What is Transformative Constitutionalism?
Transformative Constitutionalism generally means using the law to effect comprehensive social change through non-violence means. American Professor Karl Klare first described the concept of transformative Constitutionalism in his work titled “Legal Culture and Transformative Constitutionalism” in 1998 in the South Africa Journal of Human Rights. Klare defines transformative Constitutionalism 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’.
Transformation is bringing about change in a structured manner, while Constitutionalism refers to adhering to the values defined by a system of government. The concept of transformative Constitutionalism came from the study of the South African Constitution and the freedom movement. A former chief justice of South Africa traces the core of transformative Constitutionalism to the Preamble of the Interim Constitution of South Africa, which reads: “A historical 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.”.
Transformative Constitutionalism is always against the rigidity of the Constitution. It plays a vital role in transforming society and protecting the basic principle of the Constitution and its value system. As we know that we can’t compromise the value system of the Constitution, it mainly aims to protect individual freedom. In the Navtej Singh Johar case, Chief Justice Dipak Misra stated, “The whole idea of having a constitution is to guide the nation towards a resplendent to transform society for the better, and his objective is the fundamental pillar of transformative constitutionalism”. This article aims to define the meaning of constitutional transformation by reviewing some recent cases of applying this concept to judicial defence and analyzing its impact on modern society.
India and Transformative Constitutionalism
India fights against colonialism and fights against social evils such as untouchability, caste discrimination, and gender inequality that have prevailed in India since ancient times. Based on democratic values, the structure of the Indian Constitution is a “moral autobiography,” which promises a new future and explicitly rejects colonial history. The various clauses of the Indian Constitution illustrate the purpose of constitutional change. The Preamble contains the people’s aspirations, with the cherished goals of liberty, equality, fraternity and justice. It also establishes a secular, democratic, socialist state. Rajeev Bhargava, a professor of political theory at Jawaharlal Nehru University, believes that the Indian Constitution was ‘designed to break social hierarchies’ and open up a new chapter of freedom, equality and justice. It was a revolutionary moment, especially for the deprived classes, who hoped to receive equal treatment in society after its adoption.
The Constitution of India provides the vision of equality in a progressive community. It is the living document that guarantees the fundamental right; therefore, every person is equal in the eyes of the law. Article 14 of the Constitution guarantees equality before the law and equal protection of the law. In the famous case of Navtej Singh Johar, the five judges of the constitutional bench decriminalize section 377 of the India Penal Code, a colonial rule that criminalizes homosexuality, unconstitutional. Now we are talking about the case law, which is related to transformative Constitutionalism.
Case Laws on Transformative Constitutionalism
A. Navtej Singh Johar Vs Union of India [(2018) 1 SCC 791]
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. Section 377 of the Indian Penal Code (IPC) criminalized consensual sexual intercourse between persons of the same sex for being “against the order of nature”. The judgement was given by a five judges bench which included Chief Justice Dipak Misra, Justice Rohington Nariman, Justice DY Chandrachud, Justice AM Khanvilkar and Justice Indu Malhotra. The writ petition [(Criminal) No.76 of 2016] was filed by five individual of LBGTQ communities ( Navtej Singh Johar, Ritu Dalmia, Ayesha Kapur, Aman Nath and Sunil Mehra) challenging the constitutionality of Section 377. In 2009, before the Delhi High Court, the Naz Foundation (India) Trust (“Naz“) challenged the constitutionality of Section 377 for violating Articles 14, 15, 19 and 21 of the Constitution. The Court ruled that punishing sexual activity between two consenting adults under Section 377 violates the right to equality, privacy and personal liberty of such persons. This decision was appealed before the Supreme Court, and in 2013, the Court reversed the Naz verdict in Suresh Kumar Koushal & Anr. v. Naz Foundation & Ors. (“Koushal“). It held that only the Parliament could decriminalize homosexuality.
But after Navtej Singh Johar Vs Union of India in 2018, the Supreme Court verdict brought a wave of joy in the LBGT communities. It violated four Fundamental Right of a person- Article 14, Article 15, Article 19 and Article 21. This decision is an example of transformative Constitutionalism. Considering the subtle stigma of the LGBTQ+ community in Indian society, the decision drew attention to these issues and allowed several people to express their concerns and powers. The rights of LGBTQ community members have been taken into consideration, which is a positive application of the Constitution and its values.
B. National Legal Services Authority Vs Union of India [(2014) 5 SCC 438]
National Legal Service Authority Vs Union of India is a landmark judgement given by the Supreme Court which legally recognized the person who was outside the gender binary of male/female, and they will be given the same fundamental rights as it is given to other citizens and gave them self-identification of their gender. The National Legal Services Authority of India (NALSA) was the primary petitioner. It had been constituted with the primary objective of providing free legal aid services to the disadvantaged sections of Indian society. The other petitioners in the matter were the Poojya Mata Nasib Kaur Ji Women Welfare Society, a registered society and NGO, and Laxmi Narayan Tripathi, a renowned Hijra activist. The judgment was given by a bench of two Supreme Court judges, which includes Justice K.S.Radhakrishna and Justice A.K.Sikri.
The Court directed Centre and State Governments to grant legal recognition of gender identity, whether male, female, or third-gender. Many welfare measures enacted by the Tamil Nadu Transgender Welfare Board have been taken up as country-wide recommendations by the Report of the Expert Committee of the national Ministry for Social Justice and Empowerment. These recommendations were implemented six months after re-examining them in light of the legal declaration made in the judgement. This landmark judgement given by the Supreme Court was a sight of relief for the member’s transgender community and brought a change in every citizen thinking. This case is also a perfect example of transformative Constitutionalism. At the end of this judgement, the Court also apologized to all the members of the transgender community for the harassment they have faced from other people.
C. Joseph Shine Vs Union of India
This landmark judgement decriminalizes adultery in India. The verdict was given by a constitutional bench of five judges of the Supreme Court of India. A writ petition was filed under Article-32 by Joseph Shine challenging the constitutionality of Section 497 of the Indian Penal Code read with Section 198(2) of Criminal Procedure Code, 1973. This section violates Article 14,15, and 21 of the Constitution. Section 497 of IPC – “Whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting to the offence of rape, is guilty of the offence of adultery and shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both. In such case, the wife shall not be punishable as an abettor”. The challenge was based on the fact that the said provision does not provide the right to a woman to prosecute the woman with whom her husband has committed adultery. Hence, it was discriminatory and violated the right to equality. There is no right to a woman in case her husband commits adultery which was also discriminatory.
Adultery has been struck down in more than 60 countries as they all consider adultery an act of discrimination. Even Lord Macaulay, the creator of the penal code, objected to its presence in the penal code as an offence instead suggested that it should be better left as a civil wrong. This judgement came because of society changing values, culture. This was a historical judgment as it struck down 158 years old law, which was not suitable for today’s world.
Transformative Constitutionalism is essential for society as the time is changing, the existed law should also change. It may be a new term for Indian citizens, but it’s not a new term for them in other nations. But recently, in India, there have been many cases where old law has been struck down, which does not provide complete justice to every citizen of India. Although transformative Constitutionalism may prove difficult to express or define, it is a process and an event that has played an essential role in determining the essence of democracy and a constitution within it. The Court’s role is to understand the central purpose and theme of the Constitution for the welfare of the society. Our Constitution, like the law of society, is a living organism. It is based on a factual and social reality that is constantly changing. Sometimes a change in the law precedes societal change and is even intended to stimulate it. Sometimes, a change in the law is the result of social reality.
This article has been authored by Siddharth Shekhar Singh of Dr. Ram Manohar Lohia National Law University, Lucknow.