“Constitutional culture” is inherent in the concepts where words are transformed into concrete consequences. It is an interlocking system of practices, institutional arrangements, norms and habits of thought that determine what questions we ask, what arguments we credit, how we process disputes and how we resolve those disputes.
The aforestated definition of the term ‘constitutional culture’ is to be perceived as set of norms and practices that breathe life into the words of the great document. It is the conceptual normative spirit that transforms the Constitution into a dynamic document. It is the constitutional culture that constantly enables the words to keep in stride with the rapid and swift changes occurring in the society.
The responsibility of fostering a constitutional culture falls on the shoulders of the State and the populace. The allegiance to promoting a constitutional culture stems from the crying need of the sovereign to ensure that the democratic nature of our society remains undaunted and the fundamental tenets of the Constitution rest on strong platform.
The following observations made by the Court in R.C. Poudyal v. Union of India (1993) throw light on this duty cast upon the functionaries and the citizens: ¬
“Mere existence of a Constitution, by itself, does not ensure constitutionalism or a constitutional culture. It is the political maturity and traditions of a people that import meaning to a Constitution which otherwise merely embodies political hopes and ideals.”
The Constitutional Courts, while interpreting the constitutional provisions, have to take into account the constitutional culture, bearing in mind its flexible and evolving nature, so that the provisions are given a meaning which reflect the object and purpose of the Constitution.
History reveals that in order to promote and nurture this spirit of constitutional culture, the Courts have adopted a pragmatic approach of interpretation which has ushered in an era of “constitutional pragmatism”.
In this context, we may have some perspective from the American approach. The perception is that language is a social and contextual enterprise; those who live in a different society and use language differently cannot reconstruct the original meaning. Justice Brennan observed: ¬
“We current Justices read the Constitution in the only way that we can: as Twentieth Century Americans. We look to the history of the time of framing and to the intervening history of interpretation. But the ultimate question must be, what do the words of the text mean in our time? For the genius of the Constitution rests not in any static meaning it might have had in a world that is dead and gone, but in the adaptability of its great principles to cope with current problems and current needs. What the constitutional fundamentals meant to the wisdom of other times cannot be their measure to the vision of our time. Similarly, what those fundamentals mean for us, our descendants will learn, cannot be the measure to the vision of their time.”
In Supreme Court Advocates-on -Record -Association and others v. Union of India, the Court, while emphasizing on the aspect of constitutional culture that governs the functioning of any constitutional body, has observed:-
“The functioning of any constitutional body is only disciplined by appropriate legislation. Constitution does not lay down any guidelines for the functioning of the President and Prime Minister nor the Governors or the Chief Ministers. Performance of constitutional duties entrusted to them is structured by legislation and constitutional culture. The provisions of the Constitution cannot be read like a last will and testament lest it becomes one.”
Further, the Court also highlighted that a balance between idealism and pragmatism is inevitable in order to create a workable situation ruling out any absurdity that may arise while adopting either one of the approaches: ¬
“The rule of law envisages the area of discretion to be the minimum, requiring only the application of known principles or guidelines to ensure non-arbitrariness, but to that limited extent, discretion is a pragmatic need. Conferring discretion upon high functionaries and, whenever feasible, introducing the element of plurality by requiring a collective decision, are further checks against arbitrariness.
This is how idealism and pragmatism are reconciled and integrated, to make the system workable in a satisfactory manner.
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It is this pragmatic interpretation of the Constitution that was postulated by the Constituent Assembly, which did not feel the necessity of filling up every detail in the document, as indeed it was not possible to do so.”
In The State of Karnataka and another v. Shri Ranganatha Reddy and another , the Court had laid stress on the obligation and the responsibility of the judiciary not to limit itself to the confines of rigid principles or textualism and rather adopt an interpretative process which takes into consideration the constitutional goals and constitutional culture:¬
“When cryptic phrases expressive of constitutional culture and aspirational future, fundamental to the governance of the nation, call for interpretative insight, do we merely rest content to consult the O.E.D. and alien precedents, or feel the philosophy and share the foresight of the founding fathers and their telescopic faculty? Is the meaning of meanings an artless art?”
And again, “There is a touch of swadeshi about a country’s jurisprudence and so our legal notions must bear the stamp of Indian Developmental amplitude linked to constitutional goals.”
Laying emphasis on the need for constitutional pragmatism, the Court in Indra Sawhney v. Union of India (1993) noted the observations made by Lord Rockill in his presidential address to the Bentham Club at University College of London on February 29, 1984 on the subject “Law Lords, Reactionaries or Reformers?” which read as follows:¬
“Legal policy now stands enthroned and will I hope remain one of the foremost considerations governing the development by the House of Lords of the common law. What direction should this development now take? I can think of several occasions upon which we have all said to ourselves “this case requires a policy decision – what is the right policy decision?”
The answer is, and I hope will hereafter be, to follow that route which is most consonant with the current needs of the society, and which will be seen to be sensible and will pragmatically thereafter be easy to apply. No doubt the Law Lords will continue to be the targets for those academic lawyers who will seek intellectual perfection rather than imperfect pragmatism.
But much of the common law and virtually all criminal law, distasteful as it may be to some to have to acknowledge it, is a blunt instrument by means of which human beings, whether they like it or not, are governed and subject to which they are required to live, and blunt instruments are rarely perfect intellectually or otherwise. By definition they operate bluntly and not sharply.””
The Court also observed:¬
“Be that as it may, sitting as a Judge one cannot be swayed either way while interpreting the Constitutional provisions pertaining to the issues under controversy by the mere reflexes of the opinion of any section of the people or by the turbulence created in the society or by the emotions of the day. We are very much alive to the fact that the issues with which we are now facing are hypersensitive, highly explosive and extremely delicate.
Therefore, the permissible judicial creativity in tune with the Constitutional objectivity is essential to the interpretation of the Constitutional provisions so that the dominant values may be discovered and enforced. At the same time, one has to be very cautious and careful in approaching the issues in a very pragmatic and realistic manner.
Since this is a constitutional issue it cannot be resolved by clinches founded on fictional mythological stories or misdirected philosophies or odious comparisons without any regard to social and economic conditions but by pragmatic, purposive and value oriented approach to the Constitution as it is the fundamental law which requires careful navigation by political set up of the country and any deflection or deviation disturbing or threatening the social balance has to be restored, as far as possible, by the judiciary.”
Earlier, in Union of India v. Sankalchand Himatlal Sheth and another, the Court had observed that:¬
“…in a dynamic democracy, with goals of transformation set up by the Constitution, the Judge, committee to uphold the founding faiths and fighting creeds of the nation so set forth, has to act heedless of executive hubris, socio-economic pressures and die-hard obscurantism. This occupational heroism, professionally essential, demands the inviolable independence woven around the judiciary by our Constitution.
Perfection baffles even the framers of a Constitution, but while on statutory construction of an organic document regulating and coordinating the relations among instrumentalities, the highest Court must remember that law, including the suprema lex, is a principled, pragmatic, holistic recipe for the behavioral needs and norms of life in the raw-of individuals, instrumentalities and the play of power and freedom”
The aforesaid passages set two guidelines. First, it permits judicial creativity and second, it mentions one to be conscious of pragmatic realism of the obtaining situation and the controversy. That apart, there is a suggestion to take note of the behavioural needs and norms of life. Thus, creativity, practical applicability and perception of reality from the societal perspective are the warrant while engaging oneself with the process of interpretation of a constitutional provision.
Govt. of NCT Delhi v. Union of India (2018)