Professional Documents
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Module ID: 16
1. Introduction
There are largely two schools of thought that would be encountered while
undertaking constitutional interpretation. The first is commonly known as
“Textualism” or “Originalism”, which is often confused with strict constructionism or
literalism.4 In this method, courts will look to interpret a constitutional provision
literally, i.e., by interpreting the meanings of the words used therein and without
placing excessive reliance on the intention of the framers of a constitution.
Textualism contemplates that words have a limited range of meaning and no
interpretation that goes beyond that range of words is permissible.5 This method is
also referred to as a model of “fidelity”. With very few exceptions, originalism is not
considered a mainstream interpretive method in any long - standing constitutional
democracy other than the United States of America.6 A fine example of originalism
or textualism as laid down by the United States Supreme Court is:
1Hamdard Dawakhana (Wakf) Lal Kaun v. Union of India, AIR 1960 SC 554, where the
constitutionality of the Drugs and Magic Remedies (Objectionable Advertisement) Act, 1954 was
challenged before the Supreme Court of India; South Carolina v. Katzenbach, 383 U.S. 301 (1966)
wherein certain provisions of the Voting Rights Act of 1965 were challenged before the United
States Supreme Court.
2Indra Sawhney v. Union of India, 1992 Supp (3) SCC 217, this case debated the correctness of the
interpretation given to Article 16(4) of the Indian Constitution; Bush v. Gore, 531 U.S. 98, which
debated the correctness of the election of George W. Bush and Al Gore from the manner in which
constitutional provisions were applied to the manner of counting.
3Vishaka v. State of Rajasthan, AIR 1997 SC 3011, the Supreme Court of India, taking into
consideration the principles laid down in the Convention for Elimination of Discrimination
against Women lay down guidelines to prevent sexual harassment of women at workplaces. D. K.
Basu v. State of West Bengal, (1997) 1 SCC 416, in this case the Supreme Court of India laid down
guidelines to prevent custodial violence, torture and custodial deaths; Brown v. Board of
Education, 347 U.S. 483 (1954), wherein the equality clause and the due process clause of the
United States Constitution were debated upon and its applicability was largely increased.
4Antonin Scalia, “A Matter of Interpretation, Federal Courts and the Law”, (Princeton, Princeton
“I find it impossible to read these portions of the Constitution without regard to the
background out of which they arose. I cannot blot out their history and omit from
consideration the brooding spirit of the times. They are not just dull, lifeless words
static and hide-bound as in some mummified manuscript, but, living flames intended
to give life to a great nation and order its being, tongues of dynamic fire, potent to
mould the future as well as guide the present. The Constitution must, in my judgment,
be left elastic enough to meet from time to time the altering conditions of a changing
world with its shifting emphasis and differing needs. I feel therefore that in each case
judges must look straight into the heart of things and regard the facts of each case
concretely much as a jury would do; and yet, not quite as a jury, for we are
considering here a matter of law and not just one of fact: Do these “laws” which
have been called in question offend a still greater law before which even they must
bow?”10
One of the most well-known jurisdictions that has gladly embraced the living
constitution principle is Canada, wherein the Canadian Supreme Court has spoken in
the following words11
“The British North America Act planted in Canada a living tree capable of growth
and expansion within its natural limits... The object of the Act was to grant a
Constitution to Canada… ‘Like all written constitutions it has been subject to
development through usage and convention.”
Constitutional law differs from ordinary law in that it is not a statute. It is the
fountainhead of all statutes. This is a view that has been consistently taken by Courts
“A constitution, to contain an accurate detail of all the subdivisions of which its great
powers will admit, and of all the means by which they may be carried into execution,
would partake of the prolixity of a legal code, and could scarcely be embraced by the
human mind. It would probably never be understood by the public. Its nature,
therefore, requires, that only its great outlines should be marked, its important
objects designated, and the minor ingredients which compose those objects be
deduced from the nature of the objects themselves.”15
This statement is however made in the context of the American Constitution which is
only 7 Articles and 27 Amendments long. Compare this to the Indian Constitution
that is made up of 395 Articles, 12 Schedules and has been amended nearly 100
times. Therefore, while the United States Supreme Court, may seek to interpret the
Constitution of the United States of America keeping in mind the dictum laid down
12U.P.State Coop. Land Development Bank Ltd. v. Chandra Bhan Dubey, (1999) 1 SCC 741, 758;
Cooper v. Aaron, 358 U.S. 1 (1958).
13Hunter v. Southam Inc., [1984] 2 SCR 145.
14Bruce Ackerman, Higher Lawmaking, “We the People – Foundations”, (Harvard University Press,
1991).
15McCulloch v. Maryland, 17 US (4 Wheat) 316, 407 (1819), see also In re: Special Reference No. 1
of 2002, (2002) 8 SCC 237, 319;R.CPoudyalv. Union of India, 1994 Supp (1) SCC 324.
by it in 1819, the Indian Supreme Court, which is the final arbiter of constitutional
questions in India, is required to interpret the Indian constitution keeping mind the
historical, cultural and social background of India. It is for this reason that there is an
underlying principle that judges should at certain levels act as social scientists.16
One of the most fundamental needs for constitutional interpretation is, by its nature,
constitutional rights are drafted in abstract terms17 and not absolute terms.18Therefore
while the Indian Supreme Court, or the United States Supreme Court could be
directly approached in the event that a fundamental right is breached, the question as
to what is a fundamental right would have be gathered from the abstract language of
Part III.19 Another important function of constitutional interpretation is to ensure that
legislations that are passed by the legislature are not in contravention of the
constitution of a nation. This is on the premise that a parliament is not supreme, but a
constituted body.20 Therefore any law that is passed by the parliament which
contravenes a constitutional right and/ or principle would be rendered as
unconstitutional by a constitutional court. The question however remains as to what
are the principles on which a constitutional court would interpret the constitution to a
given situation. It is in this light that it is relevant to understand the difference
between textualism and originalism on the one hand and the living constitution
principle on the other hand.
minimum age of a person who wants to become the President. Article 58 of the Constitution of
India provides that only a person who is 35 years of age can become the President of India.
Similarly Article 2, Section 1, Clause 5 of the Constitution of the United States of America
provides that only a person who is 35 years of age can become the President of the United States
of America.
19Zee Telefilms v. Union of India, (2005) 4 SCC 649 decided by the Supreme Court of India. See
also, Jackson v. Metropolitan Edison Company, 419 U.S. 345 (1974) decided by the United States
Supreme Court. Both cases reiterated the stand that a breach of a fundamental right could be
agitated before it. But the issue involved in both cases was whether a breach of a fundamental
right could be agitated against a body which though was providing certain state functions, was
not a state itself.
20Golak Nath v. State of Punjab, AIR 1967 SC 1643. Compare this with the position in England
Similarly, in the United States of America, with the coming in of the “New Deal”, it
was required that there was an adjusting of the older constitutional doctrines to
explain and justify the changes in how the government functioned. The United States
Supreme Court did so by reinterpreting and expanding federal and state power to
regulate the economy and engage in redistributive programs, and by creating new
procedures to rationalize the expansion of administrative agencies.23The very concept
of a “living” Constitution arose in the early twentieth century due to innovations by
Congress and by state and local governments in constructing early versions of the
regulatory state.24In particular, at the forefront was the United States Supreme Court
that was headed by Chief Justice Earl Warren.25
4.1.1. India
One of the first instances where the Indian Supreme Court was required to
address the issue of various provisions of the Constitution of India in light of
a statute was the case of A. K. Gopalan v. State of Madras,26 wherein Section
3(1) of the Preventive Detention Act, 1950 was challenged as being violative
of Articles 13, 19, 21 and 22. A Constitution bench of five Judges of the
Supreme Court went into an elaborate discussion about Part III and the inter-
21 See generally the judgments of the Indian Supreme Court in State of Madras v. V. G. Row, AIR
1952 SC 196, State of West Bengal v. Anwar Ali Sarkar, AIR 1952 SC 75 and Collector of Customs,
Madras v. Nathella Chetty, AIR 1962 SC 316¸ wherein the Supreme Court continuously rejected
any attempt to read into Article 21 the principles of “due process” as contained in the American
Constitution.
22Kharak Singh v. State of U.P., AIR 1963 SC 1295 the Court in a unique ruling held that
notwithstanding the fact the Indian Constitution did not have a clause similar to the Fifth
Amendment as regards the ‘right to privacy of citizens’, an unauthorised intrusion into a person’s
home and the disturbance caused to him thereby, is as it were, the violation of a common law
right of a man; an ultimate essential of ordered liberty, if not of the very concept of civilisation.
The Court during its ruling relied on the United States Supreme Court ruling of Wolf v.
Colorado338 US 25 (1948).
23Jack M. Balkin, Framework Originalism And The Living Constitution, 103 Nw. U. L. Rev. 549, 562
(2009).
24Howard Gillman, The Collapse of Constitutional Originalism and the Rise of the Notion of
the“Living Constitution” in the Course of American State-Building, 11 Stud. Am. Pol. Dev. 191
(1997).
25 See generally, Archibald Cox, “The Warren court; constitutional decision as an instrument of
The counsel for the Petitioner advanced a strong argument to state that the
action of the state was violative of the “due process” principle that was
captured in the American Constitution28 and that Article 21 of the
Constitution of India, even though did not use the word “due process” but in
fact used the phrase “procedure established by law”,29in effect captured the
essence of the same.The Supreme Court was sceptical on the application of a
principle that had been effectively rejected by the Constitution Drafting
Committee. The Court had relied on a number of writings on American
Constitution to emphasise that the "due process" clause was a disputed and
vague point in American Jurisprudence as well.30
What though was canvassed in this case was what is known as “procedural
due process”, a principle that is linked to the school of originalism. The
contention was that the “procedure” that was established by law was
violative of various constitutional rights. This should be contrasted with the
argument of “substantive due process” wherein it is argued that fundamental
rights, though drafted in abstract terms, vest in people certain substantive
rights. This aspect is dealt with further below.
This ruling in India was a water-gate on the subject and held the field of close
to two and a half decades. Even as late as the 60’s, the Indian Supreme Court
was not ready to accept any interpretation that would allow the due process
clause to be made part of the Indian Constitution.31Almost any attempt to
over-rule the above ruling was repelled with the greatest efficacy.
27 Chief Justice Kania, Justice’s Patanjali Shastri, Mahajan and Mukherjea were in the majority and
Justice Fazal Ali delivered the minority ruling.
28Fifth Amendment and Fourteenth Amendment of the Constitution of the United States of
America.
29 The same clause had been used in the Japanese Constitution in Article 31.
30Gopalan’s case, 38, citing Willis’ Constitutional Law and Cooley’s Constitutional Limitations, 662.
31Chhotabhai Jethabhai Patel And Co vs Union of India, AIR 1962 1006.
32AIR 1973 SC 1461.
33ibid, 1946 para 1709.
The breakthrough in the tussle between the "due process" clause and the
“procedure established by law” clause finally culminated in the ruling of
Maneka Gandhi v. Union of India.34Primarily the Court rejected the view
taken in Gopalan's case. Further, the Court held that the procedure that was
contemplated in Article 21 had to be a ‘fair, just and an equitable’ procedure
and similarly the law had to be a reasonable law and not just any enacted
piece.35 To read "due process" into the Constitution the Court drew an
ideology, that natural justice being a part of any law36 no legislation or action
of the Government could bypass or sidestep the same. To this effect the Court
relied on the ruling that was pronounced by Lord Denning, MR in Schmidt v.
Secretary of State or Home Affairs.37 The Court thereafter observed that the
rule that had been laid down in England had gained access not only to the
Commonwealth but also in the International world.38Thus by this method the
Court had allowed the "due process" clause to be read into the Indian
Constitution and had yet not tampered with the basic reading of the
Constitution. Additionally in Sunil Batra v. Delhi Administration39the Court
stated,
“True our Constitution has no ‘due process’ clause… but… after Cooper…
and Maneka Gandhi… the consequence is the same.”
However, with the “New Deal”, the United States of America, its Supreme
Court has expanded the applicability of the Bill of Rights to state the
inadmissibility of evidence that was obtained by an illegal search, 49 a
congressional statute that sought to harm a politically unpopular group would
not stand a test of scrutiny under the equality clause,50 any discrimination of
an unusual character51 or criminalizing an inter – racial marriage would be
violative of the due process clause,52and declaring the criminalization of
consensual homosexual conduct in the privacy of a person’s home as
unconstitutional.53 Thus, even in the United States of America, which is
largely considered as the home of originalist interpretation, there has been a
move from “procedural due process”, an originalist interpretation at best, to
“substantive due process”, to a living constitutional interpretation.
Another example as to where the United States Supreme Court has used both
originalism and the living constitutional interpretations arises in its
judgments relating the First Amendment.54 Unlike the Indian Constitution
that imposes reasonable restrictions on the freedom of speech and expression,
the text of the First Amendment of the Constitution of the United States of
America is absolute. Therefore, from an originalist perspective it ought to
mean that there is no restriction whatsoever on any form of speech in the
United States of America that is capable of being upheld. However, that is
not the case.
reads, “Congress shall make no law respecting an establishment of religion, or prohibiting the free
exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people
peaceably to assemble, and to petition the Government for a redress of grievances.”
The United States Supreme Court hasupheld the right of an individual to burn
the flag of the United States of America,55has protected inflammatory
speech56 and alsoprotected commercial speech57 on the ground of the clear
and unambiguous language of the First Amendment.By the same stroke, the
United States Supreme Court has also at the same time not protected
pornography or obscene material58 and also imposed restrictions on school
speech.59 In passing these judgements, the United States Supreme Court has
not merely bound itself to the wordings of the First Amendment, which in its
language is absolute, but sought to interpret the words of the First
Amendment by looking to what its drafters would have intended and thus
went beyond the very text of the constitution.
4.2.2. India
The former Chief Justice of the U.S. Supreme Court, William Rehnquist,
identified two major problems with the “living constitution” approach: i)
Such an approach “misconceives the nature of the Constitution, which was
designed to enable the popularly elected branches of government, not the
judicial branch, to keep the country abreast of the times”; and ii) the goals
advanced by living constitutionalists, however socially desirable, cannot be
SCC 161 and Tata Press Ltd. v. Mahanagar Telephone Nigam Ltd., (1995) 5 SCC 139.
61People's Union for Civil Liberties (PUCL) v. Union of India, (1997) 1 SCC 301.
62National Legal Services Authority v. Union of India, (2014) 5 SCC 438.
countenanced because “advancing them through a freewheeling, non-elected
judiciary is quite unacceptable in a democratic society.”63
The law at no point of time can be a static concept.It has to evolve from time to time to
suit the needs of the people. It is no atypical fact that those who knock on the doors of
the Court are the common men and women to whom the law at no point of time can or
should be of a nature that hinders their path to justice. The Supreme Court of India in the
A. D. M. Jabalpur v. Shivkant Shukla65re-iterated the view in the following language:
“Our original Constitution was not an anchor but a rudder. The Constitution of one
period has not been the Constitution of another period. As one period has succeeded
another, the Constitution has become larger and larger.”
This has also been the view of the Supreme Court of the United States of America:
“When we are dealing with words that also are a constituent act, like the Constitution of
the United States, we must realize that they have called into life a being the development
of which could not have been foreseen completely by the most gifted of its begetters. It
was enough for them to realize or to hope that they had created an organism; it has
taken a century and has cost their successors much sweat and blood to prove that they
created a nation.”66
63William Rehnquist, The Notion of a Living Constitution, 29 Harv. J. L. & Publ. Pol. 401, 407
(2006).
64It would have never been anticipated by the drafters of the Indian Constitution that the Indira
Gandhi government would have imposed an emergency in the manner that was done. Much less
would have the framers of the United States Constitution contemplated that the President of the
United States of America would authorise and send America troops to war without ascertaining
the earlier consent of the Congress of the United States of America.
65AIR 1976 SC 1207.
66Missouri v. Holland, 252 U.S. 416 (1920).
67Jack M. Balkin, Framework Originalism And The Living Constitution, 103 Nw. U. L. Rev. 549, 566
(2009).