EDITORIAL NOTE: FIDELITY TO THE SPIRIT OF THE CONSTITUTION

Morality as a source of law’s binding power, and its relationship with legal legitimacy has been subjected to much debate in the history of law. Lon Fuller, for instance, argued that law in order to deserve the loyalty from people must do away with a simple fiat of power and must represent a human achievement of inner morality. The legitimacy thus earned by law commands a sense of obligation from those that it intends to govern. In India, this fidelity is owed to the Constitution on the Kelsenian grounds while it fundamentally resolves the law and morality debate. With the Supreme Court’s active decisions on the idea of constitutional morality, when morality itself devolves from the law, the question that we need to solve is how morality is interpreted? Does the scope of moral consideration extend towards the policy objectives, or does it still remain grounded in the consideration of principles? The Hart-Dworkin debate , when it comes to what scholars refer to as hard cases  echoes this absurd mechanics of search for an existence of a right within the larger spirit of the constitution, rather than constant expansion of penumbral rights from a policy perspective.

In these hard cases, the court is not merely faced with the dilemma of resolving (harmonising) two opposite liberties but also placing them within the original intent of the Constitution as envisaged by its framers. Moreover, it raises a particular question that whether choosing one of the sides makes morality inconsistent. If it does, then how do we ensure indivisibility of Justice? The Supreme Court, or for that matter all the courts, in all their judgments eventually face this dilemma. And for them it is not merely a theoretical deconstruction but a practical imposition where they necessarily have to come to a singular decision. In such cases, second-order principles exist to resolve the first-order standoff. When all the principles from each side are equipoise, then it is the differing judicial interpretations- sometime subjective, sometime contentious- what reinstate the true spirit of the Constitution.

These judicial reinterpretations, though fiercely debated, strengthen the constitutional fidelity by engaging in a meaningful discourse. This discourse balances the often-conflicting ideals of originalism and living constitutionalism. While the adherents to the original intent school emphasize upon the fidelity to the text, it becomes imperative that laws evolve with the contemporary realties. The invocation of Article 17 of the Constitution by Justice Chandrachud in the Indian Young Lawyers Association v. State of Kerala is a case on point. Justice Chandrachud expanded the scope of ‘untouchability’ by including the notions of purity-pollution within it by acknowledging the undefined nature of untouchability. This interpretation though honours the spirit, is not contemporaneous to the constitutional drafting, and is anchored away from the historical understanding of the text as alternatively argued by Justice Indu Malhotra in her dissenting opinion. While the earlier approach risks introducing subjectivity, it is also imperative that progressive interpretation counters the static morality grounded in various meta-narratives signified by the latter. Rigid adherence to the original text becomes impractical in a dynamic society. The curious case of due process which was omitted from the constitution after the extensive debate, and found itself reinterpreted back through the Maneka Gandhi judgment is another case on the issue. While the due process clause was removed due to its undemocratic  nature from the final draft of the Constitution of India, the increasing legislative infractions forced the Supreme Court to give an expansive reading of procedure established by law  to include due process enquiry.  

As India transforms, and its deeply rooted societal beliefs are challenged, judiciary’s role in shaping the modern realties is going to constantly increase. The recent decadal rulings on decriminalising homosexuality, transgender rights,  privacy rights, reservations on the basis of economic standing, digital freedoms, restructuring of tribunals, re-promulgation of ordinance, independence of ECI, education as public utility, elimination of manual scavenging, caste-based discrimination in prisons, sub-classification, electoral bonds and countless others, clearly evidentiates how Supreme Court has navigated these tough waters. While these challenging issues have necessitated the active intervention of the Supreme Court, there exist detractors who conceive the role of the Court narrowly. These opponents tend to equate activism with aberration, and argue that while the Supreme Court has had sound justifications for the judicial law-making in the cases such as Vishakha  or its recent exposition in deterring Bulldozing Justice; it is the constitutional mandate that the Constitution of India cannot be informally changed through judicial practices lest it may bow down to the judicial subjectivities. To exemplify, there has been a recent reinvigoration of the polysemous concept of constitutional morality in a spate of recent judgments. While it has played an extensive role in upholding the constitutional values in cases regarding decriminalisation of adultery and homosexuality, transgender rights, conferment of special status on NCT of Delhi, NJAC, Sabarimala temple, and triple talaq  amongst many others, its existence in abstraction poses significant risks for its subjective interpretation by the Supreme Court making its interpretation amenable to the personal preference of the judges in a polyvocal court. 

To minimise this risk and prevent judicial activism from turning into outbursts, there needs to be strict adherence to the core constitutional values. These values can be interpreted from the stratification of the Basic Structure Doctrine  at various abstraction levels. While the recent debates have put a question mark on the jurisprudential basis of the doctrine, its role as an anchor between constitutional stability and evolution cannot be denied. The doctrine perfectly confluences with the idea of living originalism and helps in the natural ecdysis of the undesirable constitutional provisions. As legal scholars, we need to recognise the fact that appreciating the Supreme Court’s interpretive role requires a more nuanced approach, where its reinterpretations can be viewed as an ongoing project to rationally adapt the application of laws to new realities, while treating certain core constitutional values such as equality, justice, liberty, and human dignity- as inviolable categorical imperatives. It becomes imperative that the court’s interpretations are guided by reasoned analysis rather than transient social trends, and are grounded on rational, timeless, and objective truths. This will uphold the spirit of the constitution as immutable, allowing the means to achieve these ends to evolve with time.

However, we must be equally acceptable towards the fact that socio-political or economic problems before the Supreme Court may not have single rationally discoverable solution-unlike the truths of science. While rationalist thinkers assume that since truths cannot contradict each other, there must be a logically consistent answer that reconciles all conflicts in perfect order; Berlin in his seminal essay highlighted how political values are often pluralistic and incommensurable. Instead of a single rational order, coercion must be minimised by advocating for negative liberties. To illustrate, Bhatia bases his opposition to the Supreme Court’s Essential Religious Practices (ERP) doctrine and proposes an anti-exclusion principle that upholds the group integrity to an extent they do not exclude an individual from accessing a basic public good (religion). In a normative enquiry wherein the religious freedom of an individual is placed against the religious freedom of a religious denomination, the latter’s liberty will be overridden by the individual right since denomination’s claim is based on exclusion.

This approach champions a pragmatic approach where the rights are often not protected by a rigid set of rules or principles, but by institutions that allow for open debate, compromise and peaceful coexistence of diverse values. This evolution is immanent to create an inclusive and just society, ensuring that marginalised or newly recognised rights are included in the constitutional fold. Since every narrative has a multitude of layers which each person experiences differently, if the law doesn’t recognise this fragmentation of social absolute-reality then it hinders the reinvention of law which arises in aporia of the law. To question the objective status of certain grand-narratives is not to discard the communication on the grand-narratives itself. To say that the language and our social environment affect what concept we arrive at, doesn’t mean that ‘intention’ must be discarded. Only the notion of objective reality is questioned. To state that the ‘Author is Dead’ does not mean that the text cannot be interpreted. It only means that it can be interpreted differently by people who are situated differently thereby avoiding any absolute monopoly over the truth. It opens up a huge common space for debate and discussion. A discussion outside the simple binaries of either/or.

A Zen Koan aptly describes this position:

One day a Disciple, who was not able to understand the meaning of certain passages from a text asks the Master to explain it to him; to which Master replies that he can’t read and only if the Disciple is able to read the text to the Master that he would be able to clear his doubts. The student then questions the integrity of the Master due to his inability to read and write.

The Master explains that the text and truth are unrelated. The text can be compared with the finger and the truth with the moon. Finger can be used to ascertain what moon is and where the moon is, but it is not the moon itself. The moon has its own existence and finger its own.

The text is merely a tool for pointing out the truth. The language or the text is bound to differ, just like everyone standing at different places will point out at the moon from their own different position or place where they are standing. Every such context helps us in bringing us closer to the truth and that is what diverse judicial rulings aim at. Not to make the moon (truth) disappear but to see it more clearly. Similarly, the constitutional interpretation is not about the absolute truth and the ‘ends’ but about the ‘means’ itself. The judiciary’s role is not to provide with a singular timeless meaning but engage in an ongoing dialogue that adapts principles to the contemporary needs while owing its fidelity to the spirit of the Constitution. This Blog aims to set direction for the future contributions emphasizing that constitutional discourse is not about rigid certainty but a dialogue that aims for continuous interpretation. The MUJ Law Blog through its commitment to analytical and interpretive legal writing aims to foster discussions that honour the spirit of our Constitution- not as a fixed set of doctrines but as an evolving conversation.

(Mr. Kartik Chamadia, Assistant Professor and Faculty Co-ordinator, MUJ Law Blog, Department of Law, Manipal University Jaipur.)