The Judiciary as Guardian of Social Justice: A Study in Transformative Constitutionalism in India

I. Introduction

“Transformative constitutionalism refers to the infusion of the values of liberty, equality, fraternity and dignity in the social order. Thus, transformative constitutionalism is an inevitable as well as a significant process that helps to define the essence for democracy and a Constitution within it.²”

• Justice Chandrachud

A constitution represents the people's expressed desire. It establishes the framework by describing the basic political ideas as well as the composition, authority, and duties of the main governmental organizations. This framework both expresses and defines the desire of the people and the authority and bounds of different government institutions and organs. Constitutionalism is the belief that society may be arranged based on predetermined principles, governed by the Constitution, and used to further its greater goals. The Constitution is sometimes referred to as the mirror of society. If the government uses its authority without cause, it may be limited in its use, and the judiciary is crucial to upholding constitutionalism. The introduction of the principles of liberty, equality, fraternity, and dignity into the social structure is known as transformative constitutionalism. One of the main tenets of transformative constitutionalism is that the constitution should change society for the better, making it more progressive and inclusive. One interpretation is that it attempts to place a greater emphasis on constitutional morality than on what social morality actually is. There is also the notion that the fundamental framework and content of the Constitution will never alter, but it will always evolve to meet the needs of the times. Transformative constitutionalism is an idealistic strategy that safeguards people's basic rights and opportunities in order to achieve certain objectives. For a nation to undergo significant change, the court may play a crucial role. This is due to the judiciary's ability to give a constitution's dry text vitality. The legal system has the ability to turn the dark text into a rainbow. By deciding cases using factual findings, pertinent legal precedent and judgment, the court can enable the quiet words of the constitution to be heard. It can cover up policy inadequacies. This is due to the fact that the judiciary has the authority to establish the applicable laws of the land based on the evidence and arguments presented to it. The judiciary can give life to the constitution, but it cannot write one. The judiciary's capacity to sustain democracy extends to both new and established democracies.

The goal of transformative constitutionalism is to move society towards democratic fairness with stronger protection for fundamental rights and other freedoms, with the aid of legal institutions. Constitutionalism and constitutional identity are intertwined, as ruled by Supreme court in N. Nagaraj v. Union of India³. The supreme identity is found in the constitution, and constitutionalism is concerned with maintaining this identity. Constitutionalism is concerned with the philosophy of directed power and how it checks and balances the authority of the government. Indian constitutionalism is based on the idea of giving the state more authority to enact social change. The Indian Constitution has at times been referred to be a ‘dynamic document’ and the Supreme Court of India has interpreted the document by taking the idea of transformative constitutionalism into account.

II. Evolution of constitutional transformation

The independence movement and the study of the South African Constitution gave rise to the idea of transformative constitutionalism. It was ‘Karl Klare’ who first discussed transformative constitutionalism in relation to South Africa in his book ‘Legal Culture and Transformative Constitutionalism’ (1998). Klare explained the concept as a ‘long-term project’ that has altered political and social institutions via Constitution's creation, interpretation, and enforcement. He also stated that the theory had a futuristic approach, implying that the goal was to build and strengthen the present democracy in the long run. In South Africa’s case, the desire to remedy apartheid-era historical wrongs played a part in embracing the idea of Transformational Constitutionalism. As opined by former Chief Justice of South Africa, Justice Pius Langa,

‘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.’⁴

German scholar ‘Michaela Hailbronner’ reasoned that German jurisprudence also reflects similar principles, with a view to correcting historical wrongs committed during the Nazi era. She points out,

“Like South Africa after apartheid, Germany emerged after the Second World War a broken and morally discredited country with a strong imperative of political and social change … In spite of the conservative orientation of German constitutional framers, however, German constitutionalism became, over time, transformative in important respects. That it did is due primarily to the Justices at the German Constitutional Court and German legal scholars”⁵

During the colonial period in India, there were some instances of the concept of transformative constitutionalism, such as the abolition of sati in 1829. After multiple efforts to advocate the passage of a legislation, Lord Canning enacted the Hindu Widow's Remarriage Act, 1856, making widow remarriage legal. To combat female infanticide, the Female Infanticide Prevention Act of 1870 was passed. Another pivotal moment occurred with the enactment of the Age of Consent Act, 1891, which raised the age of consent of sexual intercourse for all females, married or single, from ten to twelve years even before the Constitution came into existence. The transformation then took from colonial rule to self-governance when India gained independence on 15^th August, 1947 from British Colonial Rule. Not only did the form of government change, but so did the organizations that suddenly held the authority to rule the nation. India had a political and economic transition from foreign colonizers to its own people, who elected their own leaders and built their own government. It was a constitutional step to change the system to support these values. Transformative constitutionalism can thus be understood as the systematic acceptance of a new framework for the Indian government and the drafting of the Indian Constitution. Transformative constitutionalism is thought to be an ongoing process that entails ongoing changes to the state and society. It encompasses the legislative and administrative modifications that reshape society in accordance to the changing national context.

Justice Krishna Iyer, who saw the Indian constitution as transformative in order to promote social justice in accordance with societal needs, is a major proponent of this viewpoint after the country's colonial era. In Akhil Bharatiya Soshit Karamchari Sangh v. Union of India, J. Iyer stated that “We, as judges dealing with a socially charged issue of constitutional law, must never forget that the Indian Constitution is a National Charter pregnant with social revolution, not a Legal Parchment barren of militant values to usher in a democratic, secular, socialist society which belongs equally to the masses, including the harijan-girijan millions hungering for a humane deal after feudal-colonial history's long night.⁶”

Furthermore, Justice P.N. Bhagawati had a significant impact on transformative constitutionalism in India by introducing the idea of public interest litigation for access to justice. PIL cases affected disproportionately vulnerable groups, and as they moved through the legal system, the Court's attention was drawn to a number of specific issues. The Court often invoked the fact that the great majority of these groups would not have simple access to justice in an attempt to defend its undoubtedly dangerous steps to better the status of these constituents. Such rulings as Vishaka v. State of Rajasthan⁷ and Hussainara Khatoon v. State of Bihar⁸ demonstrate the value and effectiveness of PILs in India.

III. Role of judiciary in constitutional transformation

The belief that society may be arranged in accordance with predetermined principles, governed, and directed toward its greater purpose through the Constitution is the foundation of constitutionalism. The Constitution can be thought of as a mirror of society. The judiciary is an essential part of transformative constitutionalism since it depends on the ability of the law to bring about social change and because courts have the authority to interpret and apply the law, they serve as change agents.

Using significant rulings that are now regarded as laws, the Honorable Supreme Court serves as the guardian and interpreter as well as the growing recognition that the Indian Constitution is a transformational document rather than a strict one. The philosophy of transformational constitutionalism has been strengthened by a number of recent Supreme Court rulings.

1. Kesavananda Bharti v. State of Kerela⁹

There was much discussion on the question of whether the parliament could amend the Constitution. Many cases were heard by the Supreme Court, including Indira Nehru Gandhi v. Shri Raj Narain & Anr¹⁰ and I. C. Golaknath & Ors v. State of Punjab & Anrs¹¹. Between the 24th and 42nd amendments to the Constitution, there was additional controversy over the scope of judicial review. This argument was finally resolved in the 1973 case of Kesavananda Bharati. With the largest constitution bench in the country with 13 judges, in a 7:6 ratio it was decided to uphold the fundamental framework of the Constitution and to leave it untouched, even if the Parliament decided to amend some of the fundamental rights. The Indian Constitution's guardian, the Supreme Court, decided that a constitutional amendment may be deemed unlawful if it modifies the document's "Basic structure." It explained the "Basic Structure Doctrine" of the Indian Constitution. This landmark ruling acted as a template for other courts across the globe.

2. Maneka Gandhi v. Union of India¹²

This case ruled that, Article 21 of the Constitution states that a law cannot be arbitrary, unreasonable, or unjust. It refers to the Procedure established by Law. Additionally, it gave rise to other Article 21 sub rights. Many revolutionary sub rights resulted from the idea of interpreting Article 21 liberally.

3. National Legal Services Authority (NALSA) v. Union of India¹³

One of the Apex Court's landmark rulings, the NALSA ruling upholds the fundamental rights of transgender individuals in India and is the first legal recognition of non-binary gender identities. In addition, the ruling ordered the federal and state governments to take the initiative to protect the rights of transgender individuals. The Supreme Court in the 2014 NALSA judgment takes note of the transformative power of the Constitution and said “The role of the Court is to understand the central purpose and theme of the Constitution for the welfare of the society. Our Constitution, like the law of the 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.”

4. Navtej Singh Johar v. Union of India¹⁴

In this historic decision, the Supreme Court struck down a portion of the Indian Penal Code that criminalized sexual encounters in violation of Articles 14, 15, and 21. The Court did this by applying a transformative constitutional interpretation. But the court decided that "sexual orientation" is included in the definition of "sex" under Article 15, which acknowledges and improves the status of the LGBTQ+ community. The Court interpreted that ‘sexual orientation’ is included in the definition of ‘sex’ under Article 15 in order to support this claim. Furthermore, the court opposed the ruling in Suresh Koushal v. Naz Foundation¹⁵ and acknowledged the rights of the LGBTQ+ community in this case.

5. Indra Sawhney v. Union of India¹⁶

The Supreme Court strived to come up with a suitable remedy that preserves society's delicate balance while upholding the rights of the oppressed and disadvantaged groups. The Supreme Court's decision regarding the Mandal Commission Report's validity was the only matter under consideration. In reality, the Apex Court had to make a number of difficult rulings with wide-ranging effects. With reservations, this historic ruling improved the opportunities and level of living for the underprivileged segments of Indian society and contributed to its transformation.

6. Indian Young Lawyers Association vs. the State of Kerala¹⁷

The petitioners brought this matter before the Apex Court as a Public Interest Litigation (PIL) to address the restriction on menstruation women's access to the Sabarimala shrine. It was claimed that this restriction violated the Constitution's Articles 14, 15, 17, 25, and 26. The Court ruled that women of all ages are permitted entry into the temple, acting as a constructive interference with religious practices. According to J. Chandrachud, individual dignity is the cornerstone of liberal constitutionalism. He believes that the concepts of justice, liberty, equality, and fraternity are contained in the Indian constitution. He tried to apply transformative constitutionalism to remove gender discrimination in society by upholding constitutional ideals.

7. Joseph Shine v. Union of India¹⁸

Another significant ruling, this one interpreting the Constitution's Article 21 to make adultery lawful. Adultery was earlier made illegal under Section 497 of the Indian Penal Code. That clause penalized a guy who had sex with a married woman without getting her husband's approval. In this historic decision, the Supreme Court declared that Section 497 of the Indian Penal Code, which barred adultery for males without agreement but not for women, should be repealed. This outdated law was found to be discriminatory, arbitrary, and an infringement on the rights and respect of women, and as such, it was deemed unconstitutional.

8. Shayara Bano v. Union of India¹⁹

By declaring triple talaq to be illegal in this particular case, the judiciary made an effort to serve as a reformer rather than a transformer, with a 3:2 majority. The practice is an essential part of Islam, according to two justices on the bench, and as such, they are unable to get involved in the current case since Article 25 protects it. Triple talaq is not protected by the Indian Constitution because the Muslim Personal Law Application Act of 1936 does not shield actions deemed to be ‘Anti-Quranic’. In support of its ruling, the Court pointed to significant changes in Islamic family law, including modifications made by "even theocratic Islamic regimes".

9. Unni Krishnan v. State of Andhra Pradesh²⁰

The Right to education has became the fundamental right and included in part III of the Indian constitution under article 21-A. This was done in the case of Mohini Jain vs. State of Karnataka²¹. Later, the validity of this judgment re-examined in by five judges bench in this case and held that education is a fundamental right of every citizen and they have the right to call up state to provide facilities of education to them. With this case the transformation came as education from being a directive it was held to be a fundamental right under part III of the constitution.

10. Anuradha Bhasin v. Union of India²²

In this instance, the government declared an internet ban and the total cessation of all communications after the Jammu and Kashmir Reorganisation Bill 2019 was enacted. The CrPC's section 144 also placed limitations on public gatherings and movement. Traveling and publishing anything that can be interpreted as violating Article 19(1)(a), or the right to freedom of expression, were prohibited for journalists. The right to access the internet is protected by article 19(1)(a) of the Supreme Court, and the prohibition on journalists is a violation of article 19(1)(g), which protects the ability to engage in any profession, occupation, trade, or business via the internet.

11. Vineeta Sharma v. Rakesh Sharma²³

The Court's decision to grant both the daughter and the son coparcenary powers under Section 6 of the Hindu Succession (Amendment) Act, 2005, changed the course of history. All daughters born prior to the amendment now have full rights of coparcenary. Thus, the right to equality under Article 14 of the Indian Constitution was once again discussed in this historic ruling, along with how denying a daughter the opportunity to participate in coparcenary ownership would be in violation to her fundamental right to equality.

IV. Conclusion

In order to ensure the happiness of the nation, courts in India must adopt a liberal and practical approach, given that the country is a multicultural society where people from many cultures and traditions live in harmony and peace. The Indian judiciary has accepted the concept of the living tree and without a doubt made substantial changes to the Constitution while preserving its essential elements, making it applicable to modern society. Upholding and promoting the values of our caring constitution is the aim of transformational constitutionalism. In addition to empowering those people, Justice Chandrachud highlights that the constitution aims to reform society as a whole. By acknowledging the rights of others within the context of constitutional debate, we also go through a process of transformation ourselves. Nonetheless, society changes and moves closer to a brighter future when it acknowledges and respects the freedom of others. Achieving transformational constitutionalism requires the judiciary's steadfast support and commitment to fostering constructive social change. However, citizens also play a crucial role in bringing about the required changes to the Constitution to fit the needs of the modern world, thus the judges are not the only ones with this obligation. Acknowledging our own rights and values while also honoring those of others is an essential first step. While maintaining the essential framework of our dynamic constitution is critical, we should never stop working to strengthen our fundamental rights in order to ensure that society keeps moving forward and experiences social revolution.

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