Engineering Notes

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Constition Of India

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Indian Constitution and Society

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The constitution of a nation is its supreme law, wherefrom the powers of government are derived and wherein the rights of the citizens of that nation are outlined. In many cases, a nation is established when its constitution is created.

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<h1> Introduction</h1> The constitution of a nation is its supreme law, wherefrom the powers of government are derived and wherein the rights of the citizens of that nation are outlined. In many cases, a nation is established when its constitution is created. Constitutional litigation raises fundamental questions about what the constitution permits and forbids the government and citizens of a country to do. It follows, therefore, that the interpretation of a constitution is a matter that requires careful consideration. When we discuss the idea of constitutional interpretation, however, it is first important to understand what it is that we are interpreting. (Note that this examination will be restricted to written constitutions only.) Is it the bare text of the document (and if so, what meaning are we ascribing to the text – its plain meaning, its historical/original meaning, or a meaning that reflects the framers’ intent/purpose in using those particular words?), or something more? Are decisions of the Supreme Court or its equivalent on constitutional matters also part of this “constitution”? How do we treat amendments to the constitution? What about other considerations, such as prevailing social mores and the fundamental principles of society? What role do political considerations play in deciding what “the constitution” is? These queries can be distilled into one basic question: “what is a constitution?” – clearly a crucial one in the realm of constitutional law. Some theories of constitutional interpretation make an effort to address this question at the outset before dealing with their favoured method of interpretation and its justification. Originalism places heavy emphasis on the original text of the document, though variants rely alternatively on original meaning and original intent, and the theory in general cannot deal with constitutional amendments easily. Textualism relies entirely on the text of the document as it stands, ignoring other influences such as legislative intent, legislative history, judicial decisions and changes in societal norms. Living constitutionalism espouses a broad-based, dynamic meaning of “the constitution”, including not simply the text, but also legislative history, judicial decisions (on which heavy emphasis is placed), and the evolution of societal norms. Each school of thought considers its definition or understanding of what a constitution is to be the ‘correct’ one. These perspectives on what a constitution is all come from an interpretative standpoint; a constitution may also be considered to be much more (or something else entirely) than text, precedent, and evolving context. It may be seen as a rights framework, a rule-book, a manifesto of a nation’s aspirations, or a political tool. These understandings of what a constitution is are equally valid, and can also be used to direct constitutional interpretation, even if they do not concern themselves with interpretative theories directly. In this paper, I shall examine two answers to the question, “what is a constitution?” – one given by Laurence Tribe in his 2008 book, The Invisible Constitution,[1] and the other given by Upendra Baxi in his article, “Constitutionalism as a Site of State Formative Practices”, published in the Cardozo Law Review in February 2000.[2] The purpose of this examination will be to evaluate the two approaches to understanding what a constitution is (i.e. Tribe’s interpretation-oriented approach and Baxi’s rights-based approach), compare them, and examine which of the two, if either, fits best in the Indian context. By doing this, I aim to arrive at the ‘content’ of the constitution as it is understood in India. A caveat: I have not been able to refer to The Invisible Constitution, and so have based my arguments about Tribe’s “constitution” on my understanding of his arguments as explained in various book reviews that were published in law reviews. <h1> Tribe’s Constitution</h1> Being of the living constitution school of thought, Tribe naturally brings within the meaning of “constitution” not only the text of the constitution (the very nature of which he identifies as being uncertain and dependent on external influences), but also its amendments, historical context, the original intent of the framers and the meanings that its constituent phrases have acquired over time. InThe Invisible Constitution, Tribe deals with the idea that the constitution consists of both these ‘visible’ aspects as well as certain external aspects, which he deems ‘invisible’. He says that “the visible constitution ‘floats in a vast and deep – and, crucially, invisible – ocean of ideas, propositions, recovered memories, and imagined experiences.’”[3] He spends the first half of the book explaining the concept of an invisible constitution as per the meaning he gives it, as well as presenting arguments for its existence. Thus, when Tribe considers the constitution, it consists of the written constitution passed in 1789; amendments; ‘super-precedents’ like Marbury v. Madison, Brown v. Board, and Miranda v. Arizona, which have become constitutional canon; ‘semi-super-precedents’ like Roe v. Wade, which have, by nature of their close connection with societal expectations and norms, become embedded in constitutional culture; bad precedents such as Dred Scott and Lochner; the ‘gloss’ created by all Supreme Court precedent; and what can be called the ‘super statutes’ such as the Civil Rights Acts of 1871, 1964 and 1965, the Sherman Antitrust Act, which changed the law as well as the way society functioned.[4] He also clarifies that “invisible” does not mean “hard to see”, but rather, not obvious.[5] <h2> “Dark Matter”</h2> He includes within the invisible constitution what he identifies as the “dark matter” of the constitution – unwritten but implicitly accepted basic principles upon which much constitutional law and practice is (he claims) based. His argument is that “many of our most fundamental constitutional principles are not only not stated in the text of the Constitution, but cannot even be inferred from the visible Constitution in any of the usual ways we interpret texts.”[6] He identifies eight such principles as follows: “• That ours is a government of the people, by the people and for the people. • That ours is a government of laws, not men. • That we are committed to the rule of law. • That our courts must not automatically defer to our elected officials. • That government cannot torture people to obtain information. • That we all lead private lives that are outside of the reach of the government. • That the government cannot require the states to answer to it, as though the states were federal governmental agencies. • That no state may secede from the union.”[7] These so-called principles have been criticised as being neither invisible nor necessarily universal. As reviewer Eric Segall puts it, “the [second and third] propositions are so vague as to be difficult to apply to any concrete constitutional problem, and the [seventh] is contestable enough that at least four Supreme Court Justices would argue that it is simply not true that the federal government is constitutionally prohibited from commandeering the states.”[8] As far as the principle regarding a constitutional prescription against secession is concerned, its very existence is questionable. Tribe never deals with what exactly it means to say that there is a constitutional ban on secession. Any state planning to secede would probably not consider the Constitution binding, and certainly no Court decision would deter such a state. Tribe also fails to explain, at this point, how one might go about finding “invisible” propositions. He is focussing more on establishing that ‘nontextual constitutional rules exist [than on] defining their substance and enforcement mechanism.’[9] <h2> The Chicken-and-Egg Conundrum</h2> Tribe asks the question “what is a constitution?” – a question that he believes needs to be answered before interpretation of the constitution can take place. This appears to be a reasonable belief; however, once he follows this through with his concept of what a constitution is, what can only be labelled a “chicken-or-egg” scenario emerges. This is because of the very broad swathe of items that he chooses to include within the meaning of “constitution” – including theories of interpretation such as the one he is putting forward. This self-referencing nature of his theory is highly problematic, and this issue appears to have slipped his notice completely. <h2> “Invisible”, “Unwritten” and “Extratextual”</h2> What Tribe calls the “invisible” constitution is in fact the “unwritten” constitution that many writers before him have identified and engaged with. As some of the reviewers of his book so exasperatedly conclude, this is not a novel idea, and he need not have spent such a substantial portion of The Invisible Constitution proving that it exists.[10] As one reviewer states, ““Invisible” is a catchy word, but perhaps not the most precise. Most of the phrases and ideas Tribe goes to identify as contained in the invisible Constitution are very visible; they are written down in judicial opinions and inscribed on monuments. What he means is extratextual.”[11] <h2> The Six G’s</h2> In the latter half of The Invisible Constitution, Tribe provides six ‘modes’ of constitutional interpretation, namely the geometric, geodesic, global, geological, gravitational, and gyroscopic modes, which may be used to arrive at the content of this unwritten, invisible constitution – mainly substantive, non-textual constitutional rules of the nature outlined above. Geometric construction is the process, Tribe says, of ““connecting the dots and extending the lines”. The geometric constructor starts with points identified by the text – say, the life, liberty, and property protected by the Due Process Clauses – and connects them to reveal the principle that “ours is a government of laws, not men”.”[12] Geodesic construction is the construction of rules to protect or enforce underlying rights or principles. These principles sometimes go beyond the scope of constitutional provisions but provide, as in the case of Miranda warnings, clear rules for judges and the police to follow.[13] Globalism involves taking into account foreign law and foreign judgements, and comparing national experiences with those in other nations. Geological construction attempts to dig down from textual provisions to discover their “underlying presuppositions and premises”. It then returns to the surface, using the underlying premise to construct nontextual supplements to specific textual rights.[14] Gravitational construction, Tribe says, could also be called the “anti-slippery-slope mode”. It asks how accepting particular propositions of constitutional law would shape “the ‘space’ occupied by the Constitution”.[15] Gyroscopy is a sort of balancing mechanism whereby both inward and outward forces are exerted on the same point, creating stability.[16] This entire scheme has been criticised on the ground that he provides no real basis for the eight-odd propositions he puts forth. Kermit Roosevelt analyses them as follows: “Geometric construction is well known under the name of structural argument. The essence of geodesic construction is that it starts with constitutional meaning and adds on doctrine. The endpoint of geodesic construction is not supposed to stand on an equal footing with the starting point.”[17] Geodesic construction is vague and hard to evaluate. Global construction may take two forms – looking to foreign decisions for empirical propositions and for guidance in the interpretation of vague constitutional provisions. It is unclear how it may be used and therefore is not a suitable method of constitutional interpretation.[18] “Geological construction is similar to geometric, in that it starts with text and produces nontextual propositions of equivalent constitutional stature. It too is a solid example of invisible constitutional argumentation.”[19] Gravitational construction only tells us what we cannot do, but does not explain how to do what we can do. “Gyroscopic construction is both interesting and sensible, and it derives true invisible Constitution principles. The Constitution is certainly intended to preserve both the states and the union, and such propositions as are necessary to those ends can fairly be inferred, though of course the degree of plausibility may vary from case to case.”[20] <h2> A Useful Analysis?</h2> Kermit Roosevelt also examines the usefulness of Tribe’s analysis, concluding that Tribe is right that the visible/invisible distinction does not mean much. “Knowing that a particular proposition of constitutional law is invisible, rather than visible, tells us almost nothing about it. Given that the visible/invisible distinction is not especially significant, it is not clear that it is worth trying to catalogue distinctive modes of construction for the invisible constitution.”[21] <h1> Baxi’s Constitution</h1> Indian constitutional interpretation cannot be said to have travelled the same path as American constitutional interpretation – while American debates have focused on theories or methods of interpretation, namely (and broadly) originalism and living constitutionalism, debates in the Indian context have centred on what is termed “judicial activism” and “judicial restraint”, irrespective of the method used by the courts to arrive at their interpretation. Baxi’s piece is of relevance in this regard. He too addresses the question of “what is a constitution?” He identifies two broad components to constitutions – the written and the unwritten (what he also calls “conventions”), much like the distinction made by Tribe. According to him, however, the two components are constantly warring with each other, with the unwritten threatening to overwhelm the written.[22] This analysis appears to place the constitution in a political and social context which influences it to the extent of determining its content, so to speak. He also examines the weakness of the written nature of a constitution, in that amendments overlay the original text to the extent that it begins to lose its identity.[23] He may broadly be said to fall under the category of a living constitutionalist, though his concern for the original text indicates a level of deference to the same which cannot be ignored. Baxi’s answers to the “what is a constitution?” question appears to be less abstract than Tribe’s – he makes a quick and clear classification of the three ‘interlocking planes’ of the constitution, which include the historical text at the first level (C1); legal opinions, theories and what is generally known as constitutional law at the second level (C2); and ideology justifying constitutional theory at the third level (C3). He analyses these interlocking planes and pays special attention to the ideological bases for modern constitutions.[24] The fact that Baxi is writing in the context of concepts such as human rights, and in response to the theories of two other authors, is important to note. When he looks at the American constitution, he sees C1 being composed not only of the Federal constitution but also of the state constitutions. This is in contrast to most American scholars, who keep the Federal and state constitutions strictly apart when making their analysis. Baxi’s analysis of the three planes of a constitution then focuses entirely on the component of ideology and whether it is even a useful prism through which to examine constitutionalism, concluding that it is still relevant, particularly in light of the rise of Islamic and South African constitutionalism.[25] Later in his piece, he explains the human rights perspective from which the Fundamental Rights were included in the Indian Constitution, also stating that the Supreme Court has, from around 1973 onwards, taken steps to become activist and support and enforce the human rights provided for in the Indian Constitution.[26] The aspect of judicial activism is particularly relevant and shall be returned to the next section of this paper. Baxi’s constitution thus has three layers, of which the first two are shared with Tribe’s constitution. It is the third layer, that of ideology underlying constitutionalism, that creates the biggest difference between the two. Additionally, Baxi automatically locates his constitution within a social and political context that is full of upheaval, thus influencing what is and is not included in it. In this aspect, Baxi’s constitution, placed as it is within a strong human rights context, draws closer to the Indian constitution than Tribe’s. <h1> The Indian Constitution</h1> One special feature of the Indian constitution is that it has a basic structure doctrine that is now incorporated completely into constitutional canon in the country, even though it was neither part of the original text nor part of any amendment or caused by any change in societal norms. This feature was brought about entirely by the judiciary, and thus has established the judiciary in the highest position of power as far as the interpretation of the constitution is concerned. Therefore, Indian constitutional interpretation must necessarily lean towards dynamism and cannot be completely textualist in nature, as nowhere in the text of constitution are the powers that the judiciary currently exercises provided for. However, in State of Karnataka v. UoI,[27] it was stated that the basic structure doctrine as laid down in Keshavananda Bharti is, fact, a doctrine of interpretation of the constitution as it is and not as it may exist subjectively in the minds of different individuals.[28] In any event, the Indian Supreme Court has never considered the question, “what is a constitution” in the same way that American and other scholars have. This is partially because of the theoretical nature of the question. On a theoretical level, it is obvious that the Indian constitution is considered to be more than the mere historical text (though much reference is made to the Constitutional Assembly Debates and the intentions of the framers of the constitution), as judicial precedent is considered to be a very strong source of constitutional law. The considerations before the Indian Supreme Court are somewhat different from those before American judges. The latter are concerned with a formal endorsement of a theory of interpretation, regardless of the results, and vary between being originalists and living constitutionalists. On the other hand, the Indian judiciary has largely adopted purposivism, pragmatism and consequentialism as its approach towards deciding cases. The desired outcome dictates the choice of manner of constitutional interpretation, though some judges may have noted sympathy (or lack thereof) for certain causes. Recent cases in which economic concerns have faced off against other rights have seen the courts finding in favour of those pursuing economic interests, even where the same juxtaposition of interests saw very different results a few decades earlier. <h1> Conclusion</h1> Laurence Tribe’s approach to answering the question “what is a constitution?” is tenuous in the American context itself, a view that has taken by many of his book’s reviewers. He appears to have taken living constitutionalism a little too far in his effort to explain the methods by which one can ascertain the content of the “dark matter” of a constitution. It is important to recognise while positing a theory of interpretation that if you include theories of interpretation within the definition of, say, the constitution, you are self-referencing that theory. This is the chicken-and-egg conundrum which Tribe’s analysis fails to deal with. However, Upendra Baxi’s answer to the question does not provide a satisfactory answer either, because of the rights-and-ideology context in which he deals with the question, which limits its application. His analysis connects with the Indian concept of a constitution only at the level of judicial activism, which is very common in the Indian context. However, his three planes of the constitution do not appear to fit into the Indian context, as ideology of constitutionalism is not given much importance by the Indian Supreme Court, which instead focuses on the outcome of a case while considering constitutional questions. There are many different ways in which the “content” of a constitution can be ascertained,[29] and while Tribe’s analysis seems to be too abstract, Baxi’s is too narrow in its focus. Therefore, neither author’s answer to the question may be a perfect fit when examined in the context of Indian constitutional law. <h1> References</h1> <h2> Articles</h2> <ol> <li> K.R.C. Gutzman, “Book Review: The Invisible Constitution. Laurence H. Tribe” 13 Texas Review of Law and Politics 419 (Spr. 2009).</li> <li> E.J. Segall, “Lost in Space: Laurence Tribe’s Invisible Constitution” 103 Northwestern University Law Review Colloquy 434 (Mar. 2009).</li> <li> K. Roosevelt III, “The Indivisible Constitution” 25 Constitutional Commentary 321 (Sum. 2008).</li> <li> J.M. Gallagher, “Understanding the ‘Invisible Constitution’” 31 Pennsylvania Lawyer 42 (May/Jun 2009).</li> <li> U. Baxi, “Constitutionalism as a Site for State Formative Practices” 21 Cardozo Law Review 1183 (Feb. 2000).</li> </ol> <h2> Books</h2> <ol> <li> W.F. Murphy et al, American Constitutional Interpretation (3rd ed., New York: Foundation Press, 2003) (1986).</li> <li> Constitutionalism – Philosophical Foundations (L. Alexander ed., Cambridge: Cambridge University Press, 1998).</li> <li> L.H. Tribe, The Invisible Constitution (New York: Oxford University Press, 2008).</li> </ol> <div align="center"> <hr align="center" color="#b4aca1" noshade="noshade" size="1" width="100%" /> </div> [1] L.H. Tribe, The Invisible Constitution (New York: Oxford University Press, 2008). [2] U. Baxi, “Constitutionalism as a Site for State Formative Practices” 21 Cardozo Law Review 1183 (Feb. 2000). [3] K.R.C. Gutzman, “Book Review: The Invisible Constitution. Laurence H. Tribe” 13 Texas Review of Law and Politics 419 (Spr. 2009) at 419. [4] J.M. Gallagher, “Understanding the ‘Invisible Constitution’” 31 Pennsylvania Lawyer 42 (May/Jun 2009) at 42. [5] Supra note 4. [6] Supra note 3. [7] Supra note 4. [8] E.J. Segall, “Lost in Space: Laurence Tribe’s Invisible Constitution” 103 Northwestern University Law Review Colloquy 434 (Mar. 2009) at 436. [9] Supra note 8 at 437. [10] Supra note 8 at 433. [11] K. Roosevelt III, “The Indivisible Constitution” 25 Constitutional Commentary 321 (Sum. 2008) at 322. [12] Supra note 11 at 329. [13] Supra note 11 at 329. [14] Supra note 11 at 331. [15] Supra note 11 at 331. [16] Supra note 11 at 332. [17] Supra note 11 at 333-334. [18] Supra note 11 at 335. [19] Supra note 11 at 336. [20] Supra note 11 at 337. [21] Supra note 11 at 341-342. [22] Supra note 2 at 1187. [23] Supra note 2 at 1187. [24] Supra note 2 at 1188. [25] Supra note 2 at 1189-1190. [26] Supra note 2 at 1200-1205. [27] AIR 1978 SC 68. [28] Para 129 of Kania, J.’s judgement, AIR 1978 SC 68. [29] See M.J. Perry, “What is “the Constitution”? (and Other Fundamental Questions)” in Constitutionalism – Philosophical Foundations (L. Alexander ed., Cambridge: Cambridge University Press, 1998) at 99. See also, J. Raz, “On the Authority and Interpretation of Constitutions: Some Preliminaries” in Constitutionalism – Philosophical Foundations (L. Alexander ed., Cambridge: Cambridge University Press, 1998) at 152, discussing the “thick” and “thin” sense of a constitution.

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