Who Gets A Constitution? A Comparative Study Of Constitutional Silence And The Role Of Judiciary - India, South Africa And The European Union
- IJLLR Journal
- Apr 13
- 2 min read
Devanshi Sharma, Gujarat National Law University, Gandhinagar
ABSTRACT
The Constitution is the backbone of modern governance in any jurisdiction. It defines the powers and limits of state governance while safeguarding the rights and freedoms of people. However, even constitutions cannot foresee every possible scenario, and many intentionally or inadvertently contain areas of silence which can be in the form of gaps, ambiguities, or vagueness in broadly worded provisions left open to interpretation. Despite these weaknesses, the silences often empower the judicial system to interpret the meaning and application of constitutional principles, ensuring that the Constitution remains adaptable to dynamic social, political, and legal settings. This generates a crucial question: who truly “gets” a constitution the legislature, the citizenry, or the judiciary that interprets it?
The paper analyses this question through a comparative study of three different jurisdictions: India, South Africa, and the European Union. It highlights how judicial interpretation interacts with constitutional silences across different legal systems. In India, the Supreme Court has over time interpreted vague or open-ended provisions of the Constitution to uphold fundamental rights and preserve checks on state authority, as seen in Kesavananda Bharati v. Kerala and Maneka Gandhi v. Union of India. South Africa has a post-apartheid Constitution of 1996, which was diligently designed to be transformative, yet still leaves certain areas deliberately broad to allow the Constitutional Court to give tangible effect to aspirational rights. It is exemplified in instances like Minister of Health v. Treatment Action Campaign. In the European Union, where constitutional authority arises from treaties rather than a single unified document, the Court of Justice of the European Union (CJEU) plays an important role in bridging gaps and resolving ambiguities, as illustrated in Van Gend en Loos and Costa v. ENEL. The study demonstrates that constitutional silence is a deliberate feature that enables judiciaries to maintain the Constitution’s relevance and effectiveness through interpretation. By comparing these three distinct jurisdictions, the paper brings to the forefront the judiciary’s vital role in shaping constitutional governance, harmonising rights, and reinforcing democratic principles. The analysis argues that while constitutions are formally adopted by the legislatures and ratified by the people, the judiciary subsequently becomes the key guardian of constitutional meaning in areas left silent or vague.
The study seeks to answer how constitutional silences empower or limit judicial authority across these diverse jurisdictional systems. It explores whether courts merely interpret the constitution or proactively shape constitutional governance and rights protection. Moreover, it examines what lessons can be drawn from comparative analysis about judicial roles, the balance of power, and the realisation of constitutional principles in changing historical and institutional contexts.
Keywords: Constitutional Silence, Judicial Interpretation, Fundamental Rights, Comparative Constitutionalism, Constitutional Courts.
