READING UP, IN AND DOWN

Judicial approach as to applying techniques of Reading Down and Reading Up in interpretation of laws and constitutional amendments

I Reading Down:

 Where general language in a statute which is literally apt to extend beyond the power of the enacting legislature will be construed more narrowly so as to keep within the permissible scope of power.

 Where there are two interpretations, one wide and unconstitutional bounds, the court will read down the overflowing expressions to make them valid.

 The technique involves choice of valid but limited meaning as against invalid but overbroad meaning.

 This rule is based on constitutionality of legislation and tries to balance between legislative autonomy and constitutionalism.

 Reading down is not redrafting, but it is narrowing the reach of the statute for a constitutional survival.

 In R.M.D.C, While dealing with the constitutionality of the Prize Competition Act, meaning of its definition was restricted to competitions of gambling nature by applying the reading down rule, to save its constitutionality.

II Reading Up

 It is a process of adding a term or a procedural safeguard of inclusion of some persons or group into a class from which they were omitted by legislation, in order to elevate the impugned legislation for confirming to the constitution.

 Judicial addition of procedural safeguard like requirement of recording the reasons for handcuffing in Sunil Batra case read up the statute, which was otherwise infirm, to meet the standards of just and fair.

 In PUCL (Telephone tapping) case, reasonable procedure of law under Act additional procedural safeguard provided to safeguard the constitutionality of Section 5(2) of Indian Telegraph Act.

Analysis of right to privacy in telephone conversations and of its rootedness in Art. 19(1)(a) and Art. 21 was made by the court by extensively referring to the Indian and American decisional law. Support was also gathered from International Convention on Civil and Political Rights. Finding no rules being made by the Central Government, Kuldip Singh J. for the Court observed, “It is entirely for the Centre Government to make rules on the subject but till the time it is done the right to privacy of an individual has to be safeguard.”

While section 5(2) judicial activism was necessitated because of legislative and executive inaction, which impinged the fundamental rights. The court laid down as many as 9 directions-

i Requirement of exercise of power only by high and reasonable officers,

ii Scrutiny of the order by a Review committee consisting of top level officers within a week, consideration of alternative method of getting information’s, accuracy of addresses of persons subjected to telephone tapping,

iii Limiting the duration of tapping to two months, maintenance of record of tapping and their destruction were insisted by these direction.

These are based on paramount constitutional values, framed with a sense of balance and with proper method. They are pragmatic in outlook, temporary in character and not doubting the authority of Centre to make rules. It is for this reason that high quantum of reading up gets vindicated in the case.

 In Gita Hariharan case, inclusion of mother in the phrase ‘natural guardian’ even during the lifetime of father could bring section 6(a) of Hindu Minority and Guardianship Act within the parameters of Arts. 14 and 15.

 Reading up involves filling the interstices of legislation by using the relevant constitutional value, spirit of the legislation, international conventions, and recommendations of Law Commission, Press Commission and such other bodies.

 Reading up is essentially reading the existing legislation along with the constitution instead of judge’s personal view; it is the voice of the Constitution that enhances the statute of legislation towards validity.

 Reading up set afoot in Canada after the commencement of the Constitutional Charter of Rights and Freedoms 1982. Thus reading p has shown potentiality for judicial activism in the context of Charter issues.

III Reading in

 Reading in of constitutional values, especially preamble, Directive Principles of State Policy, inter-relationships of fundamental rights is done and extrapolation of legislative spirit is made.

Govid v. State of MP

 Interaction of Art. 14, 19 and 21 and reading in of Part IV values synthesized this development.

Reading Down and Reading up of Constitutional Amendment

 Substantive review of Constitutional Amendments through basic structure theory and its corollary principles is an innovation of par excellence by the Indian Judiciary.

 Once the higher judiciary sits to decide validity of constitutional amendments in the light of basic feature or values of the Constitution, the opportunity to read down or read up the constitutional amendments with a value based interpretation emerges.

 Keshwanada Bharthi case while upholding the Twenty fourth Constitutional Amendments which altered Art. 368 to the effect that parliament has power to amend any provision of the constitution by following the procedure laid there in, the majority of the Apext Court ruled that such power did not include power to alter basic structure to the constitution. The court reasoning employed by implication, the rule of reading down. Court read down in order to uphold basic features of the constitution.

 Minerva Mills case it was suggested that wider scope given to Art. 31C by 42nd Amendment may be upheld, but its ambit may be read down by applying basic structure scruity pon legislations which are said to enforce Directive Principles and allow only those which do not destroy the basic structure.

Apex court declined to hold so, and observed, “The principle of reading down cannot be invoked or applied in opposition to the clear intention of the legislature. We suppose that in the history of Constitutional law, no constitutional amendments have ever been read down to mean exact opposite of what it says and intends”. The court annulled the amendment to Art. 31C and restored the post Keshwavanda position of Art. 31C and restored the post Keshavanada position of Art. 31C in this task the court exhibited the same boldness which it had displayed in Keshavandada in reading down the scope of amendment power.

 Judicial innovated techniques of reading down and reading up have become key tools in operating the basic structure doctrine and in infusing paramount constitutional values into the amendments.

Writing the legal norms anew to fill the legal vcuum

 Vishaka v. State of Rajasthan is another case of filling the vacuum in existing legislation through judicial process. Facts about sexual harassment, including rape of women in work place formed the cause of this case.

Preventive measures to avoid sexual harassment were conspicuously absent. According to the Court, “the need is to find an effective alternative mechanism to fulfill this felt and urgent social need”.

The Court proceeded to analyze the inter-dependence between Art. 19(1)(g) and 21 and supportive character of rule of law under Art. 14 was read into Art. 21.

In this particular case extensive reference was made to international conventions and provisions of CEDAW, Fundamental duty of respect for women was also looked into.

On the above basis guidelines and norms against sexual harassment in workplace were laid down for due observance in all workplaces and institutions until a legislation is enacted for the purpose.

Concluding observation

By and large, Indian judicial activism came as a big boon for human right values and social welfare causes.

While reading down helps in balancing between legislative choice and constitutionalism,

Reading up enables infusion of constitutional values and safeguards into the legal norms.

Both avoids judicial confrontation with legislature and substantial and at times, reasonably modify the legislative policy.

One striking feature of reading down or reading up cases is that judiciary immensely makes use of information process by referring to various commission reports and extensively relies an international human rights norms to deal with policy arguments. This has moulded the methodology of reading techniques