The framing of the Constitution of a State is a capital political fact and not a juridical act. No court or other authority in the State under the Constitution can, therefore, determine the primordial question whether the Constitution has been lawfully framed according to any standards. Even if a Constitution is framed under violence, rebellion or coercion, it stands outside the whole area of law, jurisprudence and justiciability.

The basic principle of constitutional jurisprudence is that the Constitution is the supreme law of the land, even supreme above the law and itself governing all other laws.[1] But this principle is not applicable to an amendment of the Constitution. The Constitution can be amended only in accordance with the provisions thereof by the authority empowered to do so in accordance with the procedure laid down therein. The validity of a constitutional amendment can, therefore, be challenged on the ground that it is ultra vires.

The interpretation of a Constitution involves more than a passing interest concerning the actual litigants and being a pronouncement of the Courts on the government and administration, has a more general and far-reaching consequence. Chief Justice Marshall of the American Supreme Court, therefore warned in Mcculloch v. Maryland, 4 Wheaton 316,

“We must never forget that it is a Constitution we are expounding”.

A charter for government and administration of a whole nation

The policy of a particular state is more easily discernible and interpreted than the policy of a Constitution, which is a charter for government and administration of a whole nation and a country. It is that policy consideration which makes the statutory interpretation different from the interpretation of the Constitution.[2]

More foresight in the nature of judicial statesmanship, therefore, is required in interpreting a Constitution than in construing a statute. The Constitution is not to be construed in any narrow pedantic sense[3] and a broad liberal spirit should inspire those whose duty it is to interpret it, for a Constitution, which provides for the government of a country, is a living and organic thing, which of all instruments has the greatest claim to be construed ut res magis valeat quam pereat (it is better for a thing to have effect than to be made void).[4]

But this does not mean that a Court is free to stretch for pervert the language of a Constitution in the interests of any legal or constitutional theory, or even for the purpose of supplying omissions or for the purpose of correcting supposed errors. [5]

Flexible and Progressive Interpretation

If there is an apparent or real conflict between two provisions of the Constitution, it is to be resolved by applying the principle of harmonious construction.[6] Since it is impossible to make a clear-cut distinction between mutually exclusive legislative powers, it is well settled that in case of conflict, Central Law would prevail over State Law, for otherwise an absurd situation would arise if two inconsistent laws, each of equal validity, could exist side by side within the same territory.

Stone J. of the American Supreme Court in United States v. Patrick B. Classic [1941 SCC OnLine US SC 112] expressed the important principle of constitutional interpretation in these terms: –

69 “….in determining whether a provision of the Constitution applies to a new subject matter, it is of little significance that it is one with which the framers were not familiar. For in setting up an enduring framework of government they undertook to carry out for the indefinite future and in all the vicissitudes of the changing affairs of men, those fundamental purposes which the instrument itself discloses.

Hence we read its words, not as we read legislative codes which are subject to continuous revision with the changing course of events, but as the revelation of the great purposes which were intended to be achieved by the Constitution as a continuing instrument of government. If we remember that ‘it is a Constitution we are expounding’, we cannot rightly prefer, of the possible meanings of its words, that which will defeat rather than effectuate the Constitutional purpose.”

This has been sometimes called as ‘flexible’ or ‘progressive’ interpretation of the Constitution which Dr. Wynes refers to as the doctrine of ‘generic interpretation’.

The rules of the interpretation of the Constitution have to take into consideration the problems of government, structure of a State, dynamism in operation, caution about checks and balances, not ordinarily called for in the interpretation of statutes.  

Although a Constitution is not to be fettered by the past history, yet it is relevant for properly interpreting the Constitution. This Court accepted the logic that the Indian Constitution was not written on a ‘blank slate’ and because the Government of India Act, 1935 provided the basic fabric for the Indian Constitution, it was invoked to interpret the Constitution in the light of the provisions of the Act.[7]

Rules of Interpretation of Constitution

The principle of ejusdem generis, a rule of statutory interpretation, has been applied to the Indian Constitution by Supreme Court in the State of West Bengal v. Shaik Serajuddin Batley, 1954 SCR 378.

The statutory rule of interpretation expressed “Expressio unius est exclusion alterius” (the express mention of one person or thing is the exclusion of another) is not strictly applicable to constitutional interpretation.[8]

It is the fundamental principle of construction that there is always a presumption in favour of the constitutionality of an enactment and the burden is upon him who attacks it to show that there has been a clear transgression of the Constitution[9].

In the case of R.C. Poudyal v. Union of India and Others, 1994 Supp (1) SCC 324, the Court at p. 385, para 124 held as under:

“124. …. In the interpretation of a constitutional document, “words are but the framework of concepts and concepts may change more than words themselves”. The significance of the change of the concepts themselves is vital and the constitutional issues are not solved by a mere appeal to the meaning of the words without an acceptance of the line of their growth. It is aptly said that “the intention of a Constitution is rather to outline principles than to engrave details”.”

In the case of Kihoto Hollohan v. Zachillhu and Others, 1992 Supp (2) SCC 651, Supreme Court at p. 676, para 27 held as under:

“27. A constitutional document outlines only broad and general principles meant to endure and be capable of flexible application to changing circumstances — a distinction which differentiates a statute from a Charter under which all statutes are made. …”

In the case of M. Nagaraj and Others v. Union of India and Others, (2006) 8 SCC 212, Supreme Court at p. 240 & p. 241, para 19 held as under:

“19. The Constitution is not an ephemeral legal document embodying a set of legal rules for the passing hour. It sets out principles for an expanding future and is intended to endure for ages to come and consequently to be adapted to the various crises of human affairs. Therefore, a purposive rather than a strict literal approach to the interpretation should be adopted.

A constitutional provision must be construed not in a narrow and constricted sense but in a wide and liberal manner so as to anticipate and take account of changing conditions and purposes so that a constitutional provision does not get fossilised but remains flexible enough to meet the newly emerging problems and challenges.”


Judgment of Justice J.B. Pardiwala in Janhit Abhiyan v. Union of India (2023)

[1] Mukharji ‘The New Jurisprudence” p. 103

[2] Mukharji ‘The New Jurisprudence’, p. 105

[3] Lord Wright in James v. Commonwealth of Australia, (1936) A.C. 578, 614

[4] Gwyer C.J. in Central Provinces Case, (1939) F. C. R. 18 at p. 37

[5] Ibid

[6] Seervai ‘Constitutional Law of India’ pp.25-27 (Vol.I)

[7] M.P.V. Sundararamier & Co. v. State of A.P. and Others, 1958 SCR 1422 : AIR 1958 SC 468

[8] Mukharji ‘The New Jurisprudence’, p. 110

[9] Shri Ram Krishna Dalmia v. Shri Justice S.R. Tendolkar and Others, 1959 SCR 279 : AIR 1958 SC 538