1.INTRODUCTION
The constitution is a sovereign legal document. It is a supreme document of the society and lays down the fundamental principles and as well as the rules of governance for the Indian society. The Constitution can be considered to be the mirror of the society and the aspect of constitutionalism is that idea that the society can be organized according to some set principles and it can be regulated and taken towards its larger purpose through the Constitution. As it was held in N. Nagraj v .UOI [1] that Constitutionalism is related to constitutional identity. It is the constitutional identity which is supreme and constitutionalism is also about the continuance of constitutional identity. It is about check and balances upon the power of government and about the theory of guided power. [7]
A constitution is a live biological document that embodies the people's will. The creation of a constitution is generally a watershed point in a country's history. This is especially true for countries that have been colonised in the past. In such nations, the constitution contains not just restrictions on governmental authority, but also clauses that "reflect the ambitions of the country" to bring about a change in the current order of things. The Indian Constitution, which has a similar historical context, is seen as a transformational constitution. 1By interpreting constitutional provisions, the court has been granted the ability to give life to the letters of the law. [6]
2. MEANING OF TRANSFORMATIVE CONSTITUNALISM
What is a Transformative Constitutionor to put it another way, when is the constitution considered transformative?
Transformative Constitutionalism is an idealistic approach to achieving specified goals by protecting people's fundamental rights and opportunities. Transformative constitutionalism entails instilling principles such as equality, liberty, fraternity, and dignity into society. It entails achieving the Constitution's primary goal of transforming society for the better. It tries to give paramount significance to Constitutional morality rather than what constitutes morality in society, according to one interpretation. [6]
Another interpretation is that the Constitution's core structure and substance will never change, but it will continue to adapt to the requirements of society. The constitution is transformational, and there is an unambiguous focus throughout the constitution on our commitment to changing relationships, both between individuals and between individuals and between individuals. Our constitution's operation and interpretation are highlighted by this transformational vision.
3. HISTORY OF TRANSFORMATIVE CONSTITUNALISM IN THE COLONIAL INDIA [6]
In 1998, Karl Klare, a prominent US academic, published a notable article in the South African Journal of Human Rights that captured widespread attention among legal scholars. His work ignited extensive debates and discussions surrounding the concept he termed, transformational constitutionalism. Klare described this as a comprehensive and enduring process encompassing the creation, interpretation, and implementation of a constitution. He further articulated that this concept is committed to the democratic reshaping of a nations political and societal frameworks, emphasizing an egalitarian stance and a reconfiguration of power dynamics.
Even during colonial times, there have been some instances of transformative constitutionalism in India. Sati, the practice of a Hindu woman immolating herself on her husband's funeral pyre after his death, was prohibited in 1829 by Lord William Bentinck after Raja Ram Mohan Roy's continuous attempts. Lord Canning approved the Hindu Widow's Remarriage Act, 1856, which legalized widow remarriage after several campaigns in support. The Female Infanticide Prevention Act of 1870 was enacted to address the issue of female infanticide. The passage 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," was another transformational event.
Various social groups and social reformers who pushed for women's rights backed it up. Although these changes were criticised by orthodox and conservative individuals at the time, they served to improve the lives of Indian women by providing them with essential rights that they had previously been denied.
4. TRANSFORMATIVE CONSTITUNALISM AND ROLE OF JUDIACIARY [6]
The role of the Supreme Court as the guardian and interpreter of the Constitution, coupled with a growing recognition of the Indian Constitution as dynamic and transformative rather than inflexible, has empowered it to drive these changes.Numerous recent rulings by the Supreme Court have strengthened the principles of transformative constitutionalism. For instance,
4.1. Kesavananda Bharati v. State of Kerala (1973) [2]
In the case of Kesavananda Bharati versus State of Kerala, the debate whether or not the parliament has the right to modify the Constitution was eventually settled (1973). The basic structure theory was established, and it was agreed that while the Parliament might change the Constitution's essential rights, the Constitution's basic structure should be retained and kept as is. The Supreme Court, as the guardian of the Indian constitution, ruled that if the constitution's 'Basic structure,' or basic structure, is changed, the constitutional amendment might be declared illegal. It defined the Indian Constitution's 'Basic Structure Doctrine.' This was a seminal decision that served as a model for other courts throughout the world.
4.2.Justice K.S.Puttaswamy v. Union of India (2018) [3]
In the case of ADM Jabalpur versus S.S. Shukla (1976), four out of five judges decided that even the right to life granted by Article 21 of the Indian Constitution might be suspended under an emergency declared by Indira Gandhi during the Congress administration in 1976. Privacy is a basic right under Article 21 of the Indian Constitution, According to the Supreme Court, the 'Right to Privacy' is fundamental to life and liberty and is protected by Article 21 of the Indian Constitution. This case established a landmark in India's Right to Privacy jurisprudence. As a result, Justice Khanna was confirmed correct, and the basic right to life under Article 21 cannot be suspended, even after a proclamation of emergency or a suspension order from the President.
4.3.Anuradha Bhasin vs Union of India (2020) [4]
This is a case from earlier this year, when the Jammu and Kashmir Reorganisation Bill 2019 was approved, and the government announced an internet ban as well as a complete shutdown of all communications. There were also restrictions on public movement and assembly imposed under section 144 of the CrPC. Journalists were barred from travelling and publishing anything that may be construed as a breach of Article 19(1)(a), or the right to freedom of expression. The Supreme Court ruled 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 practice any profession, occupation, trade, or business through the internet.
4.4.Joseph Shine v. Union of India (2018) [5]
Another major decision, this time interpreting Article 21 of the Constitution to legalise adultery. Section 497 of the Indian Penal Code had previously made adultery a crime. A man who engaged in sexual intercourse with a married lady without her husband's consent was punished under that provision. Because it was silent on a married woman's permission, this section was considered to be arbitrary and discriminatory, and it was knocked down.
The constitution would become a stale and deed testament without dynamic, vibrant and pragmatic interpretation. Constitutional provisions have to be construed and developed in such a manner that their real intent and existence percolates to all segments to the society. The most important purpose of transformation is to ensure that the disadvantaged people become more capable of enjoying the life with dignity, freedom and equality that lays at the heart of our constitutional democracy by the realization of fundamental socio-economic rights. [7]
5. CONCLUSION
The Supreme Court plays an important role in balancing the interest of society with societal reforms by interpreting the constitution in such a way that more and more societal interest serve. Every provision in the constitution is aimed at doing away with some mischief in the society and if two or more interpretations is possible then that interpretation shall be adopted which will do away with mischief to the best. To preserve and strengthen the values of our compassionate constitution is the only purpose of transformative constitutionalism. [7]
Transformative constitutionalism is impossible to achieve without the judiciary's unwavering support and commitment to effect constructive change in society. 7 In addition to the courts, citizens have a critical role in bringing about a transformative change in the Constitution that matches the necessities of today's world. Recognizing our own rights and ideals is the first step, as is remembering not to infringe on the rights of others. Whereas it is critical to preserve the core framework of our country's living constitution, the evolution of our basic fundamental rights must be continual in order to keep the wheel of social revolution turning in society.
Citations
[1] N. Nagraj v .UOI,(2006) 8 SCC 212
[2] Kesavananda Bharati v. State of Kerala(1973) 4 SCC 225
[3] Justice K.S.Puttaswamy v. Union of India (2017) 10 SCC 1
[4] Anuradha Bhasin vs Union Of India on 10 January, 2020, available at https://indiankanoon.org/doc/82461587/
[5] Joseph Shine v. Union of India,(2019) 3 SCC 39.
[6] Shrishti Patwal,"Transformative Constitutionalism",Indian Journal of Integrated Research in Law, Vol 2 Issue 3
[7] Transformative Constitutionalism and Role of Judiciary in India: Balancing and Role the Interest of People with Societal Reforms available at https://clsnluo.com/2019/05/17/transformative-constitutionalism-and-role-of-judiciary-in-india-balancing-the-interest-of-people-with-societal-reforms/
