The Method of History

Held. The amendment was upheld. The provisional Parliament was competent to exercise the amending power under Article 368, and the word "law" in Article 13(2) means ordinary legislation made in exercise of legislative power and does not include a constitutional amendment made in exercise of constituent power.

Why it matters here. Once the Schedule had been created for agrarian reform, it was used for much else. The historical method is what allowed later courts to say that the protection had outgrown its purpose, which is the reasoning that runs through Waman Rao v. Union of India, AIR 1981 SC 271, and I.R. Coelho v. State of Tamil Nadu, decided on 11 January 2007.

Facts. A nine judge Bench was asked to determine the nature and extent of the protection given by Article 31B to laws added to the Ninth Schedule by amendments made after 24 April 1973, the date of Kesavananda, because parts of the Gudalur Janmam Estates Act 1969 had been struck down and then placed in the Schedule.

Held. A law placed in the Ninth Schedule after 24 April 1973 is not immune merely because it is there. Its validity is open to challenge on the ground that it damages or destroys the basic structure, and the test is the effect of the law on the fundamental rights, particularly Articles 14, 19 and 21, rather than the form of the amendment. Judicial review being a basic feature, blanket immunity cannot be conferred.

Why it matters here. The Court's reasoning is historical throughout: it traces what the Schedule was for, notes what it had become, and confines it accordingly.

2. Article 21 and the deliberate rejection of due process. The framers' choice is the strongest historical argument for the Gopalan reading, and Maneka Gandhi had to overcome it. It did so not by denying the history but by the method of philosophy, holding that the guarantees form a single scheme, so that arbitrariness forbidden by Article 14 could not be permitted by Article 21. That is the honest way to describe the relation between the two methods: history states the starting position, and another method must displace it.

3. Sovereign immunity. The immunity of the State in tort in India descends from the East India Company's distinction between sovereign and non-sovereign functions, a distinction with no place in a republic committed to Article 300. The historical account of where it came from is what allowed Nilabati Behera v. State of Orissa, AIR 1993 SC 1960, to hold that the defence does not apply to a claim in public law for breach of a fundamental right.

The limits of the method

It can freeze the law. If origin controls, a rule can never outgrow its beginnings, and a constitution written in 1950 could never answer a question of 2026. This is the objection to strict originalism, and the Indian answer is [The Constitution as a Living Document].

History is contested. Constituent Assembly debates are long, and both sides quote them. Historical argument is rarely decisive because the record rarely speaks with one voice.

Origin does not settle authority. That a rule began badly does not by itself abolish it, and that it began well does not preserve it. The historical fact has to be converted into a legal reason by some further step.

It sits uneasily with a transformative constitution. The Indian Constitution was written to change Indian society, not to record it. A method that asks what the rule grew out of is in tension with an instrument whose purpose was to break with what preceded it.

A worked example

A statute of 1885 penalises "obstruction of a public thoroughfare". A protest march is prosecuted under it.

By history. The provision was enacted in a colonial period against nuisances such as abandoned carts and stray cattle, and to control assemblies the colonial state disliked. The first purpose is neutral; the second is one the Constitution has repudiated.

What follows. The court may read the section as directed at physical obstruction of the kind the provision was aimed at, and not at temporary assembly, since applying it to protest would give continued effect to a purpose Articles 19(1)(a) and 19(1)(b) reject.

What the method could not do alone. It could not decide the case. It supplied a reason for a narrow reading; the choice between narrow and wide was completed by the constitutional values that the method of sociology brings in.

Distinctions

Quick revision

1. Method of history: ask what the doctrine grew out of and what problem it was created to solve.
2. It works because a rule carries its purpose, because origin explains shape, and because continuity is a value.
3. Three steps: find the origin, ask whether the conditions persist, let the origin fix the direction of development.
4. Indian illustrations: the Ninth Schedule from Sankari Prasad to Coelho; the deliberate rejection of due process in Article 21; the colonial descent of sovereign immunity, rejected in Nilabati Behera.
5. Limits: it can freeze the law, the history is contested, origin is not authority, and it sits uneasily with a transformative constitution.
6. In Maneka Gandhi, history stated the starting position and the method of philosophy displaced it.

Test yourself

1. State the method of history and its three steps. It directs the judge to ask how the doctrine before him arose and what problem it answered. Find the origin; ask whether the conditions that produced the rule still obtain; and let the origin fix the direction in which the rule may honestly be developed.

2. Trace one Indian doctrine through the method of history. The Ninth Schedule. Created by the First Amendment in 1951 to protect agrarian reform, and upheld on that footing in Sankari Prasad, AIR 1951 SC 458. Its use spread far beyond agrarian reform. Waman Rao drew a line at 24 April 1973, and Coelho, decided 11 January 2007, held that laws placed there after that date remain open to challenge for damaging the basic structure, the test being the effect on Articles 14, 19 and 21.

3. What is the strongest objection to letting history control? That it freezes the law at the moment of enactment, so that a constitution of 1950 could never answer a question of 2026. The Indian answer is that the Constitution is a living document whose spirit must evolve with time, which is why the historical argument for the Gopalan reading of Article 21 did not survive Maneka Gandhi.

4. Why is history an unusually weak method under the Indian Constitution specifically? Because that Constitution was transformative rather than declaratory. It was written to change an existing social order, not to record it, so a method that asks what a provision grew out of is in tension with an instrument whose point was to break with what preceded it.