LAW

Comparative Constitutional Law

Constitutional Interpretation: Original Meaning v. Living Document

 Q1: E-TEXT
Module ID 16: Constitutional Interpretation: Original Meaning v. Living
Document

Subject Name: Law

Paper Name: Comparative Constitutional Law

Module ID: 16

Pre-requisites: Basic knowledge of constitutional law, comparative law.

Objectives: Interpreting constitutions require distinct approaches and methods from

interpreting statutes. This module explores two main approaches to interpreting the
constitution, originalism and living document using India and U.S.A as examples.

Keywords: interpretation, comparative constitutional law, originalism, textualism,

purposive interpretation, living constitution.
 CONSTITUTIONAL INTERPRETATION: ORIGINAL MEANING V. LIVING DOCUMENT

1. Introduction

Constitutional interpretation or constitutional adjudication is one of the foremost

functions of constitutional courts in a democratic set up. It contemplates adjudication
of a question of law upon the touchstone of a constitution principle. 1It is also the
testing of one constitutional principle with another constitutional principle2 orthe
interpretation of a constitutional provision by which the scope and expanse of a
provision is increased.3In each of these adjudications there is one common factor that
has to keep in mind, being that the constitution of a nation is the supreme law and that
any interpretation that would run counter to the constitution or to a constitutional
principle has to be avoided.

2. Methods of constitutional interpretation

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:

“[A]lthough the spirit of an instrument, especially of a Constitution, is to be

respected not less than its letter, yet the spirit is to be collected chiefly from its words.

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

University Press, 1998) 23.

5ibid.
6Ran Hirschl, “Comparative Matters, The Renaissance of Comparative Constitutional Law” (Oxford,

Oxford University Press, 2014), 147.

 … if, in any case, the plain meaning of a provision, not contradicted by any other
provision in the same instrument, is to be disregarded, because we believe the
framers of that instrument could not intend what they say, it must be one in which the
absurdity and injustice of applying the provision to the case would be so monstrous
that all mankind would, without hesitation, unite in rejecting the application.”7

The alternate school of thought in respect of constitutional interpretation is that of the

“Living Constitution”. This school contemplates that constitutional law is not a static
document but is a dynamic document.8 The “Living Constitution”, a body of law that
(unlike normal statutes) grows and changes from age to age, in order to meet the
needs of a changing society.9The followers of this school do not necessarily bind
themselves to the strict word of the contents of the Constitution but look to find
greater meaning behind the mere words of the constitution. A lucid explanation of
this principle is contained in the words of Justice Vivian Bose of the Indian Supreme
Court,

“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.”

3. Need for constitutional interpretation

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

7Sturges v. Crowninshield, 4 L Ed 529 (1819).

8State of West Bengal v. Committee for Protection of Democratic Rights, (2010) 3 SCC 571.
9Antonin Scalia, “A Matter of Interpretation, Federal Courts and the Law”, (Princeton, Princeton

University Press, 1998) 41.

10State of W.B. v. Anwar Ali Sarkar, 1952 SCR 284, in this case Justice Bose was dissenting from

the majority that based their judgment on a textualist stand.

11Edwards v. Attorney-General for Canada, [1930] A.C. 124.
 in India and also the United States Supreme Court.12 The Canadian Supreme Court
has also lucidly set out the said principle in the following terms:

“The task of expounding a constitution is crucially different from that of construing a

statute. A statute defines present rights and obligations. It is easily enacted and as
easily repealed. A constitution, by contrast, is drafted with an eye to the future. Its
function is to provide a continuing framework for the legitimate exercise of
governmental power and, when joined by a Bill or a Charter of Rights, for the
unremitting protection of individual rights and liberties. Once enacted, its provisions
cannot easily be repealed or amended. It must, therefore, be capable of growth and
development over time to meet new social, political and historical realities often
unimagined by its framers. The judiciary is the guardian of the constitution and must,
in interpreting its provisions, bear these considerations in mind. Professor Paul
Freund expressed this idea aptly when he admonished the American courts “not to
read the provisions of the Constitution like a last will and testament lest it become
one.”13

Professor Bruce Ackerman articulates that there is a fundamental difference between

the decisions that were made by the people of America and the decisions made by
those who govern the people of America. He argues that for any group of people
looking to make a law that is to govern others, they must first gain the authority from
the people to make such a law. Once this law has been formed, pursuant to the
conditions and requirements that professor Ackerman prescribes, there comes into
existence a constitution. This process is termed by him as “higher lawmaking”. And
once this higher lawmaking has been achieved for the first time, it gives those who
have been given the power to rule under the process of higher lawmaking, the power
of “normal lawmaking”.14

The importance of constitutional interpretation has been observed in the by the

United States Supreme Court in the following words:

“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.

4. Originalism or a Living Constitution

Since the principle of textualism or the living constitution is a principle of

interpretation, it is obviously not captured in any manner in any constitution, much
less in the Indian Constitution. It is a context that one can only gather from the
various judgments passed by the courts over time. This concept in Indian courts will
be explained in the context of cases dealing with fundamental rights.

16State of Karnataka v. Ranganatha Reddy, (1977) 4 SCC 471.

17Article 21 of the Indian Constitution reads, “No person shall be deprived of his life or personal
liberty except according to procedure established by law.” Similarly, the Fifth Amendment of the
United States Constitution, which applies to the Federal Government reads, “No person ... shall be
deprived of life, liberty, or property, without due process of law ...” and the Fourteenth Amendment
which applies to State Government reads, “No State shall ... deprive any person of life, liberty, or
property, without due process of law ...”. The question always remains as to what is valid
“procedure established by law” or what would be “due process of law” since that is an abstract
principle. However, also see the First Amendment to the American Constitution and the
explanation in relation to the same below.
18This can be contrasted with constitutional obligations which are clearly laid out, such the

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

where Parliament is considered supreme.

 Textualism or Originalism as a method of interpretation has been favoured owing to
its consistency and also its predictability. In particular, in the earlier stages of the
Indian Supreme Court at the turn of independence, by favouring originalism, the
Indian Supreme Court brought in a great deal of consistency in its legal
pronouncements.21However, with the progress of time and with the need to protect
the rights of the citizens from various governmental infractions, the Indian Supreme
Court began reading into the context of fundamental rights, rights that were not
expressly contained in statutory law or in the constitution.22

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. Textualism and Living Constitutional principles in the interpretation of Fundamental

Rights

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

reform”, (Harvard; Harvard University Press, 1968).

26AIR 1950 SC 27, (“Gopalan’s case”).
 relationship between the Articles. The Supreme Court in a verdict of 4 to 127
dismissed the petition and upheld the validity of the state action that was
sought to be impugned as unconstitutional.

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.

In the ruling of Keshavananda Bharathi v. State of Kerala32the Court began

reading into the Indian Constitution the essence of the "due process" clause.
The Court observed that the power of judicial review was vested in the Indian
Judiciary by the Indian Constitution and also by the fact that the rights in
Article 19 contained the requirement that the restrictions that were imposed
in the rights had to be reasonable. The Bench held that the concept mentioned
here was not merely an American one but was also accepted in the ‘common
law system’. The Court opined that the words ‘reason’ and ‘reasonable’
denoted the law of nature, which the American and English law referred to
differently but connoted the same meaning.33 Thus, simply put, the phrases
“procedure established by law” and "due process of law", according to the
Court were nothing more than an interplay of words that have the ‘same soul
but different bodies’.

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.”

With the passing of the judgment in Maneka Gandhi,40 in a number of

subsequent cases the Supreme Court, in M. H. Hoskot v. State of
Maharashtra41; Hussainara Khatoon v. Home Secretary, State of
Bihar42;Jolly George Verghese v. Bank of Cochin43has also continued
approving the due process clause into the Indian constitution. However, what
the Indian Supreme Court had also done with these judgments is to veer from
“procedural due process” where only the correctness of the procedure was
being tested to “substantive due process” where substantive rights were being
vested in the people. Thus from a purely originalist interpretation wherein the
“due process” clause was completely rejected, to an amalgam of originalism,
where the court accepted a procedural due process interpretation, the
Supreme Court shifted towards a living constitutional interpretation by
vesting rights that were hitherto unknown to the people by a mean of
interpreting the constitution.

4.1.2. United States of America

Unlike in India, where there is an almost clear demarcation in the

interpretative standard adopted by the Indian Supreme Court as regards the
manner of its interpretation of fundamental rights, the United States Supreme

34AIR 1978 SC 597.

35ibid, 659.
36
ibid, 625, citing from Wiseman v. Borneman, 1971 AC 297.
37(1969) 2 Ch D 149.
38See Fontaine v. Chastarton(1968) 112 Sol. Gen. 690, cf. American Journal of International Law,

Vol. 67, p. 479, per Maggary J.

39AIR 1978 SC 1675, 1690.
40Supra at 34.
41AIR 1978 SC 1548, the right against being handcuffed.
42AIR 1979 SC 1369, right to compensation for violation of a fundamental right.
43AIR 1980 SC 470, right against being imprisoned for non – payment of a civil debt.
 Court does not have such a clear distinctive period. While it is generally
perceived that the judgments passed by the United States Supreme Court
after the “New Deal” have created more rights through interpretative
methods, that is not always a rule of thumb. Thus, the United States Supreme
Court had upheld the segregation of whites from blacks in public places 44 or
requiring separate schools for non – American children,45right of the police
to, without a warrant, search automobiles for illegally transporting liquor,46
uphold a zoning ordinance on the ground that the same was in exercise of the
police power of the state47 and also permitted evidence, which was
improperly obtained to be used in a criminal trial.48

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.

4.2. Combined uses of originalism and living constitutional interpretations

4.2.1. United States of America

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.

44Plessy v. Ferguson, 163 U.S. 537 (1896).

45Lum v. Rice, 275 U.S. 78 (1927).
46Carroll v. United States, 267 U.S. 132 (1925).
47Village of Euclid v. Ambler Realty Co., 272 U.S. 365 (1926)
48Byars v. United States, 273 U.S. 28, 33 (1927) and Weeks v. United States, 232 U.S. 383 (1914)
49Mapp v. Ohio, 367 U.S. 643 (1961) and Wolf v. Colorado, 338 U.S. 25 (1949).
50Department of Agriculture v. Moreno, 413 U. S. 528 (1973).
51Romer v. Evans, 517 U.S. 620 (1996).
52Loving v. Virginia, 388 U.S. 1 (1967).
53Lawrence v. Texas, 539 U.S. 558 (2003).
54The text of the First Amendment, which guarantees the freedom of speech and expression

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

Similarly, the Supreme Court of India, while interpreting the freedom of

speech and expression, as early as 1995 has recognised commercial speech as
a facet of the freedom of speech and expression,60 has protected citizen’s
telephones from indiscriminate tapping61 and also recognised the right of a
transgender to seek an identity of choice and not be forced to choose either
male or female.62 Each of these rulings are important in that, the Supreme
Court of India has read into Article 19(1)(a) of the Indian Constitution,
substantive rights that were not expressly set out in its text and as such, has
not bound itself to the originalist school of thought.

4.3. Critiques of the living constitution

One of the fundamental objections to the concept of a living constitution is

the fact that it is a form of constitutionalism that is done by the courts, which
is a body that is neither elected by the people nor does it owe its allegiance to
the people unlike a legislative body like the Parliament in India or Congress
in the United States of America. Such being the case, originalists would
contend that if there are fundamental changes that are required to be made to
the constitution, such changes must be made in the form of amendments and
not just through judicial decisions which do not have the backing of the
people.

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

55Texas v. Johnson,491 U.S. 397 (1989).

56Brandenburg v. Ohio, 395 U.S. 444 (1969) and Cohen v. California, 403 U.S. 15 (1971).
57Central Hudson Gas & Electric Corp. v. Public Service Commission, 447 U.S. 557 (1980).
58Miller v. California, 413 U.S. 15 (1973).
59Morse v. Fredrick, 551 U.S. 393 (2006)
60Secy., Ministry of Information & Broadcasting, Govt. of India v. Cricket Assn. of Bengal, (1995) 2

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

However, as has been pointed out by a number of judgments in various

courts, constitutions, which are drafted years ago, could have not
contemplated situations which are present and on - going. The drafters or
framers of such a constitution would have taken into account instances that
occurred in the backdrop of which the constitution was drafted. It would be
almost impossible for the drafters to take into consideration what actions
would entail in the times to come.64

5. Summary and Conclusion

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

In sum, living constitutionalism is primarily a theory about the processes of

constitutional development produced by the interaction of the courts with the political
branches. It is a descriptive and normative theory of the processes of constitutional
construction. It explains how change occurs and it gives an account of why that process
is democratically legitimate, or at least more legitimate than the alternatives. To
understand living constitutionalism, therefore, we need to understand constitutional
construction. And we must begin not with courts which usually react and respondbut
with constitutional constructions by the people’s elected representatives.67

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).