Concept of Living Constitution 101: The Essential Guide

Concept of Living Constitution 101: The Essential Guide

Concept of Living Constitution under the Constitutions of USA, UK and INDIA
1.

CHAPTER – I

SYNOPSIS

The “Living Constitution” is an important expression which is used to describe the potential of a nation’s Constitution to change in order to meet the needs of each generation without involvement of any major changes.[1] For example, under the Constitution of USA, it is an conception that Constitution of the US has applicable meaning beyond the original text and is an evolving and dynamic document that changes over time.[2] Therefore, it is the view of the author that the views of existing society should be taken into account while interpreting the crucial constitutional phrases.[3] In order to understand the living constitution, firstly, we have to understand the question as to what is a constitution. A constitution is a

(a) supreme law of the land,

(b) a framework of government and;

(c) a legitimate vehicle for granting and limiting the power of government officials.[4]

While addressing the use of history in constitutional interpretation[5], in his speech; Justice William J. Brennan laid stress on that the Constitution is a living document subject to "contemporary ratification" and that the judiciary must interpret the text to promote human dignity in light of society's changing values and needs.' He pointed out that it is due to this recurrent change in the societal needs and relationships over time that often contributes to the inefficacy of "the intention of the Framers" on contemporary issues, and he noted that "[i]t is arrogant to pretend that from our vantage we can gauge accurately the intent of the Framers on application of principle to specific, contemporary questions."[6]

It is contended by the researcher that there are mainly two views which are contradictory to each other regarding the whole ideology of Living Constitution. Those who favour the concept of living constitution contend that interpreting the Constitution in accordance with obsolete views is often unacceptable as a policy matter, and therefore an evolving interpretation is necessary. Those who criticize the concept of living constitution claimed that the constitutional framers specifically wrote the Constitution in broad and flexible terms to create such a dynamic, "living" document. They proclaim that the Constitution should be changed through the amendment process, and that the theory can be used by judges to inject their personal values into constitutional interpretation.[7]

This present research project is divided into six chapters. The researcher has tried to deal with each research question individually in separate chapters and the final chapter deals with the conclusion.

q Statement of Problems

In this research, the researcher has mainly dealt with the problems of changing and evolving nature of the constitution and to make a comparative study of the constitutions of USA, UK and India in this regard. The problem of the study regarding the doctrine of living constitution with respect to its meaning is that it does not really emanates from the text of the constitution which the framers provided while making the constitution. It mostly comes from the interpretation of the Judges of the Supreme Court of the text of the constitution and the application of the judicial mind in these cases.

The researcher has first dealt with the issue of living constitution with regard to the issue whether the doctrine is a by product of judicial decisions in these three countries. In this Research, the Researcher will try to point out whether there is a living constitution in these countries and at the same time will try to determine as to whether it is a by-product of the judicial decisions.

Secondly, the researcher will discuss the contribution of Judicial Review towards the doctrine of the living constitution. Here, the researcher will try to compare the earlier practices by the legislature or the parliament in these countries and the impact of Judicial Review under it.

Thirdly, the researcher will try to discuss the criticism regarding the doctrine of living constitution with respect to the impact of the doctrine of living constitution which have been debated over by several eminent persons.

Ultimately, the researcher will discuss the criticisms of the doctrine of living constitution and finally conclude the project.

q Research Questions

The researcher in dealing with the aforementioned problem is going to deal with the following research questions which will suffice the object and purpose of the research. They are mentioned hereinbelow:-

v Is the doctrine of living constitution a by-product of judicial decisions?

v How the Judicial Review done by the Judges of the Apex Court Contributes towards the Doctrine of Living Constitution?

q Hypothesis

In this research, the researcher shall proceed upon with the hypothesis that as the doctrine of living constitution mostly relies on the judicial decisions, for its development, therefore it clearly provides for the befitting approach regarding expanding the scope of the constitution with respect to the changing society and interpreting in a pragmatic manner.

q Objectives of the Study

The general objective of the research work is to study the flow of the doctrine of living constitution in the light of the proposition as to whether it is a by-product of judicial decisions. Secondly, to study the impact of the judicial review done by the Judges of the apex court of these countries over the concept of the living constitution. Thirdly, to discuss the criticism of the doctrine of the living constitution in these countries.

q Scope of the Study

The researcher has focused purely on the concept of living constitution and a comparative study of the constitutions of USA, UK and India. The primary evidence used in this research includes the text of the Constitutions of U.S.A., U.K. and India, the text of the judgment of the apex court as rendered in several cases, the contentions of the parties to the dispute and finally the verdict of the judges in such cases. The secondary evidence used in this research includes various articles, commentaries and other research papers on this particular topic as have been founded and used by this researcher for this research project. The researcher has relied heavily on various works of other scholars on this topic which have ultimately proved very helpful in providing useful and effective material for this instant project.

q Research Methodology

The methodology followed in this research will be purely doctrinal in nature. This research is purely based on the decisions of the apex court of various cases and the decision rendered in each particular case (w.r.t. the applicability of Judicial mind being applied by the judges in interpreting the text of the Constitution); therefore the researcher will be dealing mainly with the doctrinal material available w.r.t the case laws and will do an extensive study on the abovementioned aspects. The research done by the researcher in this Project is of comparative and analytical nature.

The researcher will be taking the help of various primary sources such as the text of the Constitutions of U.S.A., U.K. and India, the rationale of the judges and their judicial interpretation etc. The secondary sources that the researcher will use are the various commentaries, journals, articles and papers relating to this particular case. The researcher will be making extensive use of both of such primary and secondary sources in this research.

q Chapterization

The Chapterization of this research project is as follows:

CHAPTER - I

SYNOPSIS

In the very first chapter the researcher is going to discuss the introductory part of the Research Project. The synopsis will include the statement of problems regarding the concept of the doctrine of the Living Constitution. Research questions are also included which will put forth the issues pertaining to the topic of the research. Hypothesis, Objectives as well as the Scope of the Study have been discussed which will give a basic idea about how the researcher has made his approach regarding the topic in his project. Basically, the first chapter will provide the structure of the project and a roadmap for more clarity of the issues pertaining to the topic which will be discussed by the researcher in the succeeding chapters.

CHAPTER - II

IS THE DOCTRINE OF LIVING CONSTITUTION A BY-PRODUCT OF JUDICIAL DECISIONS

Here the researcher will try to deal with the research question with respect to the practice undergoing in three countries viz. U.S.A., U.K. and India. Firstly, the researcher will try to discuss the famous Marbury case in brief in this regard. Secondly, the researcher will discuss the position under U.K. and the change underlying the judiciary by discussing the case of R v. Home Secy. Thirdly, the researcher will try to discuss the position of India in order to adjudge its position in this context. Here, the researcher will try to discuss the basic philosophy of the Indian constitution and illustrate the proposition that the doctrine of living constitution is a by-product of judicial decisions by illustrating the case of Unni Krishnan v. State of A.P. in brief.

CHAPTER – III

HOW THE JUDICIAL REVIEW DONE BY THE JUDGES OF THE APEX COURT CONTRIBUTES TOWARDS THE DOCTRINE OF LIVING CONSTITUTION

In this Chapter the researcher will discuss the case laws which brought real change in the continuing trend of practice by the British and Indian Parliament or by the legislature in the case of U.S. In this chapter, the researcher will discuss the landmark case of Marbury v. Madison in the country of U.S.A. which provided for the new means of interpreting the fourteenth amendment of the constitution. Secondly, the research will discuss the case laws of Smith v. East Elloe Rural District Council and Anisminic Ltd. v. Foreign Compensation Commission with regard to constitutional position in England. Finally, the researcher will briefly put the landmark case of Kesavananda Bharati v. State of Kerala with respect to changing aspects of interpretation of Indian Constitution.

CHAPTER – IV

CRITICISM

The researcher in this chapter is going to briefly discuss the J. Malpas and J. Antonin Scalia’s view with regard to the opposition of the doctrine of the living constitution.

CHAPTER-V

CONCLUSION

The Researcher will deal with the conclusion in the concluding Chapter i.e. Chapter VI.

CHAPTER - II

IS THE DOCTRINE OF LIVING CONSTITUTION A BY-PRODUCT OF JUDICIAL DECISIONS

q In United States of America:

Eugine W.Hickok, Jr., in his article[8], mentions that ever since C.J. Evans Huges first announced that the constitution is what the Judges Say, the doctrine of Living Constitution gained a lot of supporters.[9] In William Marbury vs. James Madison, 5 U.S. 137 (1803), the makers of the constitution never stated of a “living” constitution. They only spoke of a permanent one. They acknowledged the need for a written constitution that would provide the basic and supreme law of the nation. And they had carefully chosen their words to convey precisely what the constitution was intended to provide and felt a need to allow for changing the provisions of the constitution with respect to the change in the society (which would be inevitable).[10] Prof. Walter Berns is of view, that the concern of the framers was not to keep the Constitution in accordance with the times of change in the society; rather to keep such times, to the extent possible, in tune with the constitution.[11] The concept of present day doctrine of a “living” constitution is the result of a misguided understanding of the framers of the constitution in understanding the document and of the attempts made by the court to interpret it in the beginning.[12] According to the author, the doctrine of living constitution is a by-product of judicial decision making by the activists who have provided the majority on the court with the authority the constitution does not provide them. The sustainability for the "living" Constitution, in other words, has been furnished by judicial activism. The primary vehicle employed by the activists has been the fourteenth amendment. Certainly, the birth of the American Living Constitution can be traced to the transformation of the Bill of Rights that has surfaced through consolidation.[13]

q In United Kingdom:

The United Kingdom is procured from a large number of sources; viz. statutes, royal prerogatives, unwritten customs, common law and conventions, and treaties such as the European Convention on Human Rights.[14]

The Practice of Constitutional Interpretation in the United Kingdom:

The British Parliament passed the Constitutional Reform Act on March 21, 2005. The Act provides for a new Supreme Court of the United Kingdom to take over both the pre-existing functions of the members of House of Lords and certain powers of the Judicial Committee of the Privy Council.[15] The Constitutional Reform Act’s major rationale was to bring the judicial system of Britain more into conformity with the requirements of the ECHR.[16] It should be accepted that the judicial practice of constitutional interpretation, as defined in this article, is filled with undesirable complexity in the United Kingdom. This is partly because of lack of “Constitution of the United Kingdom” in the restricted sense of a codified and extensive set of legal rules like the other constitutions of the rest of the world, one that provides definition of the governmental structural system as well as the government’s relations with its citizens.[17]

Prof. Robert Stevens accurately outlined the comprehensive import of law of British legal culture when he writes that “judicial claims to be guardians of fundamental laws are likely to be met with understandable hostility as a breach of the traditions of parliamentary supremacy” (Stevens 2005, p.68).[18] In the U.K., the judicial practice of interpreting the constitutional law is done in accordance with its “plain meaning.”[19]

However, it would be inappropriate to be of the opinion that constitutional theory in Britain has completely failed to adopt any of the perception of the American Legal Realism.[20] For example, in R v. Home Secretary, ex p Daly [2001] 2 WLR 1622, where all the members of the house of lords accepted the test of “proportionality,” according to which judges are having an obligation to make a substantive assessment of the “relative weight” of participatory appeal in cases concerning human rights; its almost as if the court had located a doctrine of substantive due process concealed somewhere in the dubious character of the British constitution.[21] In a related fashion, many British courts have used a substantive interpretation of the common law concept of the rule of law in order to check abuses of the discretion that is exercised by agents of the state.[22]

q In India:

Madabhusi Sridhar, in her article provided the basic philosophy of the India constitution by quoting Justice H.R. Khanna, which stated that the framing of the constitution signifies great statemanship.[23]According to him, a Constitution has to be a living thing. It is for this analogy that the provisions of the Constitution are formulated in general terms.[24] The Indian judiciary also has adopted the concept of the doctrine of living constitution by expanding the scope of the provisions of the Constitution of India Act, 1950. For example, in the case of Unni Krishnan P.J. and Ors. v. State of A.P. and Ors. [1993 AIR 2178], the expanded scope of Art. 21 has been provided by the Supreme Court. In this case, the constitutional bench of the Supreme court has provided the list of some rights covered under Article 21 which are stated hereinbelow:

a) The right to go abroad,

b) The Right to Privacy,

c) The Right Against Solitary Confinement,

d) The Right against Hand-cuffing,

e) The right against delayed execution,

f) The Right to Shelter,

g) The Right Against Custodial Death,

h) The Right Against Public Hanging,

i) Doctor’s Assistance.[25]

CHAPTER - III

HOW THE JUDICIAL REVIEW DONE BY THE JUDGES OF THE APEX COURT CONTRIBUTES TOWARDS THE DOCTRINE OF LIVING CONSTITUTION

The most prominent topics which are generally discussed in the case of proposed amendment of a country’s constitution are given below:

(i) Power of Amendment of the Constitution,

(ii) Judicial review, and

(iii) Predominance of Directive Principles over Fundamental Rights.[26]

The researcher will try to discuss the role of Judicial Review in developing the doctrine of Living Constitution in these countries.

q In U.S.A.:

Art. V of the U.S. Constitution speaks about the manner in which amendment of the constitution may be amended.[27] In the famous case of Brown v. Board of Education[28], there were a large number of racially segregated schools which were being made legal in the case of Plessy v. Ferquson[29], which held such segregation to be constitutional so long as the school provide equal facilities to black and white students. In this case, Brown claimed that Topeka's racial segregation violated the Constitution's Equal Protection Clause because the city's black and white schools could not be regarded as equal to each other. The federal district court dismissed his claim, determining that the segregated public schools were "substantially" equal enough.[30] Brown then appealed to the Supreme Court for relief, which reviewed all the actions of school segregation together. The apex court, after reviewing the facts and circumstances of all the five cases under the name of Brown v Board of Education[31] held that racial segregation of children in public schools has indeed breached the Equal Protection Clause.[32] The Court also recognized that the Congress, while drafting the Fourteenth Amendment, did not clearly designed to require amalgamation of public schools during that period.[33]

q In U.K.:

Under U.K., several tribunals like National Insurance Tribunal, National Health Service Tribunals etc. have been in existence for the last several years.[34] The Judicial Review of the decisions of these tribunals is being provided either by means of an appeal to a higher body or by writ jurisdiction.[35] Since in U.K., as there is no written Constitution, the practice that the British Parliament adopted was that it inserted a clause in the ordinary Act itself which provided “such Act could not be questioned in any legal proceedings whatsoever.”[36] Thus, in this manner the Parliament used to exclude judicial review in writ jurisdiction. This position was prevalent till the passing of Tribunals and Enquiries Act, 1958, where it was enacted that prohibition or declaration contained in the Acts passed before August 1, 1958 shall not have any effect of preventing the applicability of the writ jurisdiction.[37] The House of Lords in Smith v. East Elloe Rural District Council[38] held that such a clause excludes writ jurisdiction even in those cases where the order is challenged on the ground of mala fide. The matter was, however, reconsidered by the House of Lords in the case of Anisminic Ltd. v. Foreign Compensation Commission[39]where the East Elloe case was criticised and it was held that such a prohibitive clause could not exclude the jurisdiction of the court in order to render the decision of a court to be a nullity where it was void ab initio.[40]

q In India:

The Constitution is a living document formulated to serve the society which is a living organ.[41] The framers of the Constitution took precaution to make the Constitution flexible and living as they were aware of the ever-changing nature of the society.[42] It is evident from the fact that when the framers allowed the Parliament and provided a procedure for amendment of the Constitution under Art. 368, it was intentionally done to avoid revolutions and for prevention of any polls being conducted for bringing amendments to the Constitution.[43] The amendment of the Constitution is a part of the Constitution itself which is the origin or source of power of the judiciary as well.[44] Earlier, in India, the notion was that, the power of judicial review is intended to be exercised with respect to laws made under the Constitution, but not to the constitutional law itself.[45] However, this concept was not accepted by the Supreme Court in the landmark case of Kesavananda Bharati v. State of Kerala[46], which placed a restriction and imposed limitation on Parliament's power to amend the Constitution by introducing the concept of essential features; which is also known as the basic structure of the Constitution, and decreed that the Parliament has no power to change the basic structure of the Constitution.[47] The introduction of this exception on the power of the parliament to amend has created a very unique situation. It has considerably diminished the power of the Parliament, which, earlier was regarded as the only authority competent to decide as to what amendment should be made.[48]

CHAPTER - IV

CRITICISM

Though the concept of living constitution has got significant appeal; yet it has got considerable amount of objections. The most significant ones are given below[49]:

(a) Firstly, the doctrine of living constitution provides only senseless talk of constitutional interpretation because after such interpretation, the application of the constitution becomes limited, and entirely different from what the framers of the constitution might have intended[50],

(b) Secondly, living constitutionalism spoils the constitution of its very potentiality to serve its guidance function as J. Malpas puts it, how can the society be guided by a constitution whose application will be determined by the unrestricted views of the judges of the apex court or law lords of the house of lords[51]; and

(c) Thirdly, the doctrine of living constitution violates the doctrine of separation of powers; if the constitution and its applicability limits become whatever the judges of the apex court thought about in giving them the appropriate meaning, and if such meaning is given by them, then practically such judges would end up in deciding what the proper limits of government power shall be, a task for which they are unaccounted for and which ought to be the function of the parliament.

American Supreme Court J. Antonin Scalia does not believe that America has a living constitution. In a symposium at Princeton University’s Richardson Auditorium, J. Scalia emphasized that, “The constitution is not an organism. It’s a legal text.” “It means today what it meant when it was adopted.”[52]

Further, he argued that, majority of the courts in America rule by the ideology of the “Living Constitution” which is basically to interpret the constitution in accordance with the changing times, catching on a new meaning which is founded upon the perception of each generation. But this principle threatens the democracy of U.S.A. by affording too much power to the Judges of the Supreme Court.[53]

He strongly stated that, those Judges who do not adhere to originalism misuse the Constitution to legislate their own moral beliefs, Scalia said. Thereupon, he put forth a simple thought before the audience by saying that if they have thought that the advocates of the living constitution would bring them flexibility; then they have to think over it again.[54]

J. Scalia also mentioned that the Constitution protects freedom not through the Bill of Rights, but through provision for a structure of checks and balances.[55]As regard for the interpretation of broad terms like “due process” and “equal protection,” depended on the meaning they were understood to have when first adopted. Beyond such comprehension, according to him, the legislation should be left to allow to function in accordance with the democratic process, especially on moral issues like abortion and homosexuality.[56] It is for the reason that “the constitution doesn’t mean a bill of rights. It means structure.”[57]

CHAPTER – V

CONCLUSION

The originalists make a typical objections to the idea of a living Constitution. They advocate for the allegiance to law and Written Constitution; which requires obedience to the original understanding.[58]Prof. Balkin stated in his work that there are some originalists who argue that we should respect non-originalist precedents only if lots of people have relied on them. But, according to him this view doesn’t really explain why such precedents are legitimate interpretations because there are non-originalist decisions which have provided guarantee regarding race and gender equality, safeguarded the free speech etc. are not regrettable errors that we are just stuck with because of "reliance."[59] Prof. Balkin opined that the originalists are correct in perceiving and accepting that the Constitution is binding law, but they confuse the constitutional text (which is binding) with original understanding and original intentions of the framers, at the time of preparation of the constitutional text which are not binding at all.[60] A living Constitution demands that the judges should apply the text of the constitution in a convincing manner, and to try to give the meanings the words of such text had when they were first enacted, applying those words to today's circumstances.[61] However, giving an original meaning to the text of the constitution does not really mean original expected application.[62] Regarding the application of original meaning, the originalists argue that a living constitution offers inadequate restriction on power of judiciary. The mockery of this argument is that, in practice, originalism doesn't provide any greater restraint over the judicial power. It is so because, in practice, judges choose (out of their own whims and fancies), when to invoke original understanding and when to rely on existing precedents.[63]

And that brings us to the real reason as to why we should have to have a living Constitution. As we have witnessed from the above discussion in the preceding chapters, we came to learn that in the longer run, the Supreme Court has really contributed in securing greater protection for civil rights and civil liberties not because of the fact that the judges of the apex court are elegant or righteous, but because of the wave of the change in the society and the demand of the people. [64]

The researcher opines that the concept of living constitution promotes progressivism. Though the traditional practices are important and many of the conservationalists (who are originally, the real originalists) try to conserve such trends which has been going on for generations; yet the researcher begs to differ the originalistic approach. The researcher is of the opinion that though these trends and earlier constitutional practices reflects the intention and efforts of the framers, still there are issues existing in the present era which presses demand in order to interpret the constitution in a pragmatic manner. Also, if the constitution is not interpreted alongwith the changing circumstances in due time, it would definitely inhibit the growth of the applicability of the provisions of the constitution and render it ineffective with respect to changing times. Based on the above discussion in the preceding chapters of this project, the researcher safely conclude that the hypothesis has been proved.

[1]US Legal, INC, Living Constitution: Law and Legal Definition, available at: <http://definitions.uslegal.com/l/living-constitution/>, accessed on 13-10-2013.

[2] Ibid.

[3] Id.

[4] OAH, The Constitution of the United States, What Is A Constitution, (Magazine of History) Vol. 3, No. 1, (Winter, 1988), pp. 41-51, available at: <http://www.jstor.org.ezproxy.nujs.ac.in/stable/pdfplus/10.2307/25162580.pdf>, accessed on : 13-10-2013.

[5] University of Pennysylvania Law Review, Justice Brennan and the Religion Clauses: The Concept of a "Living Constitution", Vol. 139, No. 5 (May, 1991), pp. 1319-1331, available at: <http://www.jstor.org.ezproxy.nujs.ac.in/stable/pdfplus/10.2307/3312367.pdf?acceptTC=true >, accessed on : 13-10-2014.

[6] Supra N. 1, at Pg.1.

[7] US Legal, INC, Living Constitution: Law and Legal Definition, available at:

< http://definitions.uslegal.com/l/living-constitution/ >, accessed on 13-10-2013.

[8] Eugine W.Hickok, Jr., The Birth Of The Living Constitution, pg. 6-13, available at: https://www.google.co.in/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&cad=rja&uact=8&ved=0CB4QFjAA&url=http%3A%2F%2Fscholarship.law.wm.edu%2Fcgi%2Fviewcontent.cgi%3Ffilename%3D3%26article%3D1021%26context%3Dwmcl%26type%3Dadditional&ei=u7dQVJHuJuTZmgXt1YG4Aw&usg=AFQjCNEkAzL-rgPMWMUXEh4kBBmU2JAGxw&bvm=bv.78597519,d.dGY , accessed on: 16-10-2014.

[9] Ibid. pg. 7.

[10]Id.

[11] Id.

[12] Id.

[13] Supra, N. 8.

[14] Louis E. Wolcher, Constitutional Interpretation in the United States and United Kingdom, IVR Encyclopaedia of Jurisprudence, Legal Theory and Philosophy of Law, available at: < http://ivr-enc.info/index.php?title=Constitutional_Interpretation_in_the_United_States_and_the_United_Kingdom >, accessed on 18-10-2014.

[15] Ibid.

[16] Id.

[17] Id.

[18] Supra, N. 14.

[19] Ibid.

[20] Id.

[21] Id.

[22] Id.

[23] Madabhusi Sridhar, Evolution And Philosophy Behind The Indian Constitution, available at:

< http://www.hrdiap.gov.in/89fc/coursematerial/PCCI.pdf >, pg. 4, accessed on: 18-10-2014.

[24] Ibid.

[25] Vidhan Maheshwari, Art. 21 of the Constitution Of India – The Expanding Horizons, available at:

< http://www.legalserviceindia.com/articles/art222.htm >, accessed on: 18-10-2014.

[26] Raja Ram Agarwal, Constitutional Amendments- A Legal Analysis, available at: < http://www.ebc-india.com/lawyer/articles/76v3a1.htm >, accessed on: 18-10-2014.

[27] David A. Strauss, The Living Constitution, (Oxford University Press 2010) pg. 115.

[28] 347 U.S. 483 (1954) (USSC+), available at:< http://www.nationalcenter.org/brown.html >, accessed on: 18-10-2014.

[29] 163 U.S. 537 (1896), available at:

< http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=163&invol=537 >,accessed on: 18-10-2014.

[30] The Supreme Court, Supreme Court History: Expanding Civil Rights, Landmark Cases, available at:

< http://www.pbs.org/wnet/supremecourt/rights/landmark_brown.html >,accessed on: 18-10-2014.

[31] United States Courts, History of Brown v. Board of Education, available at:

< http://www.uscourts.gov/educational-resources/get-involved/federal-court-activities/brown-board-education-re-enactment/history.aspx >, accessed on: 18-10-2014.

[32]“ Equal Protection Clause” of the Fourteenth Amendment, which states that "no state shall make or enforce any law which shall ... deny to any person within its jurisdiction the equal protection of the laws.” See Supra, N. 30.

[33] Also, this Amendment did not prohibit integration. In any case, the Court asserted that the Fourteenth Amendment guarantees equal education today. Public education in the 20th century, said the Court, had become an essential component of a citizen's public life, forming the basis of democratic citizenship, normal socialization, and professional training. In this context, any child denied a good education would be unlikely to succeed in life. Where a state, therefore, has undertaken to provide universal education, such education becomes a right that must be afforded equally to both blacks and whites. See Supra N. 30.

[34] Supra, N.26.

[35] Ibid.

[36] Id.

[37] Id. But this Act did not refer to prohibition in respect of ouster clauses contained in the Acts passed after August 1, 1958.

[38] (1956) 1 All ER 855, See Supra, N.26. More at:< http://www.uniset.ca/other/cs3/1956AC736.html >, accessed on: 18-10-2014.

[39] (1969) 1 All ER 208. More at: <http://www.bailii.org/uk/cases/UKHL/1968/6.html> , acessed on: 18-10-2014.

[40]After this decision, the position of the Foreign Compensation Commission was discussed in the Parliament. It was considered unreasonable that the Commission's decisions should be subjected to review on any ground and the Bill that became the Foreign Compensation Act, 1969 provided that a determination or purported determination should not be subjected to judicial review. However, this clause was adapted with certain clarifications making an exception in those cases where breach of natural justice was complained of and providing for a reference to the court of appeal on a question of law. An ouster clause is, therefore, effective in preventing certiorari being granted to quash an error. It is, therefore, not an atrocious proposal to exclude writ jurisdiction in certain specified matters like service matters, industrial and labour disputes, matters relating to revenue, land reforms, procurement and distribution of foodgrains and other essential commodities, election matters, etc. The exclusion of writ jurisdiction in these matters cannot be said to be contrary to any basic principles or concept of democracy or to bring about a disastrous effect on the proper working of democracy. This is amply borne out by England where one of the best democracies of the world is functioning and where by means of ouster clauses in various Acts the writ jurisdiction is excluded in those particular matters and the exclusive jurisdiction to decide them is conferred on the tribunals. Of course, credibility of the tribunals shall depend on the personnel who man them. It is absolutely essential that the personnel comprising these tribunals should be such as to inspire immense public confidence. See: Supra N. 26.

[41] Supra N. 26.

[42] Id.

[43] Id.

[44] Id.

[45] Supra, N.26.

[46] A.I.R. 1973 S.C. 1461. More at:< http://www.commonlii.org/in/journals/NUJSLawRw/2008/28.pdf >, accessed on 18-10-2014.

[47] Infra, N. 45.

[48] Ibid.

[49] Malpas, J., “Donald Davidson”, The Stanford Encyclopedia of Philosophy (Winter 2012 Edition), Edward N. Zalta (ed.), available at:< http://plato.stanford.edu/entries/constitutionalism/#LivCon> , accessed on: 18-10-2014.

[50] Ibid.

[51] Id.

[52] Alice Su, Princeton Borough, Supreme Court Justice Antonin Scalia rejects idea of Living Constitution, Times of Trenton (10th Dec. 2012), available at:

< http://www.nj.com/mercer/index.ssf/2012/12/supreme_court_justice_antonin.html >, accessed on: 18-10-2014.

[53] Supra, N.52.

[54] Id.

[55] Id.

[56] Id.

[57] Id.

[58] Jack M. Balkin, Alive and Kicking, Why No One Truly Believes in a Dead Constitution, available at:

< http://www.slate.com/articles/news_and_politics/jurisprudence/2005/08/alive_and_kicking.html >, accessedon 28-10-2014.

[59] Ibid.

[60] Id.

[61] Supra. N.27.

[62] Ibid.

[63] Id.

[64] Supra, N.58.

2.

BIBLIOGRAPHY

Primary Sources

· The Constitution of India Act, 1950.

Secondary Sources

§ A. Strauss, David, The Living Constitution. (New York: Oxford University Press, 1st Ed., 2010)

Articles

· US Legal, INC, Living Constitution: Law and Legal Definition, available at: <http://definitions.uslegal.com/l/living-constitution/>, accessed on 13-10-2013.

· OAH, The Constitution of the United States, What Is A Constitution, (Magazine of History) Vol. 3, No. 1, (Winter, 1988), pp. 41-51, available at: <http://www.jstor.org.ezproxy.nujs.ac.in/stable/pdfplus/10.2307/25162580.pdf>, accessed on : 13-10-2013.

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