From Constitutional Originalism to

Living Constitutionalism: Trends in

Constitutional Interpretation.

Vivek Kumar Pandey, B.A. LL.B.(Hons.), M.A. (Pol Science), LL.M.-Legal Theory (Goethe-Frankfurt)
The following slides are comprehensive and made with an intention to disseminate information

which are otherwise available over the internet. Kindly use the following sides in your wisdom.
 Seven Types of Constitution l Interpret tion:

Origin lism

Textu lism

Pr gm tism

Living Constitution (Revisionism)

Structur lism

Doctrin l

Ethic l/Mor l
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 Textu lism:

• Focus on Pl in me ning of the text.

• To se rch the objective me ning of the text.

• No question on intent of the dr fter, dopter or modi ier.

• The me ning of the text s understood by the people t the time.

• Strict in n ture.

• Simplicity nd tr nsp rency-focuses solely on the objectively understood me ning of

l ngu ge independent of ideology nd politics.
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 Origin lism:

To scert in the me ning from segment of the popul tion from the time it w s dr fted.

Public me ning t the time of founding which h s not ch nged over time.

T sk of judges to construct origin l me ning.

Me ning to be inferred from b ckground events public deb tes, relev nt diction ries nd
other leg l documents of th t time.
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 Pr gm tism:

• Court weighing or b l ncing the prob ble pr ctic l consequences of one interpret tion of
the Constitution g inst other interpret tions.

• According to this ppro ch, judge might observe the "p ssive virtues" by declining to
rule on the constitution l issues in c se by dhering to cert in doctrines, including those
under which judge will void ruling on politic l or constitution l questions. This m y
llow the Court to void becoming frequently embroiled in public controversies, preserving
the Court's institution l c pit l for key c ses nd giving more sp ce for the democr tic
br nches to ddress the issue nd re ch ccommod tions on questions bout the
me ning of the Constitution.

• Critics of pr gm tism rgue th t consider tion of costs nd bene its unnecess rily injects
politics into judici l decisionm king. They rgue th t judges re not politici ns. R ther,
judge's role is to s y wh t the l w is nd not wh t it should be.
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Structur lism

Constitution be interpreted within the structure.

Feder lism, sep r tion of powers etc.

System’s design.
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 Mor l/Ethics

Also c lled s ethos of l w.

Cert in texts re infuse with mor l precepts nd inbuilt mor l v lues

Ex mple is due process & equ l protection etc.

Produces more simil rity in opinion from judges.

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 Living Constitution lism

Should dopt to contempor ry soci l v lues, needs nd re lities.

Pricniples be pplied in current re lty.

Rigidity m y m ke the constitution outd ted.

M ny consider pr gm tism within living constitution lism.

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 Aspect Originalism Non-Originalism (Living Constitution / Pragmatism / Ethical approaches)

Textu lism:
Constitution’s meaning is xed at the time of adoption and should be Constitution is a dynamic document that evolves with changing social, political, and
Core Idea
applied as such. moral values.

Historical intent (framers’ intent) or original public meaning of the

Focus Contemporary needs, justice, practical consequences, and evolving values.
text.

Look at text + history (Constituent Assembly Debates, framers’ Look at broad principles, precedent, societal changes, policy outcomes, and moral
Method
writings, context at drafting). reasoning.

View of Constitution “Fixed” Constitution – stable meaning prevents judicial activism. “Living” Constitution – exible to meet modern realities not foreseen by framers.

Role of Judges Judges as neutral “umpires” applying xed rules, not altering them. Judges actively adapt and expand meaning to uphold justice and liberty.

– Provides predictability.– Respects democratic process (changes via

Pros (Supporters say) – Keeps Constitution relevant.– Expands rights for modern society.
amendments).

Cons (Critics say) – Freezes outdated values.– Historical intent may be unclear. – Risk of judicial overreach.– Less predictable.

Reliance on Constituent Assembly Debates to interpret limits of K.S. Puttaswamy (2017) – Right to Privacy; Navtej Johar (2018) – LGBTQ+ rights
Indian Example
emergency powers and rights (e.g., early Article 21 interpretation). recognized under equality & dignity.

Justice P.N. Bhagwati (Maneka Gandhi, 1978): “The Constitution is not a mere
Justice H.R. Khanna (ADM Jabalpur, 1976 – dissent): “The
lawyers’ document, it is a vehicle of life, and its spirit is always the spirit of the age.”
Indian Judges’ Quotes Constitution is not a plaything to be twisted and twisted at will for any
Justice D.Y. Chandrachud (Puttaswamy, 2017): “The Constitution must evolve to meet
temporary purpose.” → re ects faith in xed meaning and restraint.
the aspirations of each successive generation.”
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 Case (Year) Facts (Summary) Constitutional Trade-off Interpretive Approach

Parliament was putting laws in the Ninth Schedule (immune from judicial Parliament’s power to amend vs. Judicial review as part of Basic
I.R. Coelho v. State of Tamil Structuralism – reinforced
review) to protect them from being struck down. The issue: can laws placed Structure. Court held: post-1973 laws in Ninth Schedule can be struck
Nadu (2007) the Basic Structure doctrine.
there escape review even if they violate Fundamental Rights? down if they violate Basic Structure.

A retired judge challenged the Aadhaar scheme & government surveillance, Individual privacy and dignity vs. State’s interest in welfare schemes Non-Originalist / Ethical –
Justice K.S. Puttaswamy v.
arguing Right to Privacy was part of life and liberty. Earlier cases (like and security. 9-judge bench unanimously held privacy is a fundamental Constitution evolves, privacy
Union of India (2017)
M.P. Sharma, 1954) had denied privacy. right under Article 21. tied to dignity.

Pragmatism + Ethical –
Shayara Bano v. Union of Muslim woman challenged instant triple talaq (talaq-e-biddat) after being Religious freedom (Art. 25) vs. Gender justice, equality, dignity (Arts.
protected women’s rights
India (2017) divorced arbitrarily. Question: does it violate gender justice and equality? 14, 15, 21). Court struck down triple talaq as unconstitutional.
over religious practice.

Living Constitution /
Navtej Singh Johar v. Union Petitioners challenged Section 377 IPC criminalizing homosexual acts. Public/colonial morality vs. Constitutional morality, equality, dignity,
Ethical – expansive dignity
of India (2018) Earlier in Suresh Koushal (2013) SC had upheld it. liberty. Court decriminalized homosexuality.
interpretation.

Indian Young Lawyers Non-Originalist / Ethical –

Women aged 10–50 were barred from entering Sabarimala temple (due to Religious denomination rights (Art. 26) vs. Gender equality & non-
Association v. State of Kerala prioritized modern equality
deity’s celibacy). Petitioners argued it violated equality and dignity. discrimination (Arts. 14, 15). Majority allowed women’s entry.
(Sabarimala, 2018) over custom.

Living Constitution /
Joseph Shine v. Union of India A man challenged Section 497 IPC which criminalized adultery (punished State’s control over morality & marriage vs. Personal liberty, equality,
Ethical – liberty and equality
(2018) men, treated women as passive victims). gender dignity. Court struck down adultery law.
lens.
 Interpretive
Case (Year) Facts (Summary) Constitutional Trade-off
Approach

National security & sovereignty vs. Freedom of

After abrogation of Article 370 (J&K special status), govt. Pragmatism –
Anuradha Bhasin v. Union speech, trade, access to internet. Court held
imposed inde nite internet shutdowns. Petitioners argued it balanced rights and
of India (2020) inde nite shutdowns illegal; proportionality test
crippled free speech and trade. security.
required.

Executive’s power to develop vs. Citizen’s Textual / Doctrinal –

Central Vista Challenge to govt.’s plan to redevelop Parliament & Central Vista
participatory rights & environment concerns. deferential to
Redevelopment Case Avenue, alleging violation of citizens’ right to transparent,
Court upheld project, citing compliance with executive if procedure
(2021) participatory governance.
procedures. followed.

Traditional state-action doctrine vs. Expansive Living Constitution /

Kaushal Kishor v. State of Case arose from a minister’s hate speech. Issue: can Fundamental application of rights to protect individuals Doctrinal expansion
U.P. (2023) Rights apply against private individuals (horizontal application)? from private power. Court held some rights can – rights applied in new
apply horizontally. contexts.

Split – majority
Supriyo @ Supriya Marriage equality (Arts. 14, 15, 21) vs.
Originalist/
Chakraborty v. Union of LGBTQ+ couples sought recognition of same-sex marriage under Legislature’s role in family law & societal
Structural restraint,
India (Same-Sex Special Marriage Act. consensus. Majority denied recognition (deferred
minority Living
Marriage, 2023) to Parliament), minority favored equality.
Constitution/Ethical.
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 School of Key Scholars /
De nition Examples (Case facts + Relevance)
Thought Jurists

Constitution should be
Antonin Scalia, Robert U.S. – District of Columbia v. Heller (2008): Supreme Court struck down DC’s handgun ban. Scalia read the
understood as it was at the
Bork, Randy Barnett, 2nd Amendment using original public meaning of “right to bear arms.” → Clear originalist reasoning.India –
Originalism time of framing/rati cation
Justice Clarence Constituent Assembly debates: Courts sometimes rely on framers’ debates to interpret provisions (e.g., scope of
(original intent or public
Thomas emergency powers). Shows original intent guiding interpretation.
meaning).

U.S.: Scalia often stressed “the text is the law.” Example: his dissent in King v. Burwell (2015) on Obamacare
Strict reliance on the plain
Antonin Scalia, Frank subsidies, where he said the statute’s words should control, not policy outcomes.India – A.K. Gopalan v. State
Textualism text, without considering
Easterbrook of Madras (1950): Court read Article 21 narrowly—“procedure established by law” meant any law enacted,
intent or evolving values.
without importing due process. A textualist approach.
Living U.S. – Brennan’s speeches: Advocated that the Constitution must re ect “current needs” of society, not frozen
Constitution is dynamic, William J. Brennan Jr.,
Constitution / in 18th-century meaning.India – K.S. Puttaswamy (2017): Recognized Right to Privacy as part of Article 21,
should adapt to contemporary David Strauss, Ronald
Evolutionary though not explicitly written. Shows evolution of rights with changing times. Also, Navtej Johar (2018)
values and realities. Dworkin
(Revisionist) decriminalized homosexuality by reinterpreting “dignity” and “equality” in a modern context.
Interprets constitution by U.S.: Courts inferred separation of powers limits (e.g., legislative veto cases) even if not explicit in text, based on
analyzing its overall structure structural reasoning.India – Kesavananda Bharati (1973): Court held Parliament cannot destroy the “Basic
Structuralism and implied principles (e.g., Charles Black Structure” of the Constitution (e.g., rule of law, separation of powers), even though not explicitly written. A
separation of powers, structural interpretation.
federalism).
U.S. – Brown v. Board of Education (1954): Overturned “separate but equal” from Plessy v. Ferguson (1896).
Doctrinal Relying on established
Alexander Bickel, Future civil rights cases relied heavily on Brown as binding precedent.India – Indira Gandhi v. Raj Narain
(Precedent- judicial precedents for
John Hart Ely (1975): Court struck down constitutional amendment that attempted to immunize election disputes. Relied on
based) consistency and stability.
precedent from Kesavananda about limits on Parliament’s power (Basic Structure).
U.S.: Dworkin argued rights should be interpreted morally – e.g., free speech not just textual, but tied to
Ethical / Moral Guided by justice, fairness, Ronald Dworkin, democratic fairness.India – Common Cause v. Union of India (2018): Recognized right to die with dignity
Reasoning and human dignity. Laurence Tribe (passive euthanasia) under Article 21. Court relied on moral reasoning around autonomy and dignity beyond bare
text.
Judges should interpret U.S. – Breyer’s “Active Liberty”: He often favored interpretations that furthered democratic participation and
constitution by considering Richard Posner, real-world functioning of law (e.g., upholding campaign nance rules).India – Shayara Bano v. Union of India
Pragmatism
practical consequences and Justice Stephen Breyer (2017): Struck down instant triple talaq. Court balanced religious freedom with practical consequences on
workable governance. women’s rights and equality → pragmatic balancing.
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Phase 1: Textual & Formalist Beginnings (1950–1966)

• The early Court was cautious and literalist.

• A.K. Gopalan v. State of Madras (1950) – Article 21 (“procedure established by law”) was read narrowly:

any law passed by Parliament was valid, even if unfair.

• Emphasis on text and original intent; little room for substantive due process.

• In property disputes (Shankari Prasad, 1951; Sajjan Singh, 1965), Court upheld Parliament’s power to

amend Fundamental Rights → deference to legislature.

Assessment: The Court saw itself as a restrained, textual interpreter, not a rights-expander.
Phase 2: Assertive Judicial Review & Rights Expansion (1967–1977)

• Turning point: Golak Nath (1967) – SC held Parliament cannot amend Fundamental Rights (marked

judicial assertiveness).

• Kesavananda Bharati (1973) – Parliament can amend Constitution, but not its Basic Structure (rule of

law, judicial review, separation of powers).

• During Emergency, ADM Jabalpur (1976) infamously upheld suspension of habeas corpus; only Justice

H.R. Khanna dissented, af rming liberty.

Assessment: This phase saw the Court discover its counter-majoritarian role, checking legislative and

executive excesses, but also exposed vulnerability under political pressure (Emergency).
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Phase 3: Social Justice & Expansive Interpretation (1978–1990s)

Post-Emergency, the Court pivoted to rights expansion.

Maneka Gandhi v. Union of India (1978) overturned Gopalan: Article 21 requires fair, just, and reasonable law

(substantive due process). This opened oodgates for judicial creativity.

Public Interest Litigation (PILs) emerged: Court expanded standing, allowing social activists to represent

marginalized groups.

Rights were reinterpreted broadly: right to education (Unnikrishnan, 1993), right to environment (MC Mehta

series), and right to livelihood (Olga Tellis, 1985).

Assessment: Judiciary became an activist body, steering governance in social justice, environment, and welfare.
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Phase 4: Towards Institutional Balancing (1990s–2000)

• Court continued rights expansion but also re ned doctrines.

• Indira Sawhney (1992) – upheld 27% OBC reservations but capped reservations at 50% → balancing

equality with af rmative action.

• S.R. Bommai (1994) – limited misuse of President’s Rule, strengthened federalism.

• Vishaka v. State of Rajasthan (1997) – laid down guidelines against sexual harassment at workplace, lling

legislative vacuum.

Assessment: Court matured into a policy-in uencer, balancing rights, social justice, and structural

federalism, while stepping in where legislature failed.

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Phase 5: Structural Emphasis (2007–2013)

In the rst part of the last two decades, the Supreme Court of India leaned heavily on structural doctrines such as the Basic

Structure principle. A landmark here is I.R. Coelho (2007), where the Court reaf rmed that Parliament cannot shield laws from

review simply by placing them in the Ninth Schedule. This period re ects the Court’s focus on preserving the institutional

balance of power between Parliament and the judiciary, ensuring that the constitutional framework itself remained intact. Rights

expansion was less prominent compared to safeguarding the constitutional structure.

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Phase 6: Rights Expansion & Living Constitution (2014–2018)

From around 2014 to 2018, Indian constitutional jurisprudence entered a period of transformative rights adjudication.

The Court embraced a living constitution approach, expanding the scope of rights in line with evolving social values.

Landmark cases like K.S. Puttaswamy (2017) recognized privacy as intrinsic to dignity under Article 21, while Navtej

Johar (2018) decriminalized homosexuality, af rming equality and constitutional morality over colonial morality.

Similarly, Joseph Shine (2018) struck down adultery laws, and Sabarimala (2018) promoted gender equality over

religious restrictions. This was the era where the Court acted as a moral innovator, prioritizing individual dignity,

liberty, and equality over rigid textual or historical readings.

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Phase 7: Pragmatism & Restraint (2019–2023)

In the most recent years, a dual trend is visible. On one hand, the Court has continued to protect rights in new contexts

— for instance, in Anuradha Bhasin (2020) it imposed limits on inde nite internet shutdowns by requiring proportionality,

and in Kaushal Kishor (2023) it extended the horizontal application of fundamental rights. On the other hand, in politically

sensitive and structural cases, the Court displayed judicial restraint. The Central Vista (2021) case upheld a government

redevelopment project despite participatory concerns, and in the Same-Sex Marriage (2023) case, the majority deferred to

Parliament instead of reading marriage equality directly into the Constitution. This re ects a pragmatic balancing act:

progressive in individual liberty cases but cautious in matters touching executive or legislative domains.

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Assessment: Court matured into a policy-in uencer, balancing rights, social justice, and structural
federalism, while stepping in where legislature failed.

1950s–60s: Court was formalist, deferential, emphasizing text and legislature’s supremacy.

1970s: Shift to judicial assertiveness (Basic Structure) but also failure during Emergency.

1980s–90s: Rise of judicial activism, expanding rights through Article 21 and PILs.

By 2000, the Court had established itself as guardian of rights, enforcer of accountability, and innovator
of doctrines (Basic Structure, PIL, substantive due process).
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The last two decades show a constitutional trade-off between expansion of rights (through a non-
originalist, living constitution approach) and deference to state power (through pragmatism and structural
restraint). The Court appears most activist when the issue is about personal liberty, dignity, and equality,
but more deferential when state policy, political stability, or structural changes are at stake. This balance
illustrates how the Court has attempted to navigate its role as both guardian of individual rights and
arbiter of institutional harmony in a complex democracy.
References:

• Theories of Constitution l Interpret tion, https://l w2.umkc.edu/f culty/projects/ftri ls/conl w/

interp.html

• Modes of Constitution l Interpret tion, https://www.everycrsreport.com/reports/R45129.html

• Types of Constitution l Interpret tion, https://constitutioncenter.org/medi /const- iles/

Constitution l_Convers tions_ nd_Civil_Di logue_Thinking_Sheet.pdf

• Constitution l Interpret tion, https://citycolleges.ie/wp-content/uplo ds/sites/2/2021/08/

Constitution l-L w-2020_FE1.pdf
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 Th nk-You!
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