Restricting Constitution To Originalist Interpretation Is Unjust, It's a Living Document : CJI DY Chandrachud

It would be an injustice both to the drafters of the Constitution as well as to the Constitution itself to restrict it to an "originalist interpretation", said the Chief Justice of India DY Chandrachud, while explaining the dynamic nature of the document.

"In India, we describe the Constitution as a living instrument simply for the reason that while it is a document which enunciates eternal values for Indian society, it possesses the resilience necessary to ensure its continued relevance. Its continued relevance lies precisely in its ability to allow succeeding generations to apply the principles on which it has been founded to find innovative solutions to intractable problems of their times," he said delivering the ML Nambyar Memorial Lecture at New Delhi yesterday.

"Mr. Nambyar's story tells us that the story of the Constitution is a constant dialogue between generations of citizens," he said.

The understanding of the Constitution as a living document aids constitutional courts in understanding new, novel problems. It also facilitates the Court in finding a jurisprudential basis for solutions to existing social problems, CJI explained. The Constitution evolves through judicial interpretations, legislative amendments, and societal changes, adapting to new contexts while preserving fundamental rights and values. This continuous dialogue ensures that the Constitution remains relevant and responsive, reflecting the collective vision and aspirations of the people across different epochs.

Speaking of MK Nambyar's legacy as a constitutional lawyer who argued the first-ever constitutional interpretation case before the Supreme Court, the Chief Justice of India Dr D.Y. Chandrachud said that Nambyar lead constitutional courts towards an interpretation that was foresighted and reflected a departure from 'originalism'.

 Explaining the debate, he said: "At its core, originalism posits that the Constitution's meaning is fixed and should be interpreted based on its original understanding at the time of its adoption, giving primacy to the purported intent of the framers. On the other hand, the concept of a living constitution suggests that the meaning of the Constitution evolves and should be interpreted in light of changing social values."

He added: "These criticisms of relying solely on the intent of the framers' have now been widely accepted in Indian constitutional jurisprudence. However, back in the 1950s, with little jurisprudential guidance, Mr Nambyar's foresight was truly remarkable. From arguing the first-ever constitutional decision before the Supreme Court to drawing up the lead petition in Kesavananda Bharati, MK Nambyar's journey as a reader of the Constitution can be traced in many a jurisprudential landmark."

It was during one of his passionate defences of a death-row convict that Nambyar caught the attention of Mr VG Row- a towering barrister who would serve as the bridge between Nambyar and the first-ever constitutional case of Independent India. 

"Having witnessed Nambyar's intricate eye for constitutional argument, Row suggested that he handle the case of AK Gopalan before the Supreme Court. Nambyar's reading of due process into Article 21 of the Indian Constitution, while arguing the AK Gopalan case, was to become his foremost contribution to Indian constitutional jurisprudence," CJI averred. 

In AK Gopalan, a prominent leader of the Communist Party of India, was preventively detained in 1941. 6 years later, even as the country gained independence, and all British detainees were liberated, AK Gopalan found himself continuing to be detained.

He lamented that once a member of the freedom movement, he was compelled to celebrate independence in paradoxical, continuous and oppressive detention by Indians and not by the British.

Adding to this, CJI said: "VG Row was handling Gopalan's case before the Madras High Court. He invoked independent India's new Constitution to petition the Supreme Court in the matter. He chose Nambyar- barely two years old at the Madras Bar, to pursue Gopalan's remedies under the new constitutional regime.

A doyen of the Bar himself, VG Row's choice of counsel before the Supreme Court was rather surprising. Nambyar, a lawyer who had never appeared before the Federal Court or the new Supreme Court, swiftly rose to the occasion. VG Row was so impressed by Mr Nambyar, that he chose him to even lead the arguments, instead of stalwarts of the Delhi Bar."

Nambyar's interpretation of Article 21 

Speaking on the arguments original and unique arguments put forth by Nambyar in A.K. Gopalan, CJI said: "Heard in the very first month of the inception of the Supreme Court, AK Gopalan's case presented a unique interpretational challenge. Appearing for the detenue, Nambyar argued that Articles 14, 19 and 21 ought to be read as a set of guarantees vested in an individual."

On due process, the Constitution had clearly deviated from the US model. Explaining this, CJI stated: "Due process was a principle of substantive law that stemmed from the Fifth and the Fourteenth Amendments to the US Constitution. The rule essentially placed limits on the legislative, executive and judicial powers of the State and enjoined it with the responsibility to frame not just any processes, but just processes."

Adding to this, he said: "Aware of the US experience, the Indian framers were hesitant to include such an omnibus restraint on the legislative powers. The Principal Adviser to India's Constituent Assembly, BN Rau, took the proposed first charter of the Indian Constitution to the experts in the US.

Justice Frankfurter of the US Supreme Court objected to Rau's borrowed 'due process' clause. In 1948, the first draft Constitution conspicuously omitted the phrase “due process of law” and replaced it with “procedure established by law”- a phrase which the current Constitution contains in Article 21."

Yet, despite the obvious limitations posed by the text of the Constitution and the Constituent Assembly debates, Nambyar argued that “procedure established by law” in Article 21 was jus, not lex.

"Relying on the arguments of Daniel Webster in the 1819 US Supreme Court case of Trustees of Dartmouth College v Woodward, Nambyar argued that a law with mere legislative sanction was not per se beyond reproach. As against this, his adversary in the case, MC Setalvad, the then Attorney General of India argued that Nambyar's reading was unsupported by the obvious intention of the framers of the Constitution- which was to not adopt the US model of due process," CJI averred.

Nambyar's endorsement of due process did not immediately find favour with the majority.

Nambyar's view was, however, accepted by Justice Fazl Ali, whose minority opinion drew heavily from Nambyar's interpretation of Article 21. It was nearly two decades later, in the RC Cooper decision and three decades later in Maneka Gandhi that his interpretation would find judicial force.

In AK Gopalan, Nambyar argued that fundamental rights are not silos unto themselves. The argument was rejected by the majority in AK Gopalan, subsequent decisions of the Court in RC Cooper and Maneka Gandhi wholeheartedly endorsed the idea that fundamental rights are not independent of each other, CJI added. 

CJI concluded: "Hence, a law depriving a person of personal liberty and prescribing the procedure for that purpose, under Article 21 has to stand the test of other fundamental rights contained in Articles 14 and 19 as well. This approach has informed the recent jurisprudence of this Court, including the decision of nine judges in KS Puttaswamy recognising a right to privacy in Part III."

Tongue-in-cheek tale between Nambyar and MC Setalvad 

CJI told the audience: "While making these submissions, Mr Nambyar, in his characteristic flair, said “I seek permission to quote from an authoritative book from a respected author”.

Reading the palpable tension around the Attorney General, the Chief Justice got a whiff of what was to follow. Mr Nambyar, of course, was citing a passage from the Attorney General, Mr MC Setalvad's book on Civil Liberties. Chief Justice Kania smiled and asked if it was really necessary."

"Justice Mahajan egged on Mr Nambyar, who read many passages from Setalvad's book which ran counter to his arguments before the court, in support of the preventive detention law. Years later, Palkhivala's recourse to Seervai's book to rebut Seervai's argument in Court reportedly ended a long friendship at the bar," he concluded.

Nambyar's departure from Originalism 

Back in the 1950s, Nambyar argued before the Madras High Court in a seminal case - VG Row v State of Madras.

The case pertained to a government order by which an education society was declared as an unlawful association for allegedly constituting a danger to the public peace. VG Row was the general secretary of this society. 

CJI said: "Nambyar argued that the power was exercised arbitrarily and thus, violative of Article 14. In other words, arbitrariness was antithetical to the guarantee of equality. We know, that this approach to Article 14, in contrast to the traditional classification test, has gained wide currency in Indian jurisprudence."

He added that in the early years of our jurisprudence, inspired by the Fourteenth Amendment of the US Constitution, the Supreme Court devised the classification test to determine the compliance of a law with Article 14.

The landmark High Court decision in V.G. Row reached the Supreme Court in 1952. 

On this, CJI said: "Although the bench did not have the privilege of Nambyar addressing the Court, Justice Patanjali Sastri's opinion remarkably echoed Nambyar's foresight. This seminal judgment is widely regarded as an early effort in our jurisprudence to delineate the contours of reasonable restrictions on fundamental rights, particularly under Article 19.

In a frequently cited observation, Justice Patanjali Sastri held that when assessing the reasonableness of laws restricting fundamental rights, both substantive and procedural aspects must be scrutinized."

"Nambyar, in many ways, laid the groundwork to evolve the proportionality doctrine used by constitutional courts to evaluate the reasonableness of restrictions on fundamental rights," CJI averred.

Senior advocates KK Venugopal, CS Vaidyanathan, and Krishnan Venugopal were also a part of the memorial lecture.

The full text of the lecture can be read here.