NAME : PRATYUSH PANDEY

BATCH : 17 SEC-B ROLL : 103(017/2017/1603)

SUB : CG – Judicial Review
 Answer 1
Introduction
1. The Legacy of our Constitution: Our Constitution, unlike other laws, is not just a piece
of legislation that has been passed. It's the storey of our liberation fighters' years of toil
and sacrifice in the fight for independence and "Swaraj." It's a live record that changes
through time and melds with Indian culture. It was crafted with great care and dedication,
and it symbolises our predecessors' beliefs. In this context, the founders' attention was
brought to the prospect that, due to inherent constraints, a Constitution created in the
1950s could not be able to foresee the demands of 21st Century India.
2. Importance of Interpretation: In 1950, India's Constitution came into effect. Much has
changed in today's world, and the only way to ensure that the country's Fundamental Law
remains a living document and does not become outdated is to interpret it. 1 Courts have
used a variety of constitutional interpretation methodologies to interpret the constitution
and apply it to the facts and circumstances of the case in the years since independence.
3. Criteria of Interpretation: A variety of criteria assist the courts in their interpretation of
the Constitution. After many years of judicial examination, these standards have gained
the same level of legitimacy and respect as any other conventional rule of interpretation.
A written constitution is nothing more than a piece of legislation that contains many of
the typical interpretation rules. The Indian Constitution was adopted as a daring
constitutional experiment, with the Supreme Court interpreting the interconnected
portions with an emphasis on the language's essential sense. It is critical that the
Constitution be construed flexibly and extensively to ensure that no law contradicts the
Constitution's core framework. The Indian constitution was adopted 70 years ago, and the
Supreme Court has scrutinised it several times since then, always avoiding political
consequences.

1For discussion of the idea of a canonical case, see Lawrence B. Solum, Legal Theory Lexicon
085: Canonical and Noncanonical Cases, LEGAL THEORY LEXICON (Jan. 20, 2019),
https://lsolum.typepad.com/legal_theory_lexicon/2019/01/legal-theory-lexicon-canonical-andanticanonical-
cases.html [https://perma.cc/AV9D-8KB2].
The Originalist's Point of View: Roots and Origin
Although there are numerous interpretations of the constitutional language's original meaning,
they all agree that the meaning is stable and binding. Professor Stephen Sachs recently refuted
this claim in an essay titled Originalism Without Text; Professor Sachs and Professor William
Baude have developed a theory known as "original-law originalism" that incorporates a legal
positivist theory of what counts as "original law" and constitutional change.
According to originalism, until it has been legitimately amended, the original legislation remains
in effect. The content of the original legislation would be defined by the rule of recognition in
effect at the time the current regime began, according to a Martian interpretation of the original
legislation (perhaps 1791). Secondary rules of constitutional change, such as the Article V
amendment procedure, but maybe other methods, would be integrated in the law prescribed by
the rule of recognition. It's probable that the original law's modification mechanisms allowed for
the establishment of additional secondary laws, which in turn allowed for the formation of new
mechanisms. We can use the history of a belief or practise to assess if it is constitutional. It
becomes part of our constitutional law if the doctrine or practise is authorised by the original
legislation or by a modification mechanism authorised by the original legislation (understood
iteratively160). However, the idea cannot be realised until it is legally sanctioned.
Is it necessary to uphold the original law? Is it possible to characterise originalism as a
constitutional originalist theory? It is "originalism" if Original Law maintained fixation and
constraint to the extent that Original Law maintained fixation and restraint. Authenticity to the
original meaning of the constitutional language was required under originalism. If the "original
law" required adherence to the original objective or technique, and that requirement was not
reversed by a legally approved type of constitutional amendment, the same conclusion would
apply.
When we look at two additional options, the issue gets even more convoluted. The first is the
(perhaps impossible) notion that the original legislation was a living constitutionalism. The
prospect that the original legislation empowered courts to alter the legal theories regulating
constitutional interpretation, allowing for a gradual shift from originalism to living
constitutionalism, appears to be less unlikely. Assume that the original statute provided the New
Deal Supreme Court the authority to adopt constitutional interpretations that provided the Court
additional latitude in diverging from the Constitution's original meaning. If this is the case,
Original Law Originalism is now a sort of living constitutionalism, despite the fact that it may
have been a form of originalism at one point in our constitutional history.
As a philosophy of original interpretation, originalism is usually likened to Living
Constitutionalism. Despite the lack of a formal constitutional amendment, modern
constitutionalists believe that, contrary to Article V of the Constitution, the meaning of the
Constitution varies throughout time as social notions develop. Living constitutionalists contend
that racial segregation was allowed from 1877 to 1954 if public opinion supported it, and that it
only became illegal after the Supreme Court's decision in Brown v. Board of Education (1954),
which they feel strengthened the Constitution. Originalists, on the other hand, think that the
Fourteenth Amendment has always barred racial discrimination, from its enactment in 1868 to
the Supreme Court's erroneous ruling in Plessy v. Ferguson (1896), through the 1954 decision in
Brown, and up to the current day. Living constitutionalists think that if social attitudes around
race alter, racial segregation may be reintroduced. Racial discrimination will stay unlawful until
the 14th Amendment is removed, according to originalists.

Originalism and the Indian Constitution

The concept of Living Originalism is the constitutional tradition of the United States. It
does, however, raise two fascinating problems for comparative civil law academics.
Balkin is generally mute on the use of comparative materials in living originalism, to
begin with. When compared to other resources, however, his idea of constitutions has the
drawback of having minimal influence on constitution building. According to Living
Originalism, the Constitution is "our law," and the people of the United States "identify
with and are loyal to it."
Native Americans' perspectives in the United States are nearly inverted when compared
to their situation in India. For the time being, it appears that using a living constitution
technique is the best option. It wasn't always like this, though. In the 1970 case Gopalan
v. State of Madras, the experiment with Originalism in the history of the Indian
Constitution was rejected, and the notion of reading the Constitution "in the spirit of the
truth" interpretation of the provisions was abandoned. Because this type of charter was
regarded untrustworthy for interpreting constitutional judgments, government officials
reasoned that it would be preferable to utilise "strict" and "propermissive" interpretation
techniques. Justice Mukherjee was considered as motivated by the United States'
fondness for originalism since he wished to prioritise freedom of expression on the
internet.
The first proceedings of the Supreme Court, in which a more limited reading of the
Constitution was chosen and legislative agreement was required by the Constituent
Assembly Debates, adopted the same attitude. The initial goal, on the other hand, may
only be seen in a certain context after that. These discussions and utterances in the
assembly were deemed null and invalid, implying that they had no influence on the
judges' ability to make decisions in the case. As a result, it became increasingly difficult
to discern the initial function, and their use grew less prevalent over time. Indian
constitutional interpretation ideas evolved and deviated from the American model, and
originalism looked to be less important in Indian law. The Indian Constitution was just
passed in 1950, while the American Constitution has been in effect from the country's
founding. It was also created to respond to the urgent needs of a varied people facing
serious social and cultural issues. It took thorough preparation to prepare for the quicker
changes in civilization that occurred during the early years of the American Revolution,
as contrasted to the slower ages of the country's pre-bound administration.
The concept of "our rule" in the Constitution is based on an intergenerational "collective
subject"—We the People—"with a collective future that engages in collective actions,"
including the creation of the Constitution. As a result, living originalism proposes that
“we evaluate our current situation, as well as the prospects and requirements of the
future, through the lens of our understanding of the nature of the past—both the virtues
we worked so hard to achieve and the horrors we promised we would never allow again.”

Constitutional construction is an organically and historically based strategy for

reinterpreting and changing local literature that is localised or distinctive to American
constitutional culture in light of current events. Comparative resources are not permitted
in this reasoning framework. So, first and foremost, let me pose a question to you: Is it
feasible to rethink living originalism in such a manner that it becomes more dedicated
while still recognising the uniqueness of the American constitutional identity? Is it
 feasible that a more inflected living originalism will aid people in better understanding
the diversity in national constitutions?

Second, Balkin is writing on the roots of American civil law for an American audience.
He recommends living originalism, loyalty, text and theory, original purpose and original
intended implementation, and constitutional invention as indigenous constitutional
principles, in a manner eerily similar to Bruce Ackerman's call to condemn multinational
constitutional systems in We the People. It's worth noting that Balkin's issues are not
exclusive to the United States. Outside of the United States, his philosophical views are
likely to gain analytical momentum. Balkin does, in fact, include this idea in a footnote,
despite the fact that he dismisses it. According to Balkin, Living Originalism is centred
on "the American constitutional inheritance" and hence "must not be easily generalizable
to the constitutions of other nations."

This, he claims, is because American constitutional culture is the result of a complicated

combination of circumstances, none of which are likely to exist in other constitutional
systems. Balkin, for example, contends that the American Constitution's sociological
validity is linked to "an imagined transgenerational process of constitutional politics,"
and that "a country can only play a minimal part in the establishment of a national
identity" in many cases. He compares how the US Constitution "developed from a
nationalist legacy" to how other "constitutions emerged from colonial status via slower,
more gradual, and more stable adjustments."

The Living Tree Approach as a Concept

The living tree theory has become firmly embedded in Canadian constitutional law since the
landmark constitutional case of Edwards v Canada (Attorney General), also known as the
Persons Case, in which Viscount Sankey observed in the 1929 decision: "The British North
America Act established in Canada [is] a living tree capable of development and expansion
within its natural limitations." It's referred to as the "theory of radical interpretation." As a result,
the Constitution cannot be interpreted in the same way that conventional law may. In order to
adapt to and communicate changes, it must be interpreted in the context of culture. The
Constitution will lose its relevance and become outmoded if constitutional interpretation is
restricted to the spirit of the framers and is stuck in the past. A live, breathing being must
interpret the Constitution.
It makes little difference to today's tree theorists what the Constitution's aims were at the time of
its construction. The most crucial question is how to interpret the Constitution in order to fully
embrace liberty. The living tree technique is also consistent with Ronald Dworkin's moral
reading of the Constitution. In his book Freedom's Law, Dworkin argues, "According to the
moral interpretation, these norms must be construed in the way their language most naturally
suggests: they appeal to abstract moral principles and establish them, by contrast, as constraints
on government's authority." The notion of the living tree has come to fruition in India, and it is
unique in terms of constitutional interpretation.
On the other hand, the writers of the Constitution recognised the importance of a pragmatic
constitution in order to ensure that future needs were satisfied. Article 368 of the Constitution,
which empowers the legislature to alter the Constitution as needed to meet the conditions listed
in the article, demonstrates their readiness as well.
While the judiciary has played a vital role in upholding the Constitution, it is equally crucial to
note that it has aided the rise of other federal agencies. The Indian judiciary's mission is to assess
laws to see if they are in accordance with the Indian Constitution's notion, which claims to
protect and safeguard citizens' rights while also upholding the rule of law.
While the judiciary's rulings, particularly the Supreme Court's, have previously been unclear and
perplexing, it now has the potential to give fresh interpretations and answer a wide range of
issues.
Indians are especially interested in the history of India's legal systems under the Constitution of
India, because the country's judiciary took on a more wide and disputed role once it was passed.
A number of institutional obstacles, most notably the zamindars, had to be eliminated as the
newly independent India worked to construct a peaceful and egalitarian society based on
equitable wealth distribution.
State legislatures have passed legislation with this goal in mind, such as tenancy abolition and
land tenure, Rent Reform, and Tenancy Expansion. These activities, on the other hand, were
deemed null and unlawful because they went against the Indian Supreme Court's definition of a
Fundamental Right, which is the Right to Equality and the Property Rights of Persons. As a
result of this development, Parliament decided to amend the Constitution's first clause as well as
add to the Ninth Schedule, which protects Parliament's laws from judicial review.

Despite several victories and breakthroughs, the courts continue to place a premium on reading
the Constitution in a way that respects the founders' original intentions. Our ancestors and
mothers, on the other hand, recognised that a Constitution written in the 1950s may not be able
to deal with the societal difficulties and demands that would develop in the years ahead. The
current issues and challenges are just too unexpected and severe to have been predicted by any
reasonable thinking in the 1950s.
As a result, the originalist viewpoint is linked to a sense of repetition. When it comes to adopting
the principle of originalism in today's culture, judges have a limited number of possibilities. In
the United States, a lengthy and fruitful trip has been undertaken, but one that has been slowed
by a lack of constitutional understanding, despite overwhelming acceptance of the Constitution's
broad applicability. While changes in the Indian economy's pattern have progressed at a similar
rate, improvements in the end state have progressed at a quicker rate, moving us closer to a
liberal conclusion.
Originalists aim to protect essential principles, but they recognise that no constitution can be
functional if its core is incompatible with the requirements of society. Because the "elasticity"
(implemental/expansive character) of constitutional interpretation theory should be emphasized,
attempts should be made to lessen the rigidity of the theory in order to incorporate all of these
theories' potential attributes.
As a result of the recent inclusion of new chapters covering new themes in Originalism and Non-
originalism, more avenues have opened. Because they are founded on a set of basic notions that
may or may not always lead to a clear conclusion, they should examine a wide range of replies.
Additional questions, some of which may need or have societal repercussions, must be answered
to ensure that these ideas are adequately addressed.

Conclusion Remarks
Words and concepts are important, but they should not take precedence over normative
substance. Contrary to popular belief, this is not the case. Because conceptual clarity brings
normative material to the surface, words and concepts are crucial. The originalist case for the
Constraint Principle and the living constitutionalist arguments for its rejection are the most
important normative problems in the great debate. Because there are so many various types of
living constitutionalism, these issues are large and diverse. Even if we have a solid understanding
of the argument's intellectual foundation, making progress on the critical questions of political
morality raised by the primary dispute between originalism and living constitutionalism is
difficult. If the standards of "originalism" and "living constitutionalism" are in flux or
ambiguous, advancement looks to be nearly impossible.
According to the Indian Constitution, the living tree notion has become more important in
creating Indian jurisprudence to be in conformity with Basic Rights and the protection of
people's fundamental rights.
Answer 2
Introduction
The interplay between rights and duties is what law is all about. A right, according to Salmond,
is "an interest recognised and safeguarded by the rule of law." It's a fascinating subject for which
respect is a must and contempt is a folly.' With the exception of a few cases that come under
wide exclusions, any breach of duty or omission must be followed. On the other hand, Duguit
argues that "no one has any other right but to do his duty at all times." Legislation, he claims, is
simply a depiction of the responsibilities that each individual bears as a member of the social
structure in order to promote social peace. Prof. Kelson, a supporter of the Pure Theory of Law,
is one of several legal professors who argue that there are no legal rights.
On the suggestions of the Swaran Singh Committee, the notion of Fundamental Duties was
adopted from the Soviet Union and formed in 1976. The conditions were first established and
defined in Article 51-A of the Indian Constitution. The 11th duty was adopted in 2002 as a result
of the 86th Amendment. Fundamental obligations should be viewed as a cornerstone of Indian
nationhood, and should be read in conjunction with the preamble and other provisions of the
Constitution prohibiting discrimination based on religion, colour, sex, place of birth, and other
factors that have challenged India's sovereignty. The framers of the Constitution, according to
the Allahabad High Court, intended for inhabitants of this magnificent country to carry out their
responsibilities with brilliance rather than half-heartedly. The way these activities are carried out
is governed by the Constitution. The general legal position is that the responsibilities of the
Fundamental Duties Act cannot be enforced without corresponding legislation for infringement.
Constitutional mechanisms, such as lawmaking, can help them advance.

Incorporation of Fundamental Duties into the Constitution

The concept of Fundamental Duties, as well as the reason for its inclusion in the Constitution,
has been the subject of several charges and criticisms. A consistency of purpose occurs when a
code of behaviour that is ideal in nature must be given to the country, and the Constitution
designers' objectives for the people of India must be transferred to the inhabitants. Despite the
fact that these requirements are enshrined in law, the federal and state governments have failed to
put them into practise. The fundamental root of the problem has been identified as a lack of
political will.
It's challenging to keep track of all of one's rights and responsibilities at the same time. The
Basic Duties are meant to serve as a constant reminder to everyone that, while the Constitution
grants individuals certain basic rights, they also have responsibilities. Individuals can also adhere
to essential democratic behaviour and policy ideas.
According to the commandments of the ancient scriptures, the focus in Indian culture has always
been on the individual's kartavya, or performance of one's responsibility towards society, the
country, and especially one's parents. People are urged to carry out their jobs without regard for
their rights in the Gita and the Ramayana. These customary responsibilities have been given
constitutional backing. The Constitution may safeguard not just one's rights but also one's
obligations.

Everyone must be aware of their responsibilities in order to carry them out efficiently. The vast
majority of people on the planet are illiterate and uninformed of their societal and national
responsibilities. Officers' residences, institutions, and places of business might all be turned into
learning centres for them to use while carrying out their duties.
According to the Supreme Court in AIIMS Students Union v. AIIMS 2001, basic responsibilities
are virtually as important as fundamental rights. Fundamental responsibilities, though not as
easily enforced as fundamental rights, should not be overlooked since responsibilities in Part IV
A are prefixed with the same term fundamental that the founding fathers used to prefix "true" in
Part III.
As Human Values degrade, it becomes increasingly difficult to enforce Fundamental Duties.
Due to a lack of political will and an enforced mechanism, the existence of Fundamental
responsibilities in the constitutional text has gained minimal relevance. As a result, people all
across the world have lost sight of their essential responsibilities, and their views have
degenerated as a result. This led in a decrease in the country's soft skill growth and capability, as
well as an increase in crime and the country's compliance system's inability to address the
problem. The Supreme Court recognised the necessity of recognising people's fundamental rights
in May of 1998.
Justice Rangnath Mishra's Observations and Letter
Recognizing the importance of the duties and the issue that has arisen as a result of a decline in
human values in general, Justice Ranganath Mishra, the former Chief Justice of the Supreme
Court of India, wrote a letter in which he claimed that there was a terrible situation in society
relating to daily degradation of human behaviour. His letter emphasised the need for a
government to enact specific laws or make specific measures to ensure that people are aware of
their fundamental duties and that the importance of meeting those commitments is
communicated to them as effectively as possible.
When a lack of understanding of fundamental commitments was at the root of a spate of crimes
and societal problems, Justice Ranganath Mishra was absolutely justified in bringing the issue to
the attention of the administration.

Following receipt of the letter, the government took the bold step of forming a committee to
assess basic rights and the state of their awareness in the region. As a result, the government has
taken a significant step forward by recognising that human rights are protected by the
Constitution.

Since the government's actions were reflected in the national education programmes of 1986 and
1992, Justice Ranganath Mishra's letter was critical. This was due to the fact that the national
education plan got a lot of attention, and many adjustments were made in 1992 to include the
spirit of article 50 1A, as well as the spirit of the message meant to be delivered to the people of
the country.
Fundamental Rights are Impossible to Enforce

There is no compelling need for fundamental duties to be made enforceable when an individual,
who is a fundamental unit of society, is motivated and motivated to actively engage and be a part
of creating a change in society.

Fundamental responsibilities, like other pursuits, elicited similar and conflicting emotions. They
got approximately equal amounts of praise, comments (for implementation), and criticism.
According to the majority of opponents, the legislature struggled to fulfil its core responsibility
of making the situation, work, and progress evident to the general public.

Because the greatest aid to reading a statutory genus is its own language, and how can citizens
(for whom law is actually made) make sense of it if the language is itself unclear, it is a trite rule,
if not a cardinal principle, that the legislature construct the statute in unequivocal words, with its
own essence plain and unambiguous.
Furthermore, given that the majority of India's population is illiterate, how can the majority of
the country's citizens be able to grasp and analyse this complex piece of legislation?

Whether or not those fundamental standards become enforceable, if a person objects to a

government regulation, the government is likely to use its power to penalise that individual for
failing to meet their basic obligations (given the current situation). It has the authority to limit
our fundamental rights in the name of holding us accountable for failing to meet our basic
responsibilities.

Dharma and karma are prevalent concepts in Indian culture and moral ethos, and they have been
ingrained in Indian civilization from the beginning of time.
Indian religious, secular, traditional, and cultural beliefs are well-known over the globe. It's
almost as though the two are inextricably intertwined.
Respect for our elders, the government, and unwavering efforts to achieve excellence in a variety
of professions, encouraging a scientific temperament and commitment to academic reforms, and
encouraging brotherhood are only a few of the many responsibilities.
As a result, the inclusion of essential conditions at the threshold was superfluous (adhering to
this particular point).

Fundamental Duties and Constitutional Interpretation

A responsible citizen fulfils his or her political, religious, and ethical obligations, as well as those
owed to the government and other citizens. Fundamental responsibilities are the standards that
citizens should follow when doing their duties and reporting to the government.

While these obligations are not enforceable in court and their violation is not punishable, if a
court has the authority to read the entire Constitution before imposing a fundamental right, it will
refuse to do so at the request of anyone who has explicitly breached any of the Article 51-A
obligations.

According to the Supreme Court in Javed v. State of Haryana, basic rights must be regarded in
conjunction with fundamental duties and the Directive Principles of State Policy. It's difficult to
read them all at once.

It's important to remember that just because a law doesn't provide a penalty for noncompliance
doesn't mean it's meaningless. It is still regarded as a legally binding standard that must be
observed.

It's worth noting that the addition of Article 51-A to the Constitution was long overdue, and that
the then-ruling Congress Party, led by Mrs. Indira Gandhi, was in the forefront of the effort to
include 10 fundamental virtue-based responsibilities in the Constitution. The project's progress
was validated by a variety of indicators, which the authors discuss in further detail below:
The Constitution establishes both rights and duties. Those who argue that the Constitution only
recognises freedom and ignores traditional duties haven't read the document closely enough to
see that traditional duties are still recognised.
Article 51-A laid the foundation for a strong sense of national identity and belonging among all
people.

The extent to which fundamental requirements are carried out with care is sometimes dependant
on the protection of fundamental rights. Because a person who petitions a court for the protection
of his or her constitutional right(s) may be rejected if he or she has expressly violated a basic
obligation. In such a circumstance, the argument would not be in his favour.
Individuals are infused with a sense of responsibility and discipline in the face of their
commitments via fundamental duties. They serve as a daily reminder to individuals that there is a
balance between rights and duties, and that claiming rights without being responsible for
fulfilling those duties is unethical, especially when the nation's ultimate law has mandated such
requirements.
They also operate as a deterrent to future offenders, preventing them from engaging in anti-
national and anti-secular activities while simultaneously providing a platform for meaningful
social participation and advancement.
If a piece of law contains one or more of the eleven fundamental tasks, the Court can avoid
finding it unconstitutional by assessing the responsibilities and determining that they are
reasonable. This is how it may be used to see if a piece of legislation is legal or not.

The Supreme Court declared in AIIMS Students' Union v. AIIMS 2001 that "fundamental rights
and basic obligations shall be examined separately."
In addition, the Supreme Court has been seen upholding fundamental responsibilities in a
number of cases, demonstrating that fundamental duties maintain a high place in our society and
that judicial reforms and the implementation of Article 51-A by the 42nd and 86th Amendment
Acts are both legitimate and appropriate. On the other hand, if they have benefited the world in
any way, it has been for the better.
In M.C. Mehta v. Union of India, the Supreme Court ordered the Central Government to make
environmental conservation and preservation a law in all educational institutions and make it a
part of their curriculum, as well as provide broad directions to the Central Government and the
general public.

In Rangnath Mishra v. Union of India, the petitioner wrote to the President of India, seeking that
he provide directions to the State Government to educate people about Fundamental
responsibilities in order to create a balance between Fundamental rights and Fundamental
responsibilities. The Supreme Court heard Dr. Dasarathi v. State of Andhra Pradesh as a writ
petition at the same time that the National Commission, after reviewing the Constitution, issued a
report to the government recommending that the government raise public awareness and carry
out the fundamental tasks using the method outlined in the Justice Verma Committee Report.

Final Thoughts
The preceding lines stress the significance of sticking up for one's convictions. Fundamental
Duties, being the heart of society's reflecting characteristic, deserve a share of respect after
proper research and appraisal. Duties are an essential component of the Constitution because
they remind citizens of the country of the hopes that our founding fathers had when they
envisaged a society where everyone could be the best version of themselves. The Indian
educational system moves quickly, and recent events have highlighted the importance of
instilling superior ideas in students. This can be accomplished by broadening the scope of
existing constitutional authority. Public commitments must be articulated in such a way that
previously neglected Fundamentals are given disproportionate weight, necessitating the
publication of a list of all of them in the literature. Both of these factors are required for
interdependence and the development of further mutual interests.