Transformative Constitutionalism

A Constitution is a fundamental legal document that serves as the bedrock of a Nation's Governance Structure, delineating the powers and functions of Government institutions, defining the rights and responsibilities of citizens, and often embodying the values and aspirations of a society. It is a Sovereign Legal Document and it lays down the goals and aspiration of the people. Constitutions can be written or unwritten and are crucial in providing a framework for the Rule Of Law and the functioning of a Political System.

Constitutionalism, on the other hand, is a broader concept that extends beyond the mere existence of a Written Constitution. It is a political philosophy and a set of principles emphasizing the importance of limiting Government's power, upholding the Rule Of Law, protecting individual rights, and ensuring the accountability of those in authority. Constitutionalism implies a commitment to governing within the constraints of a Constitution and fostering a system of checks and balances.

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.

Transformative Constitutionalism

Transformative Constitutionalism represents a legal and political ideology highlighting the capacity of a Constitution to instigate positive societal change, particularly in redressing historical wrongs and fostering broader societal transformations. It extends beyond a focus on legal frameworks, portraying the Constitution as a tool for advancing progressive change and Social Justice.

The concept of Transformative Constitutionalism has its roots in post-apartheid South Africa, where the Constitution played a pivotal role in transitioning from a racially discriminatory regime to a democratic and inclusive society. The South African Constitution, adopted in 1996, embodies transformative principles aimed at rectifying past injustices, promoting equality, and establishing a more just Social Order.

US Scholar Professor Karl Klare's work titled "The Legal Culture & Transformative Constitutionalism", published in 1998 in the South African Journal of Human Rights, paved to way for much subsequent debate and discussion. Professor Klare viewed it 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".

The significance of Transformative Constitutionalism rests in its ability to influence societies, rectify historical injustices, and promote inclusivity. It underscores a commitment beyond the literal interpretation of legal provisions, emphasizing a focus on the essence of Justice. This approach guides the interpretation of the Constitution to prioritize values such as Human Dignity, Equality, and Social Justice. The overarching goal of Transformative Constitutionalism is to construct a society founded on principles that evolve with the changing dynamics of time.

The main goal of the Constitution is to make society better, more progressive, and inclusive. This idea is a key part of Transformative Constitutionalism. If there's a conflict between societal problems and what the Constitution says, it is necessary to change the society. This means that following the principles in the Constitution is more important than following what society might think is right.

The Constitution will adjust to fit how society is changing, but its core principles will stay the same, even as they might evolve over time. Transformative Constitutionalism is an idealistic way of reaching specific goals by making sure people's basic rights and opportunities are protected.

Indian Constitution And Transformative Constitutionalism

In the Indian context, Transformative Constitutionalism finds resonance in the vision of the framers of the Constitution of India, particularly Dr. B. R. Ambedkar, who sought to use the Constitution as a tool for social and economic transformation. The journey of India's constitutional democracy is a testament to a profound transformation from colonial subjugation to the dismantling of a centuries-old social hierarchy.

This evolution, however, was far from smooth; it demanded persistent efforts to preserve the hard-fought gains achieved during the struggle against systemic oppression. Visionary leaders of the Nation laid the groundwork for replacing the Colonial Governance Model with Institutional Democracy, anchored in the Principles of Liberty, Equality, and Fraternity. A pivotal step in this transformation was the adoption of the Indian Constitution, a document that ushered in a new era of political power transfer and held the promise of societal transformation.

Even amidst the Colonial Era in India, Transformative Constitutionalism manifested in various instances. An illustrative case is the abolition of Sati, a ritual where Hindu widows self-immolated on their deceased husbands' funeral pyres. Lord William Bentinck, prompted by the persistent endeavours of Raja Ram Mohan Roy, officially banned Sati in 1829.

This marked a pivotal step in rectifying a deeply entrenched societal practice. Furthermore, Lord Canning's endorsement of the Hindu Widow's Remarriage Act in 1856 stands as another testament to transformative constitutionalism. This legislative measure, propelled by widespread advocacy, legalized the remarriage of widows, challenging traditional norms and promoting societal progress. In 1870, the Female Infanticide Prevention Act was enacted to tackle the pervasive issue of female infanticide, reflecting a commitment to addressing social injustices. This legal intervention sought to protect the lives of female infants and alter societal attitudes towards gender.

A significant milestone in transformative constitutionalism during Colonial Rule was the passage of the Age of Consent Act in 1891. This legislation, which raised the age of consent for sexual intercourse for all females, whether married or single, from ten to twelve years, aimed to safeguard the well-being of women and foster a more equitable society.

The essence of Transformative Constitutionalism, evident in these historical events, underscores the deployment of Constitutional principles to rectify deep-rooted societal wrongs and pave the way for a fair and inclusive Social Order.

Role Of Judiciary

The Indian Judiciary plays a crucial role in advancing Transformative Constitutionalism. Through landmark decisions, the Judiciary interprets the Constitution in a way that promotes Justice, Equality, and Human Dignity. At the heart of India's Constitutional Democracy stands the Judiciary, playing a vital role in safeguarding individuals and marginalized groups from Societal Injustices and Arbitrary Actions.

Beyond mere interpreters of the Law, Courts serve as platforms for democratic participation and catalysts for reshaping societal inequities. Particularly, the Hob'ble Supreme Court serves as both a Constitutional Court and the ultimate Court of Appeal, fostering an ongoing Constitutional dialogue between citizens and institutions.

The Indian Judiciary, through progressive interpretations and landmark Judgments, has played a crucial role in advancing Transformative Constitutionalism by addressing issues of Social Justice, Minority Rights, and Equality. Right to Privacy as a Fundamental Right ["Justice K. S Puttaswamy (Retd.) & Anr. Vs. Union of India & Ors, (2017) 10 SCC 1], entry into Sabarimala Temple by female [Indian Young Lawyers Association & Ors Vs The State of Kerala & Ors., (2019) 11 SCC 1], stuck down the adultery as an offence by decriminalizing the Section 377 of Indian Panel Code, [Joseph Shine Vs. Union of India", 2018 SC 1676], that Article 19 (1)(a) includes the right to access the internet, and that the ban on journalists breaches article 19 (1)(g), which guarantees the freedom to practise any profession, occupation, trade, or business through the internet [Anuradha Bhasin Vs Union of India & Ors", AIR 2020 SC 1308], all are related to concept of Transformative Constitutionalism where the Hon'ble Supreme Court interpreted the provision of Constitution of India 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 of India.

Hence, the Supreme Court assumes the roles of both Custodian and Interpreter of the Constitution of India. The growing recognition of the Indian Constitution as a transformative document, rather than a rigid one, has empowered the Supreme Court to bring about these reforms. This acknowledgment of the Constitution's transformative nature enhances the Court's capacity to instigate positive changes and advancements in line with evolving societal needs and values.

Conclusion
Through interpreting the Constitution to increasingly align with societal interests, the Hon'ble Supreme Court assumes a pivotal role in maintaining equilibrium between Societal Concerns and evolving Social Dynamics. Each provision of the Constitution aims to alleviate some societal harm, and when multiple interpretations exist, the Court favours the one that most effectively mitigates detrimental effects on Society. This underscores the Court's commitment to ensuring the Constitution serves the Welfare and Progress of the Community.

The sole goal of Transformational Constitutionalism is to maintain and strengthen the principles of our humane Constitution. According to the Hon'ble Chief Justice of India, Hon'ble Mr. Justice D. Y. Chandrachud, the Constitution aims to transform society, and by recognising the rights of others in terms of Constitutional discourse, we are not only empowering those whose rights we recognise, but we are also, more importantly, attempting to transform ourselves when we recognise the freedom of others.

Too often, we are so focused on our own freedom that we overlook the necessity of recognising the freedom of others, for it is by acknowledging the freedom of others that society is transformed and eventually becomes.

Achieving Transformative Constitutionalism hinges on the steadfast support and dedication of the Judiciary to drive positive change in Society. Beyond the legal realm, citizens also bear a crucial responsibility in fostering transformative changes within the Constitution to align with the contemporary needs of our World. The initial step involves acknowledging and understanding our individual rights and values, accompanied by a commitment to respecting the rights of others and ensuring a harmonious co-existence within society.

Written By: Damini Singh Chauhan, Advocate, High Court of Judicature, J&K, Jammu
Email: [email protected]