Summary: Constitutional silences refer to the gaps or omissions in a constitution’s text, which leave certain issues unaddressed, either deliberately or due to evolving societal needs. These silences enable flexibility, allowing the judiciary and legislature to interpret and adapt provisions to address new challenges. For instance, early framers of the Indian Constitution did not explicitly mention the freedom of the press or LGBTQ rights, assuming no disputes would arise. However, courts, like in Maneka Gandhi v. Union of India, have broadened the scope of constitutional rights, including personal liberty under Article 21. Silences also allow courts to develop doctrines like absolute liability in M.C. Mehta v. Union of India. The judiciary’s liberal interpretation of constitutional silences has played a key role in protecting and expanding rights while maintaining constitutional integrity. Meanwhile, the legislature can respond to these gaps by amending the constitution to reflect changes in social, political, and economic contexts. Together, these mechanisms ensure the constitution remains a living document adaptable to future generations.
Introduction
Constitutions are never finished, and no constitution can be deemed complete and ideal. Constitutions tend to become inflexible when pushing for an ideal perfection. There will always be certain issues that are either purposefully ignored or unintentionally left unattended. Constitutional silence is the term used to describe these gaps from the text. With time, people’s mindsets will not stay the same. Instead, they will continue to evolve. Because of this, silences inside constitutions are inevitable. To address this, we have developed a procedure of amendments to improve provisions that are insufficient and to respond to new needs.
Harvard Professor Lawrence H. Tribe has explained the concept of Silences in the Constitution in his work “Invisible Constitution”1. He uses the Invisible constitution to emphasise that many essential constitutional aspects cannot be understood from its plain text or derived by standard legal argument. Thus, silences can be said to be a way of interpreting what was omitted when a constitution was enacted. Still, it was not what the framers would have purposely rejected. Many experts have termed silences in Constitutions as “Gaps and abeyances”.
Reasons for the silences
Constitutional silences are bound to occur, even if constitution is regarded as exhaustive. Some of the reasons for this are:
– It is difficult to draft textual provisions due to the impossibility of considering every scenario that may occur in society. As a result, some issues are left to constitutional
– A dispute could seem impossible. For instance, the Indian Constitution initially made no mention of Freedom of the Press because then the framers believed that no controversy would ever arise. There is no need to specifically address the freedom of the media because, in the words of Dr Ambedkar, “the press has no particular rights which are not to be conferred or which are not to be exercised by the citizen in his “2
Therefore, the framers have purposely built a skeletal structure of the constitution for future generations to build upon. A constitution intends to outline principles rather than to engrave details.
– Another reason given by many experts is due to prevailing social values at the time of enactment of a constitution,
For example, The LGBTQ community was not mentioned in the Indian constitution, nor was the word “sex” until the apex court gave its decision in NALSA v. Union of India3 and Navtej Singh Johar v. Union of India (2018),4 decriminalised consensual sex between adults, including homosexual behaviour.
In Manoj Narula v. Union of India (2014)5, the court held that constitutional silence or abeyances are progressive and are used as a sophisticated constitutional practice to close gaps in some areas for the sake of justice and a greater public interest. The first thing that constitutional framers attempt to address is what is absolutely necessary or urgently needs to be addressed in order to maintain democracy in a state.
Constitutions must leave gaps for experiences in the future. Silence enables the interpretation of constitutional provisions. For instance, the Indian constitution is silent on what personal liberty is under Article 21, which has led to various interpretations by the court. Even in Maneka Gandhi v. Union of India6, It said that personal liberty is a very wide concept and covers various rights that constitute a man’s personal liberty. Silences and liberal interpretation of the constitutional text are necessary for the evolution and longevity of a constitutional system. For Example: Post-independence, one of the immediate necessities was the upliftment of depressed classes, including women; accordingly, provisions for their benefit were added to the constitutions.
Role of Judiciary
Since the judiciary is the ultimate interpreter of constitutional provisions, it is regarded as the watchdog of the constitution and plays a significant role in interpreting its silences. Courts in the country, especially the Supreme Court, have the authority to interpret the law in order to eliminate any gaps or other omissions. A vigorous and liberal interpretation by constitutional courts is possible in the absence of a clear constitutional declaration. The constitutional courts have an obligation to apply the substantive normative notion of justice while interpreting the constitutional provisions.
The idea of constitutional silence has been applied by Indian courts to broaden the scope of rights and give democracy significant importance. While dealing with silence, it has kept constitutional morality in mind. However, courts must remember that silence must be interpreted from an objective if upholding constitutional validity and should not be based on the judge’s subjective interpretation or satisfaction. This is so because courts exist to declare the law, not to create it.
Recent initiatives to fill the silences
As previously stated, the judiciary plays an important role in eliminating and interpreting constitutional silence. It must be noted that the constitution does not provide anything not already included in it cannot be added, which significantly limits the authority of the parliament to amend the constitution.
The fundamental structure doctrine put forth In Kesavananda Bharati v. State of Kerala (1973)7, the court declared that certain articles could not be altered by the parliament, even by a constitutional amendment act under article 368, in order to uphold the spirit of constitutionalism, which is that the state’s power must be constrained.
Further, most of the provisions of the constitution, like fundamental rights, have no fixed content and are silent on many aspects. Fundamental rights have been described as empty vessels into which each generation pours its content by judicial interpretation
– Article 21 is one such article whose text is silent on many aspects but has been interpreted by courts to be of the widest amplitude. In multiple cases,
- The court has interpreted the Right to life to include the Right to live with human dignity in the case of Olga Tellis Bombay Municipal Corporation 8
- Right to privacy in Justice K Puttaswamy v. Union of India (2018)9 The importance of silence in constitutional law can be judged by Justice D.Y. Chandrachud’s opinion in the Puttaswamy decision, where he held that the absence of the Right to privacy from article 21 by the constituent assembly indicates that the framers did not intend to include it expressly. However, we cannot draw the conclusion that they did not intend for privacy to be a fundamental right from this.
– Further, one of the most important decisions that the Supreme court adopted was the concept of Absolute Liability in C. Mehta v. Union of India (1986)10. In this case, a fertiliser company released Oleum gas in this instance. Before this, strict liability was used whenever any accident happened. There were a few exceptions to that concept, and it can be used as a defence for the wrongdoer. Then Justice PN Bhagwati proposed absolute liability, which had no exceptions, to take as a defence. This decision set a precedent since the constitution prohibits absolute liability. Justice Bhagwati defended it on the grounds that businesses have a duty to make up for the harms brought on by their operations.
– Similarly, the recognition of Transgenders as Third gender and decriminalisation of consensual section 377 of IPC in the case of Navtej Singh Johar v. Union of India (2018)11.
Role of the legislature
The legislature is crucial to the institution of democracy and it is the force that drives the framers to carry out their sole duty of making worthwhile legislation. The ability of the legislature to alter the constitution in response to the evolving social, political, or economic factors is solely provided by silence. The unspoken subjects instigate the need to formulate provisions, statutes and pass a sustainable law that enhances the quality of the requisite conditions. Therefore, the voids left in a constitution contribute to its success.
Conclusion
The journey of constitution of India has surpassed over 70 years and it has established itself as the supreme law of land by pouring life to the largest democracy in the world. The significance of “We the people of India” lies in adapting the constitution for ourselves and this declaration has paved path to an independent nation by declaring the rights, liberties and freedom in all the essential manner. Although, it has witnessed an imperative growth, there are many unarticulated matters that remain unspoken in the constitution but are always set into motion to adapt and enhance the conditions whenever there arises a need in the society.
Written constitutions have evolved into the norm for establishing and governing the relationship between the citizen and the state. Therefore, the framers have purposely built a skeletal structure of the constitution for future generations to build upon. A constitution intends to outline principles rather than to engrave details.
The welfare state and constitutionalism are ensured by courts interpreting constitutional silences to expand the definition and number of rights. To genuinely make constitutions a living, organic document that evolves and adapts to shifting social and political dynamics, silences in constitutions must be used to accommodate as many interests as possible.
Notes:-
1 https://www.bookforum.com/print/1503/the-invisible-constitution-by-laurence-h-tribe-2759
2 https://indiankanoon.org/doc/101973/
3 National Legal Ser.Auth vs Union Of India & Ors on 15 April, 2014
4 Navtej Singh Johar vs Union Of India Ministry Of Law And … on 6 September, 2018
5 Manoj Narula vs Union Of India on 27 August, 2014
6 Maneka Gandhi vs Union Of India on 25 January, 1978 Equivalent citations: 1978 AIR 597, 1978 SCR (2) 621
7 Kesavananda Bharati v. State of Kerala (1973) AIR 1973 SC 1461
8 Olga Tellis v. Bombay Municipal Corporation 1986 AIR 180, 1985 SCR Supl. (2) 51
9 K.S.Puttaswamy(Retd) vs Union Of India on 26 September, 2018 WRIT PETITION (CIVIL) NO. 494 OF 2012
10 M.C. Mehta And Anr vs Union Of India & Ors on 20 December,1987 AIR 1086, 1987 SCR (1) 819
11 Navtej Singh Johar vs Union Of India Ministry Of Law And … on 6 September, 2018 WRIT PETITION (CRIMINAL) NO. 76 OF 2016.
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