“No other Constitution in the world has provided so much impetus towards changing and rebuilding society for the common good as the Indian Constitution”.
There often arises a question as to what role does the Constitution play towards the liberation of chained members of the society? What perception does the Constitution hold concerning their fundamental rights and liberties? What remedy does the Constitution bestow for a society that is deeply disjointed and diverged? And what role does the Judiciary play to promote the ideas envisaged by the framers of the sovereign document? All these questions are a distinct part of the fundamental elements of the Constitution.
Since its inauguration and application on 26th January 1950, the Constitution of India has successfully traced the path and progress of India. So far as the governance of India is concerned, there is only one holy book, the Constitution. Naturally, whenever we reflect about our Constitution, the foremost notion in our psyche is the Fundamental Rights enshrined in the Part III; the Administrative, Legislative and Financial relationship between the Centre and the States; and to an extent, the Directive Principles enshrined in Part IV.
However, often, we tend to neglect the shrouded gems of our Constitution. Apart from the aforementioned provisions, unnervingly, the Constitution embodies the spirit of transformation, pluralism, individualism, morality and independence. Ergo, our Constitution is not merely a compilation of parchment that guarantees against state excesses, but a document which embodies a vision of a fairer, more inclusive and more progressive society. It is a great social document, almost revolutionary in its aim of transforming a medieval, hierarchical society into a modern, egalitarian democracy. Keeping this at the kernel, the Apex Court has set forth to create a more inclusive society by incorporating these principles in its watershed pronouncements.
“Our conversations with the Constitution must be restructured to evolve both with the broadening of the content of liberty and dignity”.
– Justice D.Y. Chandrachud.
The concept of transformative constitutionalism has at its kernel, a pledge, promise and thirst to transform the Indian society to embrace therein, in letter and spirit, the ideals of justice, liberty, equality and fraternity as set out in the Preamble to our Constitution. The cardinal notion behind transformative constitutionalism is that our Constitution, like the law of the society, is a living organism and its purpose is to transform society for the better.
Over the last couple of years, this concept has been used as an instrument, by the Apex Court to fashion our society into a more equitable one wherein the social order can effectively be preserved. The decrees in the cases of Navtej Singh Johar, Joseph Shrine and Indian Young Lawyers Association are some of the noteworthy illustrations wherein, the idea of transformation was fittingly orchestrated.
In the words of Karl Klare, the chief proponent of this theory, “Transformative Constitutionalism is 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 magnificent goal for a constitution is to heal the wounds of the past and to guide us to a better future. The constitutional values of liberty and dignity can accept nothing less.
The hallmark of a truly transformative Constitution is that it promotes and engenders societal change. However, as rightly elucidated by Justice Pius Langa, transformation is not a temporary phenomenon, it is a permanent ideal, a way of looking at the world that creates a space in which dialogue and contestation are truly possible, in which new ways of being are constantly explored and created, accepted and rejected and in which change is unpredictable but the idea of change is constant.
This transformation enjoins a certain reading of the constitutional text that eschews formalism, pure positivism and legalism and advances an interpretation that acknowledges and responds to the reality of hierarchical structures and power relationships within a society. At the core, transformative constitutionalism teaches us not to be content with the status quo and continuously seek better ways to transform society. This distinctly justifies as to why the Court fell back upon the obliterated concept of Transformative Constitutionalism when it was called upon to rule upon the provisions of law encapsulating the spirit of the Victorian era.
The spirit of Social Justice
“Justice will not be served unless those who are unaffected are as outraged as those who are”.
– Benjamin Franklin
Social justice is the idea of creating a society that is based on the principles of equality and solidarity; that understands and values human rights, and that recognizes the dignity of every human being. It postulates that the demand of the needy and oppressed cannot be ignored. Social justice is the arch of the Constitution which ensures life to be meaningful and livable with human dignity.
It is a dynamic device to mitigate the sufferings of the poor, weak, Dalit, tribal and deprived sections of the society. Ergo, it is a truism that a nation which may afford to lose its confidence in its Kings or even in its Parliament can survive, but a nation sans morality i.e. social justice would instantly collapse. Hence, justice is the virtue we practise by giving people what is due to them.
Our Constitution under Article 38 provides for social justice by obliging the State to promote the welfare of the people by securing and protecting as effectively as it may a social order in which justice, social, economic and political, shall inform all the institutions of the national life.
Therefore, although the provision is non-justiciable, it needs to be read along with Article 14 of the Constitution, for equality under the law can be predicted meaningfully only in an equal society i.e. in a society contemplated by Article 38 of the constitution. Therefore, if a law is made in the negation of this social justice, it ought to be declared unconstitutional.
The conviction of Constitutional Morality
The Preambular goals of our Constitution which contain the noble objectives of Justice, Liberty, Equality and Fraternity can only be achieved through constitutional morality. The essence of constitutional morality encourages us to bow down to the norms of the Constitution and not to act in a manner which would become violative of the rule of law.
We must remember that when there is a violation of the fundamental rights, the term “morality” naturally implies constitutional morality. Any attempt to push and shove a homogeneous, uniform, consistent and a standardized philosophy throughout the society would violate the principle of constitutional morality, for the foundation of constitutional morality rests upon the recognition of diversity that pervades the society.
The concept of constitutional morality is not limited to the mere observance of the core principles of constitutionalism; rather it embraces within itself virtues of a wide magnitude such as that of ushering a pluralistic and inclusive society. It encompasses not just the forms and procedures of the Constitution but provides an enabling framework that allows a society the possibilities of self-renewal.
It refers to the moral values underpinning the text of the Constitution, which are instructive in ascertaining the true meaning of the Constitution and achieve the objects contemplated therein. Ergo, the veil of social morality cannot be used to violate fundamental rights of even a single individual. Hence, constitutional courts are entrusted with the duty to act as external facilitators and to be a vigilant safeguard against the excess of state power.
Rule of Law and Independence of Judiciary
“There is no liberty if the power of judging is not separated from the Legislative and Executed powers.”
Axiomatically, the incorporation of the aforesaid principles would be an arduous task to undertake without the existence of an independent judiciary. For the Constitution to serve its purpose, it is indispensable for us to have a democracy which is governed by Rule of Law. Tantamount it is for us to have an untrammelled judiciary which is a sine qua non of a vibrant democratic system. Only an impartial and independent judiciary can stand as a bulwark for the protection of the rights of the individuals and mete out justice without fear or favour.
An independent judiciary is expected by every citizen of the country and is not only a fundamental right but is also a part of the basic structure of the Constitution and has also been recognized as a human right by a plethora of International Conventions. This principle of independence of the judiciary is vital for the establishment of real participatory democracy, maintenance of the rule of law and delivery of social justice to the vulnerable sections of the community.
The contemporary concept of judicial independence envisaged in numerous international instruments requires that judges should be free to decide cases impartially without any restrictions, influences, inducements, pressures, threat or interference, direct or indirect, from any quarter or for any reason. The basic principles of Independence of Judiciary adopted by the 7th United Nations Congress also embody the spirit of judicial independence.
Anent the national scenario, Article 50 of the Indian Constitution specifically directs the state to separate the judiciary from the executive in the public services of the State. The independence of the judiciary and judicial review has been held to be a part of the basic structure of the Indian Constitution and, therefore, amendments which directly or even indirectly take away these features have been invalidated by the Court of law.
“I like the religion that teaches Liberty, Equality and Fraternity.”
– Dr B.R. Ambedkar.
As rightly elucidated by
Woodrow Wilson, “Democracy is not so much a form of Government as a set of principles”.
If there is one principle which runs through the entire fabric of Constitution, it is the principle of the rule of law and the judiciary is entrusted with the task of keeping every organ of the state within the limits of the law thereby making the rule of law meaningful and effective. Ergo, if impartiality is the soul of the judiciary, independence is its lifeblood.
Transparency and rule of law are the touchstones of our unique Constitution. Democracy thrives only when all the organs of the State are in check. So long as we do not achieve social equality and liberty, whatever freedom provided by the law is of no avail to us. Lucky for us, we do not have to go on a quest to find these principles, for our all-embracing Constitution sufficiently provides for it. Transformation, morality and inclusiveness are the lifeblood of our nation which should not be allowed to be eroded by means whatsoever.
 Kanad Bagchi, Decriminalizing Homosexuality in India as a Matter of Transformative Constitutionalism, (Verfassungs Blog, 9 September 2018) <https://verfassungsblog.de/decriminalising-homosexuality-in-india-as-a-matter-of-transformative-constitutionalism/> Accessed on 01/06/2020 at 19:46 HRS.
 Rahul Bajaj, Gautam Bhatia on an Introduction to a Transformative Constitution, (South Asian Law Discussion Group, Faculty of Law, University of Oxford, 29 January 2019) < https://www.law.ox.ac.uk/current-students/graduate-discussion-groups/south-asian-law-discussion-group/blog/2019/01/gautam-0> Accessed on 01/06/2020 at 19:37 HRS.
 Ajita Banerjie, ‘Transformative Constitutionalism: Indian Supreme Court Upholds Constitutional Morality by Reading Down Section 377’ (OxHRH Blog, 28 September 2018) http://ohrh.law.ox.ac.uk/transformative-constitutionalism-indian-supreme-court-upholds-constitutional-morality-by-reading-down-section-377 Accessed on 01/07/2020 at 15:14 HRS.
 Rahul Ranjan, Transformative Constitutionalism and Sabrimala Judgment (Indian young lawyers Assn. v. State of Kerala, 2018), Journal of Law of Torts and Consumer Protection Law, 2018; 1(1), p.30-24.
 Karl Klare, Legal Culture and Transformative Constitutionalism, South African Journal of Human Rights, 1998.
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 Navtej Singh Johar, Supra Note, 6.
 Joseph Shrine v. Union of India, 2018 SCC OnLine SC 1676.
 Justice Pius Langa, Supra Note, 8.
 Kanad Bagchi, Supra Note, 1.
 Justice S.M. Mbenenge, Transformative Constitutionalism: A Judicial Perspective from the Eastern Cape, Speculum Juris, University of Fort Hare, Volume 32 No 1 (2018), <http://www.saflii.org/za/journals/SPECJU/2018/13.pdf> Accessed on 02/06/2020 at 19:57 HRS.
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 Shyam Lal and K.K. Saxena, Dr B.R. Ambedkar and National Building, (Jaipur, Rawat Publications, 1998), p.64.
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 Article 37 of the Constitution of India, 1950.
 M.P. Jain, Indian Constitutional Law, 8th Edition, 2018, Lexis Nexis.
 Hussain Aftab, Protective Discrimination in the Constitution of India: A Critical socio-legal study’, Chapter IV, p. 94, < https://shodhganga.inflibnet.ac.in/bitstream/10603/114301/12/12_chapter%204.pdf> Accessed on 01/07/2020 at 17:25 HRS. Also in Sri Srinivasa Theatre v. Government of Tamil Nadu, AIR 1992 SC 999.
 Kasturi Lal v. State of Jammu and Kashmir, AIR 1980 SC 1992.
 Navtej Singh Johar, Para 115, Supra Note, 6.
 Navtej Singh Johar, Para 116, Supra Note, 6.
 Section 377 Verdict: Here are the Highlights, (Indian Express, 8 September 2018), < https://indianexpress.com/article/india/section-377-supreme-court-verdict-gay-lgbtq-5343225/> Accessed on 01/07/2020 at 17:47 HRS.
 Rajat Maloo and Vanshika Katiyar, Navtej Singh Johar: A Constitutional Analysis, RSRR, Volume 5, Issue 1, p.63-73, < http://rsrr.in/wp-content/uploads/2020/01/RSRR-Vol-5-Issue-1-FINAL3-74-84.pdf> Accessed on 01/07/2020 at 17:33 HRS.
 Diogo Vieira da Silva, Guru Prakash, India’s victory on gay rights is a global win, (Live Mint, 10 September 2018), < https://www.livemint.com/Opinion/vDIgACIvxCZxr1hG60mVDK/Opinion–Indias-victory-on-gay-rights-is-a-global-win.html> Accessed on 01/07/2020 at 18:06 HRS.
 Navtej Singh Johar, Supra Note 6.
 High Court of Judicature of Bombay v. Shirish Kumar R. Patil, AIR 1997 SC 2631.
 Santosh Kumar Pandey, Independence of Judiciary in India, International Journal of Law, Volume 4, Issue 2, March 2018, p. 95-97.
 S.B., Sinha, Judicial Independence, Fiscal Autonomy and Accountability, Nyaya Deep, Januar y 2006, p. 21.
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 Article 2.02 of Montreal Declaration, 1983; Article 2 of U.N. Basic Principles on Independence of Judiciary, 1985; Article 3(a) of Beijing Statement, 1995; Article 10 of the Universal Declaration of Human Rights, 1948; Article 14 of the International Covenant on Civil and Political Rights 1966, <https://shodhganga.inflibnet.ac.in/bitstream/10603/201723/10/10_chapter-ii.pdf> Accessed on 01/07/2020 at 18:56 HRS.
 Basic Principles on the Independence of the Judiciary, Adopted by the 7th United Nations Congress on the Prevention of Crime and the Treatment of Offenders, (Milan, 26 August-6 September 1985), <https://www.ohchr.org/EN/ProfessionalInterest/Pages/IndependenceJudiciary.aspx> Accessed on 03/06/2020 at 14:51 HRS.
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