The task of interpreting an instrument as dynamic as the Constitution assumes great import in a democracy. The Constitutional Courts are entrusted with the critical task of expounding the provisions of the Constitution and further while carrying out this essential function, they are duty bound to ensure and preserve the rights and liberties of the citizens without disturbing the very fundamental principles which form the foundational base of the Constitution.
Although, primarily, it is the literal rule which is considered to be the norm which governs the courts of law while interpreting statutory and constitutional provisions, yet mere allegiance to the dictionary or literal meaning of words contained in the provision may, sometimes, annihilate the quality of poignant flexibility and requisite societal progressive adjustability. Such an approach may not eventually subserve the purpose of a living document.
The most important aspect of modern constitutional theory is its interpretation. Constitutional law is a fundamental law of governance of a politically organised society and it provides for an independent judicial system which has the onerous responsibility of decisional process in the sphere of application of the constitutional norms. The resultant consequences do have a vital impact on the well¬ being of the people. The principles of constitutional interpretation, thus, occupy a prime place in the method of adjudication.
In bringing about constitutional order through interpretation, the judiciary is often confronted with two propositions whether the provisions of the Constitution ― should be interpreted as it was understood at the time of framing of the Constitution unmindful of the circumstances at the time when it was subsequently interpreted or whether the constitutional provisions should be interpreted in the light of contemporaneous needs, experiences and knowledge.
In other words, should it be historical interpretation or contemporaneous interpretation. The theory of historical perspective found its votary in Chief Justice Taney who categorically stated in Dred Scott v Sanford that as long as the Constitution continues to exist in the present form, it speaks not only in the same words but also with the same meaning and intent with which it spoke when it came from the hands of the framers.
Similar observations have been made by Justice Sutherland. Propagating a different angle, Chief Justice Marshall in McCulloch v Maryland has observed that the American Constitution is intended to serve for ages to come and it should be adopted to various crises of human affairs.
Justice Hughes in State v. Superior Court observed that the constitutional provisions should be interpreted to meet and cover the changing conditions of social life and economic life. Justice Holmes observed that the meaning of the constitutional terms is to be gleaned from their origin and the line of their growth.
Cardozo once stated:¬
“A Constitution states or ought to state not rules for the passing hour but principles for an expanding future.”
It would be interesting to note that Justice Brandeis tried to draw a distinction between interpretation and application of constitutional provisions. The Constitution makers in their wisdom must have reasonably envisaged the future needs and attempted at durable framework of the Constitution. They must not have made the Constitution so rigid as to affect the future. There is a difference between modification and subversion of the provisions of the Constitution through interpretation.
The view is that there is sufficient elasticity but fundamental changes are not envisaged by interpretation. Thus, there is a possibility of reading into the provisions certain regulations or amplifications which are not directly dealt with. There is yet another angle that the libertarian’s absolutism principle never allows for restrictions to be read into the liberties which are not already mentioned in the Constitution.
Our Constitution, to repeat at the cost of repetition, is an organic and living document. It contains words that potentially do have many a concept. It is evident from the following passage from R.C. Poudyal v. Union of India and others:¬
“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””.”
Professor Richard H. Fallon has, in his celebrated work, identified five different strands of interpretative considerations which shall be taken into account by judges while interpreting the Constitution. They read thus:-
“Arguments from the plain, necessary, or meaning of the constitutional text; arguments about the intent of the framers; arguments of constitutional theory that reason from the hypothesized purposes that best explain either particular constitutional provisions or the constitutional text as a whole; arguments based on judicial precedent; and value arguments that assert claims about justice and social policy.”
Comparing the task of interpretation of statute to that of interpretation of musical notes, Judge Hand in the case of Helvering v. Gregory stated:¬
“The meaning of a sentence may be more than that of the separate words, as a melody is more than the words.”
Jerome N. Frank, highlighting the corresponding duty of the public in allowing discretion to the Judges, has observed:¬
“a “wise composer” expects a performer to transcend literal meaning in interpreting his score; a wise public should allow a judge to do the same.”
The room for discretion while interpreting constitutional provisions allows freedom to the Judges to come up with a formula which is in consonance with the constitutional precepts while simultaneously resolving the conflict in issue. The following observations made in S.R. Bommai’s case, throw light on the aforesaid perception:¬
“Constitutional adjudication is like no other decision-making. There is a moral dimension to every major constitutional case; the language of the text is not necessarily a controlling factor. Our Constitution works because of its generalities, and because of the good sense of the judges when interpreting it. It is that informed freedom of action of the judges that helps to preserve and protect our basic document of governance.”
It is imperative that judges must remain alive to the idea that the Constitution was never intended to be a rigid and inflexible document and the concepts contained therein are to evolve over time as per the needs and demands of the situation. Although the rules of statutory interpretation can serve as a guide, yet the constitutional courts should not, for the sake of strict compliance to these principles, forget that when the controversy in question arises out of a constitutional provision, their primary responsibility is to work out a solution.
Dickson, J., in Hunter v. Southam Inc, rendering the judgment of the Supreme Court of Canada, expounded the principle pertaining to constitutional interpretation thus:¬
“The task of expounding a constitution is crucially different from that of construing a statute. A statute defines present rights and obligations. It is easily enacted and as easily repealed. A constitution, by contrast, is drafted with an eye to the future. Its function is to provide a continuing framework for the legitimate exercise of governmental power and, when joined by a Bill or a Charter of Rights, for the unremitting protection of individual rights and liberties. Once enacted, its provisions cannot easily be repealed or amended.
It must, therefore, be capable of growth and development over time to meet new social, political and historical realities often unimagined by its framers. The judiciary is the guardian of the constitution and must, in interpreting its provisions, bear these considerations in mind. Professor Paul Freund expressed this idea aptly when he admonished the American courts ‘not to read the provisions of the Constitution like a last will and testament lest it become one’.”
The Supreme Court of Canada also reiterated this view when it held that the meaning of ‘unreasonable’ cannot be determined by recourse to a dictionary or, for that matter, by reference to the rules of statutory construction. The Court pointed out that the task of expounding a Constitution is crucially different from that of construing a statute, for a statute defines present rights and obligations and is easily enacted and as easily repealed whereas a Constitution is drafted with an eye to the future and its function is to provide a continuing framework for the legitimate exercise of governmental power.
Further, the Court observed that once enacted, constitutional provisions cannot easily be repealed or amended and hence, it must be capable of growth and development over time to meet new social, political and historical realities often unimagined by its framers and the judiciary, being the guardian of the Constitution, must bear these considerations in mind while interpreting it.
The Court further stated that the judges must take heed to the warning of Professor Paul Freund when he said that the role of the judges is “not to read the provisions of the Constitution like a last will and testament, lest it becomes one”.
This idea had pervaded the legal system way back in 1930 when the Privy Council through Lord Sankey LC in Edwards v Attorney General for Canada had observed that the Constitution must be approached as “a living tree capable of growth and expansion within its natural limits”.
Professor Pierre-André Côté in his book has highlighted the action based approach by stating that it must be kept in mind that the end goal of the process of legal interpretation is resolution of conflicts and issues. It would be apt to reproduce his words:¬
“Legal interpretation goes beyond the mere quest for historical truth. The judge, in particular, does not interpret a statute solely for the intellectual pleasure of reviving the thoughts that prevailed at the time the enactment was drafted. He interprets it with an eye to action: the application of the statute. Legal interpretation is thus often an “interpretive operation’’, that is, one linked to the resolution of concrete issues.”
Govt of NCT of Delhi v. Union of India (2018)
 60 U.S. (19 How.) 393 (1857)
 Home Building and Loan Association v Blaisdell, 290 U.S. 398 (1934) see West Coast Hotel Co., v Parrish, 300 US 379 (1937) where he observed, the meaning of the Constitution does not change with the ebb and flow of economic events that (if)the words of the Constitution mean today what they did not mean when written is to rob that instrument of the essential element..
 17 US (4Wheat) 316 (1819)
 State v Superior Court (1944) at 547
 Gompers v US 233 (1914)
 Benjamin N. Cardozo, The Nature of the Judicial Process, Yale University
 Burnett v Coronado Oil and Gas Co., 285 US (1932)
 AIR 1993 SC 1804
 Richard H. Fallon, “A Constructivist Coherence Theory of Constitutional
Interpretation”, Harvard Law Review Association, 1987
 69 F. 2d 809, 810-II (1934)
 Jerome N. Frank, “Words and Music: Some remarks on Statutory
Interpretation,” Columbia Law Review 47 (1947): 1259-136
  2 SCR 145
  AC 124, 136
 Pierre-André Côté, The Interpretation of Legislation in Canada 2
(Cowansville. Quebec:Les Editions Yvon Blais. Inc. 1992)