TRANSFORMATIVE CONSTITUTIONALISM: A NECESSITY?

Introduction

Transformative constitutionalism is basically a gradual process of change rooted in law that helps to constitute an egalitarian society based on the principles of liberty and social, political and economic justice. It helps to promote substantive equality between people taking different contexts, such as history and political developments into consideration. It aims towards social cohesion based on principles of liberalism. The term was first described in a piece called, ‘Legal Culture and Transformative Constitutionalism’ by Karl Klare. He spoke about transformative constitutionalism in the context of South Africa. Transformative constitutionalism played an important role in the transition of South Africa from apartheid to a constitutional democracy. Justice Langa of South Africa 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, we can say that transformative constitutionalism helps to dismantle the formal structure of apartheid.

Instances of Transformative Constitutionalism in Colonial India

There have been various instances of transformative constitutionalism in the Indian context, even in colonial times. Sati, a practice of immolation of a Hindu woman on the death of her husband in his funeral pyre, was abolished in 1829, by Lord William Bentinck after repeated efforts of Raja Ram Mohan Roy. The Hindu Widow’s Remarriage Act, 1856, which legalised the remarriage of widows was passed by Lord Canning after various campaigns in its favour. Female Infanticide Prevention Act, 1870 was passed to curb the problem of the killing of female infants. Another instance that was transformative in nature was the enactment of the Age of Consent Act, 1891, “which raised the age of consent of sexual intercourse for all girls, married or unmarried, from ten to twelve years.”

It received support from various social organizations and social reformers who campaigned for the rights of women. Although these reforms received flak from orthodox and conservative people in those times, they helped to make the lives of Indian women better by giving them basic rights which they were denied before.

Instances of Transformative Constitutionalism in Independent India

Post-independence the Supreme Court has passed various judgments that truly emboldens the spirit of transformative constitutionalism. The following are some examples:

  • Kesavananda Bharti v. the State of Kerela[1] – The Supreme Court, being the custodian of the Indian constitution, held that if the ‘Basic structure’ or the fundamental structure of the constitution is altered, the constitutional amendment can be invalidated. It outlined the ‘Basic structure doctrine’ of the Indian Constitution. This was a landmark judgement that set the benchmark for other courts around the world.
  • Maneka Gandhi v. Union of India[2] – The Supreme Court’s judgment expanded the meaning of the ‘Right to life’ under Article 21. The apex court stated that “Article 21 would read as ‘No person shall be deprived of his life or personal liberty except according to fair, just and reasonable procedure established by valid law.”
  • Vishakha v. State of Rajasthan[3]– The SC set out guidelines to prevent sexual harassment at the workplace. In this case, the Supreme Court also provided the first authoritative definition of ‘sexual harassment’ in India. The court referred to several sources like the Beijing Statementof Principles of the Independence of the Judiciary, a decision of the High Court of Australia and its own earlier decisions.
  • Justice K. S. Puttaswamy v. Union of India[4] – The Supreme Court stated that the ‘Right to privacy’ is intrinsic to life and liberty and comes under the ambit of Article 21 of the Indian constitution. This case became the cornerstone of the Right to privacy jurisprudence in India.
  • Navtej Singh Johar v. Union of India[5] – The Supreme Court struck down the parts of Section 377 of IPC which criminalised “carnal intercourse against the order of nature”. It decriminalized consensual sexual conduct between adults of the same sex. While passing this judgement, the SC referred to the case of K. S. Puttuswamyand said that the denial of the right to privacy to the LGBTQIA+ community “on the ground that they form a minority of the population would violate their fundamental rights, and that sexual orientation forms an inherent part of self-identity and denying the same would violate the right to life.”
  • Joseph Shine v. Union of India[6] – In this case, the Supreme Court ruled that Section 497, which criminalises adultery is unconstitutional and hence, struck it down. The court also said that section 497 strips a woman of her autonomy, privacy and dignity. The court noted that adultery is still a valid grounds for divorce.
  • Indian Young Lawyers Association v. the State of Kerela[7] – The Supreme Court allowed the entry of women of all ages into the Ayyapa temple at Sabarimala in Kerela. In its judgement, the SC said that ‘devotion cannot be subjected to gender discrimination.

Transformative Role of Judiciary

The introduction of PIL (Public Interest Litigation) to the Indian Judicial system by Chief Justice P. N. Bhagwati has also played a major role in propagating the concept of transformative constitutionalism. Judicial interventions have played a catalytic role in ensuring that civil and political rights are brought into the political mainstream so that the political class addresses them by enacting legislation. Judicial interventions have also played a great role in the realm of socio-economic rights and have helped in the political mainstreaming of the concerns of the marginalized. As Justice Bhagwati points out, “The judge infuses life and blood into the dry skeleton provided by the legislature and creates a living organism appropriate and adequate to meet the needs of the society.”

Conclusion

Transformative constitutionalism acts as an instrument to establish an egalitarian social order. It helps to make laws that adhere to the changing societal norms. It is necessary for the proper functioning of a democracy that cares about the welfare of even the marginalized sections of society. Thus we can say that the purpose of transformative constitutionalism is to uphold human rights which forms the basis of a civilised society and to remove social evils like discrimination on the basis of sex, caste, race, sexual orientation or religion.

Author(s) Name: Shifa Fatima (Aligarh Muslim University, Aligarh)

References:

[1] (1973) 4 SCC 225.

[2] (1978) 1 SCC 248.

[3] AIR 1997 SC 3011.

[4] (2017) 10 SCC 1.

[5] AIR 2018 SC 4321.

[6] (2019) 3 SCC 39.

[7] WRIT PETITION (CIVIL) NO. 373 OF 2006.

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