Intratextualism and the Indian Constitution

Written by
Nick Robinson
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  • Nice post. But I think the comment on Amar taking intratextualism (IT) to the extreme is rather unfair. His aims and claims in the article are fairly modest. He first shows, as an empirical matter, that IT has been used an interpretative tool by the Courts (in some of the landmark cases) and legal commentators. He is explicit that the tool works only in the presence of the other, standard approaches. He is also right to compare this with structuralism (and maybe living constitutionalism even though he doesn’t mention it). IT is much less radical in that these two approaches threaten to push the writtenness of the Constitution into irrelevance, which is not the case here. More than that, I think IT is not simply another tool in the interpretative tool kit, but is inherent in the nature of the Constitution as the founding document. It must be read as a whole. This is not necessarily so in case of ordinary legislation. In India, (certain provisions) of the Companies Act, 1956 coexist with (certain provisions) of the Companies Act, 2013. It would be difficult to imagine this in the context of constitutional law.
    Another potential area where IT can be deployed could be the special provisions for women in Art.15(3). There seems to be sparse jurisprudence on this. In an early 1950’s case, Yusuf Abdul Aziz, the SC upheld S. 497 of the IPC that criminalizes a certain kind of consensual extra-marital sexual relationship, but which holds only the man criminally responsible. The SC brushed aside the argument that 15(3) can be invoked only in the context of beneficial legislation, and cannot be invoked to exempt women from criminal liability. The SC simply observed `we are unable to read any such restriction’. If the provision is read as an exception to the general guarantee of equality, the SC observation indeed makes sense. In that case, 15(3) is simply to be read as a non-obstante clause, and the Courts cannot go into any reasonableness or purpose review. Indeed, that’s how 15(4) was read by the Court for a period of time. With the later interpretation of 15(4) as an instance of reasonable classification under 14 and 15(1) and not as an exception, it seems reasonable(!) that the same would or should hold good for 15(3) as well. In that case, just any provision that treats women differently would not be immune to a challenge under the cover of 15(3). Domestic violence and sexual assault laws that completely exclude adult male victims from their protection and one way spousal maintenance provisions in some personal laws and the Special Marriage Act could possibly be challenged.

  • Thanks for the comment. I will have to look at the 15(3) example, which I'm not familiar with and appreciate you pointing it out. On Amar, perhaps "extreme" was a bad choice of words. I wasn't implying that I disagree with Amar's approach or that he takes the approach too far. I simply meant he takes it to the extreme in that he charts the different possible areas of intratextualism both simple and complex, while I was just using a simple variant in my example. Saying he has a very "detailed" approach would probably have been more apt though and appreciate the pushback – words matter so I should use ones that are more precise.