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Transformative Constitutionalism And Indian Supreme Court: A Study Of Navtej Johar's Case

The Constitution of India also known as Bharatiya Samvidhana is the supreme book of India. The document lays down the framework demarcating fundamental political code, structure, procedures, powers, and duties of governmental institutions of the state and sets out Fundamental Rights, Directive Principles, and the duties of citizens. It is the longest written constitution on earth. It was adopted by the constituent assembly on 26 November 1949 and has become effective on 26 January 1950.

The Constitution apart from showing the interrelationships between state organs and their scope and powers, also tends to embody the ideals, aspirations and the values to which the people have committed themselves. It reflects the soul of the nation and the people's supreme\will[1].

That is why the Constitution is considered as an organic document that helps in shaping democracy. A constitution is the legal and moral framework setting out these powers and their limitations. There are three main organs of government namely Legislature, Executive and Judiciary.

All three are assigned different functions and one cannot encroach upon each other's functions. In case government arbitrarily uses it powers limitations can be imposed upon the same for which Judiciary has a vital role to play by practicing constitutionalism. The mere incontrovertible fact is that if a nation has a constitution it does not  imply that it also necessarily has constitutionalism.

Constitutionalism has a variety of meanings. Generally, the term Constitutionalism is a complex of ideas, attitudes, and patterns of behaviour elaborating the principle that the authority of government derives from and is limited by a body of fundamental law.

Absence of constitutionalism will lead to despotism.

Louis Henkin defines constitutionalism as constituting the following elements:

  • Government according to the constitution;
  • Separation of power;
  • sovereignty of the people and democratic government;
  • constitutional review;
  • independent judiciary;
  • limited government subject to a bill of individual rights;
  • controlling the police;
  • civilian control of the military; and
  • no state power, or very limited and strictly circumscribed state power, to suspend the operation of some parts of, or the entire, constitution.
     
Henkin's nine elements of constitutionalism can be divided into two groups, one is concerned with power construction and power lodgingand the other deals with rights protectionHowever in the last few years, India has witnessed a significant change in it's substantive law, heralded by the Supreme Court rulings involving re-interpretations of the Constitution. On the occasion of Constitution Day 2019, it was excavated that the concept of Transformative Constitutionalism is used as an instrument by the court in ensuring a more equitable society.

Meaning Of Transformative Constitutionalism:

Transformative Constitutionalism generally means using the law to effect comprehensive social change through a non-violent political means. In 1998, Karl Klare first coined the term Transformative Constitutionalism[2].

US Scholar Professor KarlKlare defines Transformative Constitutionalism as:

A long-term project of constitutional enactment, interpretation, and enforcement committed transforming a country's political and social institutions and power relationships in a democratic, participatory, and egalitarian direction.

Transformative constitution means that the law is transformed through a statute by enacting a new law in place of preceding one in order to bring radical change.This could also mean that the statute or constitution has a transformative purpose, i.e., that a change in law is brought about that is purposed to have a transformative impact on its field of action that could not be regarded as transformative of the content of law. The Constitution of India contains several elements that can be often described as transformative.

Thus we can say that Transformative Constitutionalism envisages a mechanism to bring in socialchange from an unjust past to a democratic future using the Constitution as a tool to achieve this objective.

India And Transformative Constitutionalism:

India had struggled not only with colonialism, but also with social ills such as untouchability, caste discrimination, gender inequality, discrimination against LGBTQ community. Which has been prevalent in India since ancient times. The Indian constitution-making exercise was motivated with the view to overthrow and change its colonial past and to bring about a new social and political order based on democratic values. The Indian constitution was constructed as a 'moral autobiography', which promised a new future while explicitly rejecting the colonial past[3].
Various provisions under the Indian constitution exemplify the transformative goal of the constitution. The Preamble contains the aspirations of the people with the goals of Liberty, Equality, Fraternity and Justice.

It establishes a secular, democratic, socialist state. Part III of the Constitution of India provides the Fundamental Rights including the ideals of equality, non-discrimination, freedom of speech and expression, movement, association, freedom of religion and personal liberty. It also abolishes untouchability, feudal titles and begar. Thus, the quest for the establishment of a new social order through political power is implicit in the constitution. Bhargava believes that the Indian constitution was 'designed to break social hierarchies' and open up a new chapter of freedom, equality and justice. It was a revolutionary moment, especially for the deprived classes, who hoped to receive equal treatment in society after its adoption.

Role Of Transformative Constitutionalism In View Of Navtej Singh Johar

Navtej Singh Johar V. Union Of India [(2018) 1 Scc 791]

The central issue in the case of Navtej Singh Johar v. Union of India (2018) 1 SCC 791[4],was the constitutional validity of Section 377 of the Indian Penal Code, 1860 insofar as it applied to the consensual sexual conduct of adults of the same sex in private. Section 377 was titled 'Unnatural Offences' and stated that whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to a fine.

On 27 April 2016, five people filed a new writ petition in the Supreme Court challenging the constitutionality of Section 377 of the Indian Penal Code[5]. The petitioners claimed that the issues which they raised in their petition were varied and diverse from those raised in the pending curative petition in the 2013 Suresh Kumar Koushal v. Naz Foundation case[6], in which the Supreme Court had upheld the constitutionality of Section 377. The petitioners were dancer Navtej Singh Johar, journalist Sunil Mehra, Chef Ritu Dalmia, hoteliers Aman Nath and Keshav Suri, and businesswoman Ayesha Kapur.

This case was the first instance wherein the petitioners argued that they had all been directly aggrieved because of Section 377, alleging it to be a direct violation of fundamental rights.The petition was first placed before Justice S. A. Bobde and Justice A. K. Bhushan on 29 June 2016. An order was passed to post the matter before the Chief Justice of India, Justice Dipak Misra for appropriate orders since a curative petition was already pending before the constitution bench. On 8 January 2018, the case was listed to be heard by the Chief Justice's bench, which passed an order stating that the case would be heard by a constitution bench.

The matter was heard from 17 January 2018 by a five-judge constitution bench of the Supreme Court. On 10 July 2018, the Supreme Court commenced hearing of the pleas challenging the constitutionality of section 377. The bench ended its hearing on 17 July 2018 and reserved its verdict, asking for both sides to submit written submissions for their claims by 20 July 2018.On 6 September 2018, the court delivered its unanimous verdict, declaring portions of the law relating to consensual sexual acts between adults unconstitutional.

This decision overturns the 2013 ruling in Suresh Kumar Koushal v. Naz Foundation in which the court upheld the law. However, other portions of Section 377 relating to sex with minors, non-consensual sexual acts, and bestiality remain in force. The court found that the criminalisation of sexual acts between consenting adults violated the right to equality guaranteed by the Constitution of India. While reading the judgment, Chief Justice Misra pronounced that the court found criminalising carnal intercourse to be "irrational, arbitrary and manifestly unconstitutional".

The court ruled that LGBT people in India are entitled to all constitutional rights, including the liberties protected by the Constitution of India. It held that "the choice of whom to partner, the ability to find fulfillment in sexual intimacies and the right not to be subjected to discriminatory behaviour are intrinsic to the constitutional protection of sexual orientation". The judgement also made note that LGBT community is entitled to equal citizenship and protection under law, without discrimination. Thus, Indian Judiciary demonstrated the manner in which it can act as a catalyst for Transformative Constitutionalism.

Transformative Constitutionalism

The Constitution of India on various occasions has been referred to as a dynamic document. Apart from being the fundamental governing law of the country, it is also considered to be a social document. In addition to that, the Constitution envisaged to protect and promote the essential liberties of minority groups and classes of individuals who had been systematically and historically disadvantaged and discriminated against.

This underlying principle entailed that the Constitution was aware of the status quo at the time of its enactment, however, unlike the American Constitution; it chose and aspired to transform the society from what it was. Although the society was unequal, it aimed to achieve equality rather than reinforcing the status quo. One of the essential purposes of Constitution is considered to have a reformatory effect on the society for the better and this objective is the fundamental pillar of transformative constitutionalism[1].

The Supreme Court of India, while interpreting the Constitution incorporates the concept of transformative constitutionalism. Essentially, this denotes that the Constitution aspires to transform the society rather than bolster the existing values subscribed by the majority. The Court in Navtej Singh Johar adopted this line of reasoning quite eloquently. The Court enunciated the inner thirst of the Constitution to transform the Indian society and thereby, embrace the ideals of justice, liberty, equality and fraternity.

This also suggests that the Constitution has the ability to change with time and adopt according to the societal needs. It is this ability of the Constitution which gives it the character of a dynamic, living and organic document. With regard to Section 377 of the IPC, the Court observed that the society has progressively transformed a lot from what it was in 1860 when IPC was brought into force.

The sexual minorities have been recognized and accepted in various legal spheres[2] however, criminalization of homosexual conduct under Section 377 creates nothing but a chilling effect. The principle of transformative constitutionalism is applied to ameliorate this condition. The Court observed that the judiciary has the duty to ensure that a sense of transformation emanates and is propagated in the society via the Constitution as well as other provisions of law.

The purpose of transformative constitutionalism thus, is to steer the society with the help of legal institutions, in a direction of democratic egalitarianism with an increased protection of fundamental rights and other freedoms. The bench applied this principle to hold that the ideals and values enshrined in our Constitution must be a reformatory nudge to bring about change in the societal beliefs. Penalising homosexual conduct, in the opinion of the bench, denuded individuals belonging to LGBT community of their constitutional right to live a fulfilling life. The Court went on to hold that Section 377 violates the Right to Life and equal protection of law.

However, the underlying principle in the whole reasoning emanated from the 'transformative constitutional' facet of the Constitution. In de-criminalisation of consensual homosexual intercourse between two adults, the Constitution assured that not just the homosexual but the entire LGBT community can live a fearless life with freedom from state intrusion in consensual intimacy. Moreover, the Court while taking a sensitive stance recognized that the entire homosexual community had been oppressed, deprived of justice within a country, which is dedicated to human freedom. To address this issue, transformation of the society is essential. Transformative constitutionalism entails that the Constitution in and of itself has the ability to produce a social catharsis.

In such a case, the transformative power of the Constitution is a way in which the Constitution speaks to the rest of the society. Essentially, Constitution plays the important role of questioning the existing notions about the dominance of sexes and genders. It plays a transformative role as well as directs the society's attention towards resolving the polarities of sex and binary nature of gender. By virtue of which,... the constitutional values prevail over the impulses of the time. The conception of 'transformative constitutionalism has been adopted by the apex court in its other judicial decisions as well. While decriminalizing the archaic offence of adultery, the Court in Joseph Shine[3] recognized the transformative nature of the Constitution and how it affects the society.

One of the basic purposes of law is considered to act as a guiding light for an individual's conduct in the society. In our opinion, the recent judgments of the Supreme Court seek to transform the status quo which exists in the society by asserting the transformative nature of constitution and the values which emanate from it. Therefore, transformative constitutionalism played a very important role in determining the Court's basis of its reasoning in Navtej Singh Johar.

However, the question which remains is whether merely by decriminalization of homosexual conduct, that is, by removing a negative barrier without ensuring any positive rights for the LGBT community, how far will the society be transformed? If societal transformation through constitutional values was the purpose of the Navtej Singh Johar judgment, it can be considered nothing more than a first step towards enhancing the position of the homosexual community in the society. Albeit being an initial step towards realising the rights of minority LGBT community, it was an extremely significant one.

It reversed the decision in the preceding case of Suresh Kumar Koushal where the court had relied upon the morality of the majority to uphold the constitutional validity of Section 377. Navtej Singh Johar, on the other hand, aspires to transform the current majoritarian societal opinion in relation to homosexuality. However, only time will tell as to how far the Constitution and the law would be successful to achieve its transformative aim.

Conclusion
The Supreme Court of India in Navtej Singh Johar, has undoubtedly taken a boldly significant step towards a legal system which enforces the incorporationist and egalitarian values of the Constitution of India. It endeavours to change the status quo and the current societal beliefs by virtue of transformative constitutionalism while upholding constitutional morality over and above the morality of the majority society.

While doing so, the Court recognized the importance of the right to privacy and how it is essential for it to operate in the private, consensual conduct of homosexual adults. The researchers in this paper have endeavoured to give a holistic view of the various previous judicial decisions in relation to Section 377 of the IPC. Thereafter, three most important principles are dealt with by us, which the Supreme Court of India has recently adopted in its reasoning in several landmark judgments, namely, the principle of transformative constitutionalism, constitutional morality and the well-recognised individual's Right to Privacy.

De-criminalizing private homosexual intercourse between two consenting adults by reading down Section 377 of the IPC, is a bold step which the Court has taken in an aspiration towards a society where the members of the LGBT community enjoy all fundamental rights granted by the Constitution, on par with everyone else.

However, a lot still needs to be done, in a positive manner, for the protection of the LGBT community from the systematic oppression and discrimination which it has suffered in the Indian society. Reading down of Section 377, thus, is only a first step towards equal protection of the LGBT community. The three organs of the State and the society has a long way to go from Navtej Singh Johar to ensure that the morality and values emanated from the Constitution prevail and guide us towards a better tomorrow with dignity, sexual autonomy and individuality for the LGBT community in India.

Recommendations
Over the last few years, India has witnessed significant changes in its substantive law, ushered in by Supreme Court rulings involving re-interpretations of the Constitution. On the occasion of Constitution Day 2019, we delve into the concept of Transformative Constitutionalism as an instrument used by the Court in ensuring a more equitable society. Prominent examples in this regard include the third gender judgement , which recognised the rights of the third gender; the case which saw an end to decades of criminalization of homosexuality is the Navtej Singh Johar case.

The Supreme Court's role as the custodian and interpreter of the Constitution has enabled it to bring about these changes, combined with the growing recognition of the Indian Constitution as a transformative, rather than rigid, document. While the phrase Transformative Constitutionalism does not find express mention in the same, the Supreme Court takes note of the transformative power of the Constitution in its 2014 NALSA judgment.

The role of the Court is to understand the central purpose and theme of the Constitution for the welfare of the society. Our Constitution, like the law of the society, is a living organism. It is based on a factual and social realty that is constantly changing. Sometimes a change in the law precedes societal change and is even intended to stimulate it. Sometimes, a change in the law is the result in the social realty.

The idea was expressly commented on four years later in the Navtej Singh Johar case. The opinion authored by Justice AM Khanwilkar for then Chief Justice Dipak Misra and himself states, This is perhaps the ultimate vision of a transformative, rather than a transitional Constitution. This is a perspective that sees the Constitution as not transformative because of its peculiar historical position or its particular socio-economic goals but because it envisions a society that will always be open to change and contestation, a society that will always be defined by transformation.

Table of Cases:
  1. Navtej Singh Johar v. Union of India (2018) 1 SCC 791
  2. Suresh Kumar Koushal v. Naz Foundation case [(2014) 1 scc 1]
  3. State of Kerala and Anr. v. N.M. Thomas and Ors., (AIR 1976 SC 490)
  4. National Legal Services Authority v. Union of India and Ors., (2014) 5 SCC 438.
  5. Joseph Shine v. Union of India, 2018 (11) SCALE 556
Written By: Abhishek Roy, L.L.M, Jogesh Chandra Chaudhuri Law college

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