(To Kunal Ambasta, fellow traveler on constitutional roads, fine human being and good friend.)
In the last post, we explored the possibility of a Constitution serving two distinct purposes – conservative and transformative. Recall that a Constitution can be conservative in that it seeks to preserve, codify and entrench an existing set of values and institutions; or it could be transformative in that it seeks to replace them. We noted that large parts of the American constitution are examples par excellence of conservative provisions, whereas our own Articles 15 (non-discrimination) and 17 (abolition of untouchability) are paradigm cases of transformative provisions.
One enquiry was simplified by the fact that in our model, the American constitution, the conservative/transformative distinction, in large part tracked a more familiar distinction between individual rights and structures of governance. Yet things need not always be that simple (and the American constitution, after its reconstruction amendments granting equal citizenship to blacks, is certainly not that simple). There is no reason why, within the same set of rights, some can be transformative, and some conservative. Here is an example: if Ranjit Udeshi was right in upholding the ban on Lady Chatterley’s Lover (and I do not think it was), its only justification would be that Article 19(2)’s morality clause sought to conserve and codify existing dominant conceptions of “public morality“. Here you have a classic case of transformative and conservative elements blending not just within the same bill of rights, but within the same provision: Article 19(1)(a) is transformative in the sense that it grants citizens the right to free speech that they didn’t have under the Empire or previously; while at the same time, it restricts the scope of that right by entrenching an existing value system into law.
What, then, does this distinction further entail? Here is one suggestion: many of us, when we first enter the labyrinth of constitutional law, choose as our own Ariadne’s ball of thread, a particular interpretive methodology to help us navigate. We then defend our chosen method (or sometimes, combination of methods) against all others by invoking various arguments grounded in democracy, the separation of powers, or just plain common sense. Originalism suffers from the dead hand problem, for instance; “living tree” doctrines, on the other hand, would seem to vest too much power in unelected judges to substitute their own moral preferences for the majority’s; textualism makes a mockery of how language is used by refusing to take into account the rich surrounding context, both within the document and historical; structural analysis is unfaithful to the framers by imposing coherence and unity upon what was actually a patchwork quilt of bargain and compromise; and so on. But if Constitutions can themselves serve at least two very different – indeed, opposite – purposes, then perhaps there is no one correct method – or combination of methods – of interpretation. Perhaps the right way of interpreting a constitutional provision depends upon whether it is conservative or transformative, and to what extent.
Here is one trivial way in which this is true: a transformative provision obviously cannot be interpreted by invoking traditional values. If the point of inserting a free speech clause into the Constitution was transformative in that it meant to ensure that a dominant class would no longer be able to silence opinions that it perceived to be immoral or harmful, then it makes no sense to read 19(2)’s morality clause as “public morality” – because all that does is to replace the British with whatever class whose stated morals the Court decides to count as “public“.
There are also, however, subtler issues at hand. One dominant form of constitutional interpretation, championed by Justice Antonin Scalia at the US Supreme Court, is that of “original meaning” (the term is self-explanatory). Original meaning, I would submit, is a powerful interpretive method when we’re dealing with conservative constitutional provisions: because the objective is to preserve an existing set of values, what words meant at the time the provision was drafted would, indeed, be the best indicator of what content the values themselves had, and were meant to continue to have. On the other hand, originalism is inadequate to deal with transformative provisions, for the following reasons: first, a simple issue of language. While one is trying to transform a set of values, one’s tools to do that remain only words, and words not only carry with them the accumulated baggage of decades, sometimes even centuries, of consistent usage, but are also often implicit carriers of value. So it is quite possible – indeed, even likely – that the full transformative force of a concept will simply fail to be captured by extant patterns of language (“equality” being a classic example).
Secondly, transformative provisions raise an issue of consistency. Here is an example: the framers wanted to transform a society that discriminated in all sorts of invidious and destructive ways by expressly writing a non-discrimination principle into law; they omitted sexual orientation from that list because they believed, on the basis of extant medical evidence, that homosexuality was a disease. That claim has been comprehensively debunked by medical research. So now, in 2013, what interpretation of Article 15 would be more faithful to the framers’ transformative vision? What interpretation would ensure that the Article 15 remained principled and consistent with itself? Naturally, one that read sexual orientation into Article 15 (as a parallel analogy: suppose the contract law of State X decided to shift from oral contracts to “written and printed contracts”, on the ground that it was easier to prove tangible agreements; does it make any sense to deny contractual protection to one done on microfilm?) . Note, however, that such a problem would never arise if the provision was simply conservative, because there you’re taking a set of values as given, without worrying about whether they are consistent with each other.
And lastly, consider a more speculative argument: a transformative constitutional provision is, among other things, a rebuke to illusions of infallibility; it is an admission that a particular generation got it wrong – wrong either in its identification of values, or in its attempt to entrench that value set against change by future generations; so wrong, in fact, that not just a modification, but a transformation is in order. It would be odd, then, that a provision predicated upon fallibility would arrogate to itself assumptions about its own infallibility. A transformative constitution – or rather, transformative constitutional provisions therefore, by virtue of their character, their origins and their philosophy, both invite and demand a dynamic, responsive and flexible interpretation – not a rigid, static and originalist one.
But even this isn’t the whole story, because as we discussed before, transformative constitutions in colonial contexts present a considerably more complex picture because often, alongside transforming values from the colonial to the post-colonial, they seek to conserve a perceived vision of the pre-colonial, an idea of the nation before it was conquered. At this point, I freely confess that my own grip on what interpretive strategy fits best begins to be cast off its moorings; what I would like to argue definitively, though, is that our interpretive approach to the Indian Constitution (beyond merely the question of whether to invoke traditional values in interpreting it) depends upon a detailed analysis questioning which parts of it are conservative, which parts transformative, and in what way.