Thursday, February 27, 2014

Intratextualism and the Indian Constitution

In an earlier post I began to probe the meaning of Article 145(3) of the Indian Constitution. Article 145(3), which I will quote at length for reasons that hopefully will soon become clear, states that: "The minimum number of Judges who are to sit for the purpose of deciding any case involving a substantial question of law as to the interpretation of this Constitution or for the purpose of hearing any reference under Article 143 shall be five.

Provided that, where the Court hearing an appeal under any of the provisions of this Chapter other than article 132 consists of less than five Judges and in the course of the hearing of the appeal the Court is satisfied that the appeal involves a substantial question of law as to the interpretation of this Constitution the determination of which is necessary for the disposal of the appeal, such Court shall refer the question for opinion to a Court constituted as required by this clause for the purpose of deciding any case involving such a question and shall on receipt of the opinion dispose of the appeal in conformity with such opinion."

In the earlier post I was trying to start to get at the root of what "a substantial question of law as to the interpretation of the Constitution" meant since many claim the Supreme Court hears far too few five judge or larger "constitution" benches with repercussions for both the quality and consistency of the Court's jurisprudence. In that post I tried to show that the founders clearly thought that a "substantial question" was not a major question, or a novel question, of constitutional law, but simply a case that turned on a question of constitutional law - i.e. constitutional law was substantial to the case being heard, not substantial in any other sense. This is radically different than how it is interpreted in practice today. I was clear in the post that just because the founders thought something didn't mean that was how it had to be interpreted. I left for another day an examination of relevant caselaw (of which there is almost none on 145(3), but of which there might be some of analogous relevance) and thinking about what a good policy might be for when constitution benches should be constituted.

I do hope to get to these issues in a later post, but on that post a conversation ensued that I think lead to a helpful line of reasoning (and I thank the commentator). The question that was indirectly raised was how should we choose to interpret different parts of the Indian constitution that use the same words or phrases? Akhil Amar has a famous law review article on what he calls intratextualism relating to the US Constitution. He takes intratextualism to the extreme in ways I won't engage with here, but he basically claims that we should interpret a Constitution as a complete text where the meaning of words in one part of the text can help explain the meaning of words in another part. For our purposes what is interesting is that the phrase "A substantial question of law as to the interpretation of this Constitution" is used in two other places in the Indian Constitution besides 145(3).  

Article 132, for certified constitutional appeals, states: “An appeal shall lie to the Supreme Court from any judgment, decree, or final order of a High Court in the territory of India, whether in a civil, criminal or other proceeding, if the High Court certifies . . . that the case involves a substantial question of law as to the interpretation of this Constitution.

Later in the Constitution Article 228 states: “If the High Court is satisfied that a case pending in a court subordinate to it involves a substantial question of law as to the interpretation of the Constitution the determination of which is necessary for the disposal of the case it shall withdraw the case and may –

(a) either dispose of the case itself, or

(b) determine the said question of law and return the case to the court from which the case has been so withdrawn together with a copy of its judgment on such question, and the said court shall on receipt thereof proceed to dispose of the case in conformity with such judgment."

These three articles are instrumental in directing the judicial system how to decide questions of constitutional law. Should we interpret the "substantial question" phrase the same in each article? In actual practice, the judicial system today treats each situation quite differently. 228 is basically interpreted as requiring any matter that turns on a constitutional question be heard by a High Court, not the district court. Meanwhile, 132 (certification) is interpreted much more narrowly, while 145(3) (the creation of constitution benches at the Supreme Court) is interpreted narrower still. Yet, the relevant language is identical in each article. If we turn to the Constituent Assembly debates we see that the founders thought that the Constitution should be interpreted as a whole.

Here's Ambedkar commenting on how Article 228 is essentially trying to do the same thing as Article 145(3), but in a different context: "My first submission is this, that in making this amendment to article [228] which I have moved this morning we are doing no more than carrying out the substance of the proviso to clause (3) of article [145] contained in amendment No. 42.  Here also what we say is this : that the High Court, if satisfied, may take the case to itself, decide the issue on constitutional law and send back the case to the subordinate Judge for the disposal of other issues involving the interpretation of ordinary law made by Parliament. I do not think we are making anything new, novel, strange or extraordinary as compared to what we have done with regard to the Supreme Court. Therefore my submission is this that if we accept, as we have accepted, the proviso to clause (3) of article [145], the House cannot be making any very grave mistake or any very grave departure." Note: I changed the number of the articles in the CAD to the numbering in today's constitution to reduce confusion. 

Ambedkar seems to think that in both the case of 145(3) and 228 cases turning on a question of constitutional law should be sent to either the High Court or a five judge bench where the case can be decided in full or on just the issue of constitutional law and then sent back.

It makes sense that the founders saw the Constitution as a unified document with consistent meanings throughout. However, should this be the stance taken today? The Indian Constitution is incredibly long. This is the only repetition of a phrase that I have stumbled across with so much potential consequence for interpretation, but I am sure there are others. Is it realistic to try to harmonize all these instances or better to let the Court interpret different passages of the Constitution as needed to suit the situation? Is this the only place where harmonizing interpretation of a phrase/word would have a major impact on interpretation or are there others? Certainly, if we do think that there should be consistency of meaning throughout the document than the phrase "A substantial question of law as to the interpretation of this Constitution" takes on even more importance since it appears in the three articles that, perhaps more than any others, direct the judiciary on how to go about interpreting questions of constitutional law.   
Post a Comment