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Transformative Constitutionalism: Analysis of Indian Judicial Approach

"Equality is the soul of liberty; there is, in fact, no liberty without it." - Frances Wright

It is interesting to note that the phase 'Transformative constitutionalism' which is most commonly used by Supreme Court of India in its recent judgments does not find express mention in the Indian Constitution as well as constitutions of the most jurisdictions. Constitutions of every country are generally understood as a document that contain rules which will govern the interactions between various organs of state and that imposes limits on the power of state so that such powers are not abused by the state. But in reality constitution of any country is much more than that.

It not only contains provisions that will impose restraints on state power, but also include such provision that "echo the aspirations of the nation' to bring about a transformation in the order of things as they exist." Constitution is not a static document or black letter law. Rather it is a living document. It is grows with society; evolves with society. It changes according to the needs of society.

Origin Of The Term Transformative Constitutionalism

Origin of the term transformative constitutionalism is to be traced after the end of apartheid (mean a policy or system of segregation or discrimination on the ground of race) in the Republic of South Africa. As per the former judge of South Africa, foundation of T.C. can be traced into the preamble of South African Interim constitution, which read as:

"A historic bridge between the past of a deeply divided society characterized by strife, conflict, untold suffering and injustice, and a future founded on the recognition of human rights, democracy and peaceful co-existence and development opportunities for all South Africans, irrespective of colour, race, class, belief or sex."

It means transformative constitutionalism is seen as bridge in South Africa that will help South African citizen to heal the wounds of past that is full of injustices, discriminations, segregation policies, inequalities that were deep rooted in the society and move toward a better future where there will exist a more equitable society and developmental opportunities will be provided to all irrespective of color, race, class, belief or sex.

If we have to trace the origin of principle of transformative constitutionalism in India then we must refer to constituent assembly debates to understand the mindset of Farmers of Indian Constitution when they were drafting Constitution of India. At the time of making Indian Constitution all the members of constituent assembly seems to have agreed on the point that there exist deep rooted structural inequalities which is inherent part of our Indian society/culture and constitution of India will the document that will serve as a transformative documents and help Indian society to overcome such deep rooted structural inequalities. One such step toward the goal of equitable society was to make provision for the reservation of ST and SC in the constitution itself.

From the above constitutional assembly debate it is can be said that makers of constitution of Indian had a the consensus at the time of making of constitution that our constitution should not be read as a static document rather it is a living document that should transform itself with change in society needs so that it does not loss it's relevancy. In order to understand the concept of transformative constitutionalism in Indian context we must refer to point of views expressed by Dr. B.R Ambedkar, which read as:

"We must make our political democracy a social democracy as well. Political democracy cannot last unless there lies at the base of it social democracy. What does social democracy mean? It means a way of life which recognizes liberty, equality and fraternity as the principles of life."

Meaning Of Transformative Constitutionalism

The term transformative constitutionalism includes three terms:
  • Transformative
  • Constitutionalism
  • Transformative constitutionalism

Dictionary meaning of word transformative is "causing a major change to something or someone, especially in a way that makes it or them better." i.e. bringing change through structured method" .

Dictionary meaning of word constitutionalism is "adherence to or government according to constitutional principles." It is important to note that Constitution is different from constitutionalism. Constitutionalism is basically a set of legal rules which governs the government. Constitution is a document which contains rules that govern the government and thus it describe the structure and working of government.

Whereas the constitutionalism is an ideology which explains a way of life, values, beliefs and ideals of the people of a nation. Constitutionalism is a goal which a nation has to achieve and for achievement of such goal constitution is a means through which we achieve our goal. Constitutionalism is a broad term which includes constitution as well.

Transformative Constitutionalism:
There is no single definition of this term. It has been interpretated differently by different jurists and scholars in various jurisdictions because of their different experiences in their country but there are certain the key elements that constitute transformative constitutionalism which are as follow:
  • Transformative constitutionalism is a tool to attain sustainable equality in the society by recognizing every form of discrimination that existed in past or that may arise in future and taking steps toward eliminating such discriminations.
  • Another important element is the active role of the states (when we call states it includes courts as well) in achieving constitutional ideals such as liberty, equality, fraternity and state will establish such a society that will be founded on above mentioned constitutional ideals.
  • Not restricting application of this principle only to the interaction between state and its subjects rather this principle should be given wide application by extending its application to private sphere as well.

United States scholar Professor klare define Transformative Constitutionalism 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, participatory and egalitarian direction."

Indian Judicial Approach

Over the last few years, we are witnessing progressive judgments delivered by Supreme Court of India to eradicate deep rooted historical inequalities existed in Indian society against Dalits, women and the marginalized by reinterpreting constitution of India to make it a document that has a transformative capacity rather than document which will be rigid. Transformative constitutionalism is a tool which is continuously used by judiciary to make Indian society more equitable. Through this concept discrimination against Dalits, women and the marginalized were eliminated by the Indian judiciary.

Supreme Court of India plays dual role, one as of the protector of fundamental rights of Indian citizens and second one is guardian and custodian of the Constitution. In India constitution various rights has been guaranteed to Indian citizen as well as non-citizen under the part III of constitution as a fundamental right but mere mentioning of rights in the Indian constitution does not means that those rights will be automatically will be available to every people.

Hence, for securing the availability of these rights drafters of Indian constitution incorporate Article 32 in the constitution which is titled as 'Right to Constitutional Remedies" and moreover such right has been status of fundamental rights.

"This article guarantees the right to move the Supreme Court by appropriate proceedings and Supreme Court has been empowered to issued directions or orders or writs including the writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari."

Thus, the power of Supreme Court of India is very wide. Moreover, this rights to constitutional remedies cannot be suspended except as for by the constitution of itself. Even the Dr. B.R. Ambedkar pointed out in the debates of constitutional assembly that the right available under Article 32 is "the heart and soul of the Indian constitution".

In Prem Chand v. Excise Commissioner AIR 1963 SC 996, underlying the importance of Article 32 of the Constitution, Justice P.B. Gajendra Gadkar has said as follow:-

"The Fundamental Rights to move this court can, therefore, be appropriately described as the cornerstone of the democratic edifice raised by the constitutions. This is why it is natural that this court regards itself as the Protector and Guarantor of Fundamental Rights."

This role has enables Supreme Court to bring such changes in the laws in order to achieve our constitutional goal of equitable society.

When we talk about equal society, it means a society that should be free from every kind of discrimination not only vertical discrimination but also from horizontal discrimination that is prevalent in our society. Horizontal discrimination means discrimination existed in private sphere.

The preamble of the Indian Constitution Starts with the word "WE THE PEOPLE OF INDIA…. ." The word "WE" used in the constitution must be comprehend in the same sense, same spirit that existed at the time of commencement of the constitution, at the time of constituent assembly debates, dialect process. It is our responsibility not to judge / prejudice anyone on the basis of caste, sex, race, religion, sexual orientation etc.

We must tolerate each other, respect each other belief, choices, thought etc., intermingle with each other, respect each other preference. Such basic things to be done then only we can achieve our goals of equitable society.

Similar ideology is reflected by farmers of Indian constitution while incorporating Article 15(2) and Article 17 of Indian constitution. Both these articles talk about elimination of deep rooted horizontal discrimination existed in our society from time immemorial. Here Horizontal discrimination means Fundamental rights guaranteed by Indian constitution can be enforced against private action as well.

Article 17 of Indian constitution deal with Abolition of Untouchability . Article 17 does not define word "Untouchability" as such. Here the word Untouchability is used in wider sense. It also includes all kinds of untouchability such as discrimination based on sexual orientation, race, religion, gender etc. Idea behind incorporating article17 in the constitution is to remove all forms discrimination that had existed in Indian society in past or that may arise in future. This shows that framers of Indian constitution deliberately chosen not to give specific meaning to the term "Untouchability".

Article 15(2) of constitution deal with Abolition of discrimination existed in private sphere.

Example of some of the recent judgments of Supreme Court in this regard are as follow Navtej Singh Johar judgment where court decriminalize homosexuality, Joseph shine case which saw an end to decades of criminalization of adultery, Sabarimala judgment of 2018, NALSA judgment which recognizes rights of third gender and many more.

The term 'Transformative constitutionalism' has not been defined anywhere expressly in the constitution itself. It is a broader term. It is inherent in our subjective existence. In the case of Navtej Singh Johar v Union of India Chief Justice of India Dipak Misra state that.

"The Indian Constitution is a great social document, almost revolutionary in its aim of transforming a medieval, hierarchical society into a modern, egalitarian democracy and its provisions can be comprehended only by a spacious, social- science approach, not by pedantic, traditional legalism. The whole idea of having a Constitution is to guide the nation towards a resplendent future. Therefore, the purpose of having a Constitution is to transform the society for the better and this objective is the fundamental pillar of transformative constitutionalism."

In the case of Indian Young Lawyers' Association v State of Kerala which is also known as Sabarimala case in the legal fraternity. This case has been decided by the Supreme Court by 4:1 majority. In this cases court held that the temple practice of excluding women from entering lord Ayyappa temple is unconstitutional.

"Transformative potential lies in recognizing its supremacy over all bodies of law and practices that claim the continuation of a past which militates against its vision of a just society. At the heart of TC is a recognition of change. Individualization, as the basic unit, is at the heart of the constitution. All the right and guarantee of the constitution are operationalized and aimed toward the self realization of the individual. This make anti exclusion principle firmly rooted in the transformative vision of the constitution".

He further emphasized that "physiological characteristics of women like menstruation, have no significance or bearing on the entitlement guaranteed to them under the constitution. The menstrual status of a women cannot be a valid constitutional basis to deny her the dignity and the stigma around the same had no place in a constitutional order. Article 17 is a powerful guarantee against exclusion and con not be real to exclude women against whom social exclusion of the worst kind has been practices and legitimized no notions of purity and pollution."

Similar approach was adopted by Supreme Court in 2018 in the case of Joseph Shine v Union of India that decriminalised adultery. In this case Court acknowledged the historical error of treating women as a property which form the basis of adultery law in India.

"The hallmark of a truly transformative Constitution is that it promotes and engenders societal change. To consider a free citizen as the property of another is an anathema to the ideal of dignity…Constitutional values infuse the letter of the law with meaning. True to its transformative vision, the text of the Constitution has, time and again, been interpreted to challenge hegemonic structures of power and secure the values of dignity and equality for its citizens."

Supreme Court of India noticed transformative power of constitution in NALSA Judgment, which recognize rights of third gender. Court observed that it is a need of an hour that court must understand that main aim of having constitution in a country is to achieve the goal of welfare state. Indian constitution is a living document.

Our Constitution is based on the social as well as factual realities which changes constantly, therefore constitution must be change itself so that it does not lose it relevance. Sometime it may happen that societal change precedes change in law or it may happen that a change in law precedes change in society. Moreover sometime it happens that changes in law are made due to the fact that there are changes in society.

At this stage one thing need to be very clear that when Supreme Court of India talk about transformative power of constitution it need not be understood in a narrow sense that is just a means to correct historical wrongs rather it has to be seen as a step toward more equitable future, beyond mere course correction. Views of former South African judge, Justice Pius Langa in this regard must be taken into account, which read as follow:

"…transformation is not a temporary phenomenon that ends when we all have equal access to resources and basic services and when lawyers and judges embrace a culture of justification. Transformation is a permanent ideal, a way of looking at the world that creates a space in which dialogue and contestation are truly possible, in which new ways of being are constantly explored and created, accepted and rejected and in which change is unpredictable but the idea of change is constant.

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."

In the case of B K Pavithra and others v Union of India (2019) historical caste based inequalities were compensated by Supreme Court by introducing transformative constitutionalism to justify affirmative action.

Is Indian Judiciary by giving such progressive judgments overreaching the 'Proper role' that has been assigned to them in a democratic Set up?

The term transformative constitutionalism has been evolved by judiciary. "The judiciary has been given the power to breathe life into the letters of the law by interpreting constitutional provisions. In recent years, the judiciary in India has come under attack by many scholars for 'over-reaching' or playing an 'activist' role". One of the main assumptions behind such criticism is that there is a 'proper role' that has been assigned to judiciary in a democratic setup which it is overreaching.

Real sovereignty lies with public and public has surrender its sovereignty to state so that they will work for welfare of people. Elected representative have real power and they are accountable to public: judiciary is not accountable to the public.

In Marshallian Model of constitutionalism which is applicable in countries having written constitution. Constitution is a touchstone of legitimacy of all government organ actions and decisions. Constitution is a source of deciding the question whether government action and decision is legitimate or not. And Legitimacy of government and legislature action will be decided by the original will mentioned in written constitution. Original will here means intention of makers of constitution at the time of drafting the constitution. Therefore every government action in order to be must satisfy the conditions laid in the constitution.

Government institutions are considered as the trustees or agents of the sovereign people. If any action or decision of the Government institutions is in violation of the rights of the people provided on the constitution or in violation of any condition laid down in the constitution for the legitimacy of government action or decision then if court exercise its judicial review power in order to check the validity of such action or decision and as a result if it declare such action as invalid or unconstitutional. "Then court is not exceeding its power rather it actually upholds the will of the people." Because will of the sovereign people is expressed through constitution.

In Indian Constitution there is no such article that laid down that Supreme Court has the final authority to interpret the whole constitution. Article 13, 32,141 gives power of interpretation only with respect to fundamental rights. But when it comes to interpretation of entire constitution then there is no specific provision that confer Supreme Court has the final authority to interpret the whole constitution. This situation is completely different in the case of US. Supreme court of US rely on the Article 6 of the US constitution. Article 6 is a supremacy clause of the US constitution.

It gives exclusivity as well as finality to Federal Supreme Court when it comes to interpretation of entire constitution. If executive made any law or pass any order that goes against the written constitution then such law can be declared void by courts court. Courts derive this power from the constitution itself. Article 6 made it clear that courts have judicial supremacy when it comes to interpretation of constitution.

But in Indian there is no such direct provision that gives Indian judiciary absolute ordinary power to interpret the entire constitution. That is why in India there is always a conflict between legislature and judiciary when it comes to establish its supremacy over other organ of government. For example schedule 9 was added in the constitution by the legislature in order to establish its supremacy and to eliminate judicial review power.

There is always a tendency to move toward Parliamentary Supremacy. Legislature does not want any other organ to come near them. There is always a power struggle. Therefore Indian judiciary develops basic structure theory as a defence mechanism. Court derives it supremacy to interpret constitution from the judgment itself.

"It is a cardinal principle of our Constitution that no one, howsoever highly placed and no authority however lofty, can claim to be the sole judge of its power under the Constitution or whether its actions are within the confines of such power laid down by the Constitution. The judiciary is the interpreter of the Constitution and the judiciary is assigned the delicate task to determine what is the power conferred on each branch of Government, whether it is limited, and if so, what are the limits and whether any action of that branch transgresses such limits. It is for the judiciary to uphold the constitutional values and to enforce the constitutional limitations." (Emphasis Applied)

In simple words it means whenever court make any enquiry into the legitimacy of government actions and make it must take into his consideration two things:- first, constitution and secondly intention of constitution maker at the time of making that particular provision in the question. Then only judicial review of government action will have more accepted in the society.

Originalism (need to look at the constitution in order to justify your power) as well as historical inquiry into the drafting of that particular provision in question is a most appreciated method. More over such decision will have a binding effect. Such decisions will act as precedents for future courts.

For example "new interpretation to the term Procedure established by Law" has been given by the Apex court in the Maneka Gandhi v. U.O.I case. "Now procedure through which person is deprive from his/her personal liberty cannot be any and every procedure rather it must be non arbitrary, reasonable, fair, principle of natural justice followed in every procedure. While framing the constitution framer of Indian constitution had rejected the American concept of due process because of it is elastic and uncertain.

However, by Maneka Gandhi Judgment this concept of due process has been brought back in India." In this judgment court did not move beyond written text rather Supreme Court try to find justification after going through constitutional assembly debates. Apex court try to stimulates and give better interpretation of original text. This method is most appreciated.

Such types of constitutional interpretation will have a binding effect and cannot be over rule in future by larger bench. Therefore those who argues that by such progressive judgments Apex Court overreaching the 'proper role' that has been assigned to them in a democratic setup, they must remember that when with course of time state has transform it role from policing state to welfare state so why not judiciary who plays dual role, one as of the protector of fundamental rights of Indian citizens and second one is guardian and custodian of the Constitution give such interpretation to constitutional provisions that ideals of welfare state mention the constitution are turned into reality. According to South African judge SM M benenge:

"This definition makes judges, other functionaries and institutions role-players in transformative constitutionalism. Indeed, judges are custodians of constitutional values such as human dignity, equality and freedom, and bear the obligation to ensure that constitutional provisions are applied in ways that 'improve the quality of life of all citizens and free the potential of each person."

Supreme Court must realize that when they are giving such progressive judgments in the name of transformative constitutionalism, they should not deviate from the originalism in the name progressive judgments. Because if we start giving liberal interpretation in the name of progressive approach then it may happen that position may become paradoxical. There can be positives as well as negatives of such interpretation. For example we have two cases dealing with transgender community but in both cases approach of Supreme Court is different:
  • First one is NALSA judgment.
  • Second one is Suresh koushal v. Naz foundation.
In case of NALSA judgment Apex Court recognizes LQBT as a separate class for the purpose of job, facilities i.e. for the welfare activities. Article 14 and 15 of the constitution were given progressive interpretation Supreme Court found justification in the text/constitution itself. Textualist approach was followed by the Apex Court.

Textualist approach was laid down by dicey. As per this approach court needs to find justification of its decision while interpreting constitution and statues made by the legislature that is, text itself. As per the dicey it is not required to look into the history of making the statue and debates of constitutional assembly debates. But this approach is not applauded by the Scholars around the world.

On the other hand we have Suresh koushal v. Naz foundation judgment where court refused to recognize community having sexual orientation as a separate class, when petition was fill claiming the protection of Article 21 so that sexual intercourse among consulting adults cannot be made criminal under section 377 I.P.C. In this case High Court of Delhi rely on foreign judgment because it did not find justification of their judgment in the constitution.

Such types of constitutional interpretations will not have a binding effect and can be over rule in future by larger bench. Therefore, Suresh koushal judgment was overrule by larger bench of Apex Court of India in the case of Navtej Singh Johar judgment.

Supreme court of India must realize that when they are giving such progressive judgments in the name of transformative constitutionalism, they should not deviate from the originalism in the name progressive judgments. Originalism (need to look at the constitution in order to justify your power) as well as historical inquiry into the drafting of that particular provision in question is a most appreciated method. More over such decision will have a binding effect. Such decisions will act as precedents for future courts.

Supreme Court must try to achieve equality through the process of transformation, as it was done in the case of NALSA instead of achieving equality through the process of inclusion. Because merely recognizing inequality and granting them rights will not eliminate their difficulties completely rather some more steps need to be taken that will result in inclusions of transgender into the society and to ensure that such kind of discrimination will not raise its ugly head in future again. We need to strike at the root cause of inequality in order to achieve equality.

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