- There is an oft-repeated adage that says we all have to keep changing in line with the fast-changing times. Welcoming changes as they happen/occur should drive us rather than sticking to rigid and inflexible original ideas. We also are aware that necessity is the mother of all inventions pushing us to invent/reinvent/revisit our priorities as and when the situation demands. Illogically sticking onto an issue/matter that might be crying for a definite change doesn’t make any palpable sense. Humankind itself keeps evolving perpetually and as such, human-made rules/regulations/guidelines/policies too should be allowed to change to ensure that transitional growth is not hampered. The Indian Constitution too should not be averse to this paradigm.
PC: freepik
- To its credit, the upholder of the Constitution, the Supreme Court, is also quite aware of the necessity of keeping an open mind to usher in much-needed changes as and when the situation arises. Against this backdrop, a decision by a five-judge bench of the SC last week highlighted the universal debate on how a country’s Constitution should be interpreted. Should it be viewed through the prism of originalism, a theory that advocates sticking to an interpretation of the Constitution’s drafters? Or, should it be seen as a living constitution where the interpretation adapts to changes in society? SC weighed on the side of a living constitution when considering the right of a religious community to excommunicate followers.
- The case in point is a writ petition filed by the Central Board of Dawoodi Bohra community even though it referred the matter to a larger bench. Welcomingly, the five-judge bench observed that the idea of freedom is not static and the judicial interpretation needs to keep pace with changing social mores. Thus, SC’s observations on the living constitution approach make imminent sense. Past instances highlight how India’s jurisprudence is headed by the SC has used this approach to allow for a gradual change in the way constitutional principles are understood and applied by both the legislature and the executive. Understandably, it’s a pragmatic approach because the first draft of the Constitution could have not conceived of every scenario.
PC: freepik
- Notably, the gaps have been interpreted in light of social and economic changes. Let’s consider two different judgments across five decades. First, the Kesavananda Bharati case in 1973 led to the establishment of the basic structure doctrine which ensured a parliamentary majority would not lead to constitutional amendments that could undermine its essence. A couple of decades later the Vishaka case led the apex court to frame guidelines to prevent sexual harassment in the workplace. Here, the court was ahead of the legislature in responding to a big social and economic change. Many landmark verdicts reflect underlying changes in society which work better than originalism. The SC deserves accolades for adopting a flexible approach to interpretations.
