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Understanding the conundrums of constitutional silences: Meaning beyond the text

The idea of the constitution as a framework for regulating political conflicts reflects the idea that the constitution is a bargain struck by political forces at a particular historical moment. In that process, agreement on ultimate values is improbable and the best the constitution can achieve is to establish a method through which differences can be negotiated. This generally leads to the division between legislative, executive and judicial tasks.

Hence, while respecting the coordinate status of these tasks, the constitution provides an arrangement of checks and balances, within which the various gaps and silences avoid imposing a resolution on contentious matters. The main point is that the elimination of silences in the constitutional framework comes about through political judgment, and this is a point that the judiciary implicitly acknowledges. The judiciary performs a constructive role in strengthening this framework recognizing that its authority is increased when its jurisdiction is constrained. It has also devised a range of techniques to avoid having to decide on matters that might undermine its status. If these silences are to be filled, it is a task for political negotiation and accommodation.

Constitutions are hardly ever framed according to the will of men. It is mostly the product of time it is created in. It is an indiscernible and gradual process. Yet there are circumstances in which it is indispensable to make a constitution. The political circumstances present at that time may require a constitution to be written but if we closely analyse we find that the constitution is an evolutionary achievement. But this forces us to consider all that what could have been omitted when a constitution is enacted which includes the silences and the abeyances sanctioned by the injunction to do only what is indispensable.

Also read: Preamble of Indian Constitution

Further, the connotation that the constitutions are not made ‘by the will of men’ gives us a reason to delve into the appropriate methods of their interpretation. Benjamin Constant opines that the constitutions must incorporate silences in order to permit ‘time and experience’ to ‘improve’ and ‘complete’ the Constitutional Project.

The modern practice of writing a Constitution arose from the late-eighteenth century American and French revolutions whose intellectual driving force was the European Enlightenment. As a result of this enlightenment; a belief arose that the individuals have a natural rights; the government acquires it’s authority from the people and that the purpose of government is to promote the common good could only be realized by devising a new concept of constitution.

Prior to this, the political constitutions were inchoate expressions of a nation’s culture, manners, and practices of governing. Thus, in its new conception, a constitution is drafted in the name of the people which defines the powers of the main institutions of government and delineates the relationship between government and its citizens whereby a new sense of understanding of ‘fundamental law’ evolves.

It is no longer a set of historic practices sanctified by the tradition but a new status of ‘higher-order’ is conferred which regulates the process of ‘ordinary’ law-making. Therefore, the most crucial aspect of the American and French revolutions turn out to be that constitution-making is a liberal, progressive undertaking that establishes regimes that limit governmental authority, guarantee civil rights, and institute democratic accountability.

The Meaning of Silence

The silences may be implied as the interpretation of what was omitted when a constitution was being enacted but it was not something that the framers would have rejected. Silences in Constitutions have been termed by many experts as “gaps and abeyances”. It is also a method of adjudication.

Reasons of Silence

  • There is a difficulty in formulating textual provisions because every conceivable situation could not be provided and thought upon at the time of inception and thus some matters are left to constitutional conventions; for example, the appointment of a person who is the leader of the largest party in Lok Sabha as Prime minister is based on English constitutional conventions, or
  • A dispute might seem implausible. For instance, the silence of the Indian Constitution on the freedom of press.
  • Another reason given could’ve been the existing social values at the time of enactment of a constitution such as the issue of LGBTQ community which had no mention in the beginning. Even the word ‘sex’ in the constitution was not interpreted to include ‘third gender’ until the Apex Court’s ruling in NALSA v. Union of India and its decriminalisation of section 377 in Navtej Singh Johar v. Union of India (2018) in which consensual sex among adults even homosexuals was decriminalized. In Manoj Narula v. Union of India (2014) court said that Constitutional silence or abeyances is progressive and is applied as an advanced constitutional practice to fill up gaps in certain areas in the interest of justice and larger public interest.

Role of judiciary

Since the judiciary plays a crucial role in interpreting constitutional provisions it is also bound to interpret the silences therein. Thus, the duty lies on the courts primarily the Supreme Court of India to fill the gaps and abeyances through its interpretation. However, at the same time, it has to ensure that it does not result in judicial legislation. Although in extreme cases, if there seems a legislative vacuum the courts are left with no option but to cautiously resort to lawmaking to a certain extent. But on the other hand, we see that due to the constitutional silence, the courts have a scope for vibrant and liberal interpretation and if they refuse to acknowledge the constitutional silence their behaviour could be termed as a ‘constitutional despotism’.

This happens when Constitutional courts view law purely as an artefact of the arbitrary will of the supreme lawgiver, similar to Analytical School of Jurisprudence. According to them, law is the command of the sovereign and a law gets the status of law only when it has been recognised as such by the sovereign. This happens when the court adopts a strict textualist approach. In M.P. Sharma v. Satish Chandra; Supreme Court categorically refused to grant a constitutional status to right to privacy. The Apex Court held that it isn’t necessary to carve such a  right through a strained construction if the constitution-makers have left it out. However, later in Justice K.S.Puttaswamy (Retd.) v. Union Of India; the Court gave a progressive interpretation which  resulted in recognition of Right to Privacy as inherent in Right to Life under Article 21.

Also read: Contemporary Issues in Labour Laws 

Hence, it is the duty of Constitutional courts to interpret the constitutional text with the normative substantive conception of justice. Constitutional despotism reduces constitutional law to merely a set of ultimate commands whose only function is to resolve conflicting commands within the law.  It is against the doctrine which treats the constitution as a living document which evolves with time to being inclusive and in sync with the times.

In India, the courts have used the doctrine of constitutional silence which aims to expand the ambit of rights and make democracy substantive. It kept very well in mind the concept of constitutional morality while dealing with silence. However, courts must consider while interpreting that silence must be done from an objective sense and should not be based on subjective satisfaction i.e. on the subjective understanding of the judge. The reason behind is that the purpose of courts is not to produce law but to bring it in open.

The Doctrine of Balancing of Rights

The Supreme Court in Manoj Narula v. Union of India  quoted  Michael Foley’s ‘The Silence of Constitutions’ ‘abeyances are valuable, not because of their obscurity but because of it. They are significant for the attitudes and approaches to the Constitution that they evoke, rather than the content or substance of their strictures’. Despite the absence of any documentary or material form, these abeyances are real and are an integral part of any Constitution. What remains unwritten and indeterminate can be just as much responsible for the operational character and restraining quality of a Constitution as its more tangible and codified components.’

Silence has enabled a liberal interpretation of constitutional provisions. For instance, the Indian constitution is silent and does not define what exactly constitutes Personal Liberty under Article 21. Due to this the court had wide dimension to interpret and include various other rights as well.

In Maneka Gandhi v. Union of India; it said that personal liberty is of the widest amplitude and covers a variety of rights which constitute the personal liberty of a man. Silences and liberal interpretation of the constitutional text both are necessary for the evolution and longevity of a constitutional system.

The Hon’ble Supreme Court of India has often avoided the issue of contestation between rights within Part III of the Constitution. In making this claim, the case of Kaushal Kishor v. State of Uttar Pradesh is relied upon. It is interesting to note that the Order dated 5th October 2016 does not mention Article 19(1) and the possible friction that this right might have caused against right guaranteed under Article 21 of the Constitution.

  • The question whether the right to freedom of speech and expression could be restricted beyond the scope of Article 19(2) appeared in the Order of October 24th, 2019. Thus a strict textualist approach towards Article 19(2) which does not permit restrictions on speech by invoking other fundamental rights leads to a distinct form of rights absolutism that is both doctrinally incoherent and inconsistent with Indian fundamental rights jurisprudence. It would not only be a dangerous proposal for curtailment of fundamental rights but also a flawed equivalence drawn between interrelation of rights and restrictions.

Conclusion:

The Constitution of India is a living document. It is a written constitution and has become a standard instrument to establish and regulate the governing relationship of the state. The silence of the Constitution in the general framework is clearly understood though the function of these silences is less well appreciated. There have been attempts to fill the gaps by the judiciary through subsequent constitutional interpretation but often they are the consequence of a conscious determination to leave certain matters unresolved on which consensus is unobtainable.

No matter what are the underlying reasons but it is an acceptable norm that the constitution establishes a framework within which and over which further political deliberation takes place. And for much of the modern period of constitution-making; it has been understood that filling these silences is a political task on which the judiciary’s authority to offer solutions is distinctly limited.

Hence, the courts while interpreting silences in constitutions to enlarge the scope and number of rights ensure constitutionalism and welfare state. It is necessary to utilise silences in constitutions to accommodate the interests of all the sections of society and truly make constitutions a living and organic document which grows and adapts itself with changing social and political dynamics.

Dr. Vidyottma Jha
Dr. Vidyottma Jha
ADVOCATE, SUPREME COURT OF INDIA
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