Shweta and Tauseef Ahmad
The constitution is a sovereign legal document. It is a supreme document of society and it lays down the fundamental principles as well as rules of governance for the Indian society and it lays down the goals and aspiration of the people of India. It can be compared to ‘grundnorm’ of Kelson or ‘rules of recognition’ of Hart and thus it is the ultimate criteria of validity of any other law or executive or an individual action in Indian society. The Constitution can be considered to be the mirror of the society and the aspect of Constitutionalism is the idea that society can be organized according to some set principles and it can be regulated and taken towards its larger purpose through the Constitution. As it was held in N. Nagaraj v. UOI (2006 SC) that Constitutionalism is related to constitutional identity. It is the constitutional identity which is supreme and constitutionalism is also about the continuance of constitutional identity. Constitutionalism is about to check and balances upon the power of government and constitutionalism are about the theory of guided power. The rationale of Indian Constitutionalism is to empower the state to bring about social transformation.
The constitution is transformative and there is an unmistakable emphasis which we find in the constitution of our commitment to a transformation of relations, the relations between individual and State and between individual themselves. This transformative vision of our constitution underlines its working and interpretation.[i]
Transformative Constitutionalism and Role of Judiciary in India
Transformative Constitutionalism has largely been a feature of South African jurisprudence. Transformative constitutionalism means an infusion of the values of liberty, equality, fraternity and dignity in the social order. The basic purpose of the constitution is to transform the society for better i.e. progressive and inclusive and this objective is a fundamental pillar of transformative constitutionalism. Basically, if there is a collusion between social evils and constitution then society has to be transformed (change). It means constitutional morality prevails over societal morality. The Constitution will keep adjusting according to the changes in society but the essence of the constitution shall never change, it may evolve with the passage of time. There are basic principles of the constitution which exemplify the transformative goals of constitution i.e. .secularism, liberty, gender justice etc.
Right to Privacy as a Fundamental Right (Justice K.S Puttaswamy (retd.) and Anr. v. UOI 2017SC), entry into Sabarimala Temple by female (Indian Young Lawyers Associaton v. The State of Kerala and ORS., 2018 SC), stuck down the adultery as an offence ( Joseph Shine and ORS. v. UOI 2018 SC), Right to life with dignity, freedom to choose partner all are related to concept of Transformative Constitutionalism where the Supreme Court interpret the provision of constitution in such a way that provisions are not limited to mere literal meaning of their words, instead they ought to be given a meaningful construction which is reflective of their intent and purpose in consonance with the changing times. The Supreme Court is not bound by the test of the constitution rather it is bound by the spirit of the constitution.
Recently in Navtej Singh Johar and Others v. UOI through Secretary, Ministry of Law and Justice (decided on 06.09.2018), [ii]The Supreme Court reintroduced the concept of transformative constitutionalism to Indian jurisprudence by decriminalizing the section 377 of IPC. The expression ‘transformative constitutionalism’ can be best understood by embracing a pragmatic lens which will help in recognizing the realities of the current day. Transformation as a singular term is diametrically opposed to something which is static and stagnant; rather it signifies change, alteration and ability to metamorphose. Thus, the concept of transformative constitutionalism, which is actually with regard to all constitutions and particularly in regard to Indian Constitution, is, as a matter of fact, the ability of constitution to adapt and transform with the changing needs of the time.
The constitution would become a stale and deed testament without dynamic, vibrant and pragmatic interpretation. Constitutional provisions have to be construed and developed in such a manner that their real intent and existence percolates to all segments to the society. This is the raison d’etre for the constitution. The most important purpose of transformation is to ensure that the disadvantaged people become more capable of enjoying the life with dignity, freedom and equality that lays at the heart of our constitutional democracy by the realization of fundamental socio-economic rights. The principle of transformative constitutionalism confers a duty upon State to ensure and uphold the supremacy of the constitution.
The Supreme Court plays an important role in balancing the interest of society with societal reforms by interpreting the constitution in such a way that more and more societal interest serve. Every provision in the constitution is aimed at doing away with some mischief in the society and if two or more interpretation is possible then that interpretation shall be adopted which will do away with mischief to the best. To preserve and strengthen the values of our compassionate constitution is the only purpose of transformative constitutionalism.
Justice Chandrachud said Constitution intends to transform the society and in recognizing the rights of others in terms of constitutional discourse we are not just empowering them whose rights we recognize we are not just in that sense recognizing the entitlement of other but more important is an effort to constitution to transform ourselves when we recognize freedom of others. Too often we believe in our own freedom we do not dwell on the importance of recognizing the freedom of other because it is recognizing the freedom of others that really society is constantly being transformed and society is then being.
Shweta and Tauseef are a research scholar and PhD scholar respectively in Jamia Milia Islamia, New Delhi.