Transformative constitutionalism
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This article has been written by Sharanya Ghosh, from Symbiosis Law School, Noida, and explores the concept of transformative constitutionalism and its impact on contemporary Indian society. 

Introduction

Transformative Constitutionalism is not a particularly new concept. It has been around since 1998 and was first described in Legal Culture and Transformative Constitutionalism, a piece by American Professor Karl Klare. This article aims to identify the meaning behind transformative constitutionalism by exploring some recent cases in which the concept was applied to the reasoning of the courts and analysing the impact on contemporary society.

Concept of Transformative Constitutionalism

Transformation means a structured method of bringing about change while constitutionalism encompasses the concept of adhering to the basic structure of values that are defined by a system of government. These two concepts together form the term transformative constitutionalism. Transformative constitutionalism is a process based on subjective interpretation. It is not one that has a singular definition or understanding. In fact, each definition is highly contested and as of now, there is no stable understanding of the concept.

Origin of Transformative Constitutionalism

The concept of transformative constitutionalism came from the study of the South African Constitution and the freedom movement. As mentioned above, it was Karl Klare who in his piece Legal Culture and Transformative Constitutionalism (1998) spoke of transformative constitutionalism in the South African context. He explained the concept of transformative constitutionalism as a “long-term project” and went on to state that it shaped the political and social institutions through the enactment, interpretation and enforcement of the Constitution. Through his words, he further expressed that the theory was futuristic in its approach, by which he implied that the aim was the development of the existing democracy and its improvement in the long run. Justice Langa of South Africa, in his analysis of the concept of transformative constitutionalism, had said, “This is a magnificent goal for a Constitution: to heal the wounds of the past and guide us to a better future. For me, this is the core idea of transformative constitutionalism: that we must change.”Thus, the concept of transformative constitutionalism originated in the South African context but has further been applied to democracies across the globe including India. Before we discuss the Indian application of the concept, let us first understand the major interpretations of transformative constitutionalism.

Different interpretations of Transformative Constitutionalism

However, the concept of transformative constitutionalism came to be interpreted in several ways. Today, some people believe that it is a single event in the history or present of a State while others argue that it is a process. There is common ground in many of these interpretations but views of scholars and writers keep changing and developing and thus it has become difficult to establish it. There are two major interpretations of the concept of transformative constitutionalism, particularly in the Indian context:

Transformation from a colonial rule to self-governance

This is seen as a form of transformative constitutionalism in the sense that there was a systematic adoption of a new framework for the Government of India. According to this interpretation, a case of transformative constitutionalism was seen when India gained Independence on 15th August 1947 from the British Colonial Rule. The transformation came about not only in the form of governance but also in the entities in whose hands the power to run the country now lay. India was transformed from a country run by foreign colonisers to a country that was run by its own people; the people could now choose their own government and their own leaders. Although a majority of the framework of the British rulers was adopted by the country from the Government of India Act 1945, the transformation paved the way for a new system that was created of the people, by the people and for the people. New values were established in the Constitution; of dharma and justice. The transformation of the system to uphold these values was a constitutional measure. Thus, the systematic adoption of a new framework for the Government of India and the creation of the Indian Constitution can be seen as transformative constitutionalism.

Transformation of society and state

This interpretation is less event-specific in nature and addresses the ever-evolving legal and administrative changes being implemented in a country. According to interpretation, there is a constant transformation of the way a State functions in correlation to the way society functions and vice versa. Both the state and the society are affected by one another and both continue to change and grow. This is also transformative constitutionalism wherein the basic values as provided by the Constitution are upheld by bringing in change, such as in the legal scenario. One example of this could be the Navtej Singh Johar vs Union of India case of 2018 in which the portion of Section 377 of the Indian Penal Code was decriminalised as it did not permit consensual acts of sex between individuals belonging to the LGBT community. This change was brought about after over 70 years of Independence because the needs of the society changed. There are several other examples of this form of transformative constitutionalism.

These are not the only interpretations of the concept. As expressed above, Justice Langa gave his own interpretation of the concept. In an article, one research fellow has described transformative constitutionalism as using the legal framework to bring social change in a political system. Indira Jaising, an Indian lawyer who is known for her efforts in the field of human rights had said in her speech at NLSIU Bengaluru in 2019 that transformative constitutionalism for her means personal liberty. Thus, there may be several other interpretations of the same concept and it is extremely subjective. Thus, it becomes important to identify a common definition or a term by which one may be able to understand the essence of the term. Although it is difficult to define, transformative constitutionalism may be described as the process of using the values set by a constitutional framework of a State to usher in a change in the social, legal, economic or political systems. This change is essentially brought forward by legal amendments or enactments and comes with a futuristic approach.

Examples of Transformative Constitutionalism in contemporary Indian society

There are several examples of transformative constitutionalism in some important judgements of the past couple of decades in the Indian Society. These attempt to bring in positive change and provide a window into the future of how the legal framework and mechanisms may change and improve. Some of the major decisions and provisions of the law that have relied on or applied the concept of transformative constitutionalism are as follows:

Decriminalisation of Section 377

Before this judgement of the Supreme Court in 2018, as per Section 377’s explanation of “unnatural offences,” sexual intercourse other than that between cisgender men and women was not permitted. This meant that the law imposed punishment on the sexual intercourse of persons within the LGBTQ+ community. With a view to change this, cases were filed before courts and the first major case was that of Naz Foundation vs Union of India. In 2009, the Delhi High Court in its judgement decriminalised consensual sexual intercourse between the members of the community which was earlier termed as unnatural in the words of the law. However, the Supreme Court in 2013 re-criminalised that particular part of the Section and overturned the decision of the Delhi High Court. It stated that the High Court had erred in deciding that the Section was unconstitutional. Several protests followed and as a consequence of the filing of a curative petition before the apex court, it decided to hear the matter again in 2018.

Navtej Singh Johar vs Union of India is the landmark case that was decided on 6th September 2018 where the Supreme Court struck down the part of Section 377 of the Indian Penal Code that criminalised consensual sexual intercourse between adults by declaring it unconstitutional. It violated as many as four Fundamental Rights of the persons as under Articles 14, 15, 19 and 21. This was a major breakthrough for the LGBT Community and their legal as well as human rights.

This judgement also applied the concept of transformative constitutionalism, keeping in mind the stigma that silently exists in Indian society regarding the LGBTQ+ community. This judgement propels these issues into the limelight and has enabled several people to come forth with their concerns and be able to put forth their views. The human rights of the members of the LGBTQ+ community have been addressed and this is clearly positive enforcement of the Constitution and its values. 

Ayodhya Dispute verdict of 2019

M Siddiq (D) Thr Lrs vs. Mahant Suresh Das & Ors was a complex case revolving around two religious communities and their dispute over a piece of land. The disputed property is in Ramkot, Ayodhya and is believed to be the birthplace of Lord Ram by Hindu worshippers. A mosque was built on the same land and was known as the Babri Masjid, having been created under the direction and rule of Mughal Emperor Babar. Several Hindus felt wronged since the land they worshipped as the birthplace of their deity had been taken over by the Mughals during their rule.

The Babri Masjid was demolished by Hindu radicals on 6th December 1992 during a political rally. Following this, a case was filed before the Allahabad High Court and the court decided that the land be divided into three equal portions among the aggrieved parties. It went on to confirm during that time that the disputed land was the birthplace of Lord Ram and that the mosque had been built post the demolition of a Hindu temple, which itself went against the tenets of Islam. The main issue, in this case, was the involvement of historical facts and traditional and religious beliefs. Many Muslims felt wronged as their mosque was torn down by Hindu radicals. Hindus also felt wronged since a sacred place of worship had been taken over by a foreign Mughal Emperor for the construction of a mosque. Each group had their own grievances and views and the issue was an extremely sensitive one to be dealt with. The Supreme Court held the final hearing of the case after all the parties appealed before it in 2019. On 9th November 2019, the Supreme Court of India gave its final verdict of this case. The Court relied on a report by the Archaeological Survey of India according to which were remains of a building underneath the demolished structure of the Masjid that was “not Islamic” and in its judgement decided that the disputed land was to be handed over to a trust to be set up by the Government of India with the purpose of building a Hindu temple. The Court also directed that 5 acres of land be provided to the Sunni Waqf Board for the purpose of building a mosque and stated that the demolition of the mosque had been against the rule of law.

This is one of the most recent cases of transformative constitutionalism where efforts were made to ensure that neither of the religious communities was offended and to ensure that communities are brought together instead of being divided over religious issues. Here, transformative constitutionalism may be used to describe a systematic movement towards a society where all religions can co-exist without any disparities and discrimination, a process that the Constitution had sought since its creation. This judgement has received various responses but it is clear that it has been decided with a futuristic approach and one that insists on national unity over religious differences.

Conclusion

The term “transformative constitutionalism” has been around for over 20 years. However, as a process, it has been around for much longer and will continue to exist in the current legal scenario. As observed, several of the most important judgements that India has seen in the past few years have revolved around the concept of transformative constitutionalism and have given great importance to it, using the Constitution as a tool to further improve the existing conditions of human rights, legal rights and other constitutional rights in the country. Thus, although transformative constitutionalism may prove difficult to express or define, it is a process and an event that has played an important role in defining the essence of democracy and a constitution within it.


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