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THIS ARTICLE WAS WRITTEN BY MONIKA

BHAKTA A STUDENT OF LLOYD LAW
COLLEGE
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Constitution as the Paramount law: The constitution of India is

supreme and paramount law. The constitution is written to be understood
by the voters. Its words and phrases are used in their normal and ordinary
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sense as distinguished from technical meaning. It the longest written

Constitution of any sovereign country in the world. It lays down the
framework defining fundamental political principles, procedures, powers
http://racolblegal.com/canonsofinterpretationthatjudiciaryadoptswhileinterpretingtheindianconstitution/
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and functions of the government institution and sets out the fundamental
rights and directive principles and duties of the citizens.
M
A written constitution is to be interpreted and effect given to it as a

paramount law to which all others must yield. It is equally obligatory on
individual citizens and on all the departments of government, including
the legislature and judiciary.
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As per Justice Krishna Iyer, A constitution is a documentation of the

founding faiths of a nation and the foundational directions for their
fulfillment. So much so, an organic, not pedantic, approach to
interpretation, must guide the judicial process. The healing art of
harmonious construction, not the tempting game of hair splitting
promotes rhythm of the law.[1]
Constitution is a living and organic thing and must adopt itself to the
changing situations and pattern in which it has to be interpreted. It has
also to be borne in mind that where division of powers and jurisdiction in
a federal constitution is the scheme, it is desirable to read the constitution
in a harmonious way. It is also necessary that in deciding whether any
particular enactment is within the purview of one legislature or the other.
It is pith and substance of the legislation in question that has to be looked
into. It is well settled that the various entries in the three lists of Indian
constitution are not powers but fields of legislation.
Being a paramount law, a constitution is outside the purview of the courts,
but a statute would be invalid, if is contravenes any express provision of
the constitution or even if it is inhibited by the implied powers and
of
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the
constitution
being
essentially in the nature of a statute, the general rules governing the
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construction of the statutes apply to the construction of constitution as
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well. The fundamental rule of interpretation is the same, whether it is the
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provision of the constitution or an act of parliament, namely that the court
October 2015
will have to ascertain the intention gathered from the words in the
constitution or the act as the case may be. And where two constructions
are possible, that one should be adopted which would ensure a smooth
and harmonious working of the constitution.
September 2015
August 2015
July 2015
Following are the ways through which construction of statutes is
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applicable:
M
1. Same rules irrespective of form of Government: it is not the form

of government or the nature of the law making authority which
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governs the object underlying its laws. In the every form of

government, the power to make laws vests in some authority or the
other. Whether that authority is given to a federal or the unitary
legislature or it is enjoyed by an absolute ruler immaterial for
determining the intention underlying legislation.
In the federal written constitution judiciary interprets and construe the
constitution but this is the inevitable consequences of all the written ruling
instruments, be they federal or unitary, or something of lesser
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importance. The principle applied in the interpretation and construction of

the written constitution is not different to those used in construing laws
enacted by legislatures where the constitutions have not been reduced
into writing. A written constitution is generally interpreted like any other
statute by reference to its terms and without any consideration of the
policy and the possibility of abuse of powers.
Interpretation of the constitution is the sole prerogative of the
constitution courts and the stand taken by the executive in a particular
case cannot determine the true interpretation of the constitution.
2. Ascertainment
of
Intention:
The
fundamental
principle
of
constitutional construction is to give effect to the intent of the framers

of the law and of the people adopting it, that is, according to the
intent that made it. Normally such intent is gathered from the
language of the provision. But if words used in the provision are
reasonably bear meaning more than one then it is legitimate for the
court to go beyond and call in aid other well-recognized canons of
constructions.
In the case of PA Inamdar v. State of Maharashtra[2] the question to
determine was the extent to which the state can regulate the admission
made by unaided ( minority or non minority) educational institutions. Can
the state extent the influence of its policy of reservation on such
admissions? Or appropriate to itself any quota in admission to such
institutions? The Supreme Court held that when letter of the constitution
is not clear it is permissible to take recourse to the spirit of the
constitution, as spelt out by the scheme and structure of the constitution.
The court opined that education, whether for charity or for profit is an
occupation. Even so it does not cease to be a service to society, hence
cannot be equated to trade or business. It held that the right to establish
and administer an educational institution is a fundamental right
guaranteed under Article 19(1)(g) and minority educational institutions
receive additional protection in the form of Article 30. The court observed
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that the protection of Article 30 was aimed to ensure that minority

educational institutions were protected from the impact legislations
enacted.
The court held that in cases where the minority institutions receive aid
from the states or apply for recognition, the state could impose certain
restriction similar to those imposed on non-minority institutions. But this
power is to two conditions. One, that the institution should not be denied
recognition solely on the ground that the institution is a minority
institution. Secondly, the regulation is not aimed at depriving the
institution of its minority status. The court thus ruled that reservations
could not be imposed upon private educational institutions and minority
institutions complete autonomy in relation to admissions provided that
such admission was made solely on the basis of merit.
3. Harmonious Construction: one section of an Act cannot be held
ultra-vires of another section of the Act. In a contingency of the kind,
the only course open to court is to put a harmonious interpretation
thereon. In determining the scope and ambit of the fundamental
rights under the Indian constitution, the court may not entirely ignore
the directive principles of state policy laid down in part IV of the
constitution, but should attempt to give effect to both as much as
possible.
In the case of Atam Prakash v. State of Hrayana[3]court said that the
directive principles of state policy under the Indian Constitution are the
set proximate goals and when it is the task of examining statutes against
the constitution narrow interpretive rules which may have relevance when
legislative enactments are interpreted may be misplaced. Whatever
articles of the constitution it is that the court seeks to interpret, whatever
statutes it is whose constitutional validity is sought to be questioned the
court must strive to give such an interpretation as will promote the march
and progress towards a socialistic democratic state.
In JP Unnikrishnan v. State of Andhra Pradesh[4]the Supreme Court has
further expounded as under: Fundamental Rights and Directive Principles
are supplementary and complementary o each other and that the
provisions in part III should be interpreted having regard to the preamble
and the Directive Principles of State Policy.
4. Noscitur A Sociis: Noscere means to know and Sociis means
association. Therefore noscitur a sociis means to know from the
association.
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In the words of Maxwell Noscitur a sociis means that when two or

more words which are susceptible of analogous meaning are coupled
together they are understood to be in their cognate sense. They take it as
it were their colour from each other, that is the meaning of the more
general being restricted to a sense analogous to that if the less general.
The best mode of ascertaining the meaning affixed to any words or
sentences by a deliberative body is by comparing it with the words and
sentences with which it stands connected. The obscurity of any word may
be removed, by the references to associated words. The meaning of a
term may be enlarged or restricted by reference to the object of the whole
in which it is used. Clauses of the constitution, which involves a conflict of
governmental power, must be considered with references to the literal
meaning of the words, their connection with other words and the general
objects to be accomplished, and in case of ambiguity, report of the
drafting committee of the constitutional assembly may be read.
Noscitur a scoiis is only a rule of construction and it cannot prevail in
cases where it is clear that the wider words have been deliberately used in
order to make the scope of the defined words correspondingly wider. It is
only where the intention of the legislature in associating wider words with
words of narrower significance is doubtful, or otherwise not clear that
present rule of construction can be usefully applied.[5]
In case of Commissioners v. Savoy Hotel[6] while interpreting a
Purchase Tax Act, which used the expression manufactured beverages
including fruit juices and bottled waters and syrups, etc, it was held that
the description fruit-juices as occurring therein should be construed in
the context of the preceding words and that orange juice unsweetened
and freshly pressed was not within the description.
5. Constitution must be interpreted in a Broad Way: in the case of
Sakal Papers (P) Ltd. v. The Union of India,[7]speaking on behalf of

the Constitution Bench of the Supreme Court, Mudholkar J., pointed
out that is must be borne in the mind that constitution must be
interpreted in a broad way and not in narrow and pedantic sense.
Certain rights have been enshrined in our constitution as fundamental
and, therefore while considering the nature and the content of those
rights the court must not be too astute interpret the language of the
constitution in so literal a sense as to whittle them down. On the other
hand, the court must interpret the constitution in a manner which
would enable the citizen to enjoy the rights guaranteed by it in a
fullest measure subject, of course, to permissible restrictions.
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In Romesh Thaper v. State of Madras,[8] the Supreme Court interpreted

the Constitution in a board way when it held that freedom of speech and
expression includes freedom of propagation of ideas and that is freedom
is ensured by the freedom of circulation.
In Raj Jagannath Baksh Nath Singh v. State of U.P. [9]the Supreme

Court pointed out that the cardinal rule of interpreting words used by
constitution in conferring legislative power was that they must receive the
most liberal construction and if they are words of wide amplitude the
construction must accord with it. If a general word was used it must be so
construed as to extend the entire ancillary or subsidiary matters that can
be reasonably included it. A constitution is living and organic thing, which
of all instruments has the greatest claim to be construed broadly and
liberally.
6. Doctrine of Pith and Substance: It is likely to happen from time to
time that enactment though purporting to deal with a subject in one
list of Schedule VIIth touches also on a subject in another list and
prime facie looks as if one legislature is impinging on the legislative
field of another legislature. This may result in large number of
statutes being declared unconstitutional because the legislature
enacting the law may appear to have legislated in a field reserved for
25 the other legislature. In order to examine its truthfulness, the courts
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have evolved the doctrine of pith and substance for the purpose of
determining whether it is legislation with the respect to matters in one
24
list or the other, regard is to be had to the (i)enactment as a whole,

(ii) its main objects, and (iii) scope and effect of its provisions. If the
substance of an enactment falls within the Union list, then the

incidental encroachment by the enactment on the state list would not
make it invalid.[10]
The doctrine of pith and substances means that if an enactment

substantially falls within the legislative powers of a legislature, expressly
conferred by the constitution, the enactment cannot be held to be invalid,
merely because it incidentally encroaches on matters assigned to another
legislature.[11]To determine the constitutional validity of an Act, its pith
and substance should be considered[12]. Where the law is impugned as
ultra vires it is true character of the legislation that has to be ascertained.
That is, it must be ascertained whether the impugned legislation is directly
in respect of the subject covered by any particular article of the
Constitution or touches the said article only incidentally or directly.
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In the case of Bennett Coleman v. Union of India[13], court observed

the test of pith and substance of the subject-matter and of direct and of
incidental effect of the legislature are relevant to questions of legislative
competence but they are irrelevant to the question of infringement of
fundamental rights. This is a sound and correct approach to interpretation
of legislative measure and state action in relation to fundamental rights.
7. Liberal Interpretation: It is fundamental cannon of construction that
a Constitution should receive a liberal interpretation in favor of
citizen, especially with respect to those provisions which were
designed to safeguard the liberty and security of the citizen in regard
to both person and property.
EnhanceyourKnowledge!Togainanedge!
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It will be remembered that the Constitution as the declaration of the will
Enhanceit!
of people should be interpreted liberally and not in any narrow or

doctrinaire spirit. It must be interpreted according to its true and intent as
disclosed by the phraseology in its natural significance in the light of its
setting and its dynamic character which is intended to fulfill the aspiration
of the people without doing violence to the language used. A
constitutional provision should evidence s fair, liberal and progressive
construction so that its object might be promoted.
According
to this doctrine liberal interpretation, the ambit of a particular
25
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power of a legislature has to be determined with reference to the

purpose for that power was conferred on that legislature and the entry
should
receive such interpretation as would best effectuate that purpose
24
rather than restrict or defeat it.
1
The
doctrine of liberal interpretation has special application in
interpreting the ambit of the various entries in the legislative lists included
in schedule VII of Constitution. None of the items in the lists is to be read
in narrow or restricted sense. Each word should be held to extend to all
ancillary or subsidiary matters, which can fairly and reasonably be said to
be comprehended in it.
In the case of State of Mysore v. Cawasji[14], SC held that legislative
power normally includes all incidental and subsidiary powers, but the
power to tax is neither incidental nor subsidiary to the power to legislate
on matter or topic.
8. Doctrine of Eclipse: when a law is valid when it is made but it
rendered invalid for certain purposes by a supervening constitutional
inconsistency may receive after the constitutional inconsistency is
removed an amendment. The statute or the rule is over -shadowed by
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the fundamental right and remains dormant but is not dead. With the
amendment in the constitution the impugned Act or Rule began to
operate once again from the date of such amendment.
In Bhikaji Narain Dhakras v. The State of Madhya Pradesh,[15] this
doctrine was laid down in the following words:
The true effect of article 13(1) is to render an Act inconsistent with the
fundamental right inoperative to extent of the inconsistency. It is over
shadowed by the fundamental right and remains dormant but is not dead.
With the amendment made in clause (6) of article 19 by First Amendment
Act, the provisions of the impugned act began to operate once again from
the date of such amendment with this difference that, unlike amended
clause (2) of article 19 which was expressly made retrospective, no rights
Enhanceit!
and obligations could be founded on the provisions of the impugned Act

from the date of commencement the Constitution till the date of the
amendment.
9. Doctrine of Colorable Legislation: the doctrine of colorable
legislation postulates that though the letter of the law is within the
limits of powers of the legislature, in substances, the law has
transgressed those powers and by doing so, it has taken the
25 precautions of concealing its real purpose under the cover of
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apparently legitimate and reasonable provisions. The doctrine of

colorable legislations implies that though a legislature is not fettered
24
in the sphere of its power, it cannot under the guise or the pretence,
or in the form of an exercise of its power, carry out an object which is
beyond its power, or trespass on the exclusive powers of the other. In

other words a legislature cannot under the colorable exercise of its
powers, enact a law which does not fall within its sphere or nullify
expressly or by implication, statues which it could not enact. If the Act
is within legislative competence, no question of colorable legislation
arises. What cannot be done directly cannot be done indirectly.
10. Rule of Ejusdem Generis: the ejusdem generis rule is applicable

where as wide or general term has to be cut down with reference to
the genus of the particular terms which precede the general words.
This rule has hardly any application where certain specific categories
are included in the definition. The ejusdem generis rule may be
applicable to the general words other similar grant which would take
their colour from the particular categories, jagir, inam, or muafi,
which precede them, but the word inam is not subject to the same
rule to the rule, in article 31A(2)(a) of the Constitution. Once it is held
that inams of any kind were included, it makes little difference if the
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inams were of lands and not of whole villages.[16] The principle of

ejusdem generis is not applicable in article 12 where it uses the words
other authorities. To invoke the application of ejusdem generis rule
must be a distinct genus or category running through the bodies
already named.[17] In article 12 of the constitution, the bodies
specifically named are the Executive Government of the Union and the
States, and the local authorities. The Supreme Court was unable to
find any common genus running through these named bodies. It
could not place these bodies in one single category on any rational
basis. The doctrine of ejusdem generis could not, therefore, be
applied to interpretation of the expression of other authorities.
Conclusion:
It is well established fact that in the Constitutional
scheme,
Enhanceit!
judge made law becomes a part of Constitution. The Supreme Court of

India developed a vast jurisprudence in interpretation of constitutional
provisions and other statutes. The judiciary has adopted various canons of
interpretation while interpreting Indian constitution which has been
already explained by the author. All the above-mentioned doctrines are
used in several situations as the judiciary may deem fit in the light of facts
and circumstances of the question of law being raised under the ambit of
Constitution. Our constitution makers have laid down a master-piece in
the form of Constitution of India which does not need any material
25
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amendment even after 65 years of its adoption. Judiciary only needs to
interpret and construct the intention of constitution makers which almost
solves the problem of todays generation. These doctrines are the tools of
24
Judges which help them to give judgments effectively and efficiently. The
need of the hour is to follow the well established principles of law in order
1
to exercise the powers vested in the hands of judges to render decisions

that demands the fulfillment of question of law in the interest of public at
large. These principles grant vide power to decision-makers but they can
exercise it under a well defined circle so as to curb the abuse of power. By
and large, Judiciary knows its powers as well as the limitations of its
potential. They never overpower themselves since they are aware of the
severe after-effects of it. Though it is said by many that justice delayed is
justice denied but critics must be ready to accept the fact that justice
hurried is justice worried. And if its really worried then forget about
justice, itll be worse than that. The principle of audi alteram partem is the
outcry of common public and as aspiring young lawyers if we know the
intricacies of legal system we are mostly contented with the judicial
fairness and equity laws practiced by interpreters of law our in our
country.
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[1] R.N. Mittal (Mr. Justice) (Retd.) v. Government Of The NCT Of Delhi on 1
March, 1999
[2] (20r05) 6 SCC 537.
[3]AIR 1986 SC 859.
[4] AIR 1993 SC 2/78.
[5] State of Bombay v. Hospital Mazdoor Sabha AIR 1960 SC 610, pp 613614.
[6] [1966]2 AII ER 299.
[7] Sakal Papers (P) v. U.O.I., AIR 1962 SC 305: (1962) 3 SCR 842: 1962 (2)
SCJ 400;
See also Goodyear India Ltd. v. State of Haryana, AIR 1990 SC 781.
Enhanceit!
[8] (1950) SCR 594; see also Life Insurance Corporation of India v. Prof.
Manubhai D. Shah, AIR 1993 SC 171.
[9] (1963) 1 SCR 220: AIR 1962 SC 1563: (1962) 2 SCA 679.
[10] Bharat Hydro Power Corp. Ltd. v. State of Assam, (2004)2 SCC 553: AIR
2004 SC3173: 2004 AIR SCW 2308; E. V. Chnnaiah v. State of Andhra
Pradesh, (2005) 1 SCC 394: AIR 2005 SC 162: 2004 AIR SCW 6419.
[11]
25 State of Bombay v. Balasara (1951)2 SCR 682.
Shares
[12] Sajjan Singh v. State of Rajasthan AIR 1965 SC 1.

[13]
24 [(1972)2 SCC 788].
[14] (AIR 1971 SC 152).
1
[15] [1955]2 SCR 589: AIR 1955 SC 781: 1956 SCJ 48.
[16] Mahant Sankarshan Ramanuja Das Goswami v. State of Orissa,
(1962)3 SCR 250: AIR 1967 SC 59: 28 Cut LT 95.
[17] Rajasthan State Electricity Board, Jaipur v. Mohan Lal, (1967)3 SCR
377: AIR 1967 SC 1857: 1968 1 SCJ 461.
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THIS ARTICLE WAS WRITTEN BY MONIKA

Constitution as the Paramount law: The constitution of India is

sense as distinguished from technical meaning. It the longest written

A written constitution is to be interpreted and effect given to it as a

As per Justice Krishna Iyer, A constitution is a documentation of the

Whistleblower Protection Act,

restrains found in the constitution.

Extension of time in filing of a

essentially in the nature of a statute, the general rules governing the

construction of the statutes apply to the construction of constitution as

well. The fundamental rule of interpretation is the same, whether it is the

provision of the constitution or an act of parliament, namely that the court

Following are the ways through which construction of statutes is

1. Same rules irrespective of form of Government: it is not the form

governs the object underlying its laws. In the every form of

importance. The principle applied in the interpretation and construction of

constitutional construction is to give effect to the intent of the framers

that the protection of Article 30 was aimed to ensure that minority

In the words of Maxwell Noscitur a sociis means that when two or

Sakal Papers (P) Ltd. v. The Union of India,[7]speaking on behalf of

In Romesh Thaper v. State of Madras,[8] the Supreme Court interpreted

In Raj Jagannath Baksh Nath Singh v. State of U.P. [9]the Supreme

list or the other, regard is to be had to the (i)enactment as a whole,

substance of an enactment falls within the Union list, then the

The doctrine of pith and substances means that if an enactment

In the case of Bennett Coleman v. Union of India[13], court observed

It will be remembered that the Constitution as the declaration of the will

of people should be interpreted liberally and not in any narrow or

power of a legislature has to be determined with reference to the

clause (2) of article 19 which was expressly made retrospective, no rights

and obligations could be founded on the provisions of the impugned Act

apparently legitimate and reasonable provisions. The doctrine of

beyond its power, or trespass on the exclusive powers of the other. In

10. Rule of Ejusdem Generis: the ejusdem generis rule is applicable

inams were of lands and not of whole villages.[16] The principle of

judge made law becomes a part of Constitution. The Supreme Court of

to exercise the powers vested in the hands of judges to render decisions

[12] Sajjan Singh v. State of Rajasthan AIR 1965 SC 1.

DHARMA AND THE

ACT AND PUBLIC

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