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.
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.
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,the court adopted the textual interpretation of law and held that right to approach the court under article 14, 21 and 22stands 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 vUnion of India. 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 provisions in Articles 14 and 19 as well. This constituted the golden triangle of Articles 14, 19 and 21.
The majority judgment in the Jabalpur case was overruled in K.S. Puttaswamyv Union of India. 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,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. 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 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. This theory buttresses the contextualism approach.
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.” 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.In the current scenarios of law making 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.
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,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”. 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.
 Lon L Fuller, The Morality of Law, Revised edition, Universal Law Publishing Co Pvt Ltd 2000 at p. 95-118 & 187-225 127.
Maneka Gandhi v Union of India,AIR 1978 SC 597. (Supreme Court of India)
¶ 48, Maneka Gandhi,AIR 1978 SC 597.
¶ 74, Minerva Mills Ltd. And Othersv Union of India 3 SCC 625. (Supreme Court of India)
Justice K.S. Puttaswamy v Union of India  10 SCC 1. (hereinafter Puttaswamy case) (Supreme Court of India)
Kharak Singh vState of UP AIR 1963 SC 1295. (hereinafter Kharak Singh Case) (Supreme Court of India)
¶ 18, Kharak Singh, AIR 1963 SC 1295.
 HLA Hart, ‘Positivism and the Separation of Law and Morals’  71 HARVARD LAW REVIEW, 593- 629.
Thulasi K. Raj, ‘Ways to read the Constitution’ (The Hindu28 August 2018) <https://www.thehindu.com/opinion/op-ed/ways-to-read-the-Constitution/article24794977.ece>accessed 13 August 2019.
David Petrasek, ‘Global Trends and The Future of Human Rights Advocacy’  11(20) SUR- INTERNATIONAL JOURNAL ON HUMAN RIGHTS, 2.
Wolfgang Friedmann, Law in a Changing Society (first published 1972, Columbia University Press) 3.
Navtej Singh Johar v Union of India  1 SCC 791. (Supreme Court of India)
¶121, Navtej Singh Johar  1 SCC 791.