Living Constitution, Heart of Healthy Democracy With Abiding Rule of Law
Society changes over time, either it is the technology or the international
situations, And these changes were incalculable. Constitution, a written
document containing the laws and norms, was drafted around 75 years ago, which
would invariably assume to be not fit as per the need of the time. And So, the
Supreme Court of India, with the constitutional makers, contended that the
constitution has to be a living document.
Now, the question arises about the technicality of this living constitution in reference to the demographic framework and the rule of law. Does it is necessary or just be a part? Or how far it is needed to pertains a healthy governing country? This article deals with the question to look and analyse on to how it affects them. And finally, to sort how it is an incumbent part, with analysis its historic contention and the present relevancy with reference to the rule of law.
Introduction
"Constitutional morality is not a natural sentiment. It has to be cultivated"- BR Ambedkar.
One of the old debates among the scholars and philosophers in the American constitutional jurisprudence is about the constitution, that it should be interpreted as a living document or as if it was originally intended to be interpret. The theory of originalism states that the written constitution is (or should be) interpreted in consistent with what those who drafted and ratified it intended the meaning to meant.
Sir Raoul Berger, one of the major proponents of this theory had written the book Government of Judiciary, argues that "U.S. Supreme Court (especially, but not only, the Warren Court) has interpreted the Fourteenth Amendment of the U.S. Constitution contrary to the original intent of the framers of this Amendment and that the U.S. Supreme Court has thus usurped the authority of the American people to govern themselves and decide their own destiny."[1]
Justice Robert Bork, in the book "The Tempting of America", also defends the position that "all that counts" to a judge interpreting the Constitution "is how the words used in the constitution would have been understood at the time [of enactment]." On the other hand, the living document theory argues that the constitution has to be interpreted by taking into consideration the context of current times and demands instead of barely applying the laws that were enacted much before.
In General, there were two broader arguments for the living constitution. First, the pragmatist view contends that interpreting the constitution in accordance with its original meaning or intent is sometimes unacceptable as a policy matter, and so an evolving interpretation is necessary.[2] And second, the framer of the constitution wrote it in broader and flexible terms to make it a dynamic living document.
In India, the living constitution ideal has always been perceived. Pandit Jawaharlal Nehru in the Constituent Assembly connotes, "While we want this constitution to be as solid and as permanent a structure as we can make it, nevertheless there is no permanence in Constitutions. There should be certain flexibility. If you make anything rigid and permanent, you stop a nation's growth, the growth of a living, vital, organic people. Therefore, it has to be flexible."
The Supreme court of India had also contained a similar opinion of the living constitution ideals. This brought a tussle of war between the executive and the judiciary. In the case of Kapila Hingorani vs. State of Bihar[3] the Supreme Court observed, "the interpretation of the constitution or the statutes would change from time to time. New rights may have to be found out within the constitutional scheme."
The same idea was again stated in the case of Kalpana Mehta vs. Union of India[4], here Dipak Misra, C.J, in the judgement by stated "the Courts never allow a Constitution to be narrowly construed keeping in view the principle that a Constitution is a living document and organic which has the innate potentiality to take many a concept within its fold. The Courts, being alive to their constitutional sensibility, do possess a progressive outlook having a telescopic view of the growing jurisprudence."
Thus, the largest democracy of the world possesses a living and ever-evolving constitution. But now the question arises,
Why the apex court and the constitutional makers gave that much weightage to this Constitution as a living document?
And,
Can it be an incumbent part of the formulation of the Rule of Law and a successful democracy?
The answer for the above question is yes, the apex court or the constitutional framework gave much weightage to the amending power of the constitution as it provides a time relevant framework of laws to a country that signifies how and in what ways a law or rule has to be used so as to dealt with the people's right and justice at a particular time and level of the technology. The constitution is the basic source of the law and it holistically influence the law of the country.
So, it has to be dynamic, so as to engulf the need of growing time and smoothing the legal development in the country. We here look into how this works in the case of the largest democracy of the world, providing an incumbent heart to a governing body.
The First Principle, Supremacy Of Law, states 'no man is punishable or can lawfully be made to suffer in body or goods except for a distinct breach of law established in the ordinary legal manner before the ordinary courts of the land'. This means that one does not have to suffer in the ordinary transition of life and has the freedom to live life with all the basic rights and requirements.
These requirements and basic rights are subjectable in nature, that is in due course of the development, changes from one to another. Thus, to engulf these changes, it is essential for the constitution to be flexible and evolving. So that these needs come under the purview of fundamental rights and stay protected.
Further, this principle also talks of the punishments that no man is punishable without any breach, but as the society grows, there arouses new - new challenges such as sexual harassment, cyber crimes, pornography, internet etc. and for that, it is essential for the law to take them into account and formulate acts and rules such as:
The Second Principle, Equality Before Law. the meaning of the second principle of the Rule of Law is no man is above the law. Growing opportunity and unequal backgrounds hinder this principle, as making the division among the equal citizens.
But as society develops, the definition and need for this equality are evolving, such as the citizens belonging to different castes and sections and even different economic backgrounds do not possess the equal opportunity of education and employment, and thus invariable subject to discrimination. The constitution of India dealt with the principle of equality and not just equity, and for that, they requires constant up-gradation to provide this, to curb that discrepancy, plus providing the legal framework for the better utilisation of rights.
This made the further reservation, The Constitution (One Hundred and Third Amendment) Act, 2019[19] providing 10% quota to the economic weaker section and 104th amendment 105th Amendment Act of the Indian Constitution.
The need for equality for the other gender is the need for the transgender as the third gender that is recognised in National Legal Services Authority v. Union of India[20] and all that needs the living constitution that proves to be the backbone of the flexible law, that would be read and interpreted as per the needs of the present times not as of the time of its formation.
The third principle, Predominance of Legal Spirit. This in itself states that the general principles of the constitution are the result of juridical discretion, determining file rights of private persons in particular cases brought before the court, and so they were not be read as static rules in the sense what it was, at times of its draft.
In the Golaknath v. State Of Punjab[21] case how the supreme court interpreted that the parliament does not have the power to amend the fundamental rights as the facts of the case is in such a way that this curtailment was necessarily seeking the acts passed by the parliament. But in the case of Kesavananda Bharati Sripadagalvaru & Ors. v. State of Kerala & Anr.[22] this discretion was slightly changed.
The judges opinionated that the parliament can even amend the fundamental rights, but that does not change the basic structure of the constitution. Even this clash of opinion happens in the case of Suresh Kumar Koushal v. Naz Foundation[23] Navtej Singh Johar v. Union of India[24]. Whereat prior section 377 was declared constitutional, and in the next, it was declared unconstitutional.
So, due to the flexibility, the interpretation can be made subject to the development of the passage of the different - different statutes and acts. And suppose in the case that this flexibility is not there and the exact words of the constitution have to be interpreted, the third organ of the government might lose its vitality. Even we saw how the different acts or the provision held to different interpretations, which made possible to the growth of the legal spirit in the country.
Conclusion
Democracy is for the people, of the people and by the people, where the acts such as The Epidemic Diseases (Amendment) Bill, 2020[25] can be made for the people in the needy situation. Democracy is of the people, where for them, acts made such as Citizenship (Amendment) Act, 2019[26] and Jammu and Kashmir Reorganisation Act, 2019[27].
And democracy is by the people where the will of them is supreme, and the laws such as farm laws[28] can be repealed or nullified by them, not adhering to their demands and needs. And all of these were possible due to the living constitution. Neither the laws were just be calculated statically on the harsh line set by the constitution maker without taking the purview of the people. And that sound against the welfare of the rule of law and democracy.
Furthermore, this amending power protects the dignity to interpret how we could respond by changing our policy (Nuclear rethink - no first use[29]) and predict the future by evolving the mechanism (The Cryptocurrency and Regulation of Official Digital Currency Bill, 2021[30]).
Thus, it is incumbent that the constitution has to be interpreted according to the needs and the ideals of the time and technology, and for this, there needs the living constitution so as to protect the will of the people serving as the heart of the democracy with abiding the rule of law.
Bibliography
Now, the question arises about the technicality of this living constitution in reference to the demographic framework and the rule of law. Does it is necessary or just be a part? Or how far it is needed to pertains a healthy governing country? This article deals with the question to look and analyse on to how it affects them. And finally, to sort how it is an incumbent part, with analysis its historic contention and the present relevancy with reference to the rule of law.
Introduction
"Constitutional morality is not a natural sentiment. It has to be cultivated"- BR Ambedkar.
One of the old debates among the scholars and philosophers in the American constitutional jurisprudence is about the constitution, that it should be interpreted as a living document or as if it was originally intended to be interpret. The theory of originalism states that the written constitution is (or should be) interpreted in consistent with what those who drafted and ratified it intended the meaning to meant.
Sir Raoul Berger, one of the major proponents of this theory had written the book Government of Judiciary, argues that "U.S. Supreme Court (especially, but not only, the Warren Court) has interpreted the Fourteenth Amendment of the U.S. Constitution contrary to the original intent of the framers of this Amendment and that the U.S. Supreme Court has thus usurped the authority of the American people to govern themselves and decide their own destiny."[1]
Justice Robert Bork, in the book "The Tempting of America", also defends the position that "all that counts" to a judge interpreting the Constitution "is how the words used in the constitution would have been understood at the time [of enactment]." On the other hand, the living document theory argues that the constitution has to be interpreted by taking into consideration the context of current times and demands instead of barely applying the laws that were enacted much before.
In General, there were two broader arguments for the living constitution. First, the pragmatist view contends that interpreting the constitution in accordance with its original meaning or intent is sometimes unacceptable as a policy matter, and so an evolving interpretation is necessary.[2] And second, the framer of the constitution wrote it in broader and flexible terms to make it a dynamic living document.
In India, the living constitution ideal has always been perceived. Pandit Jawaharlal Nehru in the Constituent Assembly connotes, "While we want this constitution to be as solid and as permanent a structure as we can make it, nevertheless there is no permanence in Constitutions. There should be certain flexibility. If you make anything rigid and permanent, you stop a nation's growth, the growth of a living, vital, organic people. Therefore, it has to be flexible."
The Supreme court of India had also contained a similar opinion of the living constitution ideals. This brought a tussle of war between the executive and the judiciary. In the case of Kapila Hingorani vs. State of Bihar[3] the Supreme Court observed, "the interpretation of the constitution or the statutes would change from time to time. New rights may have to be found out within the constitutional scheme."
The same idea was again stated in the case of Kalpana Mehta vs. Union of India[4], here Dipak Misra, C.J, in the judgement by stated "the Courts never allow a Constitution to be narrowly construed keeping in view the principle that a Constitution is a living document and organic which has the innate potentiality to take many a concept within its fold. The Courts, being alive to their constitutional sensibility, do possess a progressive outlook having a telescopic view of the growing jurisprudence."
Thus, the largest democracy of the world possesses a living and ever-evolving constitution. But now the question arises,
Why the apex court and the constitutional makers gave that much weightage to this Constitution as a living document?
And,
Can it be an incumbent part of the formulation of the Rule of Law and a successful democracy?
The answer for the above question is yes, the apex court or the constitutional framework gave much weightage to the amending power of the constitution as it provides a time relevant framework of laws to a country that signifies how and in what ways a law or rule has to be used so as to dealt with the people's right and justice at a particular time and level of the technology. The constitution is the basic source of the law and it holistically influence the law of the country.
So, it has to be dynamic, so as to engulf the need of growing time and smoothing the legal development in the country. We here look into how this works in the case of the largest democracy of the world, providing an incumbent heart to a governing body.
Evolving Power Enshrined in The Constitution Itself
To constitute the constitution to be living, the one major requirement of it is to evolve. For that purpose, the founding father of the constitution inserted article 368, which allows procedure for amendments this empowers the parliament to add new, change or repel existing laws. This article 368 had in itself had suffered amendments and changes. In clause (1) of Article 368- the power to amend was added, and the procedure was shifted to clause (2) of Article 368 this was through an amendment which was consisted with the landmark judgment of I.C. Golaknath Case[5].Dicey's Rule Of Law
For a healthy democracy, it is incumbent to have the rule of law. And here, we would portray how for the formulation of the rule of law is only possible due to the living constitution.The First Principle, Supremacy Of Law, states 'no man is punishable or can lawfully be made to suffer in body or goods except for a distinct breach of law established in the ordinary legal manner before the ordinary courts of the land'. This means that one does not have to suffer in the ordinary transition of life and has the freedom to live life with all the basic rights and requirements.
These requirements and basic rights are subjectable in nature, that is in due course of the development, changes from one to another. Thus, to engulf these changes, it is essential for the constitution to be flexible and evolving. So that these needs come under the purview of fundamental rights and stay protected.
- Right to Privacy in the case of Justice K. S. Puttaswamy (Retd.) and Anr. vs Union Of India And Ors [6],
- Right to Clean environment in M.C. Mehta v. Union of India [7],
- Dignity in the case of Maneka Gandhi v. Union of India [8],
- Right to Livelihood in Olga Tellis v. Bombay Municipal Corporation[9],
- Right to Speedy Trial in Hussainara Khatoon v. State of Bihar[10],
- Right to Education in Mohini Jain v. State of Karnataka[11],
- Right to Sleep in Ramlila Maidan Incident vs. Home Secretary, Union of India[12],
- Right to Legal Aid in Sheela Barse v. Respondent:Union of India & Ors.[13],
- Right to Health and Medical Assistance in Parmanand Katara v. Union of India [14],
- Right to trade or business over the medium of internet in Anuradha Bhasin v. Union of India[15].
Further, this principle also talks of the punishments that no man is punishable without any breach, but as the society grows, there arouses new - new challenges such as sexual harassment, cyber crimes, pornography, internet etc. and for that, it is essential for the law to take them into account and formulate acts and rules such as:
- Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013[16],
- Information Technology Act, 2000[17],
- The Protection of Children from Sexual Offences Act, 2012[18]
The Second Principle, Equality Before Law. the meaning of the second principle of the Rule of Law is no man is above the law. Growing opportunity and unequal backgrounds hinder this principle, as making the division among the equal citizens.
But as society develops, the definition and need for this equality are evolving, such as the citizens belonging to different castes and sections and even different economic backgrounds do not possess the equal opportunity of education and employment, and thus invariable subject to discrimination. The constitution of India dealt with the principle of equality and not just equity, and for that, they requires constant up-gradation to provide this, to curb that discrepancy, plus providing the legal framework for the better utilisation of rights.
This made the further reservation, The Constitution (One Hundred and Third Amendment) Act, 2019[19] providing 10% quota to the economic weaker section and 104th amendment 105th Amendment Act of the Indian Constitution.
The need for equality for the other gender is the need for the transgender as the third gender that is recognised in National Legal Services Authority v. Union of India[20] and all that needs the living constitution that proves to be the backbone of the flexible law, that would be read and interpreted as per the needs of the present times not as of the time of its formation.
The third principle, Predominance of Legal Spirit. This in itself states that the general principles of the constitution are the result of juridical discretion, determining file rights of private persons in particular cases brought before the court, and so they were not be read as static rules in the sense what it was, at times of its draft.
In the Golaknath v. State Of Punjab[21] case how the supreme court interpreted that the parliament does not have the power to amend the fundamental rights as the facts of the case is in such a way that this curtailment was necessarily seeking the acts passed by the parliament. But in the case of Kesavananda Bharati Sripadagalvaru & Ors. v. State of Kerala & Anr.[22] this discretion was slightly changed.
The judges opinionated that the parliament can even amend the fundamental rights, but that does not change the basic structure of the constitution. Even this clash of opinion happens in the case of Suresh Kumar Koushal v. Naz Foundation[23] Navtej Singh Johar v. Union of India[24]. Whereat prior section 377 was declared constitutional, and in the next, it was declared unconstitutional.
So, due to the flexibility, the interpretation can be made subject to the development of the passage of the different - different statutes and acts. And suppose in the case that this flexibility is not there and the exact words of the constitution have to be interpreted, the third organ of the government might lose its vitality. Even we saw how the different acts or the provision held to different interpretations, which made possible to the growth of the legal spirit in the country.
Conclusion
Democracy is for the people, of the people and by the people, where the acts such as The Epidemic Diseases (Amendment) Bill, 2020[25] can be made for the people in the needy situation. Democracy is of the people, where for them, acts made such as Citizenship (Amendment) Act, 2019[26] and Jammu and Kashmir Reorganisation Act, 2019[27].
And democracy is by the people where the will of them is supreme, and the laws such as farm laws[28] can be repealed or nullified by them, not adhering to their demands and needs. And all of these were possible due to the living constitution. Neither the laws were just be calculated statically on the harsh line set by the constitution maker without taking the purview of the people. And that sound against the welfare of the rule of law and democracy.
Furthermore, this amending power protects the dignity to interpret how we could respond by changing our policy (Nuclear rethink - no first use[29]) and predict the future by evolving the mechanism (The Cryptocurrency and Regulation of Official Digital Currency Bill, 2021[30]).
Thus, it is incumbent that the constitution has to be interpreted according to the needs and the ideals of the time and technology, and for this, there needs the living constitution so as to protect the will of the people serving as the heart of the democracy with abiding the rule of law.
Bibliography
- IvyPanda. (2020) 'The originality and the Living Document theories'. 11 January. (Accessed: 15 January 2022), https://ivypanda.com/essays/the-originality-and-the-living-document-theories/
- Valcke, Anthony. (2012). The Rule of Law: Its Origins and Meanings (A Short Guide for Practitioners).
- The Problem with India's Living Constitution, Sudhanva S Bedekar, National Law School of India Review https://nlsir.com/the-problem-with-indias-living-constitution/
- Staton, Jeffrey K. "Commentary on the Articles Rule-of-Law Concepts and Rule-of-Law Models." The Justice System Journal 33, no. 2 (2012): 235-41. http://www.jstor.org/stable/23268816.
- Rule of Law a Reflection, Qwerty9729, Legal Service India, https://www.legalserviceindia.com/legal/article-719-rule-of-law.html
- The Rule of Law, published Wed Jun 22, 2016, Standford Encyclopedia Of Philosophy
- Hansson, Karin & Ekenberg, Love & Belkacem, Kheira. (2014). Open Government and Democracy: A Research Review. Social Science Computer Review. 0894439314560847. 10.1177/0894439314560847.
- http://ijlljs.in/wp-content/uploads/2017/08/Rule_of_Law.pdf
- http://law2.umkc.edu/faculty/projects/ftrials/conlaw/interp.html
- https://www.journalofdemocracy.org/
- Beard, C. A. (1936). The Living Constitution. The Annals of the American Academy of Political and Social Science, 185, 29-34. http://www.jstor.org/stable/1019266
- https://www.lawcommunity.in/articles/constituion-of-india-a-living-document
- chrome-extension://oemmndcbldboiebfnladdacbdfmadadm/https://scholarworks.boisestate.edu/cgi/viewcontent.cgi?article=2694&context=td
- chrome-extension://oemmndcbldboiebfnladdacbdfmadadm/http://lc2.du.ac.in/DATA/Presentation%20on%20Rule%20of%20Law_Chintu%20Jain.pdf
- https://blog.ipleaders.in/rule-law-relevance/
- Raoul Berger. "Government by Judiciary: The Transformation of the Fourteenth Amendment - Online Library of Liberty". Oll.libertyfund.org. Retrieved 2018-10-30.
- Chawawa, M. (2019) The United States Constitution and The Bible Conflict or Compromise, WestBow Press, Bloomfield. Ch 3.
- Kapila Hingorani vs State Of Bihar on 9 May, 2003. CASE NO.: Writ Petition (civil) 488 of 2002
- Kalpana Mehta vs. Union of India WP (C) 558/2012
- Golaknath v. State Of Punjab (1967 AIR 1643, 1967 SCR (2) 762)
- Justice K. S. Puttaswamy (Retd.) and Anr. vs Union Of India And Ors WP (C) 494/2012
- M.C. Mehta v. Union of India 1987 AIR 1086
- Maneka Gandhi v. Union of India, 1978 AIR 597
- Olga Tellis v. Bombay Municipal Corporation (1986 AIR 180)
- Hussainara Khatoon v. State of Bihar 1979 AIR 1369
- Mohini Jain v. State of Karnataka 1992 AIR 1858
- Ramlila Maidan Incident vs. Home Secretary, Union of India (2012) 5 SCC 1
- Sheela Barse v. Respondent: Union of India & Ors. 1986 SCC (3) 596
- Parmanand Katara v. Union of India (1989) 4 SCC 286
- Anuradha Bhasin v. Union of India AIR 2020 SC 1308
- The Sexual Harassment Of Women At Workplace (Prevention, Prohibition And Redressal) Act, 2013 [Act No. 14]
- The Information Technology Act, 2000 [Act No. 21]
- The Protection Of Children From Sexual Offences Act, 2012 [Act No. 32]
- The Constitution (One Hundred and Third Amendment) Act, 2019
- National Legal Services Authority v. Union of India Writ Petition (civil) No. 604 of 2013
- Golaknath v. State Of Punjab (1967 AIR 1643, 1967 SCR (2) 762)
- Kesavananda Bharati Sripadagalvaru & Ors. v. State of Kerala & Anr. (Writ Petition (Civil) 135 of 1970)
- Suresh Kumar Koushal v. Naz Foundation Civil Appeal 10972 of 2013
- Navtej Singh Johar v. Union of India AIR 2018 SC 4321
- Ministry of Law and Justice (22 April 2020), The Epidemic Diseases (Amendment) Ordinance, 2020, The Gazette of India, Government of India
- Citizenship (Amendment) Act, 2019 Act No. 47 of 2019
- Jammu and Kashmir Reorganisation Act, 2019 Act No. 34 of 2019
- Farmers' Produce Trade and Commerce (Promotion and Facilitation) Act, 2020; the Farmers (Empowerment and Protection) Agreement on Price Assurance and Farm Services Act, 2020, and the Essential Commodities (Amendment) Act (ECA), 2020.
- Nuclear rethink: A change in India's nuclear doctrine has implications on cost & war strategy, Economic Times, Last Updated: Aug 17, 2019, 11:12 PM IST
- The Cryptocurrency and Regulation of Official Digital Currency Bill, 2021
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