India’s Constitution leaves much unsaid. When courts step in to fill these textual gaps, they often end up creating new laws that are poorly defined and difficult to enforce. In the following article, Sathiyamoorthy, an advocate at the Madras High Court, argues that these constitutional gaps are, in fact, “eloquent.”

[Excerpts of article published on The New Indian Express website on 19 December 2025]

Filling the Constitution’s eloquent gaps

[By Saai Sudharsan Sathiyamoorthy]

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

The basis on which courts address textual gaps reveal deeper commitments about the nature of law. Hans Kelsen’s positivism advanced the closure principle—where law does not explicitly prohibit, it implicitly permits. For Kelsen, apparent gaps merely represent interpretive ambiguities within a conceptually complete normative hierarchy crowned by the Grundnorm.

H L A Hart’s riposte in The Concept of Law introduced the enduring concept of open texture. 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 pre-existing rights.

Ronald Dworkin challenged this discretion thesis fundamentally. His hypothetical judge Hercules, possessed of “superhuman intellectual power and patience”, could always identify the single right answer through principled interpretation to address a fundamental jurisprudential problem: How do judges resolve cases where established legal rules provide no clear answer? For Dworkin, law encompasses not merely explicit rules, but also principles. These principles are the background moral considerations providing answers even where rules are silent.

The basic structure doctrine represents perhaps the most consequential exercise in addressing constitutional silence.

The debate crystallises a question central to constitutional silence: when courts fill gaps, do they discover latent rights or create new law? Indian jurisprudence has implicitly sided with Dworkin, treating unenumerated rights as embryonic within constitutional text rather than judicial innovations.

The Supreme Court’s transformation of Article 21 exemplifies this approach with particular eloquence. The provision’s text is spare—“no person shall be deprived of his life or personal liberty except according to procedure established by law”. Neither ‘life’ nor ‘personal liberty’ receives a definition. This silence has proved generative beyond measure. In the Maneka Gandhi (1978) case, the Supreme Court declared that personal liberty possesses “the widest possible amplitude”. It displaced the earlier, restrictive interpretation adopted in A K Gopalan (1950).

From this foundation, courts have read into silence a constellation of unenumerated rights: to livelihood, clean environment, speedy trial, free legal aid, education, health, and human dignity. Each represents not judicial legislation, but what Justice Chandrachud in Puttaswamy (2017) described as rights “inherent in every human being by birth”, a naturalist framing that treats constitutional silence as concealing rather than precluding. The court’s unanimous declaration of privacy as a fundamental right, despite the Constituent Assembly’s express rejection of Fourth Amendment-style protections, demonstrates this.

The basic structure doctrine represents perhaps the most consequential exercise in addressing constitutional silence. Article 368 was originally silent on limits to parliament’s amending power. In Kesavananda Bharati (1973), the court quoted German jurist Dieter Conrad: “Any amending body organised within the statutory scheme, howsoever verbally unlimited its power, cannot by its very structure change the fundamental pillars supporting its constitutional authority.” The doctrine exemplifies deriving implied limitations from constitutional architecture rather than explicit text. As Justice A K Ganguly observed in Bhanumati (2010): “The basic structure doctrine vis-à-vis Article 368 emerged out of this concept of silence in the Constitution.”

The concept of constitutional morality, traced to English historian George Grote and emphasized by B R Ambedkar, also provides courts with the tool for filling silences. Justice D Y Chandrachud’s observation in the Delhi governance case of 2018 that “constitutional morality requires filling in constitutional silences to enhance and complete the spirit of the Constitution” articulates the idea that the silences be filled by constitutional morality than majoritarian sentiment.

On the other hand, American originalism demands that rights be deeply rooted in history. This is a backward-looking orientation that treats silence as absence rather than opportunity. South African transformative constitutionalism explicitly mandates courts develop the common law and fill gaps in the legislation to give effect to the rights enshrined. India occupies an intermediate space. It treats the Constitution as capable of growth, while anchored in the foundational values of dignity, liberty, equality, and fraternity expressed in the Preamble.

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Our constitutional tradition demonstrates that what a constitution does not say can speak volumes. That identity persists through its eloquent silences, interpreted by courts committed to constitutional morality over majoritarian whim, dignity over discrimination, and the living tree over frozen text. In the interstices between articles, our democracy’s unwritten words hum. The Constitution breathes through its pauses.

Saai Sudharsan Sathiyamoorthy | Advocate, Madras High Court