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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[2001] 2 AC 349(HL) (https://publications.parliament.uk/pa/ld200001/ldjudgmt/jd001207/spath-1.htm) . 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 (https://www.livelaw.in/top-stories/maratha-quota-in-excess-of-50-ceiling-limit- unconstitutional-supreme-court-173617) ). 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. [1975] A.C. 591, 613 G, 640 5C (HL), MarathaReservations case LL 2021 SC 243 (https://www.livelaw.in/top-stories/maratha-quota-in-excess-of-50-ceiling-limit- unconstitutional-supreme-court-173617) 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 (https://www.livelaw.in/top-stories/maratha-quota-in-excess-of-50-ceiling-limit-unconstitutional-supreme-court-173617) 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 ( (file:///C:/Users/Ramakrishnan V/Downloads/downloads/Articles/Article 370 hearing Relevancy of Constituent Assembly speeches.docx)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 (https://www.livelaw.in/breaking-right-privacy-fundamental-right- sc/?infinitescroll=1) (file:///C:/Users/sindhu/Downloads/Article 370 hearing Relevancy of Constituent Assembly speeches 29 Aug 2023 1500 hrs.docx)). 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 (https://www.livelaw.in/summary-of-constitution-bench-judgment-on-parliamentary- standing-committee-reports-read-judgment/); Pepper vs. Hart [1993] AC 593(HL) (https://www.bailii.org/uk/cases/UKHL/1992/3.html)). In any event, these speeches cannot control the interpretation of the Constitution which ultimately lies only with the courts.

A Constitution Bench of the Supreme Court recently interpreted the Constitutional amendments introduced by the Constitution (102nd Amendment) Act in the  Maratha reservations case. The majority as well as the dissenting judgments referred to Parliamentary debates and ministerial statements made on the floor of Parliament during the passage of the Constitutional Amendment Bill. The majority held that the parliamentary debates needed to be more conclusive on the changes brought about by the constitutional amendment. The minority judgment held that ministerial statements before the select committee and on the floor of the Parliament evidenced the intention of the Parliament, and the constitutional amendment was to be interpreted accordingly. This article examines the law on parliamentary debates and ministerial statements and concludes that these cannot be referred to as external aids to determine the intention of the Parliament.

INTENTION OF THE PARLIAMENT

A man's intention is a question of fact and can be ascertained from what he said and did. The intention of Parliament is a very different thing. It is only a figure of speech. It is a shorthand expression to indicate the true meaning of a parliamentary enactment. It is a linguistic convenience, fictionally treating Parliament as an individual lawmaker by analogy. The intention of Parliament is not a question of fact. It cannot be ascertained like ascertaining a person's intention, i.e., by examining and analyzing what the parliamentarians spoke while debating the constitutional amendment. In this factual sense, the legislature's intention is a myth. A vast majority of the parliamentarians may not have a definite intention. Parliamentary legislation often reflects the intention of powerful lobbyists operating through the bureaucratic machinery. In ascertaining the intention of the legislature, courts discover from the text of the constitutional amendment the true meaning of what Parliament had said and not what Parliament had intended to say. Ascertaining the intention of Parliament through parliamentary debates is flawed in principle.

Even assuming, arguendo, that the intention of Parliament is a question of fact, its meaning cannot be discerned from parliamentary debates. The Rajya Sabha comprises 245 members, and the Lok Sabha has about 545 members. They would have attended only some of the parliamentary sessions leading to the passage of a Constitutional Amendment Bill. The process behind the majority vote is mainly inarticulate. Only a few of those attending would have spoken. Speeches may reflect the speaker's views and those of his party's MPs. They would not necessarily reflect the views of all those who have not spoken. Lastly, those who spoke may have differed from each other.

Conflicting parliamentary speeches came to the fore in the Maratha reservation case. Speeches of around eight parliamentarians indicated that the constitutional amendment had denuded the States of their powers over the reservation of socially and economically backward classes. The Minister piloting the Constitutional Amendment Bill assured Parliament that the constitutional amendment maintained the status quo ante about the States' powers.

Some parliamentarians accepted these assurances in their speeches. Under the circumstances, analysis of parliamentary debates cannot yield a single coherent answer. Delving through parliamentary speeches to discover the mythical intention of Parliament is to chase shadows, avoiding substance.

There is yet another reason for excluding parliamentary debates for statutory interpretation. Constitutional amendments are addressed to the people of India, whom such provisions will govern. They can be expected to understand the constitutional amendments only from the language and text of such conditions.

Parliamentary debates as an aid to statutory interpretation will introduce uncertainty to the plain language and the text. People must then read through parliamentary debates to understand the constitutional amendment mandated. Parliamentary debates would be cited in courts on par with judgments, and courts would be called on to interpret parliamentary debates like judicial precedents. Courts will be invited to ignore the text of a constitutional amendment and decide in favor of parliamentary or ministerial intention. The courts will be asked to interpret what the Minister intended and what Parliament enacted.

Parliamentary debates can be used as external aids for interpretation only to a limited extent. In case of any ambiguity or absurdity, the speech of the propounder of the Bill can be regarded to ascertain the background of the Bill Kalpana Mehta vs. Union of India (2018) 7 SCC 1,

In contrast to parliamentary debates, amendments to a Constitutional Bill accepted or rejected by Parliament ('Parliamentary action') can be used as an external aid for interpretation. A majority vote in Parliament takes parliamentary action. Consequently, the acceptance or rejection of amendments to a Constitutional Bill can be used to validate or disregard a line of interpretation. The reasons for rejecting parliamentary speeches will not apply here.

In interpreting constitutional amendments, courts are not detectives at the scene of a crime, searching parliamentary debates for clues leading to the parliamentary intention. It will be best for courts to substantially exclude parliamentary debates and ministerial statements on the floor of Parliament as external aids for interpretation.