Constitutional Silences and Constitutional Conventions: Development of Constitutional Law

Senior Advocate V. Sudhish Pai contends that a constitution’s unwritten dimensions are as legally significant as its express provisions. Judicial interpretation is the primary mechanism through which these silences are given meaning. Drawing on Tribe, Frankfurter, Holmes, and Cardozo, Sr. Adv. Pai argues that what is left unsaid in a constitution is often as consequential as what is expressly stated. Using Tribe’s distinction between “door-opening” and “doorclosing” silences as a conceptual anchor, the article illustrates how courts determine constitutional development by choosing whether to read meaning into silence. Further, the expansion of fundamental rights under Article 21, and the basic structure doctrine in Kesavananda Bharati, are presented as landmark instances of judicial imagination filling constitutional gaps. The author concludes, however, that interpretive freedom must be exercised with restraint; the genius of constitutionalism lying in balancing continuity with change, and creativity with fidelity to foundational values.

CALJ Special Issue_Pai.pdf

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