The Constitution as a Living Document
Chapter Fifty-Eight
Syllabus topic 3, "Judicial Process in India"
Pages 235 to 238 of 356
In one line
A constitution meant to last centuries cannot be confined to the understandings of the year it was written, and the Indian court has said so and acted on it more than any other.
In the wording a student can write in an exam: to call the Constitution a living document is to say that its provisions are to be read as capable of applying to conditions the framers did not foresee, and that their meaning may develop with changing social understanding without any amendment of the text. The competing view is originalism, that the text means what it meant when adopted, and that change should come through Article 368 rather than through interpretation.
The argument for the living reading
1. A constitution is meant to endure. An instrument written for an indefinite future cannot be tied to the technology, the economy or the social assumptions of the year of its adoption.
2. It is written in the language of values, not of rules. "Equality", "liberty", "life", "reasonable" do not carry fixed content. A text of that kind invites development.
3. Amendment is a poor instrument for meaning. Amendment is available for structural change. Using it to keep pace with every change in circumstance would make the Constitution a statute book.
4. The Indian Constitution is transformative. It was adopted to change an existing social order, not to record it, so reading it by the understandings of 1950 would be reading it against its purpose.
The Indian demonstrations
Privacy. Justice K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1.
Facts. A nine judge Bench was constituted to decide whether the Constitution guarantees a fundamental right to privacy, because two early decisions, M.P. Sharma and Kharak Singh, had said it did not, while later decisions had assumed it did.
Held. Unanimously, M.P. Sharma and Kharak Singh stand overruled to the extent that they held privacy not to be protected, and the right to privacy is protected as an intrinsic part of the right to life and personal liberty under Article 21 and as a part of the freedoms guaranteed by Part III.
Why it matters here. The framers cannot have contemplated informational privacy in its modern form. The living reading is what allowed the same words to reach it, and the Court had to overrule its own early decisions to get there.
Sexual autonomy and constitutional morality. Navtej Singh Johar v. Union of India, (2018) 10 SCC 1.
Facts. The petitioners sought a declaration that the right to sexuality, sexual autonomy and choice of a sexual partner is part of Article 21, and that section 377 of the Indian Penal Code, so far as it criminalised consensual sexual acts between adults, was unconstitutional. An earlier two judge Bench in Suresh Kumar Koushal had restored section 377 after the Delhi High Court had read it down.
The Constitution as a Living Document
Held. Section 377 was unconstitutional to the extent that it criminalised consensual sexual conduct between adults in private, as violating Articles 14, 15, 19 and 21, and Suresh Kumar Koushal was overruled. Constitutional morality, and not popular or majoritarian morality, governs the interpretation of fundamental rights.
Why it matters here. It states the living reading's own standard. If meaning develops, the question is by whose morality, and the answer given is the Constitution's rather than the majority's.
Dignity in dying. Common Cause v. Union of India, (2018) 5 SCC 1, holding that the right to live with dignity includes dignity in the process of dying, that passive euthanasia is permissible, and that an advance medical directive is valid, with guidelines to hold the field until legislation.
The whole of Article 21. The line from A.K. Gopalan v. State of Madras, AIR 1950 SC 27, to Puttaswamy, on fourteen unamended words, is the demonstration in a single provision.
The argument against
An answer that only endorses the proposition will not score well, because MU says "discuss".
1. It transfers the amending power to the judiciary in substance. Article 368 provides a procedure requiring special majorities and, for some provisions, ratification by the States. A doctrine that lets meaning develop by decision achieves the same result with five judges.
2. The framers made choices that are being read away. The Constituent Assembly considered "due process of law" and deliberately adopted "procedure established by law". Maneka Gandhi v. Union of India, AIR 1978 SC 597, produced something close to due process on the same words. That is the strongest originalist example in Indian law, and an honest answer states it.
3. It makes meaning depend on composition. Gopalan and Maneka Gandhi read identical words to opposite effect. If the text does not constrain, the bench decides.
4. It cuts both ways. Additional District Magistrate, Jabalpur v. Shivakant Shukla, AIR 1976 SC 1207, was also a reading responsive to circumstances, and the circumstances were an Emergency. A method that lets the Constitution evolve with the times will sometimes evolve with bad times.
5. It is unpredictable. A citizen cannot know what the Constitution requires if its content is settled case by case.
The answers to the objections
Constraint remains. The words must bear the reading; the development must be justified in a published judgment; a larger Bench may correct it; and the legislature retains the amending power.
Constitutional morality, not the judge's. Navtej states the standard, and the Preamble, Part III and Part IV supply its content, which is the discipline described in [The Judicial Process in Pursuit of Constitutional Goals and Values].
The Constitution as a Living Document
Originalism has its own problems. The framers' intention is contested, the debates speak with several voices, and a strictly original reading of Article 21 would leave the Constitution unable to answer questions about data, surveillance or medical technology.
The Forty-fourth Amendment answered ADM Jabalpur. The system corrected the failure through the amending power, which shows the two mechanisms working together rather than as rivals.
A worked example
A statute permits the State to collect and retain biometric data of every resident. It is challenged under Article 21.
On an original reading. Article 21 protects against deprivation of life and personal liberty by an unfair procedure. Collection of data deprives nobody of anything, and the framers contemplated arrest and detention. The challenge fails.
On the living reading. Personal liberty includes the autonomy to control information about oneself, which Puttaswamy holds to be intrinsic to Article 21, and the collection must satisfy legality, necessity and proportionality.
What decides between them. Not the text, which is identical on both readings, but a view about what a constitution is for. That is why this question is properly a "discuss" question and not a comprehension one.
Quick revision
- Living document: provisions read as applying to unforeseen conditions, with meaning developing without amendment. The rival is originalism.
- For: a constitution is meant to endure; it is written in values; amendment is a poor instrument for meaning; the Indian Constitution is transformative.
- Demonstrations: Puttaswamy on privacy; Navtej on sexual autonomy and constitutional morality; Common Cause on dignity in dying; the whole Article 21 line from Gopalan.
- Against: it transfers the amending power in substance; it reads away deliberate framers' choices, as with due process; it makes meaning depend on composition; it cuts both ways, as ADM Jabalpur shows; and it costs predictability.
- Answers: the words must bear the reading; reasons are published; larger Benches correct; the amending power remains; and the standard is constitutional morality, not the judge's.
- The Forty-fourth Amendment answering ADM Jabalpur shows interpretation and amendment working together.
Test yourself
1. State the living document proposition and the view it competes with. That the Constitution's provisions are to be read as capable of applying to conditions the framers did not foresee, and that their meaning may develop with changing social understanding without amendment of the text. The competing view is originalism, that the text means what it meant when adopted and that change should come through Article 368.
2. Give two Indian demonstrations and say what each shows. Puttaswamy, (2017) 10 SCC 1, holding privacy to be intrinsic to Article 21 and overruling two early decisions, which shows the same words reaching a subject the framers cannot have contemplated. Navtej Singh Johar, (2018) 10 SCC 1, holding section 377 unconstitutional so far as it criminalised consensual adult conduct and holding that constitutional morality and not popular morality governs, which supplies the standard by which developed meaning is to be judged.
The Constitution as a Living Document
3. Give the strongest originalist objection with its Indian illustration. That the doctrine reads away choices the framers deliberately made. The Constituent Assembly considered "due process of law" and adopted "procedure established by law" instead, and Maneka Gandhi produced something close to due process on those very words. The objection is not that the result was bad but that the method defeated a considered constitutional choice without using Article 368.
4. Why does ADM Jabalpur belong in an answer to this question? Because it shows that a method which lets the Constitution evolve with the times will sometimes evolve with bad times. The majority's reading of Article 359 was responsive to circumstances, and the circumstances were an Emergency. The correction came through the amending power in the Forty-fourth Amendment, which made Articles 20 and 21 non-suspendable.
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself, or the past papers, for the same subject.