to repeal or re-enact the provisions of the Constitution with modification.
In regard to construction of a Constitution, the following observation of a learned judge deserves attention: “It is an essential rule of construction that while dealing with a Constitution every word is to be expounded in its plain, obvious and common sense unless the context furnishes some ground to control, qualify or enlarge it and there cannot be imposed upon the words any recondite meaning or any extraordinary gloss. (See Story on Constitution of the United States, Vol. I, Para 451.) It has not yet been erected into a legal maxim of constitutional construction that words were meant to conceal thoughts”.5
The founding fathers of the Constitution have not concealed thoughts either in Article 357 or in Article 368. Had they intended that power be delegated through Article 368 to repeal or re-enact the Constitution with modification, they would have used in that Article the expression, namely repeal or re-enact with modification (as have been done in Article 357(2) in respect of a delegated legislation under the Constitution), and not the expression, namely amend. The point deserving attention is that the power to repeal and the power to enact go hand in hand; and, since the people of India enacted their Constitution in the Constituent Assembly in exercise of full legislative power, they alone can repeal and re-enact it with modification in the Constituent Assembly in exercise of full legislative power. The aforesaid principle, adopted by the founding fathers of the Constitution, reminds us of the following legal maxim: Jura eodem modo destituuntur quo constituuntur”— Laws are abrogated or repealed by the same means by which they are made.
If the omission on the part of the Supreme Court to apply the built-in rule of interpretation in Article 367(1) to the interpretation of the Constitution in Shankari Prasad’s case, Sajjan Singh’s case, Golak Nath’s case and Kesavananda’s case points to the fact that the Constitution was not interpreted on its own terms by the apex court in any of these cases, the failure on the part of the apex court to pay attention to as many as four provisions of amendment in the Constitution in Shankari Prasad’s case, Sajjan Singh’s case, Golak Nath’s case and Kesavananda’s case bears testimony to the fact that Constitution was not construed as a whole in any of these cases decided by it. These four overlooked provisions of amendment are reproduced below:
1. Article 391. “Power of the President to amend the First and Fourth Schedules in certain contingencies: (i) If at any time between the passing of this Constitution and its commencement any action is taken under the provisions of the Government of India Act, 1935, which in the opinion of the President requires any amendment in the First Schedule and the Fourth Schedule, the President may, notwithstanding anything in this Constitution, by order, make such amendments in the said Schedules as may be necessary to give effect to the action so taken, and any such order may contain such supplemental, incidental and consequential provisions as the President may deem it necessary. (ii) When the First Schedule or the Fourth Schedule is so amended, any reference to that Schedule in this Constitution shall be construed as a reference to such Schedule as so amended.” (Italics supplied)
2. Article 392(3). “The powers conferred on the President by …… article 391 shall, before the commencement of this Constitution, be exercisable by the Governor-General of the Dominion of India.”
3. Paragraph 7 of the Fifth Schedule. “Amendment of the Schedule– (1) Parliament may from time to time by law amend by way of addition, variation or repeal any of the provisions of this Schedule and, when the Schedule is so amended, any reference to this Schedule
shall be construed as a reference to such Schedule as so amended.” (Italics supplied)
4. Paragraph 21 of the Sixth Schedule. “Amendment of the Schedule:(1) Parliament may from time to time by law amend by way of addition, variation or repeal any of the provisions of this Schedule and, when the Schedule is so amended, any reference to this Schedule shall be construed as a reference to such Schedule as so amended.” ((Italics supplied)
Article 391 delegates power to the President to issue an order under the Constitution to amend the First Schedule and the Fourth Schedule on the commencement of the Constitution. The order under the Constitution, mentioned in Article 391, is a part of the legal system created by the Constitution —— a fact that is substantiated by Article 348 (1) (b) which enumerates the various types of laws created by Constitution.
Article 392(3) embodies yet another provision of amendment that empowers the Governor General to issue an amending order under Article 391 before the commencement of the Constitution.
These two provisions point to the fact that the power conferred on a creature of the Constitution to amend the Constitution is neither the so-called constituent power, as held by the apex court in Shankari Prasad’s case, Sajjan Singh’s case and Kesavananda’s case, nor the legislative power, as held in Golak Nath’s case, but a delegated power to issue an amending order under the Constitution; and this amending order has the same status vis a vis the Constitution as an order under an Act of the Legislature of the Dominion of India has vis a vis the enabling Act, in view of the rule of interpretation laid down in Article 367(1), namely “Unless the context otherwise requires, the General Clauses Act, 1897, shall, subject to any adaptations and modifications that may be made therein under Article 372, apply for the interpretation of this Constitution as it applies for the interpretation of an Act of the Legislature of the Dominion of India.”
The point deserving attention is that without construing the Constitution in accordance with the rule of interpretation laid down in Article 367(1) and without taking into consideration as many as four provisions of amendment, i. e. Articles 391, 392(3) read with Article 391, Paragraph 7 of the Fifth Schedule and Paragraph 21 of the Sixth Schedule, the apex court has read into Article 368 the expression, namely, ‘constituent power’, to make its ruling that Article 368 vests in Parliament the constituent power to alter the provisions of the Constitution. It is noteworthy that the expression, namely constituent power, is not mentioned anywhere in the Constitution. Moreover, there is absolutely no justification to invoke the doctrine of necessary implication to make the ruling that amendment of the Constitution is made in exercise of constituent power. The expression ‘necessary implication”, according to Black’s Law Dictionary, means: “An implication so strong in its probability that anything to the contrary would be unreasonable.” There is no gainsaying that the doctrine of necessary implication cannot be invoked if there is an express provision in the Constitution. In view of the fact that there is an express provision in Article 391 to indicate that amendment is made by an order under the Constitution, there is absolutely no justification to invoke the doctrine of necessary implication to conclude that amendment is made in exercise of constituent power. The fact that the aforesaid ruling is not at all constitutional, is also reinforced by the provision in Article 348(1)(b)(iii), read with Article 367(1), and Section 20 of the General Clauses Act, 1897, which points to the fact that the Constitution has not conferred ‘constituent power’ on any creature of the Constitution.
Article 391 and Article 392(3), read with Article 391, point to the fact an amendment of the Constitution is made in exercise of the delegated power to issue an amending order under the Constitution; and, since the power delegated to amend is the same, whether it is delegated by the Constitution to the Governor–General before the commencement of the Constitution, or to the President on the commencement of the Constitution, or to Parliament under Article 368, or to Parliament subject to ratification by not less than one-half of the Legislatures under the Proviso to Article 368, every amendment is effected by issuing an amending order in exercise of power delegated by the Constitution, rather than in exercise of any power overriding the Constitution.
In terms of Article 367(1), read with the General Clauses Act, 1897, as adapted and modified under Article 372, the amending order under the Constitution has the same status vis a vis the Constitution as an order under an Act of the Legislature of the Dominion of India has vis a vis the enabling Act. In other words, like an order under an Act of the Legislature of the Dominion of India which is a delegated legislation under the enabling Act, the amending order under the Constitution is a constitutionally delegated legislation; and, being a delegated constitutional legislation, it can be valid only if it is made within the four corners of the Constitution. .
Article 368 uses the expression, namely “An amendment of this Constitution”, and not “An Amendment of the features of the Constitution”. As an interpreter is not empowered either to re-write a provision of the Constitution or to read words into a provision of the Constitution, the construction of Article 368 in Kesavananda’s case to the effect that non-basic features of the Constitution can be changed by exercising the amending power under Article 368, appears to have been made per incuriam. The aforesaid contention is further reinforced by the restrictive and exhaustive definition of “article” in Article 366(3), read with Article 394, Article 367(1) and Section 20 of the General Clauses Act, 1897, since it precludes an interpreter from reading words in and out of any of the Articles in the Constitution — Article 368 being no exception.
References:
1. KV Muthu v. V.A. Ammal AIR 1997 S.C. 628 P 631 para 11.
2. Dr. R. C. Jha, Cry of the Indian Republic, New Delhi, Anamaya
Publishers, 2004, p. 160.
3. Quoted with approval by Madholkar, J., in Sajjan Singh v. State of
Rajasthan , AIR 1965 SC 845, p. 864
4. AIR (31)1944, Bombay, 259, p. 262, Column 2.
5. Justice Khanna in Kesavananda v. State of Kerala 1973 SC 1461, p.
1838.