The Problem with India’s Living Constitution

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–  Sudhanva S Bedekar*

Introduction

In American Constitutional Jurisprudence, there is a long-standing debate between proponents of the idea of ‘living constitution’ and the proponents of the originalist interpretation of the Constitution. The proponents of the ‘living constitution’ argue that the Constitution is to be interpreted pragmatically, in keeping with the changing times. They argue that the law has to evolve with changing times and that the constitutional provisions cannot be understood in the same sense in which they were understood at the time when the Constitution was enacted. The Constitution should adapt to the changing times much like an organism adapts to the changing environment. The originalists on the other hand, argue that the Courts should interpret the Constitution by laying emphasis on its original meaning and that it is not the role of the judiciary in the constitutional set up, to interpret the Constitution according to what its understanding of ‘the changing times’ is. In India though, the Supreme Court has consistently followed and recognized the ‘living constitution’ ideal. I shall focus on how the Supreme Court of India has understood this concept and address certain shortcomings in the path traced by our jurisprudence.

The Supreme Court of India has repeatedly held that our Constitution is a ‘living document’ which evolves according to the changing times. How does this evolution take place? Does this evolution mean a change in the text of the Constitution? Or does it mean a change in the way we understand the text of the Constitution? It is undoubtedly the latter and not the former that is covered by the phrase ‘living constitution’. It is evident that these changes in ‘understanding’ the provisions take place in Part III of the Constitution, i.e. the chapter on fundamental rights. There is no confusion whatsoever regarding the direction in which these changes take place, and this is a problem with the way we understand our living Constitution.

The Morality Attached to the ‘Living Constitution’

In India, the Supreme Court has attached a morality to the ‘living Constitution’. If one is to peruse the various judgements of the Supreme Court which have held that our Constitution is an organic document, one would notice a common thread running through all these judgements. The ‘living constitution’ doctrine is an aid to progressive realization of rights. Therefore, whenever the Court holds that ours is a living Constitution, it does so in order to advance rights to the citizens. As an example, in the case of Navtej Singh Johar, the Court observes, “The Constitutional Courts have to recognize that the Constitutional rights would become a dead letter without their dynamic, vibrant and pragmatic interpretation. Therefore, it is necessary for the Constitutional Courts to inculcate in their judicial interpretation and decision making a sense of engagement and a sense of constitutional morality so that they, with the aid of judicial creativity, are able to fulfill their foremost constitutional obligation, that is, to protect the rights bestowed upon the citizens of our country by the Constitution.” Commenting upon the Transformative Constitutionalism and the role of the judicial arm, it notes that “the idea is to steer the country and its institutions in a democratic egalitarian direction where there is increased protection of fundamental rights and other freedoms.” One would notice that the Court emphasizes on ‘increased protection of fundamental rights’ and also takes to itself the task to steer the country and its institutions in such a direction. It takes to itself, the task of determining the direction of the changing times by adopting a dynamic approach, in consonance with the ‘living constitution ideal.’

A necessary corollary to the judiciary’s orientation towards a liberal interpretation of rights is that it gets more power to strike down laws made by legislatures on the basis of such rights which it has recognized and placed on a high pedestal. The liberal interpretation of rights is a result of the constant tug of war between the executive and the judiciary. In the case of Kapila Hingorani vs. State of Bihar the Supreme Court observed that, “the interpretation of the Constitution or the statutes would change from time to time. Being a living organ, it is ongoing and with the passage of time, law must change. New rights may have to be found out within the constitutional scheme. Horizons of constitutional law are expanding.” Amongst the most recent reiterations of this idea, is the case of Kalpana Mehta vs. Union of India wherein the Court was confronted with the questions concerning judicial review and parliamentary privileges. Dipak Misra, C.J, begun his judgement by stating that, “the Courts never allow a Constitution to be narrowly construed keeping in view the principle that a Constitution is a living document and organic which has the innate potentiality to take many a concept within its fold. The Courts, being alive to their constitutional sensibility, do possess a progressive outlook having a telescopic view of the growing jurisprudence.”

Recently, Chandrachud, J, in the landmark case of Justice K.S. Puttaswamy vs. Union of India and others advocated an expansive reading of liberties and freedoms in view of the exigencies of time. He observed that “the interpretation of the Constitution cannot be frozen by its original understanding, for the Constitution has evolved and must continuously evolve to meet the aspirations and challenges of the present and the future.”

In State of West Bengal vs. Committee for Protection of Democratic Rights, reiterating the living constitution ideal, the Court observed, “The Constitutional provisions have to be construed broadly and liberally having regard to the changed circumstances and the needs of time and polity.”

It is easy to notice that the Court has, apart from reiterating the living constitution ideal, also emphasized that the interpretation should be broad and liberal. It is not necessary that a living or an organic constitution need always be interpreted broadly and liberally or in a manner in which rights are expanded. The Court, by using the very same doctrine, may also refuse to expand the contours of rights or in a given case, reduce the ambit of a right, or, lay emphasis on duties. If this happens, then, the libertarians who now hail the Supreme Court as the sentinel on the qui vive would criticize it. This is but one problem with the ‘living constitution’ ideal. Another problem, which is peculiar to our Country, arises due to the existence of the basic structure doctrine and its widened contours.

Problematic Co-Existence with the Basic Structure Doctrine

In Kesavananda Bharati, the Supreme Court of India invoked the basic structure doctrine to hold that Parliament cannot amend the basic features or basic structure of the Constitution. Chief Justice Sikri went on to hold that the basic structure doctrine was an ‘extra constitutional revolution’. In Kesavananda, the judges constituting the majority have tried to enumerate the contents of this basic structure which would be beyond the amending power of Parliament. Post Kesavananda, several other features and even provisions were added to this list. In Delhi Judicial Service Assn vs. State of Gujarat, the Court added Articles 32, 136, 141 and 142 to this list. In Kihoto Hollohan, the Court noted that ‘free and fair elections’ was also part of the basic structure. In Raghunathrao, the principle of equality and in Indra Sawhney, the ‘rule of law’ were added to the basic structure. In L. Chandra Kumar, the Court held that power of judicial review of legislative action by the Constitutional Courts was part of the basic structure of the Constitution. In S.R. Bommai, the Court observed that federal principle, social pluralism and pluralist democracy were part of the basic structure and invoked these concepts to justify judicial review of proclamation of state emergency issued under Article 356 of the Constitution of India. In P.V. Narsimha Rao the Court travelled even further to hold that ‘parliamentary’ democracy is part of the basic structure. Few years later, in I.R. Coelho, the Supreme Court, by citing Minerva Mills, noted that Articles 14, 19 and 21, which are considered as the ‘golden triangle’ are certainly part of the basic structure, thus being beyond the pale of Parliament’s power to amend. By referring to M. Nagaraj, it holds that ‘egalitarian equality’ is certainly part of the basic structure. It notes that Article 32, 15, 21 read with 14, 14 read with 16(4), 16(4A), 16(4B), etc. also form part of the basic structure.

Given the experiences which we have had in the working of our democracy, it is not possible to argue for an unrestricted power to Parliament to amend the Constitution. However, since in the context of the Rights chapter, our Constitution is regarded as a living document, the Parliament in exercise of its constituent power should be permitted to determine the direction of the changing times and amend the rights chapter accordingly. This is different from giving Parliament an unrestricted power to amend the Constitution. Even in Kesavananda, the unrestricted power argument was advanced with reference to the possibility of its abuse, by giving examples of amendments such as vesting full control of Government in the Princes of the Princely states or extending for an unlimited period, the term of the house of people, etc. Amendments done to the Rights chapter in view of changing times, may not necessarily be a reflection of abuse of the ‘unrestricted amending power.’ If in light of the changing times, if Parliament advocates a restricted interpretation of certain rights in Part III, then, considering that ours is a living Constitution, the Court ought not to interfere. It is likely that some time in the future, the morality to the living constitution – that the living constitution is ‘rights advancing’ and needs to be interpreted ‘progressively and liberally’ – may have to be shunned in light of the changing times. A particular morality cannot be attached to the development of the Constitutional law and particularly to the development of the rights chapter.  Attaching such a morality is contrary to the very living constitution ideal. The living constitution ideal advocates changing interpretation with changing times, it does not advocate attachment of a particular morality to the development of constitutional law. Moreover, if experiences of the future suggest that there should be a change in the approach, it would be difficult to bring about such change since the morality would be rooted in precedents. At this juncture, we are not aware of the experiences of the future and hence, if a Constitution is to truly be a ‘living Constitution’ it will have to be ‘alive’ to the changing circumstances without deciding the manner in which it will look at changing circumstances. Using the living constitution ideal only for advancing rights may therefore become problematic.

In Supreme Court Advocates on Record Association vs. Union of India (NJAC case), the Court struck down the NJAC Act and the 99th Constitutional amendment by a majority of 4:1 holding that it violated the basic structure of the Constitution. Interestingly, the Court, while accepting the ‘living constitution’ ideal, imposed restraints on the recognition of the same ideal by Parliament when it comes to amendment of the Constitution.  Lokur, J. observed that, “though rest of the Constitution has to be interpreted as a living document for years and years to come, this does not apply to its basic structure, which is immutable and cannot be experimented with.” He further noted that failed experiments with basics would lead to disastrous consequences. Unfortunately, the Court has not taken note of the fact that almost the entire Part III of the Constitution is part of the basic structure. Moreover, it is precisely in the context of the elements of the basic structure, i.e. the fundamental rights, that the doctrine of ‘living constitution’ has been used. If Parliament is not permitted to restrict the scope of the fundamental rights, then it becomes amply clear that the ‘living constitution’ ideal can be used only to expand the scope of Part III and not to restrict its scope. This is an incorrect interpretation of the ‘living constitution’. Moreover, it is also clear that if, at any given time, a need is felt to restrict the scope of Part III, then it is the judiciary which can take steps in that direction. If the restrictions are to come from Parliament, then a judiciary which is bound by numerous precedents, may frown upon any restrictive approach. However, this can be done by the judiciary alone, by gradually modifying the existing jurisprudence. If such an occasion arises, it will have to change its interpretation of ‘living constitution’ and remove the morality of rights orientation and rights advancement that it has currently attached to it. The relation between basic structure and living constitution may appear to be difficult to understand. However, the existence of one influences the other. When the Court speaking in the context of the Fundamental Rights, holds that ours is a living constitution, it cannot at the same time widen the scope of the basic structure, thereby keeping Part III away from Parliament and taking to itself the task of determining the direction in which the Rights jurisprudence is to progress.

Conclusion

The fact that the Constitution is a living document does not imply that as a necessary corollary to its being a living document, its interpretation should always be rights advancing. On the contrary, since it is a ‘living document’, changing with changing times, it may even be interpreted as one which does not place rights on a high pedestal. The living constitution ideal does not prohibit such an interpretation of the Constitution. The problem with the Supreme Court’s interpretation of the ‘living constitution’ is precisely this. It has interpreted the ‘living constitution’ as a rights advancing constitution and has thus attached a particular morality to the living constitution ideal. It is necessary to note that the argument sought to be advanced herein is not against the use of a ‘rights advancing’ morality or in favour of the use of a restrictive approach. The endeavour is to point out that the ‘living constitution’ ideal cannot be restricted by the fetters of a particular morality. Neither the rights advancing nor the rights restricting morality can be associated with the ‘living constitution ideal.’ A re-look at the moralities attached by the Court, to the interpretation of the Constitution as a ‘living document’ is therefore necessary. Moreover, while on one hand, the basic structure imposes serious restraints on the Parliament’s power to radically amend the Constitution in view of the changing times, on the other hand, the Court is not restrained from bringing in radical changes in the interpretation of the Constitution since it has recourse to the ‘living constitution’ principle. The basic structure doctrine and the living constitution ideal are thus a problematic co-existence. A possible solution to the conundrum is as follows. Firstly, our living constitution should be freed from fetters of particular moralities. Secondly, Parliament’s power to amend Part III in view of the changing times needs to be acknowledged and the basic structure review should be restricted to ‘extreme amendments.’ This argument may seem to be vague. However, the solution suggested is in the form of gradual modification of the jurisprudence on this subject. The form of such modification is through a change in the approach of the Court in dealing with Parliament’s power to amend the Constitution and generally with issues concerning rights and liberties. The problematic co-existence of the living constitution and the basic structure can be addressed not by bringing about radical changes in our jurisprudence but by gradually narrowing down the distances.

* Sudhanva S Bedekar is an Advocate at the Bombay High Court.

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