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Transformative Constitutionalism and Role of Judiciary

According to A V Dicey, Constitution consists of all rules which directly or indirectly affect the distribution or the exercise of sovereign power in the state. It can be compared to 'Grundnorm' of Kelson or 'rules of recognition ' of Hart and thus it is the supreme body that provides rationality as well as credibility to any other law or any of the action in the society[i]The Indian Constitution being the longest written constitution of the world was adopted on 26th November, 1949. And through the seven decades of its existence the constitution has not been a stale document rather has played a transformative role.

Concept of Transformative Constitutionalism and its origin

Transformative Constitutionalism is not a nascent concept. It is the term coined by American Academic Karl Klare in his book titled The Legal Culture & Transformative Constitutionalism published in 1998, which he described as:
a long term project of constitutional enactment , interpretation and enforcement committed to transforming a country’s political and social institutions and power relationships in a democratic participation and egalitarian direction.

In Though the term emerged to heal the wounds caused by historical wrongs as due to Apartheid era in South Africa and Nazi era in German Jurisprudence. Though the hallmark of Transformative Constitutionalism is to engender societal change but it is not only seen as the modus operandi to rectify historical wrongs.

Basically the purpose of Transformative Constitutionalism 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. In India there are several occasions where the Constitution has been referred to as dynamic document and Supreme Court of India has incorporated concept of Transformative Constitutionalism to interpret the constitution. [ii]

Different Interpretations of Transformative Constitutionalism

Transformative Constitutionalism has been elucidated in number of ways. For some it is believed to be a single event in the history or present whereas some consider it to be a continuous affair.

But the vision of the constitution being a transformative document finds concrete expression into two ways:
  1. First and foremost, fact is that it transformed the people of India from being British colonial subjects to citizens of a Republic with a full panoply of civil and political rights. According to this interpretation, India witnessed Transformative Constitutionalism when Constitution was adopted and there was shift in power from the hands of foreign colonizers to the citizens of the country. This transformation paved the way for a new system that was created of the people, by the people, for the people.
     
  2. Second, is the transformation of society and state. According to this interpretation Indian constitution is an organic document compared to a living tree as it keeps on evolving and adapting with the changing times b. This interpretation is less event specific and is more concerned with changing dynamics of the country. As quoted by Gautam Bhatia, ‘it is a thorough reconstruction of state and society itself [iii]

ransformative Constitutionalism is not the narrow concept restricted to above interpretations only. Rather different scholars , legal fraternity have given several other interpretations and have touched myriad of aspects. But primarily it is seen as the change that is brought forward by legal amendments or enactments for the benefit of the society and so that the Constitution can adapt to any sort of changes in the contemporary world.

Transformative Constitutionalism and Judicial Role

The judiciary has the power to breathe the life into the letters of the law by interpreting constitutional provisions. It ensures that the Constitution is interpreted while following a pragmatic approach so that it is not reduced into a stale testament rather hold relevance in the modern society. [iv]

The raison d’etre of the constitution is that its provisions should exhibit the real intent and percolate all the sections of the society. Thus judiciary while interpreting cannot deviate from the essence of the constitution yet it should interpret it creatively so that constitution adapts to the existing scenario and that’s why judiciary is subject to contentious debate that whether it strictly adhere to the law as it is or act as a transformative actor , or a protector of constitutional rights , a facilitator of the democratic process , an organ of the state that adhere strictly to a separation of powers , or an institution that is above and populism. [v]

Transformative Constitutionalism requires that the judiciary comes up with a jurisprudence that resonates with the transformative vision. And this assertive role of Indian judiciary in the transformation of constitution can be witnessed time and again through the judgements in which interpretation has been made by going beyond what was contemplated by the makers of the constitution originally. There are several examples where the living tree approach or the progressive interpretation doctrine has been applied to make our constitution dynamic and relevant[vi]

The biggest and the most controversial role was played by the judiciary during initial years when Parliament brought the very first amendment in 1951 to add Article 31(A) and 31(B)[vii] along with ninth schedule which was held invalid by the supreme court as more significance was given to fundamental right rather than the concept of welfare state.

The definition of law under Article 13(2)[viii] and the debate over power of parliament to amend the constitution has come before Supreme Court through plenty of cases like in Golaknath case[ix], Indira Gandhi v. Raj Narain [x] , Bhim Singh v. Union of India[xi] and 24th amendment and 42nd amendment was also in controversy because of scope of judicial review.

This debate was resolved by the concept of doctrine of basic structure laid down in Kesavnanda Bharti case[xii] which gave the power to the Indian parliament to amend the fundamental rights but the basic structure of the constitution should be maintained. The Kesavnanda Bharti case transformed the interpretation of the constitution as now Parliament has wide scope of powers though limited by doctrine of basic structure that helped to maintain equilibrium between different organs of the government.

Myriad of changes have been introduced both at domestic as well as global level which gave rise to new economic reforms, environmental jurisprudence, concept of human rights and that’s why it was necessary to give effect to such changes in Constitution also. And this process judiciary has played an imperative role so that the constitution can acclimate to the reforms and some of them are analyzed below:
  • Right to life

    Article 21[xiii] which provides every person the Right to life or personal liberty subject to be limited by procedure established by law has been given the widest interpretation by the supreme court. And several rights have been included through various judgements over the years like Right to Shelter, Right to Privacy, Right to free legal aid[xiv] , Right to clean environment[xv] , Right to free education up to age of 14 years [xvi]. Even passive euthanasia and living wills were made legal in Common Cause case[xvii]. All these judgements have broadened the ambit of the constitution and made it worthy of living across the changing time.
     
  • Environmental jurisprudence

    After realizing the egregious impact of the time. activities on the environment the world came together and Stockholm Declaration was signed in 1972 with the aim to safeguard the environment by following sustainable development goals. India also acknowledged the declaration and amendments were made to elaborate the meaning of those provisions. Many principles like public trust doctrine, Polluter Pays Principle, Precautionary Principle, Doctrine of Strict and Absolute Liabilities, Exemplary Damages Principle, Inter- generational and Intra- generational (sustainable development)[xviii] were implemented so that demands of the society could be assimilated.
     
  • Public Interest Litigation (PIL)

    PIL brought an evolutionary change in the Rule of Law and has made the Right to Constitutional Remedies available for even the disadvantageous sections of the society. As Supreme Court held in the case of SP Gupta v. Union of India [xix] that the poverty, helplessness, any economic, social or other disabilities shall not prohibit any person from getting access to justice and if any violation of constitutional / legal right takes place against such person than any member from the community may appear before the court representing such person for his/her belief.

Transformative Constitutionalism and recent judgements

  • KS Puttuswamy v. Union of India [xx]

    The verdict that established privacy as a fundamental inalienable right , intrinsic to human dignity and liberty under Article 21 of the constitution of India. It was the historic step as judiciary altered the literal meaning of the constitution according to the requirements and this judgement paved the way for decriminalisation of homosexuality in India and crime of adultery.
     
  • Navtej Singh Johar v. Union of India[xxi]

    It is one of the landmark cases where Supreme Court in its legal reasoning resorted to transformative constitutionalism and struck down the part of Section 377 of Indian Penal code that criminalized sexual intercourse between adults that was in violation of Articles 14, 15 and 21. But the court interpreted that the word 'sex' under Article 15 includes 'sexual orientation' and thus recognized the rights of LGBTQ+ community and helped them to ameliorate their status.
     
  • In the case of Joseph Shine v. Union of India [xxii] court decriminalized adultery by striking down Section 497 of Indian Penal code that criminalised Adultery for man in case of absence of Consent but not for woman. This archaic law was struck down as it was held to be discriminatory, arbitrary and violative of a woman’s dignity and agency.
     
  • In the case of Indian Young Lawyer Association v. State of Kerala [xxiii] held that women of all age groups can enter Sabrimala temple ending their battle as earlier women of menstruating age were prohibited from entering the temple. Thus, Supreme Court positively interfered in matter of religion and played a transformative and inclusionary role.

These judgements in the context of Transformative Constitutionalism show that judiciary plays a pivotal role so that equilibrium between constitutional morality, social morality as well as religious morality can be maintained and demonstrate how judiciary can act as catalyst for Transformative Constitutionalism.

Conclusion
India is the land of pluralistic society where people with diverse culture and traditions enjoy camaraderie among themselves and coexist peacefully thus courts need to adopt liberal and pragmatic approach for eudaimonia of the society. Indian judiciary recognizes the living tree doctrine and has undoubtedly took drastic steps to transform constitution and maintain the living spirit of the Constitution so that it is relevant to contemporary world.

In the words of Justice Chandrachud:
Transformative Constitutionalism refers to infusion of the value of Liberty ,equality, fraternity and dignity in the social order. Thus, transformative constitutionalism is an inevitable as well as significant process that helps to define the essence for democracy and a constitution within it. [xxiv]

References:
  • Shweta and Tauseef Ahmed, Transformative Constitutionalism and Role of Judiciary in India:
    Balancing the interest of people with societal reforms (last accessed on 15 December, 20 , https://www.google.com/amp/s/clsnluo.com/2019/05/17/transformative-constitutionalism-and-role-of-judiciary-in-india-balancing-the-interest-of-people-with-societal-reforms/amp/
  • Meera Emanuel , Constitution Day 2019 : Transformative Constitutionalism & the Indian Supreme Court (26 November , 2019 at 5:30 pm, https://www.google.com/amp/s/www.barandbench.com/amp/story/columns%252Fconstitution-day-2019-note-on-transformative-constitutionalism
  • Rahul Bajaj , Gautam Bhatia on an Introduction to Transformative Constitutionalism ,(29 January , 2019) ,https://www.law.ox.ac.uk/current-students/graduate-discussion-groups/south-asian-law-discussion-group/blog/2019/01/gautam-0
  • Dr Ansari Zaitab Jabeen , Indian Judiciary of Transformative Constitutionalism ,10(1) , The Lex-Warrier : Online Law Journal , pp 107-115 , 2019
  • Vilhena Baxi and Viljohen, Transformative Constitutionalism: Comparing the Apex Courts of Brazil, India and Soth Africa , Pretoria Universal Law Express , Pretori , 2013
  • Upendra Baxi, The Promise and Peril of Transcendental Jurisprudence: Justice Krishna Iyer’s Combat with the Production of Rightlessness in India, in C. Raj Kumar and K. Chockalingam (eds) Human Rights, Justice, & Constitutional Empowerment 3,
  • The Constitution of India, 1950, Art 31(A) and Article 31(B)
  • The Constitution of India , 1950 , Article 13(2)
  • Golaknath v. State of Punjab , AIR 1643 (1967 )
  • Indira Gandhi v. Raj Narain , AIR 1590( 1975
  • Bhim Singh v. Union of India , INSC 358(2010)
  • Kesavnanda Bharti v. State of Kerala , 4 SCC 255(1973)
  • The Constitution of India , 1950 , Article 21
  • BL Wadhwa v. Union of India AIR 1996 SC 2969 , Indian Council for Enviro-Legal Action v. Union of India AIR 1446(1996)
  • MC Mehta v. Union of India , AIR 1987 SC 1086
  • JP Unnikrishnan v. State of Andhra Pradesh , AIR 217(1993)
  • Shanbang v. Union of India &ors. 4 SCC 454 (2011)
  • Ratlam Municipal Corporation v. Vardichand , AIR 1980 SC 162
  • AIR 1982 SC 149
  • (2017) 10 SCC
  • (2018) 10 SCC
  • 11 SCALE (2018 )
  • 2018 SCC Online SC 1690
  • Jayanta Bornah , Living Tree Doctrine : Role of Indian Judiciary against Constitutional Silence in India , 5(1) , RSRR , p 61 , 2019
End-Notes:
  1. Shweta and Tauseef Ahmed , Transformative Constitutionalism and Role of Judiciary in India : Balancing the interest of people with societal reforms (last accessed on 15 December, 20 , https://www.google.com/amp/s/clsnluo.com/2019/05/17/transformative-constitutionalism-and-role-of-judiciary-in-india-balancing-the-interest-of-people-with-societal-reforms/amp/
  2. Meera Emanuel , Constitution Day 2019 : Transformative Constitutionalism & the Indian Supreme Court (26 November , 2019 at 5:30 pm , https://www.google.com/amp/s/www.barandbench.com/amp/story/columns%252Fconstitution-day-2019-note-on-transformative-constitutionalism
  3. Rahul Bajaj , Gautam Bhatia on an Introduction to Transformative Constitutionalism ,(29 January , 2019) ,https://www.law.ox.ac.uk/current-students/graduate-discussion-groups/south-asian-law-discussion-group/blog/2019/01/gautam-0
  4. Dr Ansari Zaitab Jabeen , Indian Judiciary of Transformative Constitutionalism ,10(1) , The Lex-Warrier : Online Law Journal , pp 107-115 , 2019
  5. Vilhena Baxi and Viljohen, Transformative Constitutionalism: Comparing the Apex Courts of Brazil, India and Soth Africa , Pretoria Universal Law Express , Pretoria , 2013
  6. Upendra Baxi, The Promise and Peril of Transcendental Jurisprudence: Justice Krishna Iyer’s Combat with the Production of Rightlessness in India, in C. Raj Kumar and K. Chockalingam (eds) Human Rights, Justice, & Constitutional Empowerment 3,
  7. The Constitution of India , 1950 , Art 31(A) and Article 31(B)
  8. The Constitution of India , 1950 , Article 13(2)
  9. Golaknath v. State of Punjab , AIR 1643 (1967
  10. Indira Gandhi v. Raj Narain , AIR 1590( 1975)
  11. Bhim Singh v. Union of India , INSC 358(2010)
  12. Kesavnanda Bharti v. State of Kerala , 4 SCC 255(1973)
  13. The Constitution of India , 1950 , Article 21
  14. BL Wadhwa v. Union of India AIR 1996 SC 2969 , Indian Council for Enviro-Legal Action v. Union of India AIR 1446 (1996
  15. MC Mehta v. Union of India , AIR 1987 SC 1086
  16. JP Unnikrishnan v. State of Andhra Pradesh , AIR 217(1993)
  17. Shanbang v. Union of India &ors. 4 SCC 454 (2011)
  18. Ratlam Municipal Corporation v. Vardichand , AIR 1980 SC 162
  19. AIR 1982 SC 149
  20. (2017) 10 SCC
  21. (2018) 10 SCC
  22. 11 SCALE (2018 )
  23. 2018 SCC Online SC 1690
  24. Jayanta Bornah , Living Tree Doctrine : Role of Indian Judiciary against Constitutional Silence in India , 5(1) , RSRR , p 61 , 2019

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