Authored by Sanu Ranjan, LLM Candidate at National Law School, Banglore and Independent Constitutional Scholar.
Reading of Constitution as Citizen Aspirational Document
What is the meaning of Citizen’s Reading of the Constitution? What is the importance of a Citizen’s reading of the Constitution? Whether the reading is depended upon the text of the Constitution? Can there be reading without the text but within the constitutional sense of justice? Can a citizen read beyond the text of Constituion and its Justice?
Whether the reading could be a reading where a citizens transgresses the tradition of an interpretation of constitutional norm and and construct his own imagination of constitution? What is the meaning of reading in context of Constitution? Whether a citizen’s reading of constitution is informed by constitutional history? Whether the reading of the Constitution by Citizen is translation of their Constitutional faith?
What does the term Constitutional Space convey with respect to the reading of constitution? These are some preliminary questions that arises while moving towards a deepened and a philosophical understanding of the Constitution, as an aspirational document.
Reading of the Constitution is a representation of constitutional faith of the Citizens. It accepts the fact that the Constitution is not solely a legal document but contains values whose content can never be normatively exhausted. The Constitution always remain in the spehere of political. The Constitution is not only a document but an aspiration of values.
The Czech Constitutional Court, in its judgment in Pl. ÚS 19/93: Lawlessness observed that,
“The legitimacy of a political regime cannot rest solely upon the formal legal component because the values and principles upon which a regime is built are not just of a legal, but first of all of a political nature. Those principles of the Czech Constitution, such as the sovereignty of the people, representative democracy, and a law-based state, are principles of the political organization of society, which are not entirely normatively definable. Positive law proceeds from them, however normative regulation does not make up the full contents of these principles - something apart from it remains.”
Thus, the existence of constitution is not only restricted to its text that lies within the pneumbra of the constitutional sphere but also on the values which forms part of constitutional laws. The values which gives meaning to the Constitution, and give coherence to the Constitution and make it an organic whole.
The reading of the Constitution does not mean mere literal reading but a reading with a meaning filled with citizens’ own beliefs, aspirations, values, struggles and sufferings. There are three kinds of reading, a reading without the text of the Constitution, a reading with the text of the constitution and a reading beyond the text of the Constitution.
Each reading of the Constitution infuse in it the legitimacy of being called a Constitution. For what constitutes a constitution is not legal values but values which justifies citizen’s belief to accept a Constitution to be his own and as the highest of norm in hierarchy of laws through which nation will be governed.
A reading without text defies the understanding of reading itself. How a reading could be done without text? A reading without text is a reading where the citizen who cannot read and understand, by the reason of illiteracy but accepts the constitution as its own, due to his firm belief on himself or upon his leaders, in struggle for independence or his belief in his sense of justice in context of his sufferings or his belief in struggle for demand of rights without reading the text of the constitution. This belief is filled with the affirmance of the citizen that his assertion are capable of being realized in this constitutional democracy even when there exist external dissonance in the form of an apparent conflict between constitution’s aspirational ideals and the socio-political reality. It is through this reading a citizen, construct his Constitutional Imagination and in such imagination put his own faith towards Constitution. Such readings may be contrary to the traditions of judicial interpretation but must be against the idea of human dignity.
From a third-world perspective the struggle for indigenous land rights in many countries, where illiterate citizens and communities have asserted their rights based on their beliefs and sense of justice, despite not being able to read or understand the constitutional text. Many members of these communities may be illiterate and unable to read or understand legal documents, including the constitution. However, despite their illiteracy, these citizens often have a deep-seated belief in their connection to their lands and their rights as indigenous peoples. They may have inherited oral traditions, cultural practices, and collective memories that reinforce their identity and attachment to their territories.
In their struggle for land rights, these communities often rely on their own traditional systems of governance and justice, which may not be explicitly recognized in written laws or constitutions but are within the ideals of the aspirational sense of constitutional justice. They assert their rights based on their moral convictions, historical grievances, and shared sense of identity and belonging which can be seen as a form of "reading without text". Despite not being able to read or understand the constitution in a conventional sense, these citizens construct their constitutional imagination based on their lived experiences, cultural heritage, and collective aspirations for justice and self-determination. In this manner we could understand the first reading of the Constitution.
But a question arises that whether the knowledge about the existence of constitution is necessary to a citizen in order to have a faith upon the constitution? In my opinion, in a formal sense of a document there is need of such knowledge but in an aspirational sense where a constitution is constituted to secure preambular values, values which forms part of a citizen’s belief to his right to self-determination, I feel, there is no need of knowledge of existence of a formal constitution to that citizen, because even without his knowledge the repositories of power are always bound by such constitution and have a duty to fulfill its aspirational ideals. Though knowledge of such a Constitution is always preferable, due to insistence of law in its formal legality.
The second reading is a reading with the text of the Constitution. This reading is done by a Citizen who knows about the existence of the constitution and have knowledge to read its textual content. It is not important that he understands every legal jargon that lies within the Constitution but in invocation and in demand of his rights, in appeal to his sense of justness, in rememberance of his suffering and in order to remove them, he refers to the preamble of its constitution, its preamble, its provisions of fundamental rights, directive principles, fundamental duties and other parts which he finds necessary in support of his own belief.
The reading may be deferential i.e. in support of the argument of state or the reading may be insurgent as argued by Kalpna Kannibaran or a means to remember people of their duties as citizen towards their nation or their constitution. While reading it, they give meaning to those text in affirmance of their beliefs. This reading can be done by citizen individually or by a section of citizen through associations and unions or through plebiscite. In this reading, citizen are informed of their constitutional text, the meaning of such text and how such text affirm their values and beliefs. They argue that these text when read with such meaning are capable of translating their struggle for rights into a law made by state. They provide hope, creates dream and an strengthen a constitutional imagination of the citizen, to construct a de-colonial world.
The third reading of the Constitution lies with those citizens to read beyond the text of the Constitution, which is to transcend the constitutional text. As I have written in my previous work titled, “A Juristic Search of a Transcendental Jural Responsibility for Human Suffering”, where I have asked
“But how could one “go beyond the Constitution itself”? Whether transcendence signify the Understanding of a movement from a jural sense of rightness to rightslessness? Does going beyond Constitution signify transcendence from Constitutional Text to the Constitutional Faith? Does transcendence signify a leap from Juristic Normativeness to Ethical Responsibility? Therefore, transcending Beyond the Constitution through the hermeneutical lens of legal interpretation entails a process by which the traditional boundaries of textual analysis are surpassed to uncover deeper layers of meaning, context, and intention within constitutional provisions.”
I further wrote that,
“we need to understand that the human state of rightlessness as a necessary condition for the founding of rights in the Indian Constitution. It is in this transcendental understanding of rightlessness, whose existence does not lies in the writteness of constitutional text, but in its meaning. Therefore, Rightlessness is a transcendental condition for the existence of rights. Rightlessness is the very reason for the existence of rights. It suggests that the existence and recognition of rights are rooted in the awareness of rightslessness or the absence of recognized rights for individuals or groups. This transcendence demands us to see, beyond the state of rights from a consciousness of the state towards the condition of human suffering in a state of rightslessness.
Rightlessness, as a transcendental condition, is the very act of disruption of the formal structure of legal thought. The concept of rightlessness as a transcendental condition can be understood as a transformative process that disrupts the formal structure of legal thought and initiates a movement from the realm of constitutional text to that of constitutional faith within the context of constitutional interpretation.”
Now the most important question arises that why shall this reading be given importance in a constitutional discourse? Why shall a reading informed by the rich jurisprudential history of law be rendered unimportant and an uninformed reading of a text with certain meaning be given legitimate space in a deliberative discourse in understanding the constitution which has its own constitutional history and given legal underpinnings by hard labours of justices, who have through their erudition and profundity interpreted a document in context to its history.
The Legitimacy of Reading by the Citizen, the residum of political sovereignty
The reading of constitutional text by the Citizen is rendered legitimate by the reason of the authority that emanates from We, the People. The term We, the People refers to no one but Indian People who constituted the constitution. The people are the source of the authority by virtue of which a law is called the Constitution and gains its legitimacy apart from legality. The Czech Constitutional Court in its Lawlessness Judgment held that,
The petitioners' assertion that "Czech law is based on the sovereignty of statutory law" is the point of departure for their formal, legalistic arguments. For that is substituted a higher principle, namely the principle of the sovereignty of the people, who are the bearers of supra-governmental power, constitutive power, while statutes are the product of an already constituted and institutionalized internal state power.
It is the Constitutive Power of the people that gives their reading a legitimacy, for thy have in them the constituent power through which the constitution was enacted and adopted. The act of enaction, adoption and giving to ourselves the Constitution is a living continuity, that is parted from generation to generation. Our Constitution rests as a Grundnorm not by the authority of parliament or by the institution created under it but by our faith and fidelity to the Constitution, its text and its aspirations. We, the people are the repository of this Constituent Power.
This power in terms of sovereignty was coined as Political Sovereignty which was translated by the legal sovereignty vested upon the Constituent Assembly. In the Keshvananda Bharati’s Case the Court observed that,
“Legally, the British Parliament transferred the whole of its legal sovereignty over the people and territories of this country in British India to the Constituent Assembly which spoke in the name of the people of India…This means that the legal sovereignty was vested in the Constituent Assembly whereas the people of India may be said to be only politically "sovereign". Their views were carefully ascertained and expressed, from various angles, by the Members of the Constituent Assembly, political sovereign thus operated outside the ambit of law yet made its impact and effect felt upon the legal sovereign, that is to say, the Constituent Assembly. In recognition of this fact and to bring out that it was really speaking on behalf of the people of India, the Constituent Asembly began the Preamble with the words : "We, the people of India". This meant, in my estimation, nothing more than that the Constituent Assembly spoke for the people of India even though it was vested with the legal authority to shape the destiny of this country through the Constitution framed by it. There is not to be found, anywhere in our Constitution, any transfer of legal sovereignty to the people of India.”
Even though it is political sovereignty which is vested with the Citizen, it is the political sovereignty that gives legitimacy to the legal sovereignty for all the values in the constitution are political and not purely legal. It is these political values namely sovereign, democratic, republic, political justice etc. gives legitimacy to the Constitution as a whole and without which the constitution would not be considered as the higher law. The legal sovereignty is always subordinate to political sovereignty, which infuses legitimacy to construction of legality.
Therefore reading by the Citizen is manifestation of political sovereignty which must be preserved and be given a legitimate constitutional space in interpretation of the Constitution.
From Reading to Interpretation, Constitutional Space in a Living Document
A reading of the Constitution shall be given a legitimate constitutional space. What is the space that shall be given? What is the meaning of the term space? What happens when a citizen reading is given constitutional space in interpretation of the constitution?
In the context of constitutional interpretation, giving a reading of the Constitution a legitimate constitutional space means acknowledging and respecting the various ways in which individuals or groups of citizens read and understand the Constitution. Their reading must be given a legitimate space. Epistemic humility, as Professor Upendra Baxi argues, requires us all to learn from and listen to each other.
What does the term constitutional space signify? What is the normative meaning that space carry? In interpretation of the constitution the courts have always given a place to the State and its reading of the constitution. It has also given place to the lawyers and their reading of the constitution, which has always been juristically isolated i.e. within the confines of pure legal arguments. The constitution is never read with the perspective of individual citizen. The Citizen reading of the constitution involves more than mere legal argument. It involves the arguments of legitimacy, how a reading of the constitution could be legitimate, which may be not in line with the rich tradition of judicial precedents or in contrary to the line of decided cases. However, if the reading does not violate the value of human dignity, then such reading must be given a legitimate constitutional space where the court would have the basis to interpret the constitution in accordance with such reading. Apart from the reading of the State which have been upheld and given an authoritiative view, the view of the citizen must be given a legitimate space and no constitutional case which involve fundamental rights, fundamental duties, preamble and directive principle of the constitution be decided without taking into account such reading.
If such reading could have been given space then the ADM Jabalpur Case could have been decided otherwise. The doors of court would never have been closed for its citizen, the court would always haven been the court of last resort for bewildered and oppressed citizens.
Giving legitimate constitutional space to the view of ever citizen, ensures the formal equality of law whereby every citizen is given the chance to participate in the decision and as such enhances the value of participative democracy, which is one of the important values in the basic structure of the constitution. A legitimate space allows the oppressed peoples, suffering the vindictive carcerality of the State by the misuse of draconian but otherwise constitutional statues. The reading and accepting it in the construction of constitution, would help in grounding Constitutional Text in a profound sense of “empathy”. It will lead to a shift, which kalpana kannibaran states, “in legitimacy from the formal holders of constitutional power to the multitudes that deliberate on the Constitution (on streets and campuses) and explore/interpret its meanings.”
Giving a legitimate constitutional space, will also help in giving rise to a constitutional discourse which will strengthen deliberative democracy and it will also represent those citizen who are in minority or has historically faced systemic injustice and are unable to represent their views through parliament. It will help the Courts in understanding the idea of people in times of emergency when the legislative assembly is dissolved.
It will help the court to directly connect with citizen thus making it more democratic and it will make the idea of an “unelected judiciary” challenged. However the reading of citizen which goes against the value of human dignity or which provokes the amendment of the basic structure of the constitution must be rejected by court by giving reasons so that there could be cultivation of constitutional morality in the citizen.
Giving legitimate space will help the court in matters of fundamental right, to not generally defer to the view of state or in case of a legislation which heavily restricts the fundamental rights, to understand the citizen’s understanding of the constitution and then to declare the constitutionality of the act in accordance or in refusal of such reading. If such reading is translated, then the faith of the citizen will be realized, actualized and translated in the form of constitutional rights. It may happen such reading is not in accordance with the precedents or it may be insurgent, even then the judges must transcend the boundaries of the text in the interpretive realm of constitutional construction, in order that there could be a movement from Constitutional text to Constitutional Faith, which is to transcend beyond the Constitution itself.
Therefore, the livingness of a constitutional document lies not only in being able to incorporate the meaning in its text which is suitable to the present conditions of life and governance, it also lies in the very acceptance of the fact that the Constitution could incorporate the meaning of a provision through citizen’s reading of texts through a deliberative discourse. Through this, its fidelity lies not with the hands which are dead but also of hearts which are living and breathing.