Chahat Gupta (O.P. Jindal Global University – Jindal Global Law School) has posted Indian Perspective: Textualism vs Originalism (6 pages) on SSRN. Here is the abstract:
Subba Rao upheld the meaning of true democracy by championing fundamental rights in various judgement of 1960s-1980s. His dissenting opinion in Calcutta Gas company vs State of West Bengal drew extremities of federalism with textual interpretation of law. Justice Nariman in his recent book called Subba Rao “The man imbued with fundamental rights”. His pre-eminent approach towards federalism and fundamental rights interpretation was based only on textualism. Textualism is literal interpretation of law which only replies on meaning of the text and not the purpose of the text. But going behind what text does not suggest Prima Facie can be very risky as it may lead to multiple interpretation of texts.
The doctrine of interpretation of statutes by Courts has been a major focus of legal debate. Whether judges are to look solely to the bare language of an enactment and further logically deduce its application in simple syllogistic fashion as legal formalists often advocated, or whether it was more efficient to inquire into the meaning of the statute and the intention of the constitution makers to deduce its meaning have been questions at the forefront of constitutional interpretation debates. A country with a federal structure necessitates that statutory interpretation is done in a manner which is cohesive with the meaning of federalism whilst also delivering the best possible solution. Although schools of statutory interpretation vary on what factors should be considered while interpreting statues, all approaches put a great deal of emphasis on the language and structure of the statute itself. According to U.S. Supreme Court Justice Antonin Scalia, judges resist the urge to apply legislative intention and legislative history in interpreting statutes . His stance on the matter is that it is incompatible with democratic federal government to allow the meaning of a statute to be determined by what the judges ‘think’ the Constitution makers meant rather than by what the legislature promulgated. Scalia promotes the interpretive legal nuance of interpreting statutes and regulations by focusing on the text itself. He proposes that attention must be paid to the Constitution’s original meaning. His idea of textualism identifies the law with its original linguistic meaning at the time it was enacted. However, common law often assumes that rules embody principles which can be qualified by other principles, which can be expanded upon, and which evolve over time. Scalia’s rejection on such interpretation lies in the fact that this inevitably gives judges more power than the clear rule itself. Justice Stevens on the other hand explicitly favors a case- by- case interpretation of statutes, rather than precise, principles content.
Posted at 6:03 AM