Living Constitutionalism

Balancing Continuity & Evolution

Constitutional texts worldwide are subject to two distinct modes of interpretation. One approach, known as “originalism”, which involves interpreting and applying the Constitution in alignment with its original intent at the time of drafting. The two primary tenets of originalism assert that the constitutional meaning was predetermined upon textual adoption and that the discernible historical meaning of the constitutional language carries legal significance, often prevailing in most circumstances.

In contrast, “living constitutionalism” adopts a more dynamic approach, frequently aligning with contemporary jurisprudence. Advocates of this theory contend that societal circumstances and ideals evolve over time, necessitating corresponding transformations in the legal content of constitutional doctrine. Acknowledging that the Constitution cannot remain static indefinitely, proponents assert that it must be amenable to the expectations and values of successive generations. A living constitution is one that demonstrates adaptability to new situations, evolves organically through time, and remains responsive to societal changes, all without requiring formal modification.

Broad and Open-Ended Language – Foundation for Interpretation

The phrase “living constitutionalism” is believed to have its origins in Howard Lee McBain’s book titled “The Living Constitution,” initially published in 1927. Living constitutionalism represents a legal theory and interpretative method within constitutional law that underscores the dynamic and evolving nature of the constitution. This perspective posits that the legal content of constitutional doctrine is subject to change in response to shifting circumstances and societal values.

At its core, living constitutionalism advocates for a departure from rigidly adhering to the original intent or understanding of the Constitution’s framers at the time of its inception. Instead, it proposes that the Constitution should be interpreted in the context of contemporary conditions and cultural advancements. However, it is often argued for a more adaptable and flexible approach to constitutional interpretation, recognizing the need for the Constitution to be responsive to the ever-changing requirements and ideals of society.

Central to the living constitutionalism framework is the belief that the framers intentionally drafted the Constitution with broad and open-ended language, allowing for varied interpretations and future applications. This approach contends that constitutional provisions should be given a dynamic and evolving meaning to address present-day social, political, and technological developments. As such, living constitutionalism promotes a view of the Constitution as a living and responsive document, capable of accommodating the evolving needs and aspirations of successive generations.

Rejecting Originalism – Turning Point in Evolution of the Indian Constitution

The Indian Constitution, a dynamic and living document, is presently perceived and applied as such, despite its historical evolution. Initial cases that arose soon after the Constitution’s enactment demonstrate an interpretation aligned with the framers’ intentions. The judgement on Supreme Court Advocates on Record Assn. v. Union of India[1] marked a pivotal moment when the Court decisively rejected the originalism theory of interpretation, emphasizing that the Constitution should not be limited to the framers’ perspectives, constrained by the conditions and outlook of their time. The Court acknowledged the unforeseen nature of contemporary issues, the existence of undiscussed matters, and controversial deferred issues with conflicting intentions.

Preserving Core Values – The Focal Point in Jurisprudential Exploration

Justice Kaul’s judgment further developed this perspective, affirming that the Constitution must adapt to reflect the evolving facets of modern society and that “core values” inherent in the Constitution manifest themselves diversely in varying ages, situations, and conditions, all while finding a strong foundation in the Preamble, which elevates human dignity.

Also, the landmark K.S. Puttaswamy[2] judgement introduced two significant theoretical concepts in constitutional law, i.e., living constitutionalism and natural rights support. Although living constitutionalism is not explicitly enshrined in the Indian Constitution, the Supreme Court of India has embraced this approach in several monumental rulings. Consequently, this approach prompted a series of landmark judgments, primarily focusing on the Parliament’s authority to amend the Constitution and the extent of such amendments. The Indian Constitution stands as a vibrant and adaptable instrument, continually responding to societal transformations, upholding its core values, and remaining receptive to interpretive nuances that foster a just and evolving legal landscape. The question of the Parliament’s constitutional amendment powers remains a focal point in the jurisprudential exploration of the Constitution’s dynamic character.

Balancing Core Values and Societal Progress through Living Constitutionalism

Preserving the bedrock of the Indian Constitution stands as a momentous undertaking in the seminal case of Sajjan Singh v. State of Rajasthan.[3] Embedded within the majority of the Indian Constitution are fundamental aspects that are deemed immutable. Justice Khanna discerns the principal advantage in the form of fundamental rights extended to all citizens. Notably, Article 368 of the Indian Constitution[4] grants the Parliament the authority to amend any provision, encompassing the Fundamental Rights.

A profound jurisprudential debate ensued, wherein respondents in the landmark Golaknath Judgment[5] contended that the framers did not intend for the Constitution to be rigid, while petitioners asserted that Parliament lacked the jurisdiction to modify basic rights. The Court ultimately ruled that Parliament could not alter the Fundamental Rights.

The landmark decision in Kesavananda Bharati v. State of Kerala[6] (1973) 4 SCC 225 ushered in the concept of living constitutionalism in India. At its core, this judgment centered on the pivotal question of Parliament’s power to amend any aspect of the Constitution, including the Fundamental Rights. Through a majority verdict, the Supreme Court firmly held that while Parliament retains the authority to amend the Constitution, it is restrained from altering its fundamental structure or essential features.

Living Constitutionalism in Action

In the Kesavananda Bharati case, the Court introduced the doctrine of basic structure, encompassing the notion that certain foundational aspects of the Constitution are impervious to amendment, as they constitute the very essence of the constitutional framework. Embracing a living constitutionalist approach, the Court acknowledges that the Constitution’s interpretation must safeguard its core values while adapting to the ever-evolving fabric of society. This jurisprudential stance ensures the preservation of the Constitution’s fundamental principles while allowing for pragmatic adaptations that cater to the progress and welfare of the nation.

Living constitutionalism is an interpretive paradigm in constitutional law that accentuates the dynamic and adaptive character of the Constitution, necessitating its interpretation to align with prevailing societal circumstances. This approach contends that the Constitution should be construed in light of present-day realities, reflecting evolving societal values and understandings of constitutional principles. Illustrative examples of living constitutionalism in action are evident in the interpretations of the Commerce Clause, the landmark Brown v. Board of Education[7] decision, and the historic Obergefell v. Hodges[8] decision. In these instances, the application of living constitutionalism enabled the Constitution to respond to changing social dynamics and evolving conceptions of constitutional norms. Notwithstanding its detractors, proponents of living constitutionalism maintain that this approach fortifies the Constitution’s sustained relevance and efficacy in addressing contemporary challenges and safeguarding individual rights.

[1] Supreme Court Advocates on Record Association v. Union of India W.P. 1303 OF 1987.

[2] Justice K.S. Puttaswamy (Retd.) v. Union of India (2017) 10 SCC 1.

[3] Sajjan Singh v. State of Rajasthan AIR 1965 SC 845.

[4] Constitution of India, 1950, Art. 368.

[5] I.C. Golaknath and Ors. v. State of Punjab and Anr. 1967 SCR (2) 762.

[6] Kesavananda Bharati v. State of Kerala (1973) 4 SCC 225.

[7] Brown v. Board of Education, 347 U.S. 483 (1954).

[8] Obergefell v. Hodges 576 U.S. 644 (2015).