ELOQUENT SILENCE OF CONSTITUTIONS

LUDWIG Wittgenstein famously concluded his Tractatus Logico-Philosophicus with the injunction: "Whereof one cannot speak, thereof one must be silent."

- SAAI SUDHARSAN SATHIYAMOORTHY

Yet, when it comes to constitutions, silence seldom restrains. It is often the very space into which the judiciary speaks.The Indian Constitution, among others, derives much of its transformative power not from what it proclaims, but from what it leaves unsaid. This silence, far from being a void, has emerged as a crucible in which our most progressive jurisprudence has been forged.

The concept of constitutional silence admits multiple taxonomies. There is intentional silence, where the framers deliberately leave matters open-ended, bequeathing interpretive flexibility to future generations. Then there is the unintentional silence, which arises from the inevitable lacunae left unforeseen that no Constituent Assembly, however prescient, could have anticipated. The distinction matters, as courts have historically treated deliberate omission with greater deference than inadvertent oversight.

As Michael Foley observed in The Silence of Constitutions, certain gaps are valuable "not in spite of their obscurity, but because of it". These constitutional abeyances provide the mechanism by which intractable conflicts are postponed until political conditions permit resolution.

HL A Hart in The Concept of Law introduced the concept of open texts. He stated that legal rules possess a "core of settled meaning" surrounded by a "penumbra of debatable cases" where judges exercise strong discretion, effectively legislating rather than discovering preexisting rights.