4 Sep 2023 1:40 PM GMT
Constituent Assembly debates are frequently cited before courts to canvas a particular interpretation of the Constitution. The Supreme Court has referred to the Constituent Assembly debates in important constitutional cases such as A K Gopalan vs. State of Madras, Golak Nath vs. State of Punjab and Kesavananda Bharati vs. State of Kerala. This article advocates a nuanced approach to...
Constituent Assembly debates are frequently cited before courts to canvas a particular interpretation of the Constitution. The Supreme Court has referred to the Constituent Assembly debates in important constitutional cases such as A K Gopalan vs. State of Madras, Golak Nath vs. State of Punjab and Kesavananda Bharati vs. State of Kerala. This article advocates a nuanced approach to citing Constituent Assembly debates. Speeches of individual members of the Constituent Assembly cannot be cited and are not relevant to interpret the Constitution. Speeches of the chairman and the members of the Drafting Committee can be used for interpretation of the Constitution only if there is ambiguity in the text of the Constitution, not otherwise.
A reason in principle to exclude speeches made in the Constituent Assembly
In interpreting the Constitution, courts seek to discover the ‘intention of the framers of the Constitution’. This is not a question of fact. ‘Intention of the framers of the Constitution’ like the phrase ‘intention of Parliament' is a shorthand reference to the intention which the court reasonably imputes to Parliament in respect of the language used. It is not the subjective intention of the minister or other persons who promoted the legislation. Nor is it the subjective intention of the draftsman, or of individual members or even a majority of individual members of either House. R vs. Secretary of State for Environment, Transport and the Regions 2 AC 349(HL) . It is a figure of speech, a shorthand expression to indicate the true meaning of an enactment (Justice GP Singh Principles of Statutory Interpretation, Ashok Bhushan J, page 296 para. 343 Maratha Reservations case LL 2021 SC 243 ). In ascertaining the intention of the Constituent Assembly , courts seek to discover from the text of the Constitution, the true meaning of what Constituent Assembly had said and not what Constituent Assembly had intended to say (Black-Clawson International Ltd vs. Papierwerke Waldhof-Aschaffenburg A.G.  A.C. 591, 613 G, 640 5C (HL), MarathaReservations case LL 2021 SC 243 Ravindra Bhat J (page 308 para. 358) and Nageshwara Rao J (page 424 para. 16). Intention of the framers of the Constitution does not refer to the intention which each member of the Constituent Assembly held at the time of framing the Constitution.Therefore, referring to the speeches of individual Constituent Assembly members to interpret the Constitution is wrong in principle. It amounts to the court abdicating its role in interpreting the Constitution.
Individual speeches do not reflect the intention of the Constituent Assembly as a whole
Interpreting the Constitution by reference to the speeches of individual members of the Constituent Assembly is not factual or practical exercise. The Constituent Assembly after partition consisted of 299 members of which 284 members signed the Constitution on 26 November 1949 (D D Basu, Introduction to the Constitution of India, 25th edition chapter 2). These 299 members were not equally articulate. Some of them did not speak at all. Even among those who spoke, many did not speak on all the clauses of the draft Constitution. Secondly, members of the Constituent Assembly came from different backgrounds and had different views on many subjects. Therefore, those who did speak could not be assumed to have reflected the views of the majority of the Constituent Assembly. Thirdly, those who spoke may have differed from each other. As a result, the process behind the majority vote in the Constituent Assembly is largely inarticulate (United States vs. Trans-Missouri Freight Association (1897) 169 US 290, 318; cited in State of Travancore Cochin vs. Bombay Company AIR 1952 SC 366). It is therefore not possible to ascertain intention of the Constituent Assembly by examining and analysing individual speeches of the Constituent Assembly members.
The MarathaReservations case LL 2021 SC 243 which involved interpreting the 102nd amendment to the Constitution demonstrates the pitfalls in relying on parliamentary speeches to interpret the Constitution. Conflicting parliamentary speeches came to the fore. Analysis of parliamentary debates did not yield a single coherent answer (Ravindra Bhat J page 533 para. 139, 535 para. 143). Delving through Constituent Assembly speeches to discover the mythical intention of the Constituent Assembly is to chase ghosts and shadows. Now, more than 70 years after the birth of our Constitution, there is a disturbing trend of courts and lawyers cherry-picking passages from speeches of individual members to support prior conclusions. This is not interpretation but abuse of legal reasoning.
Secondly, relying on individual speeches of Constituent Assembly members to interpret the Constitution is to permit the dead to control the living. The Constitution is a living document, meant for our citizens of today and for the generations to come. Heeding to the speeches of the departed members of the Constituent Assembly is to silence the voices of the living. India today is vastly different from the India at the dawn of our republic in 1950. Some of the problems faced by our people today could not have been contemplated by even the most forward-thinking member of the Constituent Assembly. For example, no Constituent Assembly member could have envisaged article 14 as a guarantee against arbitrary action or article 21 as encompassing a right to privacy (JusticeKS Puttaswamy vs. Union of India). A Constitution which is not flexible enough to accommodate the aspirations of the living will soon be replaced. This is not an academic statement. If we look at our neighbours, Pakistan has had three constitutions, Nepal seven and Sri Lanka three. Only Bangladesh and India have retained their original constitutions.
Lastly, the Constitution is addressed to the people of India who are to be governed by such provisions. Indian people can be expected to understand the Constitution only from the text of the Constitution. Introducing Constituent Assembly debates as an aid to interpretation will introduce an additional element of uncertainty to the plain language and the text of the Constitution. People will then be required to mandatorily read through the Constituent Assembly debates along with the text of the Constitution. Taken to its logical conclusion, Constituent Assembly debates would be cited in courts on par with statutes or judgments and courts would be called to interpret these debates in the same manner as statutes or judicial precedents. Courts will be persuaded to ignore the text of the Constitution and decide based on the intention of individual members of the Constituent Assembly. Courts will then be asked to interpret not what the Constituent Assembly enacted but what some individual member spoke.
Resolutions of the Constituent Assembly, speeches of the chairman and the members of the Drafting Committee
In contrast to what individual members of the Constituent Assembly spoke, what the Constituent Assembly did are external aids to interpretation of the Constitution. The revised draft constitution was introduced on 4 November 1948. Three readings took place Constitution in which the draft Constitution was examined clause by clause. Many amendments were proposed some of which were approved and the others rejected. A clause or textual amendment rejected by the Constituent Assembly prima facie indicates rejection of a possible interpretation of the clause as finally enacted in the Constitution. Similarly, a clause or a textual amendment accepted by the Constituent Assembly prima facie indicates the acceptance of a possible interpretation of such clause. The rule in using Constituent Assembly debates as an external aid to interpretation of the Constitution is ignore what the members spoke and focus on what the members collectively did (H.M. Seervai, Constitutional Law of India, Fourth Edition page 202, para. 2.62).
Exceptions to the rule are the speeches of Dr Ambedkar the chairman of the Drafting Committee and the speeches of the other members of the Drafting Committee. These speeches were made while moving the reading of the draft Constitution, in replies and explanations during the clause by clause reading of the draft Constitution. Such speeches can be used to interpret the Constitution just as the speeches of ministers in an official capacity propounding a government-sponsored Bill are used for interpretation of statutes. However, a reference can be made to these speeches only if there is an ambiguity in the text of the Constitution but not otherwise (See Kalpana Mehta vs. Union of India; Pepper vs. Hart  AC 593(HL)). In any event, these speeches cannot control the interpretation of the Constitution which ultimately lies only with the courts.2
Ramakrishnan Viraraghavan is a Barrister and also Senior Advocate in the Supreme Court. Views are personal.