Constitution is what the Judges say it is


The Constitution is what the Judges say it is. That is because the power to interpret the Constitution vests in the Judges. A heavy responsibility lies on the Judges when they are called upon to interpret the Constitution, the responsibility is all the more heavier when the provisions to be construed relate to the powers of the judiciary. It is essential that complete objectivity is maintained while interpreting the Constitutional provisions relating to the power of the judiciary vis-a-vis the executive in the matter of appointments to the superior judiciary to avoid any feeling amongst the other constitutional functionaries that there has been usurpation of power through the process of interpretation. This is not to say that the judiciary should be unduly concerned about such criticism but merely to emphasize that the responsibility is greater in such cases. To put it differently where the language of the Constitution is plain and the words used are not ambiguous, care should be taken to avoid giving an impression that fancied ambiguities have been conjured with a view to making it possible to place a convenient construction on the provisions. If the words are plain and unambiguous effect must be given to them, for that is the constituent body’s intent, whether you like it or not, and any seeming attempt to depart therefrom under the guise of interpretation of imaginary ambiguities would cast a serious doubt on the credibility and impartiality of the judiciary. It would seem as if judges have departed from their sworn duty; any such feeling would rudely shock peoples’ confidence and shake the very foundation on which the judicial edifice stands.

The concern of the judiciary must be to faithfully interpret the Constitutional provisions according to its true scope and intent because that alone can enhance public confidence in the judicial system. ‘The one public interest which the courts of law are properly entitled to treat as their concern is the standing of and the degree of respect commanded by the judicial system’ said Lord Keith of Kinkel in Duport Steels Ltd. v. Sirs, (1980) 1 All ER 529 at 550. We can do not better than reproduce Lord Scarman’s advice in the same case at page 551 of the Reporter:

“Great judges are in their different ways judicial activists. But the Constitution’s separation of powers, or more accurately functions, must be observed if judicial independence is not to be put at risk. For, if people and Parliament come to think that the judicial power is to be confined by nothing other than the judge’s sense of what is right (or as Selden put it by the length of the chancellor’s foot), confidence in the judicial system will be replaced by fear of it becoming uncertain and arbitrary in its application. Society will then be ready for Parliament to cut the power of the judges. Their power to do justice will become more restricted by law than it need be, or is today[AIR 1994 SC 268]