Siddhant Kohli

The Constitution was meant to be a living document as far as India is concerned, and indeed the amendment process is much easier in India than in several other common law jurisdictions. The reason behind this is as much in the comprehensiveness of our Constitution, as in the nature of its living. Our Constitution deals with not just substantive law but also several instances of procedural law, and goes into substantial detail in the division of powers, extent of powers, and creation and existence of authorities that shall exist in the country. Its amend-ability is a result of practical considerations keeping in light the above.

The question on whether it should be living or dead would strike at a rather fundamental question, whether statutes should be interpreted strictly or liberally.

In light of legal provisions that deal with human rights, natural justice, and the principles of equity, my argument is that these need to be construed liberally. The limitations of statute framing cannot be at the detriment of justice, nor can they be used to defeat an individual’s substantive rights merely on procedural grounds. Thus, provisions relating to fundamental rights (and duties) and directive principles, among others, need to be construed liberally. This part, in effect, should be living.

As to the parts which sets out procedures, jurisdictions, and creation of offices may be construed strictly by judicial interpreters, and at the same time be open to amendment by the legislature, who are more than mere interpreters and can in effect be creators. This would enable the Constitution to be true to its roots at all time, while not fundamentally altering powers vested with different authorities. It shall also disable the court from changing the meaning assigned to statutes, as the Supreme Court did in the four Judges’ cases, in fact interpreting the Constitution to mean the exact opposite of what a bare reading of the Article states and means. It would also limit the power of several authorities from being at the mercy of the Court and public mood, thus making all authorities fundamentally answerable to their mandate in actual.

The imbalance in Interpretation of the Constituion I Photo Courtesy: PHG Foundation

The imbalance in Interpretation of the Constitution I Photo Courtesy: PHG Foundation

This balancing act, by any argument, cannot be used to curtail the inherent power of the Courts to dispense justice, which is their fundamental purpose in society.

With all due respect to the Court and Parliament, this discussion is relevant because the Court overreaches in its mandate (popularly known as Judicial Activism) in the absence of enough being done by the legislature and the executive. The ground taken by the Court in its exercise of this authority is that they are interpreters of a living document, and as such can do whatever they think is necessary. The court has used its power of judicial interpretation to frame guidelines akin to law (such as the Vishakha case (rape laws) or the Aruna Shaunbaug case (Passive Euthanasia), in the absence of the same from the legislature, and also used it to bring about appointments in executive authorities who are unable to manage their work load due to poor human resource management (The Saradha Chit fund CBI case).  The Court has done almost always with the most positive intentions in mind. Concurrently, the Court has also been party in perpetuating some fundamental wrongs, such as the Sahara bail case (He was imprisoned for a crime in which bail is a matter of right, not discretion of the court. As such, setting a bail amount which is inherently unpayable by the accused amounts to refusal of bail which is incorrect and overstepping) and times where the Court has interfered in the working of the legislature. This of course, makes it a double-edged sword,

The right side of which is definitely sharper than the wrong side.

As to the amending power of the legislature, several amendments, such as the 39thamendment, were made to perpetuate illegalities by politically powerful people (in the instant case Indira Gandhi); others such as the 95th amendment were used to meet politically expedient ends (extended SC ST reservation in the Lok Sabha). Accordingly, this power too cannot be absolute and needs to have the balance of the Court as the protector of the Constitution, while not changing the meanings of statutes.

In conclusion, the Constitution needs to have living and dead parts, and their life and death needs to be relative to the authority looking into change the nature of the document (the Courts should not be able to alter the procedural aspects while the parliament should not be able to abridge human rights). This balance, while precarious, is a viable way forward.

This post was originally published on Spontaneous Order.

The Author is currently a third year student of law looking to further a career in International litigation. He is interested in travelling, reading, and golf. 

Posted by The Indian Economist | For the Curious Mind