Written by: Yug Sinha
An estimate suggests that national constitutions have lasted an average of only seventeen years since 1789. It also shows that one-half of constitutions are likely to be dead by age 18 and approximately 7% do not even make it to their second birthday.
Then, what is the reason India’s Constitution has done so well and is successfully pacing towards its 70th Birthday? A large contributor to the lasting appeal and durability is the adoption of a concept known as “Transformative Constitutionalism”.
It is completely fine if you have never heard of the term, for this article would provide you a better understanding regarding the concept. But before jumping straight to the survival kit, some basics need to be covered as to what is being saved.
So let’s look at what is a Constitution and few intricacies regarding its formation.
A Constitution is a living organic document embodying the will of the people. The Constitution of countries with a historical background of being colonized contains not just restraints on state power but also puts forward the aspirations of the people to bring about transformation in the nation.
The Constitution of India came into effect on 26 January 1950; the day India became a
sovereign, democratic republic, free from the shackles of British colonial rule, and now celebrated as Republic Day. The 299‐member Constituent Assembly (CA) met in 11 sessions from December 1946 to November 1949 to deliberate on the provisions. The CA members were indirectly elected by the provincial legislative assemblies and a proportion was nominated by the princely states.
The CA appointed several committees to deal with different aspects of constitutional design, and these committees drew heavily on the Government of India Act 1935
as the basis on which the draft of the Constitution was to be prepared. The initial draft was prepared by BN Rau after consulting the Constitutions of the United States of America, Japan, Ireland, and Germany. The CA then appointed the Drafting Committee which worked on Rau’s draft and produced a draft constitution that was debated by the CA at the second reading stage.
There were 7,635 amendments, of which 2,474 amendments were moved. The final Constitution – the longest in the world – had 395 articles and eight schedules instead of the 243 articles and 13 schedules of Rau’s original draft.
India has struggled with not just Colonialism, but also various social ills such as Untouchability, Caste-based prejudices, Sati which has been prevalent in India since ancient times. The making of the Indian Constitution was to overthrow its colonial past as well as the social ills and to bring forward a social change exemplifying a transformational movement.
The transformation from a medieval and hierarchical society to an egalitarian democracy became crucial for its existence. This is where the Constitution took a Transformative route.
So now let’s understand what Transformative Constitutionalism is. The concept takes into account two notions: Transformation and Constitutionalism fused into a single one. Three questions immediately come to the fore: What is Transformation, What is Constitutionalism and what does Transformative Constitutionalism denote. In simple terms, ‘Transformation’ means a change in a structured way.
The Oxford Dictionary describes Transformation as ‘to completely change the appearance or character of something, especially so that it is better'.
‘Constitutionalism’, on the other hand, means adherence to a constitutional system of
government. It is the idea often associated with the theories of John Locke and the founders of the American republic, that government can and should be legally limited in its powers, and that its authority or legitimacy depends on it observing these limitations.
The origin of the word ‘Transformative Constitutionalism’ is traced to post-apartheid South Africa. Former Chief Justice of South Africa Pius Langa traces the core of the transformative constitutionalism to the preamble of the Interim Constitution of South Africa, which reads:
“A historic bridge between the past of a deeply divided society characterized by strife, conflict, untold suffering and injustice, and a future founded on the recognition of human rights, democracy and peaceful co-existence and development opportunities for all South Africans, irrespective of colour, race, class, belief or sex”.
The metaphor of crossing the Historical bridge is suggestive of a movement from ‘a culture of authority’ to ‘a culture of justification- a culture in which every exercise of power is expected to be justified; in which the leadership given by government rests on the cogency of the case offered in defense of its decisions, not the fear inspired by the force of its command’.
A Constitution requires that the decisions must be substantively defended in terms of the rights and moralistic values it enshrines. It is high time that the judges stop relying on the say-so of Parliament and literal readings of the text as providing justifications for their decisions.
Under a transformative constitution, judges bear the ultimate responsibility to justify their decisions not only by reference to authority but by reference to ideas and values.
We must view this transformational bridge as a space between an unstable past and an uncertain future. There is no preference of one side over the other; rather, the value of the bridge lies in remaining on it, crossing it over and over again.
In my view, transformation is not a temporary phenomenon that ends when we all have equal access to resources and judges embrace a culture of justification. It is a permanent ideal where the change is unpredictable but the idea of change is constant.
For instance, In the BK Pavitra II Case, the Supreme Court upheld the constitutionality of the Karnataka Extension of Consequential Seniority to Government Servants Promoted based on Reservation (to the Posts in the Civil Services of the State) Act 2018. In this case, the concept of Transformative Constitutionalism was invoked to justify affirmative action to remedy the historical caste-based inequities.
In the judgment authored by Justice DY Chandrachud for Justice UU Lalit and himself, he wrote:
There is substantial evidence that the members of the Constituent Assembly recognized that (i) Indian society suffered from deep structural inequalities; and (ii) the Constitution would serve as a transformative document to overcome them. One method of overcoming these inequalities is reservations for the SCs and STs in the legislatures and state services.
Another classic example is the case of ‘Queen Empress V. Khairati’, which is the first case registered under Section 377 in India. Khairati, who was a ‘Eunuch’, was found wearing female clothing and dancing in her village with other women. The case was initiated Suo Moto (where a government or a court official acts on its own initiative) by the police without even a complaint.
The International Commission of Jurists had noted the gross human rights violations committed against the LGBTQIA+ community by the police officials and the society under the pretext of Section 377. Thus, the protection granted under ‘Navtej Singh Johar & Ors. V. Union of India’, that decriminalized all consensual sex among adults in private, including homosexual sex must extend to public spaces as well where they are most vulnerable on account of their sexuality, gender expression or occupation.
“The right to sexual privacy, founded on the right to autonomy of a free individual, must capture the right of persons of the community to navigate public places on their terms, free from state interference,” the judgment notes.
Amartya Sen, in his book, ‘Development as Freedom’, defines the notion of substantive equality and talks about the tyranny of unfreedoms which restricts the growth and development of an individual. The unfreedoms included by Sen are Systematic social deprivation, neglect of public facilities, intolerance, and overactivity of repressive states, to which Indira Jaising in an interview adds that:
“It is important to point out that rule of discretion is contrary to the rule of law in that it introduces the rule of predominantly men and occasionally women. I am aware that no law can be implemented; no executive authority can function without “discretion” as a legal concept in decision-making. But India lacks a theory of “abuse of process” making it possible for a decision to degenerate to favoritism, face law and not case law and targeting of dissenters, under cover of law.”
But it must also be noted that in various judgments, Indian courts have viewed the Constitution as not merely a parchment guaranteed against State excesses but, a document embodying a vision of a more fairer and inclusive society.
The courts at several landmark cases have adopted a certain reading of the constitutional text that eschews formalism, pure positivism and has acknowledged the existence of hierarchical structures and power relationships within the society, the first step towards removing them.
Talking about the need to interpret the Constitution, Justice Krishna Iyer remarked that:
“The authentic voice of our culture, voiced by all the great builders of modern India, stood for abolition of the hardships of the pariah, the bonded labor, the hungry, hard-working half-slave, whose liberation was integral to our independence. To interpret the Constitution rightly we must understand the people for whom it is made – the finer ethos, the frustrations, the aspirations, the parameters set by the Constitution for the principled solution of social disabilities.”
But, there are a lot of concerns regarding the adoption of Transformative Constitutionalism because it provides a distorted lens. Perhaps asking ‘what is transformed’ and ‘what is left intact’ is crucial. Public commentators have assigned sobriquets such as, ‘over-activist’, ‘judicial overreach’ to India’s Supreme Court for transforming non-justiciable social rights into fundamental rights, allegedly intervening in the jurisdiction of Parliament and the Executive, and monitoring government activities by setting up various investigative committees.
A lot of people might agree with legal scholar George H. Gadbois, that India’s Supreme Court is the most powerful in the world, having virtually become an imperium in Imperio, an order within an order.
But again, what is the role that the Higher Judiciary (Supreme Court and High Courts) play in the world’s largest democracy. Is it a protector of Constitutional rights, a transformative actor, a facilitator of the democratic process or an institution that is above politics and populism?
My argument is in consonance to Vanberg that, India’s Supreme Court judges seek legitimacy for their decisions by negotiating four elements- laws, institutional norms/ experience/rules, political preferences, and public concerns.
Thus, to sum it up, Higher Court judges in India can be characterized as negotiators who craft judgments that avoid conflict with the political wings. The effects of Judicial Intervention on governance and state-society relations have been both positive and negative. Upholding the transformative ideal of the Constitution requires the judges to change the law and bring it in line with the rights which may be contrary to the values for which the Constitution stands.
The main problem is finding the delicate line between Transformation and Legislation. Overly activist judges can be as dangerous as unduly passive judges, both disturbing the finely-balanced order of society and endangering the ideals of transformation.
But can we overcome these dilemmas? I do not know.
I take solace in the idea that perhaps rather than obstacles, these factors can be viewed as enabling conditions for transformation. For as long as they exist there will be a drive to overcome them, there will be a tension that keeps alive the idea that things can be different.
When all the challenges are gone, that is when the real danger arises. That is when we slip into a useless self-congratulatory complacency, a misplaced euphoria that where we are now is the only place to be.
That is when we stop dreaming, imagining and planning that things could be different, could be better. That, for me, is the true challenge of transformation.
Sources and References:
VILHENA, BAXI AND VILJOEN (EDS.), TRANSFORMATIVE CONSTITUTIONALISM: COMPARING THE APEX COURTS OF BRAZIL, INDIA AND SOUTH AFRICA (Pretoria University Law Press, Pretoria, 2013).
Dennis M Davis and Karl Klare, TRANSFORMATIVE CONSTITUTIONALISM AND THE COMMON AND CUSTOMARY LAW, SOUTH AFRICAN JOURNAL ON HUMAN RIGHTS.
Upendra Baxi, The Promise and Peril of Transcendental Jurisprudence: Justice Krishna Iyer’s Combat with the Production of Rightlessness in India, in C. Raj Kumar and K. Chockalingam (eds) HUMAN RIGHTS, JUSTICE, & CONSTITUTIONAL EMPOWERMENT.
Pius Langa, Transformative Constitutionalism, 17 STELLENBOSCH L. REV. p.351-352 (2006). Cited in Vrinda Narain, Postcolonial Constitutionalism in India: Complexities & Contradictions, 25 S. CAL. INTERDISCS L.J. 109 (2016).