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Reading down is the judicial act of limiting down the scope, interpretation, or meaning of a provision that can otherwise be interpreted widely or which is open to multiple interpretations. It can be understood as an action or an act of interpreting a law, contract, etc., narrowly so as to ensure it is constitutional or consistent with superior laws; the practice of such interpretation.1 The judiciary cannot undertake upon itself the task of law-making, at the same time it is the solemn duty of the judiciary to review legislations on the anvil of constitutionality. When called upon to perform the task of examining a provision as to its consistency with superior legislation or the constitution, it is not possible to strike down the
whole provision in all the cases. The provision under scrutiny may have a utility, and it may happen that only in cases when we import a definite meaning to it, it fails the judicial test. In such cases, the judiciary endeavours to reduce the scope & meaning of provision by narrowly striking down inconsistent or rogue interpretation which is known as the technique of reading down.

The doctrine of “reading down” is well known in the field of constitutional law. Colin Howard in his well-known work Australian Federal Constitutional Law states:

“Reading down puts into operation the principle that so far as it is reasonably possible to do so, legislation should be construed as being within power. It has the practical effect that where an Act is expressed in the language of generality which makes it capable, if read literally, of applying to matters beyond the relevant legislative power, the Court will construe it in a more limited sense so as to keep it within power.”


Indian courts from time to time have used this device to harmonize various provisions which traverse the unchartered territory. Recently, section 377 of the IPC was partially limited in its scope saving the consensual sexual relationship between same-sex adults. It was held that

“To await legislative amendments to this provision may not be necessary. Once it is brought to the notice of the Court of any violation of the fundamental rights of a citizen, or a group of citizens the Court will not remain a mute spectator and wait for a majoritarian government to bring about such a change. Given the role of this Court as the sentinel on the qui vive, it is the constitutional duty of this Court to review the provisions of the impugned section and read it down to the extent of its inconsistency with the Constitution. In the present case, reading down Section 377 is necessary to exclude consensual sexual relationships between adults, whether of the same sex or otherwise, in private, so as to remove the vagueness of the provision to the extent it is inconsistent with Part III of the Constitution.” 2

Section 377 hence was harmonized to guarantee the right to self-determination with respect to one’s choice of sexual orientation.

The court while reading down the provision is not allowed to import words that are otherwise not part of the provision. The court should be wary of the thin line that separates them from the legislature while applying the doctrine of reading down and the court’s dictum should only weed out the part which violates the superior legislation. Rule of reading down closely resembles the rule of harmonious construction. It is generally utilised to straighten the crudities or ironing out the creases to make a statute workable. It has been reiterated several times that in the garb of reading down a provision it is not open to read words and expressions not found in the provision/statute and thus venture into a kind of judicial legislation. The power of judicial review while applying the principle of reading down should be manifested for the limited purpose of making a particular provision workable and bringing it in harmony with other provisions of the statute.3

The principle of reading down under no circumstance should imply a meaning which was not intended by the legislature. The court’s approach should be disciplined and the power of judicial review should not be used as one of law making. The Supreme court had an occasion to clarify the court’s power of reading down when the validity of Article 31-C of the Constitution as amended by the Constitution (Forty-second Amendment) Act, 1976 conferring immunity
from the challenge of laws giving effect to the Directive Principles in Part IV of the Constitution was questioned. It was submitted on behalf of the Union of India that the Court may apply the principle of “reading down” by restricting the challenge to only such laws that would not violate the “basic structure” of the Constitution. Negativing the contention and speaking for the majority, Chandrachud, C.J. said:

“If Parliament has manifested a clear intention to exercise unlimited power, it is impermissible to read down the amplitude of that power so as to make it limited. 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 amendment has ever been read down to mean the exact opposite of what it says and intends. In fact, to accept the argument that we should read down Article 31-C, so as to make it conform to the ratio of the majority decision in Kesavananda Bharati [Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225] is to destroy the avowed purpose of Article 31-C as indicated by the very heading ‘Saving of Certain Laws’ under which Articles 31-A, 31-B and 31-C are grouped. Since the amendment to Article 31-C was unquestionably made with a view to empowering the legislatures to pass laws of a particular description even if those laws violate the discipline of Articles 14 and 19, it seems to us impossible to hold that we should still save Article 31-C from the challenge of unconstitutionality by reading into that article words which destroy the rationale of that article and an intendment which is plainly contrary to its proclaimed purpose.”4

But it is equally well settled that if the provision of law is explicitly clear, language unambiguous and interpretation leaves no room for more than one construction, it has to be read as it is. In that case, the provision of law has to be tested on the touchstone of the relevant provisions of law or of the Constitution and it is not open to a court to invoke the doctrine of “reading down” with a view to save the statute from declaring it ultra vires by carrying it to the point of “perverting the purposes of the statute”.

Refrences

1 Available at, https://www.lexico.com/definition/reading_down

2 Navtej Singh Johar v. Union of India, (2018) 10 SCC 1

3 Union of India v. Ind-Swift Laboratories Ltd., (2011)

4 SCC 635 4 Minerva Mills Ltd. v. Union of India [(1980) 3 SCC 625

Article by

Shri. Akhilesh Kumar Mishra,

LLB, Law Faculty, University Of Delhi

LLM, Indian Law Institute

LinkedIn Profile: https://www.linkedin.com/in/akhileshhinduite/

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