27th January 2020 : The Hindu Editorials Notes : Mains Sure Shot
Question – The constitution is a living document and so are its interpretations. Comment.
Context – The recent SC judgements.
- Indian Constitution can be changed according to the requirement and the needs of the present society and its future, it is not a constant and static document rather it is fluid and it can be changed by the process of amendment.
- The Constitution is open to interpretation by the Supreme Court after understanding the society and the basic foundational values of the constitution.
The changing interpretations of the constitution by the SC:
- Phase one – the textual approach – This phase was primarily the phase right after independence. In this phase the Supreme Court adopted a textualist approach (i.e. less focus on analysis of the constitution and more focus on explaining the constitutional articles), focusing on the plain meaning of the words used in the Constitution.
- For example, A.K. Gopalan v. State of Madras (1950) was one of the early decisions in which the Court was called upon to interpret the fundamental rights under Part III. The leader of the Communist Party of India claimed that preventive detention legislation under which he was detained was inconsistent with Articles 19 (the right to freedom), 21 (the right to life) and 22 (the protection against arbitrary arrest and detention).
- The Supreme Court decided that each of those articles covered entirely different subject matter, and were to be read as separate codes rather than being read together. It was more of explaining the meaning of Article 19, 20 and 21.
- This is also proved by the example of the question whether the parliament has the power to amend the Constitution, especially fundamental rights. Since there are no explicit limitations mentioned in the constitution, the Court read the Constitution literally, concluding that there were no such limitations.
- Then came the second phase – in this phase the Supreme Court began exploring other methods of interpretation. I.e. it moved beyond the literal meaning of the articles to a more in depth and analytical ones.
- For example, in the leading case of Kesavananda Bharati v. State of Kerala (1973), the Court concluded that Parliament’s power to amend the Constitution did not extend to altering its “basic structure” — an open-ended catalogue of features that lies within the exclusive control of the Court. And when Parliament attempted to overturn this decision by amending the Constitution yet again, the Court, relying on structuralist justifications, decisively rejected that attempt.
- In yet another example of this phase, the Court also categorically rejected the Gopalan approach in favour of a structuralist one in Maneka Gandhi v. Union of India (1978). Through this decision, the Court conceived of the fundamental rights as a cohesive bill of rights rather than a miscellaneous grouping of constitutional guarantees.
- Also the right to life was analytically interpreted to include a wide range of rights such as clean air, speedy trial, and free legal aid. This paved the way for the Supreme Court to play an unprecedented role in the governance of the nation.
- What was common between the first two phases of the interpretive story was that significant decisions involving the interpretation of the Constitution were entrusted to Constitution Benches (comprising five or more judges of court) and were carefully (even if incorrectly) reasoned.
- In the third phase, the Supreme Court’s interpretive philosophy turned far more result-oriented than it had ever been. Also in this phase it began to sit in panels of two or three judges, effectively transforming it into a “polyvocal” group of about a dozen sub-Supreme Courts. Second, the Court began deciding cases based on a certain conception of its own role.
- The fourth phase – we are currently in the midst of transitioning from the third phase of constitutional interpretation to the fourth. In the fourth phase, the Court has acknowledged its critical role and is also taking into consideration the purpose for which the Constitution has been enacted.
- The Court is now beginning to interpret the Constitution in accordance with its revolutionary and transformative potential.
- As a result since September 2018, there has been a renaissance in decision-making by Constitution Benches. This includes the Court’s decisions striking down Section 377 and the criminal offence of adultery, and including the office of the Chief Justice of India within the scope of the Right to Information Act.
- Hence we can see that the SC is continuously revising its role and its interpretations of the constitution. It seems that just like the constitution is a living document, the SC is a rejuvenating (make (someone or something) look or feel better, younger, or more vital) institution.
- The secret behind the long survival of the Indian constitution through the tests of time is its living character. This must be cherished and upheld.
Note – There is another article on ‘urban naxalism’. The article doesn’t have much content. Understand the meaning of the term.
- The term Urban Naxals is not clearly defined. The origin of the word can be traced to the book and a few essays by film-maker and social media opinion-maker Vivek Agnihotri’s book, Urban Naxals: The Making of Buddha in a Traffic Jam. The phrase of Urban Naxals is loosely attributed to the people with naxalite bent of mind residing in urban areas and working as activists, supporters and protectors of the ideology while the active Naxals battle it out in the jungles and vast swathes of Maoist-dominated areas.