LEGAL METHODS

LAW IN TEXT AND LAW IN CONTEXT

Submitted By-

SHANTANU MISHRA (ID NO. 2585)

I YEAR B.A. L.LB. (HONS.)

CLASS OF 2024

DATE OF SUBMISSION: AUGUST 15, 2019

 INTRODUCTION
According to Lon Fuller, the law should not be just read as it is but should be read as what it
should be. It should be read with the concept of morality. He states that rules should necessarily
be moral for fostering the objectives of mankind. This he called as the ‘external morality’. A
law should be fluid enough to adjust to the dynamic nature of society. As per Fuller, law should
be framed in such a way which brings people together for serving their best interest.1

In this paper I have argued that, with changing time there is an earnest need to adopt the
contextual interpretation approach of law in order to hold the rights of the people. The
researcher has taken the example of Procedure established by law versus Due process of law
and Right to Privacy to substantiate his argument. The spatial constraints of this paper force
the analysis carried out to eschew a detailed examination of the innumerable facets of this issue,
and focus primarily on the analysis of the Constitution.

PROCEDURE ESTABLISHED BY LAW VS. DUE PROCESS OF LAW

Article 21 reads for the restrictions on personal liberty subject to the procedure established by
law. Interpreting this article by textualism or positivism, restrictions can be put upon the rights
of any person if any law has been passed by the authority in such respect. Such an approach
does not take into account the critical morality of the society as the procedure established
decades ago may be anachronistic today. In the case of ADM Jabalpur v Shivkant Shukla,2 the
court adopted the textual interpretation of law and held that right to approach the court under
article 14, 21 and 22 stands suspended during the emergency. The court took this stance on
ground of Article 359(1) which in this case was the ‘procedure established by law’.

However, the phrase ‘procedure established by law’ was read in consonance with the phrase
‘due process of law’ in the case Maneka Gandhi v Union of India3. The court held that the
procedure established by law must be just and fair and not arbitrary thereby expanding the
scope of article 21. Fundamental rights are not distinct and mutually exclusive rights. The
legality test of a law won’t just be limited to Article 21 but can be sufficiently challenged by

1
Lon L Fuller, The Morality of Law, Revised edition, Universal Law Publishing Co Pvt Ltd 2000 at p. 95-118 &
187-225 127.
2
ADM Jabalpur v Shivkant Shukla [1976] 2 SCC 521. (hereinafter Jabalpur case) (Supreme Court of India)
3
Maneka Gandhi v Union of India, AIR 1978 SC 597. (Supreme Court of India)
provisions in Articles 14 and 19 as well.4 This constituted the golden triangle of Articles 14,
19 and 21. 5

The majority judgment in the Jabalpur case was overruled in K.S. Puttaswamy v Union of
India.6 The bench held that the right to life and personal liberty was present even before the
Constitution of India came into being. It is an erroneous construct to think that these rights are
subject to the will of the state who can curtail the liberty of the citizens by making unfair and
unjust laws.

RIGHT TO PRIVACY
In the case of Kharak Singh v State of UP,7 textualism approach was used. The two parts of the
judgment contradicted each other in the very essence. Justice Rajagopala Ayyangar submitted
that the Art 19(1)(d) doesn’t stand violated by surveillance over an individual’s movement and
the article just talks about physical interference with movements and not mental.

The main legal issue was whether clause ‘b’ of Regulation 236 of the UP Police Regulations
which allowed domiciliary visits at night, was unconstitutional or not. Interpreting Article 21,
the court held that the above-mentioned clause violated the Right to personal liberty. When
articles 19 and 21 are read together, article 19 speaks about reasonable restrictions which can
be put by the state by enforcing some law. Clause ‘b’ of Regulation 236 of the UP Police
Regulations is merely a rule of the police and not some law enforced by the state. 8 So, having
not been backed by some law, domiciliary visits at night are violative of Article 21 which reads
of ‘personal liberty’ and the clause was struck down. With the given proposition, it can be
implied that the court upheld Right to Privacy implicitly.

When the question of keeping a watch on the movements of suspect came to light, the court
interpreted Article 19(1)(d) and read it as the freedom to move around without physical
impediments. Mere vigilance over the person doesn’t restrict his or her movement. The watch
over an individual’s movement was violative of Article 21 and his privacy. But the court held
that Right to Privacy wasn’t a right explicitly guaranteed by the Constitution of India and
Article 21 also has no say in the argument. Going by the textual interpretation of Article

4
¶ 48, Maneka Gandhi, AIR 1978 SC 597.
5
¶ 74, Minerva Mills Ltd. And Others v Union of India [1980] 3 SCC 625. (Supreme Court of India)
6
Justice K.S. Puttaswamy v Union of India [2017] 10 SCC 1. (hereinafter Puttaswamy case) (Supreme Court of
India)
7
Kharak Singh v State of UP AIR 1963 SC 1295. (hereinafter Kharak Singh Case) (Supreme Court of India)
8
¶ 18, Kharak Singh, AIR 1963 SC 1295.
19(1)(d), the court contradicted its own proposition in the first part of the judgment which
implicitly recognised right to privacy.

In Puttaswamy case, the Supreme Court of India observed that right to privacy, though not
explicitly written in Article 21, has its origin from right to life and personal liberty, thereby
supporting the dissenting statement of Justice K Subba Rao in the Kharak Singh case. It also
arises from various other fundamental rights enumerated in the Constitution. Going beyond the
text of the Constitution and bringing in the concept of critical morality, the court broadened the
purview of Article 21. The court overruled the majority judgment in Kharak Singh case on the
grounds of infringing the Right to privacy.

Prof. Hart supports constitutionalism in some instances because according to him, words as
written in the law are not sufficient to give a proper meaning. He termed this as ‘penumbra of
doubts.’ Hart says that these problems can be easily solved by judicial interpretation. He talks
about intersection of law and morals while dealing with such problems. Morals are an
influential factor in deciding cases which fall in this penumbra.9 This theory buttresses the
contextualism approach.

CONCLUSION
With changing times, there is a need to change the perspective of how law is to be understood.
One such way is to adopt the ‘living tree’ doctrine of reading the Constitution. In this approach,
it doesn’t matter what was the intent behind the formation of law. The thing which matter the
most is how the Constitution can be read to contain rights in their broadest realm. Dworkin
says in Freedom’s Law that “according to the moral reading, these clauses must be understood
in the way their language most naturally suggests: they refer to abstract moral principles and
incorporate these by reference, as limits on government’s power.”10 This proposition by
Dworkin buttresses the ‘living tree’ doctrine of interpretation.

It has been observed through a range of studies that in the coming 20-30 years, the world will
certainly become more urban, better educated and connected to each other as well as to
information about their rights and more empowered.11 In the current scenarios of law making

9
HLA Hart, ‘Positivism and the Separation of Law and Morals’ [1958] 71[4] HARVARD LAW REVIEW, 593-
629.
10
Thulasi K. Raj, ‘Ways to read the Constitution’ (The Hindu 28 August 2018)
<https://www.thehindu.com/opinion/op-ed/ways-to-read-the-Constitution/article24794977.ece> accessed 13
August 2019
11
David Petrasek, ‘Global Trends and The Future of Human Rights Advocacy’ [2014] 11(20) SUR-
INTERNATIONAL JOURNAL ON HUMAN RIGHTS, 2.
by the legislators, courts and others, the law makers must keep in account the social changes
that are taking place in the society, if regulating the social order is of paramount importance to
them.12

The courts, with the change in social scenarios, have felt the need to change the view of how
law should be seen. In the case of Navtej Singh Johar v Union of India,13 the court followed
this approach and recognised the rights of the LGBTQ community. CJI Dipak Misra took the
approach of transformative Constitutionalism and dynamic acknowledgment of rights to hold
that the Constitution must guide the general public's change from a bygone to modern approach
society where fundamental rights are strictly protected. He also said that, “Constitutional
morality would prevail over social morality”.14 The recent judgments are reflective of the
above-mentioned change. This approach according to me will help people exercise their liberty
and give them rights which they are entitled to.

12
Wolfgang Friedmann, Law in a Changing Society (first published 1972, Columbia University Press) 3.
13
Navtej Singh Johar v Union of India [2018] 1 SCC 791. (Supreme Court of India)
14
¶ 121, Navtej Singh Johar [2018] 1 SCC 791.