The Constitution has been considered the supreme law of the land when it comes to the responsibility of courts in matters of judicial review. It logically follows that constitutional courts, like the Supreme Court and high courts, focus on two key questions: what does the text mean, and how does it convey that meaning? The meaning of words in the Constitution, however, can be viewed as continuous as it has been established over time through judicial decisions and confirmed in reference to sources such as dictionaries and thesauruses.
This is reflected in the popular metaphor of the Constitution as being a dynamic or living document that adapts and develops over time. In the Kesavanada Bharati case, Justice H R Khanna referred to it as “the vehicle of the life of a nation” and observed that “the Constitution is not a gate, but a road”. The metaphors highlight the significance of the Constitution as the bedrock of our legal system.
The Constitution is designed to evolve alongside the changing needs of society. Hence, when it comes to interpretation, judges, whose decision will stand till such time as either the legislature or the executive do what they are expected to do, frequently consider whether to adhere to the underlying spirit of the law or its literal wording. Judges often employ metaphors to convey the significance of legal texts. One example is the concept of the ‘penumbra’. It suggests that specific guarantees in Part III have an aura that extends beyond their explicit wording, giving them additional meaning.
For instance, the right to privacy has frequently been regarded as a penumbral right that emanates from Article 21—something derived by implication from the umbrella right to life. In the Sabarimala judgement, the Supreme Court reiterated that the penumbra of an article in Part III that deals with a specific facet of freedom may exist elsewhere in the Constitution.
Another significant metaphor is the concept of the basic structure—parts of the Constitution that are considered sacred and inviolable, making them unable to be amended. The Supreme Court has also employed the living document metaphor to provide an expansive interpretation of fundamental rights and held that an “ongoing interpretation” is permissible, meaning the interpretation of words should ultimately meet newly emerging problems. In Kapila Hingorani (2003), in order to guarantee the right to shelter and food under the right to life, the court held that new rights may have to be found out within the constitutional scheme.
Therefore, regardless of the presence of necessity in the interpretation process, it is evident that the meaning of a word or name can be fluid. However, this fluidity does not hinder propositions from being perceived as true or false at a particular point in time, or prevent experience in shaping the future definition of a concept.
Moral and political correctness also have an impact on the scope to which these new rights can be identified. For instance, one of the most striking parallels between the US and Indian constitutions lies in their preambles. The phrase “We the people of the United States” and the remaining 45 words of the preamble are the most widely recognised section of the US Constitution. Similarly, the phrase “We, the People” in India’s preamble holds profound significance.
Curiously, in 1788, when the phrase was adopted in the US Constitution, it referred to a far more limited segment of the population than it does today. Women, enslaved individuals and men without property were excluded. Various movements have worked tirelessly to broaden the scope of “We the People”, ranging from those who fought against slavery and for women’s suffrage, to activists who championed civil rights and advocated for LGBTQ+ rights. Each expansion has brought the US closer to fully realising the potential of those initial words.
In India, the Constitution has always emphasised the concept of popular sovereignty, highlighting that political authority is derived from all ordinary citizens, transcending divisions of caste, religion and language. However, what is constitutionally moral is not something subject to the fleeting fancies of every time and age. As the Supreme Court held in the National Judicial Appointments Commissions case, it must have a value of permanence.
And this value of permanence, as B R Ambedkar noted in his famous invocation of the phrase ‘constitutional morality’ in a speech on November 4, 1948, can be found in the substantive moral entailment, and must be diffused “not merely among the majority of any community, but throughout the whole is the indispensable condition of a government at once free and peaceable”. One reason Ambedkar did not believe ‘socialism’ should be included in the preamble was because of the burden of permanence and the possibility that people may devise “some other form of social organisation that might be better than the socialist one”.
This clearly indicates that the founding father, in matters of finance and economics, wanted to provide the nation the power and ability to shift gears from a state-dominated system. However, while ‘socialist’ was later introduced in 1976, as noted by the court in the Samatha case (1997), it has come to be seen as a metaphor for equality of income, status and standards of life, and not to mean exclusion of private enterprise or complete state ownership of material resources. This has led the Constitution to be interpreted in a way that gives priority to the interests of the disadvantaged in times of conflict.
(Views are personal)
Saai Sudharsan Sathiyamoorthy
Advocate, Madras High Court