THE DOCTRINE OF CONSTITUTIONAL SILENCE: WHEN THE CONSTITUTION SPEAKS BY SAYING NOTHING
AUTHOR – AAESH FALEEL, B.B.A L.L.B., SCHOOL OF LAW, RV UNIVERSITY
BEST CITATION – AAESH FALEEL, THE DOCTRINE OF CONSTITUTIONAL SILENCE: WHEN THE CONSTITUTION SPEAKS BY SAYING NOTHING, INDIAN JOURNAL OF LEGAL REVIEW (IJLR), 6 (9) OF 2026, PG. 952-956, APIS – 3920 – 0001 & ISSN – 2583-2344. DOI – https://doi.org/10.65393/IJLRV6I999
ABSTRACT
The idea of constitutional silence emphasizes the role the judiciary plays in interpreting the Indian Constitution in situations of constitutional text being silent, requiring the application of its principles of liberty, equality and dignity. This paper discusses how courts can address textual silence, engaging with constitutional morality and the living constitution. The importance of courts in recognizing unenumerated rights is claimed through references to seminal decisions (such as S.R. Bommai v. Union of India, Puttaswamy v. Union of India, Shayara Bano, Navtej Johar, and Joseph Shine) which each demonstrate an evolving recognition of unenumerated rights when responding to changes in society’s beliefs and morals, and highlight the recognized status of constitutional morality in ruling on these contextual shifts. Inflections of Hans Kelsen’s Grundnorm theory and the role judicial interpretation plays in linking on contemporary issues and applying constitutional morality to the normative order of the Constitution, illustrate how references to constitutional norms (such as morality) can be interpreted by the judiciary to affect substantive regimes of justice. Several comparative jurisdictions (the United States, Australia, and the United Kingdom) note decidedly different responses to constitutional silences than occurs in India, suggesting a distinctly creative judicial response in India. Ultimately, silence does not mean absence of meaning; silence may instead be held to represent a reservoir of meaning that courts draw on to recognize justice and the democratic values associated with the Constitution in a continually redefined society for its citizens.