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Sunday, August 29, 2010

Constitution of India - Constitutional Interpretation and Cultural Gap: India v. US


When those of us educated in the industrialized world attempt to understand and interpret legal texts written in the developing world, questions arise relating to the extent to which contextual differences should affect how we approach the interpretive task. Before coming to terms with the text at issue, we must consider the appropriateness of applying our usual interpretive tools and our usual understanding of legal terms to the task of construing material generated in a substantially different social and political context. This question of the role of context is of particular concern when the developing world's text under consideration was based on an American model. In such cases, the superficial similarities tend to encourage the unthinking application of our usual interpretive methods and the unthinking assumption that legal terms have only the meaning we ascribe to them. As a consequence, we may fail to take account of the relevant contextual differences. This Project addresses the problem of context as it applies to questions of constitutional interpretation. In exploring this problem, this Project focuses on the Indian Constitution.  Chapter I provides an overview of the Indian Constitution and describes the similarities between it and the United States Constitution. Chapter II explores the differing objectives of the Indian and American drafters in promulgating their respective constitutions. It asserts that while the Indian drafters sought to use the Constitution as a means to transform Indian society, the American drafters sought to maintain the status quo with respect to social conditions. After briefly describing the principal American methods of constitutional interpretation, Chapter III addresses whether, in light of the American and Indian framers’ fundamentally different objectives, the methods of interpretation applied to the United States Constitution will yield a sound construction of the Indian Constitution. It posits that although American interpretive methods incorporate the American framers' core values, the application of such methods in the Indian context can lead to an analogous incorporation of core Indian constitutional values into the interpretive process. The difficulty for the American reader in interpreting the Indian Constitution thus lies in understanding the Indian text's core values and in being sensitive to other contextual differences, such as differing meanings of shared terms or concepts.



The Indian Constitution is one of the longest in the world. Like many Western constitutions, it includes both provisions concerning government structure and provisions explicitly affording protections to individuals. The Indian Constitution also includes an array of provisions designed to fundamentally alter Indian society and to remove the effects of past discrimination on the basis of religion and membership in particular social groups. The following describes its salient characteristics.

The Indian Constitution was prepared by a Constituent Assembly which met intermittently between 1946 and 1950.[1] Documents generated during that process illustrate that substantial portions of the Indian Constitution were explicitly based on Western models. Indeed, in his inaugural address, the Chairman of the Constituent Assembly stated that the Assembly would pay greater attention to the United States Constitution than to that of any other country.[2] The Assembly Committee charged with drafting the Indian Constitution borrowed heavily from the British and American models, and the Assembly accepted that basic model.[3] In his seminal work on the drafting of the Indian Constitution, Granville Austin asserted that Indian acceptance of a centralized, parliamentary form of government was “nearly universal.”[4] He further stated that this commitment to the British and American models was hardly surprising in light of two factors.
  1. India had had a successful experience with representative government during the latter portion of British rule.
  2. In the years immediately following World War II, the British and American representative forms of government were held in high esteem due to the defeat of the Nazi and Fascist powers.
This overwhelming commitment to Western-style representative government led to the Constituent Assembly's rejection of the decentralized, village-based government favored by Mahatma Gandhi.

The Indian Constitution’s structural provisions incorporate elements of both the British parliamentary and the American federal systems. India's national government consists of a Parliament which performs the legislative function,[5] a Prime Minister who performs the executive function in consultation with a Council of Ministers,[6] and a judiciary which performs the judicial function for both the national and state governments.[7] The Indian states' governments are structured much like its national government.[8]

The Indian Constitution's provisions concerning individual liberties, which are referred to as the “fundamental rights” provisions, were modelled on the United States Constitution's Bill of Rights.
[9] Some of the protections afforded are substantially similar to their American counterparts. For example, the Indian Constitution's fundamental rights section includes guarantees of the equal protection of the laws[10] and the rights to freedom of speech and assembly.[11] It also includes protections of the rights to life and liberty,[12] which are reminiscent of the American guarantee of due process.[13]

Other fundamental rights provisions were tailored to address particularly Indian concerns. Thus, although the Indian Constitution's protections relating to religion roughly mirror the United States Constitution's Free Exercise and Establishment Clauses,
[14] they are tailored to India's particular circumstances. For example, the Indian Constitution's guarantee of “the right freely to profess, practise and propagate religion[15] is expressly limited by a clause which permits the government to enact legislation “providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus.”[16] Moreover, unlike the United States Constitution, the Indian Constitution's fundamental rights section affords explicit protections for minority interests:

  1. It affords the right to conserve distinct languages, scripts, or cultures and prohibits discrimination in admission to educational institutions on the grounds of religion, race, caste, or language.[17]
  2. It affords religious and linguistic minorities the right to establish and administer educational institutions of their choice.[18]

Into this essentially Western model of defining government structure and guaranteeing certain individual liberties, the Indian drafters incorporated a range of provisions designed to fundamentally restructure Indian society, reduce religious hostilities, and remedy past discrimination against certain religious and social groups. The drafters' social reform objectives are best illustrated by Part IV of the Indian Constitution, which sets forth a set of directive principles for state policy. The Constitution itself deems that although these principles are not judicially enforceable, they are fundamental to the governance of the nation. Moreover, “it shall be the duty of the State to apply these principles in making laws.” The Indian Constitution's directive principles are designed to “secure a Welfare State.” They speak to a variety of issues, such as employment opportunities, the distribution of wealth, and the availability of free and compulsory education for children up to fourteen years of age. They further require the Indian government to endeavor to secure a living wage and decent working conditions for all workers and to raise the level of nutrition and public health. The directive principles also require that the Indian government “promote with special care the educational and economic interests of the weaker sections of the people.

The Indian framers did not limit their social reform efforts to the directive principles. A range of the Indian Constitution's enforceable terms also demonstrate the framers' desire to fundamentally alter Indian society. Many of these provisions seek to eliminate differential treatment on the basis of caste or religion.
[19] Perhaps most significant is the provision which abolishes the practice of “untouchability.”[20] This practice, which relegates certain people to the lowest social order based upon the caste into which they were born, was well entrenched in India when the Indian Constitution was drafted.[21] The framers' desire to eliminate differential treatment on the basis of caste or religion is also illustrated by the express prohibition of discrimination on the basis of caste or religion in those provisions which guarantee equality.[22] The same is true of Article 25's explicit denial of constitutional protection to those religious practices which exclude some "classes or sections of Hindus" from using Hindu facilities.[23]

In addition to seeking to remedy the harmful social effects of both the Hindu caste system and religious hostility between Hindus and Muslims, the Indian framers sought to alter Indian society by including in the Constitution express prohibitions of the trafficking in human beings, forced labor, and the employment of children below the age of fourteen in factories, mines, or other hazardous locations. They also afforded cultural and educational rights to various kinds of minorities and limited the judiciary's ability to disrupt legislative efforts to reform various aspects of Indian society, most notably land ownership in rural areas. Lastly, they included a number of provisions designed to ensure the social advancement of previously disadvantaged castes, tribes, or races and persons of Indian origin who have some British ancestry.


During India's struggle for independence from Britain, the Indian focus was necessarily on political autonomy. Once that political objective had been achieved, India faced such fundamental questions as: determining the most appropriate form of government for a vast nation with a culturally and religiously diverse populace; the extent to which government should mandate or facilitate social reform; and the extent to which individual liberties should give way to such reform. As the foregoing description of the Indian Constitution illustrates, in resolving these questions the Indian framers adopted a Western-style representative democratic form of government and included numerous provisions in the Constitution designed to either mandate or facilitate widespread social reform. Given this reformist vision, the protections afforded to individuals were of secondary importance. This sense, that the Indian framers' principal concern was for the wholesale reform and restructuring of Indian society, is also reflected in statements made both by members of the Constituent Assembly and in the academic commentary.

The Indian drafters' revolutionary agenda was summarized by Jawaharal Nehru in his assertion to the Constituent Assembly that its first task was “to free India through a new constitution, to feed the starving people and cloth, sic the naked masses, and to give every Indian the fullest opportunity to develop himself according to his capacity.
[25] Nehru's vision of the Constituent Assembly's objectives was widely shared among its members.

Like the statements by members of the Constituent Assembly and the text of the Indian Constitution, the academic commentary asserts that the drafters' overriding concern was the reform of Indian society. For example, P.M. Bakshi has noted that “the framers of the Constitution were keen to preserve the democratic values to which Indians had attached the highest importance in their struggle for freedom. But they were also keen to make provisions considered to be necessary in the light of the social and economic backwardness of certain sections of society.”

Rivalling the social revolution in importance were the goals of national unity and stability. Desirable as ends in themselves, they were also considered to be necessary prerequisites for a social renascence. Other aims also played their part in shaping the Constitution -- aims such as the protection of minority interests, the creation of efficient government and administration, and national security. All these aims were either explicitly or implicitly embodied in the Constitution as were, Assembly members hoped, the institutions that would be the means of achieving them.

Despite the substantial similarities between the Indian and United States Constitutions with respect to both government structure and the individual’s relation to the state, the American drafters did not approach the task of framing a constitution from a revolutionist perspective. Indeed, preservation of the status quo with respect to social organization was arguably one of the American drafters’ principal objectives. When compared to the Indian framers’ sweeping reformist agenda, the American approach to the task of creating a workable form of government was profoundly conservative.
During the tumultuous period leading up to the drafting of the United States Constitution, a great deal was written about the undesirability of British rule.

There is, of course, no unanimity of opinion with respect to the American framers' agenda. The conventional understanding is that the United States Constitution was drafted in order to remedy defects, primarily related to trade and commerce, of the Articles of Confederation. The dramatic expansion of the scope of national power and the creation of a tripartite national government in the Constitution suggest that the framers' concerns went beyond trade and parochialism.

Even if we assume that dissatisfaction with the Articles triggered the calling of the Constitutional Convention in Philadelphia, varying explanations have been proffered with respect to why the framers made the choices they did in drafting the constitutional text. Prior to this century, the usual understanding was that the framers were figures of great intellect and wisdom who were able to fashion timeless principles of governance based upon the notion of self-rule

The debate between the federalists and anti-federalists at the Constitutional Convention broke down along economic lines. Despite the antifederalists’ assertions that a centralized government with a strong chief executive and a powerful Senate could subject the American people to a tyranny. The federalists asserted that a strong central government would not lead to tyranny because it was the people, rather than their rulers or the states in which they resided, who created the constitutional scheme. Indeed, the federalists believed so strongly in the ability of the Constitution's structure to limit tyranny that they concluded that inclusion of a written bill of rights in the Constitution was unnecessary.[27]

Regardless of which of these competing assessments of the American framers' objectives one accepts, it is apparent that their intent was to restructure government without fundamentally changing the social order. After the failed experiment with decentralization under the Articles of Confederation, the American framers sought to establish a central government that was substantially similar to that of Great Britain, albeit with the understanding that the people rather than a monarchy were the source of governmental power. Moreover, the federalists' emphasis on governmental structure and their antipathy toward a written bill of rights suggests that political rather than social life was their principal concern. This primary emphasis on the polity suggests that the architects of American constitutionalism, unlike the Indian framers, had no broad social reformist agenda.


The substantially differing objectives of the American and Indian constitutional framers call into question the appropriateness of applying American interpretive methods to the task of interpreting the Indian Constitution. To the extent that the usual means of interpreting the United States Constitution incorporate the American framers' social conservatism, the application of such methods to the task of interpreting the Indian Constitution may lead to unsound results.

In making this determination, one must first address the threshold question of what it means to refer to American modes of constitutional interpretation. There is, of course, no consensus with respect to which methods of interpreting the United States Constitution will yield the best or even constitutionally acceptable results. The following briefly outlines the principal modes of interpretation used by the United States Supreme Court in resolving constitutional questions and touches upon some of the principal academic discussions of constitutional interpretation.

The interpretive methods used by the Supreme Court and addressed in the large body of academic literature can be roughly characterized as either interpretivist or non-interpretivist.
[28] The salient characteristic of interpretivist methods is their reliance on the four corners of the constitutional text to ascertain the Constitution's meaning. Conversely, non-interpretivist methods refer to extra-constitutional sources, most often natural law-based principles or contemporary values or circumstances, in ascertaining the United States Constitution's contours.

Some interpretivist methods of constitutional construction take this limitation to the constitutional text quite literally. For example, under a plain meaning analysis, the task of ascertaining what the Constitution permits or requires is wholly determined by a literal reading of the Constitution' s text. The most extreme form of this literalism is illustrated by a assertion that the Constitution does not limit the states' ability to criminalize abortion because of the absence of an express grant to individuals of the right to an abortion. Such plain meaning arguments have, of course, been made with more force in other fora. Justice Black's absolutist interpretation of the First Amendment is one good example
[29].  Similar to the plain meaning's literalist approach are the related arguments based upon the historical meaning of constitutional terms and the framers' intent with respect to a term or a provision's meaning.[30] As is the case with plain meaning-type arguments, analyses based on the framers' intent routinely appear in the Supreme Court's case law.[31]

An interpretivist approach does not always result in such highly literal readings of the constitutional text. Many analyses of constitutional questions turn on the inferences drawn from the Constitution's text, its structure, or its “great silences.” These arguments are cast as interpretivist because, although they avoid the literalism of the above-referenced methods, they are nevertheless text-bound, i.e. they assume that the sole sources of constitutional principles are the text and inferences drawn therefrom. Perhaps the best known example of this interpretive method can be found in the United States Supreme Court's decision in McCulloch v. Maryland.
[32] In that case, Chief Justice Marshall draws from the Constitution's text, structure, and silences in defining the contours of the federal legislative power.
As one would expect, the salient characteristic of non-interpretivist analyses is the refusal to be limited by the express and implied terms of the constitutional text. Thus, a non-interpretivist construction permits the incorporation of values into constitutional interpretation which are not even impliedly found in the text itself. Substantial support exists in both the case law and the commentary for this view. Indeed, many of the United States Supreme Court's landmark decisions are based upon non-interpretivist premises.

The United States Supreme Court's willingness to apply non-interpretivist principles is best illustrated by the Court's jurisprudence concerning the Bill of Rights and the post-Civil War amendments. Absent the Court's willingness to incorporate values not directly traceable to the constitutional text, many of the principal protections from governmental interference afforded to individuals would not be constitutionally based.

The broad textual provisions are seen as sources of legitimacy for judicial development and explication of basic shared national values. These values may be seen as permanent and universal features of human social arrangements -- natural law principles -- as they typically were in the 18th and 19th centuries. Or they may be seen as relative to our particular civilization, and subject to growth and change, as they typically are today. Our characteristic contemporary metaphor is 'the living Constitution' -- a constitution with provisions suggesting restraints on government in the name of basic rights, yet sufficiently unspecific to permit the judiciary to elucidate the development and change in the content of those rights over time.

Given this lack of agreement with respect to how the task of interpreting the United States Constitution should be performed, the question arises whether American methods of constitutional interpretation uniformly reflect the basically conservative social agenda advanced by the American framers. Absent such a shared characteristic, the application of American interpretive methods to the Indian Constitution would be less problematic. Despite, however, obvious dissimilarities in the ideological and political underpinnings of the various American methods of constitutional interpretation, these methods generally yield results which reflect or incorporate the framers' conservatism with respect to social organization.

This tendency of the various interpretive methods to yield such results stems in part from the framers' conception of the contours of constitutional governance. By concerning themselves almost exclusively with public life, i.e. issues related to government structure and the individual's relation to government, the framers have in effect set jurisdictional contours or subject matter limitations for those charged with interpreting the constitutional text. Interpreters are bound by the framers' decision to so limit the Constitution's scope; to this extent, the results of the interpretive process necessarily reflect the framers' disinclination to alter social organization.

The framers' decision to focus virtually exclusively on public life does not, of course, standing alone render the Constitution a socially conservative document. Indeed, the Indian Constitution, which also speaks extensively to public life, cannot be so cast. The United States Constitution's social conservatism stems from the combined effect of this emphasis on public life and the American framers' apparent satisfaction with the existing social order. The framers' disinclination to use the Constitution to bring about fundamental social reform resulted in the incorporation into the United States Constitution of a strong preference for individual autonomy and for freedom from governmental interference with respect to matters which fall outside of the political process. A bill of rights was considered unnecessary by many federalists for the same reason. Both this preoccupation with the political process' ability to limit governmental tyranny and the inclusion in the Constitution of various provisions protecting individuals from governmental interference and oppression
[34] reflect the framers' satisfaction with the existing social order and their corresponding interest in fostering individual autonomy.

While the framers' decision to limit the Constitution's scope necessarily limits subsequent interpreters of the text, the question remains whether the framers' satisfaction with the existing social order and the resultant emphasis on individual autonomy are also necessarily incorporated into interpretations of the constitutional text. Because interpretivist methods look to the express (or clearly implied) wishes of the framers, one would expect such incorporation at least when such methods are invoked. Interestingly, however, the non-interpretivist approaches frequently incorporate these values as well. Indeed, many of the Supreme Court decisions which are most explicitly based on a non-interpretivist approach to constitutional interpretation incorporate this emphasis on individual autonomy and freedom from governmental interference.
Several of the Court's well-known non-interpretivist decisions which construe the term "liberty" for Fourteenth Amendment purposes illustrate this point. In Meyer v. Nebraska,[36] the Court struck, on constitutional grounds, a state prohibition of teaching any modern language other than English in any public or private grammar school. In explaining why this prohibition violated the Fourteenth Amendment's Due Process Clause, the Court explained that the term "liberty" as used in the clause
denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men. . . . This liberty may not be interfered with, under the guise of protecting the public interest, by legislative action which is arbitrary or without reasonable relation to some purpose within the competency of the State to effect.

Similarly, in Pierce v. Society of Sisters,
[38] the Court construed the term "liberty" to extend rights to parents and guardians to "direct the upbringing and education of children under their control."[39] In both of these cases, the Court used non-interpretivist analyses to invalidate state action which unduly interfered with private decision-making.

Such use of non-interpretivist analysis is by no means limited to an earlier era. The modern privacy cases present additional examples of the Court's use of such analysis to further the values of individual autonomy and freedom from governmental interference. In Griswold v. Connecticut,
[40] the majority relied on both a right of privacy which predates the Bill of Rights and the sanctity of marriage in concluding that a state may not apply a ban on the use of contraceptives in the marital context. Moreover, the Court has explicitly referred to individual autonomy as the interest afforded constitutional protection in the privacy cases. Roe v. Wade,[41] of course, takes a similar, non-interpretive approach. Moreover, the Court's modern use of this non-interpretivist approach is not limited to the context of contraception and reproduction. For example, in Moore v. City of East Cleveland,[42] the Court struck a city ordinance which limited occupancy of dwellings to single "families" and which narrowly defined "families" so as to exclude many extended family arrangements. The majority asserted that "the Constitution protects the sanctity of the family precisely because the institution of the family is deeply rooted in this Nation's history and tradition. It is through the family that we inculcate and pass down many of our most cherished values, moral and cultural.[43] The Court, in support of its non-interpretivist approach in Moore, cited Justice Harlan's earlier assertion that liberty for due process purposes “includes a freedom from all substantial arbitrary impositions and purposeless restraints.[44]

These cases suggest that when the Court reads values into the Constitution through the non-interpretive approach to ascertaining the text's meaning, whether based on natural law, American tradition, or changed circumstances, those values generally reflect core American ideas held by the framers concerning the appropriate role of government in individuals' lives. Indeed, they suggest further that at its most revolutionist, American constitutional interpretation generally does no more than constrain government from unduly interfering with particularly significant private activity. Thus, despite the lack of consensus with respect to how to approach the task of interpreting the United States Constitution and the Supreme Court's willingness in some instances to apply non-interpretivist principles, the various American interpretive methods generally lead to results which are consistent with the American framers' preoccupation with public life and their satisfaction with the existing social order.

The tendency in American constitutional interpretation to incorporate the framers' social conservatism does not preclude the possibility that American interpretive methods will yield sound results when applied to the Indian Constitution. Indeed, when transferred to the Indian context, the American tools may yield results that are wholly consistent with the Indian constitutional tradition. This seeming anomaly, that a group of interpretive methods will promote social conservatism in one context and social reform in another, results from the extent to which each such method incorporates the values reflected in the respective constitutional texts. Given that American constitutional interpretation leads to socially conservative results due to the incorporation of the framers' underlying values in the interpretive process, the application of these same interpretive methods in the Indian context should result in a reformist rather than a socially conservative body of constitutional law. Thus, despite the differences in the American and Indian framers' conceptions of their respective constitutional texts, American interpretive tools ought to lead to results in the Indian context which are consistent with Indian constitutional and political norms. This consistency depends, of course, on the interpreter's ability to identify those core Indian constitutional values.

Given the Indian Constitution's recent origin and the availability of various sources regarding the Indian framers' intent, defining the values underlying India's Constitution in a sense presents relatively few difficulties. For the reasons discussed above, social and economic reform were of primary importance to the Indian framers and the detailed prescriptions of the Indian Constitution provide us with a substantial sense of the means available to the national and state governments in seeking to accomplish such fundamental reforms. However, despite our ability to ascertain at least some of the basic values underlying the Indian Constitution, the interpretive task for the western student of that text is fraught with peril. The difficulty stems from the fact that the facial similarities between the American and Indian constitutional traditions and discourse can obscure differences in the meaning of shared terms. As a consequence, different understandings of a term or concept can lead to material misconstruction of the Indian Constitution by an American reader even where the reader is conversant with India's constitutional history. Consideration of the differing American and Indian conceptions of what "individual liberty" means illustrates the point.

Initial review of the Indian Constituent Assembly debates suggests that, in modelling their fundamental rights provisions on the United States Constitution's Bill of Rights, the Indian framers also adopted an American conception of the relative sanctity of those rights. Thus, where members of the Assembly emphasized the judiciary's role in safeguarding individual liberties,
[45] an American reader is likely to envision a judiciary which views itself as the protector of constitutionally protected individual liberties regardless of perceived political necessity to abrogate those rights. This conception of the relative sanctity of constitutionally protected liberties and the courts' role in the preservation of such rights, which has been central to the American understanding of the judicial role at least since Marbury v. Madison,[46] bears little resemblance to the Indian framers' conception of the relationship between individual liberty and the judicial role.

Perhaps as a consequence of India's overwhelming need for social and economic reform, the Indian framers had a fairly limited conception of the extent to which the fundamental rights provisions would protect individual liberty from governmental interference. Rather than seeking to carve out areas of individual autonomy, the framers envisioned a constitutional text which would protect individuals from government interference only to the extent that such protection would not unduly impede the Indian Constitution's underlying reformist objectives.[47] At least some members of the Indian Supreme Court seem to share this limited conception of the extent to which the Indian Constitution protects individual liberties from political branch aggression.[48] This malleability of the fundamental rights provisions is also illustrated by several of the Indian Constitution's express terms, such as that which permits amendment of many constitutional provisions by a supermajority parliamentary vote,[49] and that which precludes judicial invalidation of certain agrarian reform legislation on the grounds of inconsistency with the fundamental rights provisions.[50] Thus, the Constituent Assembly debates, some decisional law, and the Constitution's text all suggest that the term "individual liberty" and the relationship between the judiciary and the political branches with respect to the protection of such liberty differ in the United States and Search Term Begin India Search Term End despite similarities in the framers' rhetoric and constitutional phrasing.

Thus, even if by understanding Search Term Begin India's Search Term End underlying constitutional values an American reader can increase the likelihood that the usual methods of constitutional interpretation will yield sound results when applied to Search Term Begin India's Search Term End Constitution, contextual differences remain, such as the shared use of a term or concept with profoundly different meanings, which may result in flawed interpretation.


Both the United States and Indian Constitutions were produced following tumultuous political periods in which independence from Britain was obtained. Thus, both were the product of a necessary reconsideration of the relationship between government and society. The American framers demonstrated substantial satisfaction with the existing social order by largely limiting the Constitution's scope to public matters and by demonstrating a preference for the preservation of individual autonomy and the limitation of government interference in private matters. The Indian framers, facing a vastly different social situation, attempted to fashion a constitution which would dramatically alter longstanding social relationships. Thus, although the Indian Constitution built upon both the British and American governmental models, the framers' objectives were markedly different from those of the drafters of the United States Constitution.

In attempting to understand the Indian Constitution, those familiar with American constitutionalism face the question of whether the interpretive methods routinely used in construing our own Constitution will yield sound results when transferred to the Indian context. The difficulty, particularly with respect to those portions of the Indian Constitution which draw heavily from our tradition, is that superficial similarities may lead us to unthinkingly apply our usual interpretive methods without properly considering relevant differences. Although to a large extent those interpretive methods, at least when applied by an informed reader, will incorporate the values underlying the Indian Constitution and thus may yield a sound interpretation, other contextual differences come into play. For example, shared terms in some instances have profoundly different meanings in the American and Indian context. Thus, the interpretive process is problematic even when the American reader has a solid understanding of the Indian Constitution's terms and its history.

These cross-cultural interpretive difficulties are by no means limited to American efforts to understand and interpret India's Constitution. Indeed, the peculiar light in which American constitutional law is cast in some comparative works written by foreign scholars suggests that these difficulties may be endemic to comparative law. Nevertheless, the difficulty of obtaining a sufficient understanding of another nation's constitution so as to
make comparison meaningful is heightened when one faces a constitutional text based at least in part on the American model yet generated in a vastly different social and political context. The Western reader, however, can limit the risk of misconstruing a developing nation's text simply by recognizing the difficulty and, to the extent possible, considering both the constitutional text and the framers' statements concerning its promulgation in the proper context.


  1. Granville Austin, The Indian Constitution: Cornerstone of a Nation, 34 (1966).
  2. M. Varn Chandola, Affirmative Action in India and the United States: the Untouchable and Black Experience, 3 Ind. Int'l & Comp. L. Rev. 101, 102-03 & n.9 (1992)
  3. Thomas C. Grey, Do We Have an Unwritten Constitution?, 27 Stan. L. Rev. 703 (1975)
  4. [1] Larry G. Simon, The Authority of the Framers of the Constitution: Can Originalist Interpretation Be Justified?, 73 Cal. L. Rev. 1482 (1985).

1.      Constituent Assembly Debates
2.      Subhash C. Kashyap, Preface to I Constituent Assembly Debates (1985).
3.      M.P. Jain., Indian Constitutional Law,  (Nagpur: Wadhwa, 2003)
4.      P.M. Bakshi, The Constitution of India: Selective Comments 2 (1992).
5.      G.S. Ghurye, Features of the Caste System, in Social Stratification (Dipankar Gupta ed., 1992).

Cases Referred:

  1. Brown v. Board of Educ., 349 U.S. 294 (1955)
  2. Dennis v. United States, 341 U.S. 494, 579- 81 (1951)
  3. Griswold v. Connecticut, 381 U.S. 479 (1965)
  4. Jacobellis v. Ohio, 378 U.S. 184, 196-97 (1964)
  5. Kesavananda v. State of Kerala, 1973 A.I.R. (S.C.) 1461, 1628-29
  6. Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803)
  7. Martin v. Hunter's Lessee, 14 U.S. (1 Wheat.) 304, 351-52 (1816).
  8. McCulloch v. Maryland. 17 U.S. (4 Wheat.) 316 (1819)
  9. Minerva Mills Ltd. v. Union of India, 1980 A.I.R. (S.C.) 1789, 1847
  10. Moore v. City of East Cleveland, 431 U.S. 494 (1977)
  11. Pierce v. Society of Sisters, 268 U.S. 510 (1925)
  12. Poe v. Ullman, 367 U.S. 497, 543 (1961)
  13. Roe v. Wade, 410 U.S. 113 (1973)

[1] Subhash C. Kashyap, Preface to I Constituent Assembly Debates (1985).
[2] Constituent Assembly Debates 4 (Dec. 9, 1946) (statement of Dr. Sachchidananda Sinha).
[3] Granville Austin, The Indian Constitution: Cornerstone of a Nation 34 (1966).
[4] Id. at 40.
[5] Article 79-88 of the Indian Constitution.
[6] The Indian Constitution provides for a President, but that person Best Section End Best Section Begin does not carry out the executive function. Article 52-62 (presidency), and 74-75 (Council of Ministers). M.P. Jain., Indian Constitutional Law,  (Nagpur: Wadhwa, 2003)
[7] Article 124-147 of the Indian Constitution.
[8] Part VI of the Indian Constitution.
[9] P.M. Bakshi, The Constitution of India: Selective Comments 2 (1992). See also U.S. Const . amends. I-X
[10] Article 14 of the Indian Constitution.
[11] Article 19 of the Indian Constitution
[12] Article 21 of the Indian Constitution
[13] U.S. Const . amends. V & XIV.
[14]Article 25-28 of the Indian Constitution
[15]Article 25(1) of the Indian Constitution
[16] Article 25(2)(b) of the Indian Constitution
[17] Article 29 of the Indian Constitution
[18] Article 30 of the Indian Constitution
[19] Caste refers to the hierarchical segmentation of Hindu society on the basis of birth. For a brief summary of its principal characteristics, see G.S. Ghurye, Features of the Caste System, in Social Stratification 35-48 (Dipankar Gupta ed., 1992). Preventing discrimination on the basis of religion was of particular importance to the Indian framers due to the longstanding hostility between Hindus and Muslims on the Indian subcontinent.
[20] Article 17 of the Indian Constitution
[21] The practice of "untouchability" resulted in the exclusion of large numbers of Indians from community life. Untouchables were required to remain apart from upper caste Hindus because of the belief that they were the source of physical and spiritual pollution. They were often required to live away from the villages and were precluded from drawing water from wells used by upper caste Hindus. They were also required to perform the most lowly occupations. See M. Varn Chandola, Affirmative Action in India and the United States: the Untouchable and Black Experience, 3 Ind. Int'l & Comp. L. Rev. 101, 102-03 & n.9 (1992)
[22] Article 15 & 16 of the Indian Constitution
[23] Article 25(2)(b) of the Indian Constitution. This provision presumably was intended to permit the government to outlaw the longstanding practice of excluding untouchables and other low caste Hindus from virtually all Hindu temples.
[24]Article 330-342 of the Indian Constitution
[25] II Constituent Assembly Debates 316 (Jan. 22, 1947).
[26] P.M. Bakshi, The Constitution of India: Selective Comments 2 (1992).
[27] U.S. Const. amends. I-X (1791)
[28] Thomas C. Grey, Do We Have an Unwritten Constitution?, 27 Stan. L. Rev . 703 (1975)
[29] Jacobellis v. Ohio, 378 U.S. 184, 196-97 (1964) (Black, J., concurring; Dennis v. United States, 341 U.S. 494, 579- 81 (1951) (Black, J., dissenting). Justice Black's literalist method of constitutional interpretation was by no means limited to the First Amendment context. See, e.g., In re Winship, 397 U.S. 358, 377 (1970) (Black, J., dissenting) (rejecting the extension of the Fourteenth Amendment's Due Process Clause to a requirement that criminal convictions be based upon findings of guilt "beyond a reasonable doubt"); Griswold v. Connecticut, 381 U.S. 479, 508-10 (1965) (Black, J., dissenting) (making plain meaning argument against constitutionalizing right to privacy).
[30] Larry G. Simon, The Authority of the Framers of the Constitution: Can Originalist Interpretation Be Justified?, 73 Cal. L. Rev. 1482 (1985).
[31] Martin v. Hunter's Lessee, 14 U.S. (1 Wheat.) 304, 351-52 (1816).
[32] 17 U.S. (4 Wheat.) 316 (1819)
[33] Thomas C. Grey, Do We Have an Unwritten Constitution?, 27 Stan. L. Rev . 703 (1975).
[34] U.S. Const . art. I, s 10 (precluding the states from impairing the obligations of contracts); U.S. Const. art. I, s 9 (barring the suspension of habeas corpus in most circumstances and the passage of bills of attainder and ex post facto laws).
[35] Brown v. Board of Educ., 349 U.S. 294 (1955)
[36] 262 U.S. 390 (1923)
[37] Id. at 399-400.
[38] 268 U.S. 510 (1925)
[39] Id. at 534-35
[40] 381 U.S. 479 (1965)
[41] 410 U.S. 113 (1973)
[42] 431 U.S. 494 (1977)
[43] Id. at 503-04
[44] Poe v. Ullman, 367 U.S. 497, 543 (1961)
[45] VII Constituent Assembly Debates 937-53 (Dec. 9, 1948).
[46] 5 U.S. (1 Cranch) 137 (1803)
[47] IX Constituent Assembly Debates 1191-96 (Sept. 10, 1949) (statement of Jawaharal Nehru).
[48] Minerva Mills Ltd. v. Union of India, 1980 A.I.R. (S.C.) 1789, 1847 (Bhagwati, J.) and  Kesavananda v. State of Kerala, 1973 A.I.R. (S.C.) 1461, 1628-29 (Hedge & Mukherjea, J.J.).
[49] Article 368 of the Indian Constitution
[50] Article 31 A of the Indian Constitution

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