This article is written by Aditi Aggarwal, from Symbiosis Law School, NOIDA. This article discusses transformative constitutionalism, various case laws which reflect the same and the role of the judiciary.
The Constituent Assembly met for 166 days for drafting our Constitution. These 166 days were spread over a period of 2 years, 11 months, 18 days and then, the Constitution of India was adopted. Those days involved a lot of struggles and deliberations on how the living document that would determine a person’s basic rights and powers of government should be. In the whole process, many visions and goals were articulated. It is evident since the adoption of this legal document that it has always played a transformative role. Transformation means bringing a change. The motive for the change has always been to bring more equality and liberty to society.
When it comes to the word ‘constitutionalism’, it is an idea that the government’s powers should be limited and observation of these limitations determines their authority. The basic idea is to make efforts in preventing autocratic or arbitrary governments.
Transformative constitutionalism means bringing about change in society by infusion of values of equality, liberty, fraternity and dignity. It means to fulfil the basic purpose of the Constitution which is to transform society for the better. One way of understanding it can be that it aims to give supreme importance to Constitutional morality rather than what is morality as per the society. Another understanding can be that the basic structure and essence of the Constitution can never be changed but it still keeps on adjusting itself to the needs of society.
As Justice Chandrachud rightly said, “Transformative constitutionalism refers to the infusion of the values of liberty, equality, fraternity and dignity in the social order. Thus, transformative constitutionalism is an inevitable as well as a significant process that helps to define the essence for democracy and a Constitution within it.”
Origin of transformative constitutionalism
Transformative constitutionalism is not a new concept. It is rather an age-old concept that evolved from South African jurisprudence. It was a publication in 1998 by Karl Klare, a US scholar Professor in the South African Journal of Human Rights, after which many legal scholars took note of the concept and which opened the floor for many debates and discussions on this concept. He described transformative constitutionalism as a project of Constitutional enactment, its interpretation and enforcement on a long-term basis. He further said that this concept is committed to transforming a country’s political and social institutions, egalitarian direction and power relationships in a democratic way.
‘What the Constitution means’ has been interpreted in a number of ways. Some believe it to be a single event in history or in the present while some think of it as a continuous process.
The first school of thought
Gautam Bhatia, a scholar of Constitutional law very beautifully describes the first school of thought in his video on ‘The Transformative Constitution’ at the platform Manthan, one of India’s premier forums for public discourse.
He describes the first interpretation as that the Constitution has no transformative nature to it. Some of the arguments in favour of this interpretation are:
- The Constitution just transferred the powers that were once in the hands of the British Government to the current government that governs the citizens of the country or that we went just from having a colonial regime to an elected government.
- Another argument is that most of the provisions are based on the Government of India Act, 1935 which was created by foreign colonisers.
- The Constituent Assembly, which was formed to draft the Constitution, was itself set up under colonial law.
- Most of the repressive laws made by the British at that time still exist in our Constitution and we continue to follow them.
- A slight distinction present is that the Constitution we now have is a codified law.
He then goes on to explain how people started realizing the actual meaning of words like equality, privacy, and life that brought about a change in society. People now started to realize the actual meaning and importance of the Constitution. They finally started looking at its essence beyond the blueprint for a political transition or mere transfer of power. They began realizing that:
- The transformation of power was actually from the British Government to citizens of India who now have rights such as the right to equality (Article 14), the right to life (Article 21), the right to practice, profess and propagate their own religion (Article 25), the right to freedom of speech and expression (Article 19), etc.
- The right to vote was contemplated upon. People can now choose their own leaders and demolish the government too if the government is not working up to the mark. Also, the government is accountable for everything it does.
- The transformation paved the way for a new system that was created of the people, by the people, for the people.
- Hierarchical relations “private sphere” such as those of gender, caste and the economy have now democratised.
Thus, this systematic adoption and creation of our Constitution is one way of interpreting ‘transformative constitutionalism’.
The second school of thought
Another school of thought is interpreted to believe that transformative constitutionalism is a continuous affair that involves continuous evolvement or transformation of state and society. It includes the legal or administrative changes that alter the course of society and mould it to meet the changing dynamics of the country.
With time, the country has seen remarkable judgments where the scope of our fundamental rights have been expanded and how the judgments are given keeping in mind the needs of a changing society. For example, how ‘right to freedom’ was interpreted in the ‘90s by courts and even people is way different from what it means to the people now and how it is interpreted by courts. The scope of the right has definitely widened.
The transformation from traditional judgments
Emergency imposed by Indira Gandhi during the congress regime in 1976, four out of five judges in the case of ADM Jabalpur vs S.S. Shukla (1976), held that even the right to life given under Article 21 of the Indian Constitution can be suspended at the time of emergency. The fifth judge, Justice HR Khanna dissented and forty-one years later, in the case of Justice K.S.Puttaswamy (Retd) vs Union of India (2018), a nine-judge bench of the Apex Court held that privacy is indeed a fundamental right under the purview of Article 21 of the Indian Constitution. Justice Khanna was thereby proven right and now, even after the proclamation of emergency or by suspension order of the President, the fundamental right to life under Article 21 cannot be suspended.
Kesavananda Bharati v. State of Kerala (1973)
There was a long debate on the question if the parliament has the power to amend the Constitution or not. The Apex Court dealt with many cases like C. Golaknath & Ors vs State of Punjab & Anrs (1967), Indira Nehru Gandhi vs Shri Raj Narain & Anr (1975) and Bhim Singh vs U.O.I & Ors. (2010). The scope of judicial review was also debated in the course of the 24th and 42nd amendments to the Constitution.
This debate was finally settled down in the case of Kesavananda Bharati vs State of Kerala (1973). The concept of basic structure doctrine was laid down and it was decided that the Parliament can amend the fundamental rights given in the Constitution, but its basic structure should be maintained and preserved as it is.
National Legal Services Authority (NALSA) v. Union of India (2014)
The NALSA judgment is one of the landmark decisions of the Apex Court because it is the first to legally recognise non-binary gender identities and uphold the fundamental rights of transgender persons in India. The judgement also directed Central and state governments to take proactive action in securing transgender persons’ rights.
While the phrase “transformative constitutionalism” does not find express mention in the Constitution of India, the Supreme Court takes note of the transformative power of the Constitution in its 2014 NALSA judgment in the following words:
“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 reality 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 of social reality.”
Navtej Singh Johar vs Union of India (2018)
Before this case, sexual conduct between two adults of the same sex, consensual or not, was criminalized under Section 377 of the Indian Penal Code, 1860. In this case, the petitioner challenged this section and claimed that it is violative of Articles 14, 21 and 15 of the Constitution.
In furtherance of this claim, the Court interpreted that the word ‘sex’ under Article 15 includes ‘sexual orientation.’ Further, the rights of the LGBTQ+ community were recognised in this case and the decision in Suresh Koushal v. Naz Foundation (2014) was overruled by the Court.
Joseph Shine vs Union of India (2018)
This was another landmark judgment that decriminalized adultery while interpreting Article 21 of the Constitution. Adultery was earlier criminalized under Section 497 of the IPC. That particular section provided punishment for a man involved in sexual intercourse with a married woman, without the consent of her husband. This Section was found to be arbitrary and discriminatory as it was silent on the consent of a married woman, and was thus struck down.
Indian Young Lawyers Association vs. the State of Kerala (2018)
This case was filed by the petitioners as a PIL before the Apex Court regarding the entry of menstruating women into the temple of Sabrimala, which had been restricted. It was argued that this restriction was violative of Articles 14, 15, 17, 25 and 26 of the Constitution. The Court, playing the role of a positive interferer of religion, held that women of all age groups can enter the temple.
Transformative constitutionalism and recent judgements
Xxxxxxxxxx v. State of Kerala (2021)
In Xxxxxxxxxx vs State of Kerala, a couple’s trauma in the course of a live-in relationship was unveiled. A single mother’s isolation, rights of a biological father and love of a mother for her own child- everything was entangled in a legal matter. John, a Christian and Anitha, a Hindu were very much in love and they started to live together away from their parents’ homes. Anitha became pregnant and delivered a baby girl wherein the birth certificate indicated the name of both the father and mother. This birth certificate was the deciding factor in this case and gave way to a landmark judgement.
After some time, John seemed to have broken up with Anitha and went to Karnataka to act in a Malayalam film. Anitha tried to contact John but all efforts were in vain. Desperate and isolated, she had no option and approached the Child Welfare Committee (Ernakulam), handed over the child to them and executed a deed of surrender which permitted the Committee to give the child in adoption.
After some time, the couple approached the Kerala High Court with a writ of habeas corpus. The court then interpreted Article 21 of the Constitution to include the parental rights and rights of a child to preserve his identity with his biological parents. Transformative constitutionalism in this case is seen in the way ‘right to life’ has been used to recognise the rights of a child born out of a live-in-relationship. The legality of a couple in a live-in-relationship was also highlighted by the court.
Dr. Maya D Chablani vs Radha Mittal (2021)
Dr. Maya D Chablani vs Radha Mittal (2021) was a recent case dealt with by the Delhi High Court, whose judgment was appreciated by many people. ‘Right to life’ under Article 21 of the Indian Constitution was applied very liberally on street dogs. It was held in this case that the street dogs have a ‘right to food’ and citizens also have the right to feed them provided they do not impinge upon the rights of others. Regarding the feeding of such dogs, the HC also laid down certain detailed guidelines. With respect to Article 21, it was stated that such a right protects the life of animals too.
Vineeta Sharma vs Rakesh Sharma (2020)
This judgment changed the course of history when it was decided by the Court that coparcenary rights under Section 6 of Hindu Succession (Amendment) Act, 2005 are to be given to both the daughter and the son. Even daughters born before the amendment have now been given full coparcenary rights.
Therefore, this landmark judgment again talked about the right to equality under Article 14 of the Indian Constitution and how excluding a daughter from having a part in coparcenary ownership would mean the negation of her fundamental right to equality.
Anuradha Bhasin vs Union of India (2020)
This case is of the time in the year when the Jammu and Kashmir Reorganisation Bill 2019 was passed and the government announced a ban on the internet along with the shutdown of all communications. Additionally, there was a restriction on the movement and assembling of public u/s 144 of CrPC. Journalists were restricted from travelling and publishing anything which led to violation of Article 19(1)(a), i.e., the right to freedom of expression.
The SC held that the right to access the internet is included under article 19(1)(a) and stated that the restriction on journalists violates article 19(1)(g), i.e., the freedom to practise any profession, occupation, trade and commerce over the medium of internet.
Role of the judiciary
Transformative constitutionalism can be best described as a pragmatic lens that helps in viewing the realities of society. It confers a duty upon the state to uphold and ensure the supremacy of the Constitution.
The role of the judiciary is to preserve the essence of the Constitution while interpreting it in such a way that it adapts to the current scenario. Checks and balances in powers have to be made by the judiciary while still adhering to the separation of powers. As a guardian of human rights, the judiciary’s role is to ensure that justice is being done in each case and the sacrality of rights have been preserved. We have seen how the judiciary, in the case laws discussed above, played an inclusionary and transformative role.
Justice N. Anand Venkatesh, judge of Madras High Court is a role model of transformative constitutionalism, as he showed the willingness to learn and decided to take psycho-education while hearing a recent case relating to LGBTQ+ which will help him better understand homosexuality. Additionally, the judge also ordered counselling sessions for the petitioners and their families.
The judiciary has given many remarkable judgments where we witnessed a reflection of transformative constitutionalism. However, it still has a long way to go. Stan Swamy, who was arrested in the Elgar Parishad case was denied his medical plea ever after being a senior citizen and very ill. He died on July 5 without any bail and as an undertrial. It is a question to ponder upon whether in this case, the right to life should have been interpreted in such a way that could have allowed him a medical plea. Further, India sees a pool of judgments where lines like ‘justice delayed is justice denied’ become justified.
Transformative constitutionalism is something that cannot be achieved without the constant support of the judiciary and its willingness to bring a positive change in society. With the judiciary, the role of citizens is also very important in bringing a transformational change in the Constitution that meets the needs of the present day scenario. The first step of doing this is recognizing our rights and values and also keeping in mind not to infringe upon the rights of others. Where preserving the basic structure of the living document of our country is of utmost importance, evolution of our basic fundamental rights needs to be constant in order to keep the wheel of social transformation moving in the society.
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