{"id":261069,"date":"2022-02-04T16:00:07","date_gmt":"2022-02-04T10:30:07","guid":{"rendered":"https:\/\/www.scconline.com\/blog\/?p=261069"},"modified":"2022-02-04T14:46:01","modified_gmt":"2022-02-04T09:16:01","slug":"living-originalism-and-moral-interpretation","status":"publish","type":"post","link":"https:\/\/www.scconline.com\/blog\/post\/2022\/02\/04\/living-originalism-and-moral-interpretation\/","title":{"rendered":"Living Originalism and Moral Interpretation: Is it the Answer to Long-Standing Questions in the Indian Constitutional Sphere?"},"content":{"rendered":"

Introduction to originalism <\/strong><\/span><\/h3>\n

Originalism as a philosophy is something which is associated with American constitutional thought. Before one begins to describe the effects of such an interpretation, one needs to categorically define what is meant by originalism in the context of judicial philosophy. While there are a number of definitions of the term, the most commonly accepted definition and the definition which was given by the inventor of the term Paul Brest is \u201cOriginalism means the familiar approach to constitutional adjudication that accords binding authority to the text of the constitution and the intention of its adopters\u201d.1<\/a> In other words, according to this judicial philosophy, while dealing with constitutional interpretation, priority must always be given to the original intent of the people responsible for enacting these constitutional provisions.2<\/a><\/p>\n

The idea of originalism seems rather foreign to Indian constitutional philosophy. Ever since the advent of judicial activism in India and the development of public interest litigation (popularly abbreviated as PIL) jurisprudence, it seems that India has entirely rejected the philosophy of originalism and to a certain extent the idea of judicial restraint.3<\/a>\u00a0 Even in its home land of America, originalism is seen by some as nothing more than a tool used by the Supreme Court to peddle its conservative agenda.4<\/a> Therefore it would not be outside the realms of possibility to conclude that Indian jurisprudence is firmly on the side of the liberal, living Constitution. The Supreme Court has also stated that the provisions of the Constitution have to be interpreted in a liberal and not pedantic manner5<\/a>.\u00a0 But is there something more to it? Is there a scope in which the Indian legal community can think of originalism (or at least a specific type of originalism) as an accepted and valid constitutional philosophy?<\/p>\n

Many people across jurisdictions tend to conflate originalism with strict construction, in fact sometimes, originalist thought seems to come to the same conclusions as strict construction would. Justice Antonin Scalia, famous for his support of originalist interpretation stated that \u201cThe text of a statute should not be construed strictly or leniently, it should be construed reasonably, to include all that it means.\u201d6<\/a> Therefore, one can reasonably state that there is an inherent distinction between strict constructionist and originalist thinking. One could say that the originalist idea is more in line with a textualist approach and allows for a departure from this only to place reliance on the historical context in which the text was written.7<\/a><\/p>\n

This essay is not going to be looking at the merits of one constitutional interpretation technique over another, nor is it a call to abandon the prevailing liberal school of thought for a more historical approach. In this essay the author is merely trying to analyse a concept which is growing in popularity in American constitutional circles and that is \u201cLiving Originalism\u201d. Here the author would like to ascertain, if a predominantly American school of constitutional interpretation could be implemented in India in order to create more coherence in Indian constitutional interpretation.<\/p>\n

The great originalist schism: The more pragmatic approach of living originalism<\/strong><\/span><\/h3>\n

The idea of living originalism <\/em><\/strong><\/span><\/p>\n

One of the most compelling pieces of interpretative theory that has been developed in recent times is perhaps by Jack Balkin in his work \u201cLiving Originalism<\/em>\u201d8<\/a>, where Balkin spoke about the central clash in US constitutional interpretation as being between originalism and the living Constitution and came up with a compromise between the two named \u201cLiving Originalism<\/em>\u201d which takes the desirable part of both these interpretative techniques.<\/p>\n

There is also an argument raised that originalism has to move past its abstract reliance on historical context and original intent and move towards a moral interpretation of the Constitution.9<\/a> A moral reading of the US Constitution, which incidentally has also been advocated by Dworkin.10<\/a> Many scholars agree that the constitutional principles are not merely historic deposits that have to be stored away but are commitments that we aspire to realise over the course of our history.11<\/a>This has been seen by many as a way to bring this interpretative technique more in line with the more pragmatic approach of living constitutionalism without compromising the principles of judicial restraint and textualism.12<\/a><\/p>\n

The problems associated with US originalism<\/em><\/strong><\/span><\/h4>\n

One of the most talked about criticisms that has been levelled against originalist thinkers is that there is a lack of consistency when it comes to the way in which they have interpreted the constitutional text. The most famous example of this can be seen in the criticism against the majority opinion of the Supreme Court given in District of Columbia <\/em>v. Heller.<\/em>13<\/a> The majority opinion was given by Antonin Scalia, J. who can be considered as perhaps the most famous originalist thinker of the 21st century.<\/p>\n

In Heller<\/em>14<\/a> the US Supreme Court dealt with the question of the 2nd Amendment to the US Constitution which speaks about the right to bear arms, here the central question which the Court dealt with was whether the Second Amendment protected an individual\u2019s right to keep and bear arms? The text of the Second Amendment states that \u201ca well-regulated militia necessary to the security of a free State, the right of the people to keep and bear arms shall not be infringed\u201d.15<\/a> Here the majority opinion expanded the definition of the second amendment and departed from the judicial precedents that had been expressed by the US Supreme Court in previous cases.16<\/a> The Supreme Court through a 5 to 4 majority held that \u201chandguns\u201d are arms as per the 2nd Amendment and thus congress could not make a law restricting their access to individual citizens.17<\/a><\/p>\n

When\u00a0 Scalia, J. spoke from the Bench for the majority, he made a reference to the original intent of the framers, stating that the original intent of the framers was to protect the individual from a tyrannical Federal Government and thus the right to bear arms can be expanded to mean an individual right, even in the absence of a \u201cmilitia\u201d as is one of the requirements of the language of the 2nd Amendment.18<\/a><\/p>\n

This decision of the Court has been severely criticised by many people on the liberal wing and has been used as a tool to point out the flaws in a rigid originalist thinking and how such an interpretation could lead to absurd constitutional conclusions.19<\/a> Another form of criticism that is levelled against this decision is that this decision while taking into account the historical reasons behind this right, has conveniently misconstrued the historical context of the provision.20<\/a> This is the reason why originalism is seen as a controversial tool even in America because many scholars believe that, like every other interpretative tool, originalism also has certain preconceived notions, but unlike other schools of thought, it does not acknowledge the existence of such preconceived biases.21<\/a><\/p>\n

Living originalism: A tool to wash away originalist sins<\/em><\/strong><\/span><\/h4>\n

When Balkin spoke about \u201cliving originalism\u201d he presented it as a great compromise between originalism and its antithesis, the living constitutionalism.22<\/a> The most famous criticism of originalism thinking was done by David Strauss who stated that the greatest problem of originalism was that it was unable to solve the famous Jeffersonian problem that \u201cthe earth belongs to the living and not the dead\u201d,23<\/a> This Strauss believes, is the original sin in this interpretive theory.24<\/a><\/p>\n

Living originalism tries to solve this problem through a moral reading of the Constitution. It is argued time and again that whenever the text of the Constitution is unclear in its meaning, the original intent of the framers has to be given priority, but does that mean that the prevailing circumstances are completely ignored?<\/p>\n

Here the idea of \u201cliving originalism\u201d as understood by Balkin, can be based on what is known as the \u201cfaith and redemption\u201d theory25<\/a> where\u00a0 Balkin acknowledges that the Constitution in its present form is imperfect and it is necessary to interpret it in such a way as to redeem our faith in its message and aspiration.26<\/a> In other words, the intent of the framers cannot, and should not, be seen in isolation to the aspirations and the object with which the Constitution was bestowed upon a nation.27<\/a><\/p>\n

Indian constitutionalism and the departure from a textualist approach<\/strong><\/span><\/h3>\n

Early constitutional interpretation<\/em><\/strong><\/span><\/h4>\n

In the early days of the Republic, the Indian Supreme Court engaged in a textualist approach which was similar to the British way of interpretation that was adopted by the Privy Council, which had the highest authority in India, prior to independence.28<\/a> In A.K. Gopalan <\/em>v. State of Madras<\/em>,29<\/a> For example, the Court famously went for a textualist approach in interpreting the phrase \u201cprocedure established by law\u201d in the constitutional right to life.30<\/a>Here Kania, J. speaking for the majority stated that if Parliament has made a law, then it is not for the courts to interfere within the scope of Article 21.31<\/a> One could conclude that an originalist approach to the Constitution would have reached a similar conclusion as the majority in Gopalan<\/em>32<\/a>.<\/p>\n

The original intent of the phrase \u201cprocedure established by law\u201d instead of \u201cdue process of law\u201d (as used in the US Constitution) is specifically to prevent social justice legislation from being bogged down by Part III challenge in the courts, as the same created a lot of problems for the US Government in during the early 20th century and the new deal.[41]<\/a><\/p>\n

This sort of textualist approach to the Constitution was also taken up in several early constitutional judgments by the Supreme Court, and whilst this approach has been criticised by later Supreme Court judgments and legal scholars, there was a coherent judicial philosophy behind it. The prime example for this can be seen in State of Rajasthan <\/em>v. Union of India<\/em>,[42]<\/sup><\/a> where the Court permitted for only a limited intervention of the courts when there was an exercise of Article 356(1)35<\/a> by the Union Government. In this case as well the Court went for a more textualist approach and adopted judicial restraint.36<\/a><\/p>\n

The beginning of judicial liberalism<\/em><\/strong><\/span><\/h4>\n

In more recent times, with the development of PIL jurisprudence, it would almost amount to sacrilege to suggest that a more textualist approach should be adopted for the interpretation of constitutional provisions. During the 1970s-1990s, the era when the Supreme Court was easily at its most liberal, several judgments came about that departed from the textualist thinking and moved into a structure-based judicial activism, this judicial activism was perhaps the most evident C.Golak Nath <\/em>v. State of Punjab<\/em>37<\/a> where the Supreme Court severally limited the amendment making powers of Parliament and stated that no constitutional amendment could stand judicial scrutiny, if it violates the fundamental right under Part III.<\/p>\n

GolakNath<\/em>38<\/a> was however, overturned by the most famous case in Indian constitutional law i.e. Kesavananda Bharati Sripadagalvaru <\/em>v. State of Kerala<\/em>39<\/a> which gave us the famous basic structure doctrine. When one looks at Kesavananda Bharati<\/em>40<\/a>, one can clearly see the interpretative technique moving firmly away from the classic textualist thinking that was prevailing in the early days of the Supreme Court.41<\/a> However, even though there was a departure from textualist thinking, Kesavananda Bharati<\/em>42<\/a> cannot be considered as a flag bearer for judicial liberalism as it was still overruling a bolder and more liberal view given in Golak Nath<\/em>.<\/p>\n

In recent years, the idea of judicial liberalism has seeped into the national consciousness and people have responded in mainly 2 different ways, which have been described in the next section.<\/p>\n

The response to the current trends<\/em><\/strong><\/span><\/h4>\n

Originalism and textualism have been criticised in the past for being too dogmatic and focusing on law rather than equity or justice, in more recent years we are seeing the trend of criticism shift the other way, with many legal scholars being unhappy with the way in which the court has in judicial activism and have termed this practice to be nothing more than \u201cjudicial overreach\u201d.[43]<\/a> There has also been criticism of the court, there is a lack of coherence when it comes to judicial philosophy.44<\/a> From both sides of the spectrum, the Indian judiciary has fallen prey to the criticism that it is expanding its own powers and has been legislating from the Bench.45<\/a><\/p>\n

What exactly is the solution for such a conundrum? On the one hand, the Indian judiciary cannot apply the strict originalist approach to the Constitution, because the nature of our Constitution may not allow it,46<\/a>on the other hand, an extremely liberal approach to the Constitution is seen by many as hijacking the Constitution and taking part in both legislation and policy. Perhaps the solution to the courts interpretive problems lies somewhere in the middle. There has never been a more opportune time for India to look into the merits of living originalism and the moral interpretation of the Constitution.47<\/a><\/p>\n

Living originalism in India: The moral approach to our constitutional issues<\/strong><\/span><\/h3>\n

The approach of a living originalist, requires an emphasis not just on the original intent of the framers, but also on being faithful to the constitutional experiment. Here the reason why this idea of interpretation could succeed in India, is because, unlike the US constitutionalism, the intent of the Indian framers is well-recorded and debated upon.48<\/a> In other words, the moral characteristic of the Indian Constitution is less ambiguous in comparison to its American counterpart.<\/p>\n

The moral reading of the Indian Constitution<\/em><\/strong><\/span><\/h4>\n

One of the key elements of living originalism is its emphasis on the moral reading of a Constitution.49<\/a> The Indian Constitution has an undeniable moral characteristic as well which has been explored by the courts in several judgments. Moral reading of the Constitution is not a new phenomenon. In fact many philosophers, including Ronald Dworkin himself have examined the moral arguments of Indian jurisprudence.50<\/a> In S.R. Bommai <\/em>v. Union of India<\/em>,51<\/a>the moral question of Indian secularism was considered. Here the Court has expanded on the basic structure doctrine of Kesavananda Bharati<\/em>52<\/a> to include \u201csecularism\u201d as part of the basic structure of the Constitution.53<\/a> This, according to many, is a reflection of the moral characteristic of constitutionalism which has allowed for such an interpretation in the first place.<\/p>\n

As pointed out by Dworkin, this particular interpretation of the Constitution was more in line with the morality with which the Constitution was drafted, rather than the bare text of the Constitution. Prof. Baxi whilst analysing Dworkin\u2019s lecture on Bommai<\/em>54<\/a>, has pointed out that \u201cAn Indian reader of Dworkin is never able to understand why governance of certain provisions of the Constitution ought to be consigned to the realm of constitutional detail and not that of principle55<\/a>.\u201d Dworkin in his analysis of Bommai<\/em>56<\/a> has once again asked the moral question on the Indian Constitution.<\/p>\n

The conundrum of Indian constitutional morality<\/em><\/strong><\/span><\/h4>\n

During recent years, the Indian Supreme Court has not shied away from tricky questions of constitutional morality. In fact, the trend of decisions by the Indian Supreme Court seems to indicate that civil liberties and a moralistic approach to the Constitution are given primacy.57<\/a> The best example for this can be seen in the recent decriminalisation of homosexuality that was decided by the Supreme Court in Navtej Singh Johar <\/em>v. Union of India.<\/em>58<\/a>Here the Court has gone into the issue of constitutional morality in length and used the idea of constitutional morality as a tool to strike down Section 377of the Penal Code59<\/a>.<\/p>\n

The judgment given by Chandrachud, J. also invokes the idea of constitutional morality, here in the judgment he writes \u201cConstitutional morality cannot, however, be nurtured unless, as recognised by the Preamble, there exists fraternity, which assures and maintains the dignity of each individual.\u201d60<\/a> This particular constitutional interpretation shows a growing trend among the members of the Indian judiciary to incorporate the idea of constitutional morality in the Indian jurisprudence.<\/p>\n

This approach of newfound loyalty to the idea of constitutional morality, rather than the bare text of the Constitution is somewhat foreign to Indian legal thought, in fact the father of the Indian Constitution Dr B.R. Ambedkar did not believe that the Indian Republic was mature enough to incorporate the idea of constitutional morality, Dr Ambedkar in a speech before the Constituent Assembly said that \u201cConstitutional morality is not a natural sentiment. It has to be cultivated. We must realise that our people have yet to learn it. Democracy in India is only top-dressing on Indian soil, which is essentially undemocratic.<\/em>\u201d61<\/a> The speech was given almost seven decades ago and the proponents of constitutional morality have said that India has developed enough democratically to incorporate constitutional morality.<\/p>\n

This approach of the Supreme Court has not been met with universal admiration, in fact, the Attorney General of India, K.K. Venugopal has criticised the idea of constitutional morality and has termed it as nothing but a tool for judicial overreach.62<\/a> Many originalists would also agree with Mr Venugopal as neither the text nor the original intent of the framers of the Constitution would have wanted this approach to be taken by the courts.<\/p>\n

Is constitutional morality contradictory to living originalism?<\/em><\/strong><\/span><\/h4>\n

The concept of living originalism puts its faith on the constitutional experiment rather than believing in the intent of the originalist thinkers. Living originalist do not support the idea of judicial activism but they understand that a rigid adherence to the textual approach is not going to achieve the basic objectives that the Constitution wants to achieve.63<\/a> So the main question which has to be asked is whether the idea of constitutional morality would be in consonance with the concept of living originalism?<\/p>\n

One of the key differences that can be pointed out between the philosophies is that the present view on constitutional morality is much more sympathetic and accepting of a comparative analysis of the Constitution. In fact, in India it is not uncommon for the Judges in the Supreme Court to cite and rely on the decisions given by the courts in the United States and other nations of the commonwealth.64<\/a><\/p>\n

Strict originalists do not believe in a comparative analysis, in fact one of the tenants of this philosophy states that the basis for interpretation has to be the Constitution of the country and the original intent behind it.65<\/a> Living originalism would perhaps also fall under this category because there is no evidence to suggest that a comparative analysis is essential for a moral reading of a Constitution, however neither does the idea of constitutional morality require it. Indian jurisprudence has relied on comparative analysis for a long time,66<\/a> but the idea of constitutional morality is still something new, therefore one cannot clearly say that constitutional morality requires a comparative study. The author would like to submit that this difference is not an irreconcilable one and the idea of constitutional morality might be a stepping stone towards the philosophy of living originalism.<\/p>\n

Conclusion: The compromise of living originalism<\/strong>\u00a0<\/strong><\/span><\/h3>\n

The concerns raised by the Attorney General about constitutional morality have not fallen on deaf ears, there are many members of the legal community who believe that the judiciary has expanded its power using this tool well beyond the realm of constitutional permissibility. The other argument is that such powers are necessary in order to prevent the inevitable executive overreach that has been seen historically in the country. Both sides to the argument have their own merits and shortcomings.<\/p>\n

The author would like to submit that the idea of living originalism can be viewed as a compromise which would be true to the ideals and spirit of the Constitution. The Indian Constitution is unique as it has bestowed democracy and liberty upon a land that has historically and culturally never fully been democratic. That being said, over the past seven decades, the Indian Constitution has become one of the most revered works in the country. Protecting the identity of the Constitution is of paramount importance and that is something living originalism may be able to achieve.<\/p>\n

A moral reading of the Constitution is something that has been advocated for by many philosophers, that being said, the subjective nature of morality has to be tempered with the idea of fidelity to the law. Living originalism is by no means a solution to all of India\u2019s constitutional problems, but it may be the ultimate compromise in the ultimate battle of judicial activism and judicial restraint.<\/p>\n

\n

*Advocate at Federal & Co., Advocates, Solicitors and Notaries, Mumbai.<\/a><\/p>\n

1Keith E. Whittington, Originalism: A Critical Introduction, (2013) 82 Fordham Law Rev 375-408 <http:\/\/fordhamlawreview.org\/wp-content\/uploads\/assets\/pdfs\/Vol_82\/Whittington_November.pdf> accessed on 30-11-2020.<\/p>\n

2<\/a>Keith E. Whittington, Originalism: A Critical Introduction, (2013) 82 Fordham Law Rev 375-408 <http:\/\/fordhamlawreview.org\/wp-content\/uploads\/assets\/pdfs\/Vol_82\/Whittington_November.pdf> accessed on 30-11-2020.<\/p>\n

3<\/a>There have been several cases where the Supreme Court has expanded the meaning of the text of the Constitution, the best example for this is the expansion of \u201cright to life\u201d under Art. 21<\/a>. See Maneka Gandhi<\/em> v. Union of India<\/em>, (1978) 1 SCC248<\/a>.<\/p>\n

4<\/a>Ken Levy, The Problems with Originalism, The New York Times<\/em> (22-3-2017).<\/p>\n

5<\/a>Southern Petrochemical Industries Ltd<\/em>.<\/em> v. Electricity Inspector & ETIO<\/em>, (2007) 5 SCC 447<\/a>.<\/p>\n

6<\/a>Antonin Scalia, A Matter of Interpretation: Federal Courts and the Law <\/em>(1st Edn., Princeton University Press, 1997).<\/p>\n

7<\/a>Keith E. Whittington, Originalism: A Critical Introduction, (2013) 82 Fordham Law Rev. 375-408 <http:\/\/fordhamlawreview.org\/wp-content\/uploads\/assets\/pdfs\/Vol_82\/Whittington_November.pdf> accessed on 30-11-2020.<\/p>\n

8<\/a>Jack M. Balkin, Living Originalism <\/em>(1st Edn., Harvard University Press, 2011).<\/p>\n

9<\/a>Jack M. Balkin, Living Originalism<\/em> (1st Edn., Harvard University Press, 2011), pp. 42-45.<\/p>\n

10<\/a>Ronald Dworkin, Freedom\u2019s Law: The Moral Reading of the American Constitution<\/em>, 72-76 (Harvard University Press, 1973).<\/p>\n

11<\/a>James E. Fleming, Living Originalism and Living Constitutionalism as Moral Readings of the American Constitution, (2014) 92 BUL Rev 1171,https:\/\/www.bu.edu\/law\/journals-archive\/bulr\/documents\/fleming_000.pdf<\/a> accessed on 2-12-2020.<\/p>\n

12<\/a>James E. Fleming, Living Originalism and Living Constitutionalism as Moral Readings of the American Constitution, (2014) 92 BULRev 1171, 1176, <https:\/\/www.bu.edu\/law\/journals-archive\/bulr\/documents\/fleming_000.pdf<\/a>> accessed on 2-12-2020.<\/p>\n

1<\/a>32008 SCC OnLine US SC 63 : 171\u00a0L Ed2d\u00a0637 : 554 US 570 (2008) (hereinafter referred to as \u201cHeller\u201d<\/em>).<\/a><\/p>\n

14<\/a>2008 SCC OnLine US SC 63 : 171\u00a0L Ed 2d\u00a0637 : 554 US 570 (2008).<\/a><\/p>\n

15<\/a>US Constitution, 2nd Amendment<\/a>.<\/p>\n

16<\/a>See, United States<\/em> v. Miller<\/em>, 1939 SCC OnLine US SC 92 : 83 L Ed 1206 : 307 US 174 (1939)<\/a>, where the Court held that the 2nd Amendment was obviously for the purpose of preserving a State militia and must be interpreted to that end. Here the Court upheld an earlier verdict in Presser<\/em> v. State of Illinois<\/em>, 1886 SCC OnLine US SC 12 : 29 L Ed 615 : 116 US 252 (1886).<\/a><\/p>\n

17<\/a>Heller<\/em>, 2008 SCC OnLine US SC 63 : 171\u00a0L Ed 2d\u00a0637 : 554 US 570 (2008)<\/a>.<\/p>\n

18<\/a>Heller, 2008 SCC OnLine US SC 63 : 171\u00a0L Ed 2d\u00a0637 : 554 US 570 (2008)<\/a>, paras 32-47.<\/p>\n

19<\/a>Steve Emmert, Are We All Originalists Now? (American Bar Association, 18-2-2020) <https:\/\/www.americanbar.org\/groups\/judicial\/publications\/appellate_issues\/2020\/winter\/are-we-all-originalists-now\/> accessed on 2-12-2020.<\/p>\n

20<\/a>Steve Emmert, Are We All Originalists Now? (American Bar Association, 18-2-2020) <https:\/\/www.americanbar.org\/groups\/judicial\/publications\/appellate_issues\/2020\/winter\/are-we-all-originalists-now\/> accessed on 2-12-2020.<\/p>\n

21<\/a>James E. Fleming, Living Originalism and Living Constitutionalism as Moral Readings of the American Constitution, (2014) 92 BUL Rev 1171, 1178, <https:\/\/www.bu.edu\/law\/journals-archive\/bulr\/documents\/fleming_000.pdf<\/a>> accessed on 2-12-2020.<\/p>\n

22<\/a>Jack M. Balkin, Living Originalism<\/em> (1st Edn., Harvard University Press, 2011), p. 49.<\/p>\n

23<\/a>David Strauss, The Living Constitution<\/em> (1st Edn., University of Chicago Press, 2010) 4.<\/p>\n

24<\/a>David Strauss, The Living Constitution<\/em> (1st Edn., University of Chicago Press, 2010) 4.<\/p>\n

25<\/a>See also<\/em>, Lawrence B. Solum, Faith and Fidelity: Originalism and the Possibility of Constitutional Redemption, (2012) 91 Tex L. Rev. 147-173, <https:\/\/scholarship.law.georgetown.edu\/facpub\/1231\/> accessed on 7-12-2020.<\/p>\n

26<\/a>Jack M. Balkin, Living Originalism<\/em> (1st Edn., Harvard University Press, 2011).<\/p>\n

27<\/a>Jack M. Balkin, Living Originalism<\/em> (1st Edn., Harvard University Press, 2011).<\/p>\n

28<\/a>Chintan Chandrachud, Constitutional Interpretation, in P.B.Mehta and Madhav Khosla (eds.), Oxford Handbook of the Indian Constitution<\/em> (Oxford University Press, 2016).<\/p>\n

29<\/a>AIR 1950 SC27. (hereinafter referred to as \u201cGopalan<\/em>\u201d).<\/a><\/p>\n

30<\/a>Constitution of India, Art. 21<\/a>.<\/p>\n

31<\/a>Gopalan<\/em>, AIR 1950 SC 27<\/a>.<\/p>\n

32<\/a>AIR 1950 SC 27<\/a>.<\/p>\n

[41]<\/a>See Lochner<\/em> v. People of the State of New York<\/em>, 1905 SCC OnLine US SC 100 : 49 L Ed 937 : 198 US 45 (1905)<\/a>, Coppage<\/em> v. State of Kansas<\/em>, 1915 SCC OnLine US SC 30 : 59 L Ed 441 : 236 US 1(1915)<\/a>.<\/p>\n

[42]<\/sup><\/a>(1977) 3 SCC 592<\/a>.<\/p>\n

35<\/a>Constitution of India, Art. 356(1).<\/a><\/p>\n

36<\/a>State of Rajasthan<\/em> v. Union of India<\/em>, (1977) 3 SCC 592<\/a>.<\/p>\n

37<\/a>AIR 1967 SC 1643 (hereinafter referred to as \u201cGolak Nath<\/em>\u201d)<\/a><\/p>\n

38<\/a>AIR 1967 SC 1643<\/a>.<\/p>\n

39<\/a>(1973) 4 SCC 225 (hereinafter referred to as \u201cKesavananda Bharati<\/em>\u201d).<\/a><\/p>\n

40<\/a>(1973) 4 SCC 225<\/a>.<\/p>\n

41<\/a>Chintan Chandrachud, Constitutional Interpretation, in P.B. Mehta and Madhav Khosla (eds.), Oxford Handbook of the Indian Constitution<\/em> (Oxford University Press, 2016).<\/p>\n

42<\/a>(1973) 4 SCC 225<\/a>.<\/p>\n

[43]<\/a> Markandey Katju and Aditya Manubarwala, The Need for Judicial Restraint, The Hindu (Chennai, 16-5-2019).<\/p>\n

44<\/a>Chintan Chandrachud, Constitutional Interpretation, in P.B. Mehta and Madhav Khosla (eds.), Oxford Handbook of the Indian Constitution<\/em> (Oxford University Press, 2016), here in this chapter, the author has used the phrase \u201cpanchayati eclecticism\u201d to describe the current way of judicial interpretation.<\/p>\n

45<\/a>Markandey Katju and Aditya Manubarwala, The Need for Judicial Restraint, The Hindu <\/em>(Chennai, 16-5-2019).<\/p>\n

46<\/a>Shikha Dhiman, Originalism vis-\u00e0-vis Living Constitution in India: An Analytical Study, Shodganga, https:\/\/shodhganga.inflibnet.ac.in\/handle\/10603\/294132 accessed on 11-11-2020<\/a>.<\/p>\n

47<\/a>The author believes that this is an opportune time because of the fact that the Indian Supreme Court in the last seventy years has established a system of jurisprudence where they have shown that the institution is the ultimate arbitrator on not just the legal interpretation of the Constitution but also the moral interpretation of the Constitution.<\/p>\n

48<\/a>Parliament of India: Digital Library, The Constituent Assembly Debates, Vol. 2, <https:\/\/eparlib.nic.in\/bitstream\/123456789\/760458\/1\/CA_Debate_Eng_Vol_02.pdf> accessed on 6-12-2020. It is to be noted that the American Constitutional Convention (1787) took place behind closed doors and was not open to the public.<\/p>\n

49<\/a>David Strauss, The Living Constitution<\/em> (1st Edn. University of Chicago Press, 2010) 4.<\/p>\n

50<\/a>Upendra Baxi, A Known but Indifferent Judge: Situating Ronald Dworkin in Contemporary Indian Jurisprudence (2003) I.CON 557-589, Oxford University Press,<\/p>\n

<https:\/\/academic.oup.com\/icon\/article-pdf\/1\/4\/557\/2352937\/010557.pdf> accessed on 12-12-2020.<\/p>\n

51<\/a>AIR 1994 SC 1918 (hereinafter referred to as \u201cBommai<\/em>\u201d).<\/a><\/p>\n

52<\/a>(1973) 4 SCC 225<\/a>.<\/p>\n

53<\/a>S.R. Bommai<\/em> v. Union of India<\/em>, AIR 1994 SC 1918<\/a>.<\/p>\n

54<\/a>AIR 1994 SC 1918<\/a>.<\/p>\n

55<\/a>Upendra Baxi, A Known but Indifferent Judge : Situating Ronald Dworkin in Contemporary Indian Jurisprudence (2003) I.CON 557-589, Oxford University Press,<\/p>\n

<https:\/\/academic.oup.com\/icon\/article-pdf\/1\/4\/557\/2352937\/010557.pdf> accessed on 12-12-2020.<\/p>\n

56<\/a>AIR 1994 SC 1918<\/a>.<\/p>\n

57<\/a>Nilsen, Alf Gunvald, et al., eds. Indian Democracy: Origins, Trajectories, Contestations<\/em>, Pluto Press, 2019. JSTOR, www.jstor.org\/stable\/j.ctvdmwxfb<\/a>, accessed on1-1-2021.<\/p>\n

58<\/a>(2018) 10 SCC 1<\/a>.<\/p>\n

59<\/a>Penal Code, 1860, S. 377<\/a>.<\/p>\n

60<\/a>Navtej Singh Johar<\/em> v. Union of India<\/em>, (2018) 10 SCC 1, 285, para 600.<\/a><\/p>\n

61<\/a>J. Sai Deepak, Dr Ambedkar on Constitutional Morality, (The Daily Guardian<\/em>, 14-8-2020). https:\/\/thedailyguardian.com\/dr-ambedkar-on-constitutional-morality\/<\/a>, accessed on 6-12-2020.<\/p>\n

62<\/a>K.K. Venugopal, Speaking at the Second Dadachandji Memorial Debate, as reported by the Indian Express<\/em> on 9-12-2018.<\/p>\n

63<\/a>James E. Fleming, Living Originalism and Living Constitutionalism as Moral Readings of the American Constitution, (2014) 92 BUL Rev 1171, https:\/\/www.bu.edu\/law\/journals-archive\/bulr\/documents\/fleming_000.pdf<\/a> accessed on 2-12-2020.<\/p>\n

64<\/a>An example for this can be seen in the judgment of\u00a0 Chandrachud, J. in Navtej Singh Johar<\/em> v. Union of India<\/em>, (2018) 10 SCC 1<\/a> itself, where he has relied upon Dudgeon<\/em> v. United Kingdom<\/em>, (1981) 4 EHRR 149 : (1981) 45 ECHR (Series A) and Norris<\/em> v. Ireland<\/em>,(1988) 13 EHRR 186 : (1988) ECHR 22 and has given a comparative justification for his decision.<\/p>\n

65<\/a>Sujit Choudhry, Living Originalism in India?\u201cOur Law\u201d and Comparative Constitutional Law, (2013) Yale Journal of Law & the Humanities, Vol. 25: 1, <https:\/\/digitalcommons.law.yale.edu\/cgi\/viewcontent.cgi?article=1399&context=yjlh>, accessed on 27-4-2021.<\/p>\n

66<\/a>Sujit Choudhry, Living Originalism in India? \u201cOur Law\u201d and Comparative Constitutional Law, (2013) Yale Journal of Law & the Humanities, Vol. 25: 1, <https:\/\/digitalcommons.law.yale.edu\/cgi\/viewcontent.cgi?article=1399&context=yjlh>, accessed on 27-4-2021.<\/p>\n","protected":false},"excerpt":{"rendered":"

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