TRANSFORMATIVE CONSTITUTIONALISM AND ROLE OF JUDICIARY

Abstract

The constitution is called "the living law of the country" because it goes through constant changes in response to changing circumstances. The Indian Constitution predicts liberation and is founded on the notion that massive social development within an electoral government may be realized via the mechanism and apparatus of law. Constitutional values have been preserved through the judiciary's role as an activist. The judiciary is a key component of transformative constitutionalism since it believes in the legislation as a way of improvement. This essay examines the idea of progressive constitutionalism and its application by the judiciary in various cases. Through this article, an attempt is made to analyze the importance of the judiciary in transformative constitutionalism.

Introduction

The constitution is a legally binding document. As well as establishing the nation's governing principles and standards, the constitution also indicates the people's ambitions and aspirations for the future. The Constitution may be seen as a mirror of society, and constitutionalism is the belief that through the constitution society can be controlled, directed, and ordered according to certain principles. Constitutionalism reflects the concept of abiding by the fundamental structure of values defined by a governmental system while; transformation refers to the systematic approach to creating change. The phrase transformative constitutionalism refers to the combination of these two ideas. The notion of transformative constitutionalism is very old. It 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 democratic participation and egalitarian direction”, as defined by American scholar Carl Clare in his book The Legal Culture & Transformative Constitutionalism, published in 1988.

According to the previous statement, Karl Klare described transformative constitutionalism in South Africa in his article Law and Transformative Constitutionalism (1978). According to him, transformative constitutionalism influenced political and social institutions by establishing, interpreting, and enforcing constitutional principles.

"This is a great ambition for a constitution: to heal the wounds of the past and steer us to a better future", Justice Langa of South Africa remarked in his examination of the notion of transformative constitutionalism.

Transformative Constitutionalism and the Indian Constitution

The Indian Constitution was conceived and developed within a specific social context, which offered both its guiding philosophy and operational means. The writers of the Indian Constitution, unlike other classic liberal legal systems of the time, did not think that limiting sovereign power and safeguarding personal freedom were the primary or main purposes of a constitution. Instead, there was a clear goal and mission: to eliminate inequity, biases, and discrimination in power relationships that went beyond the state. The Indian Constitution's transformational potential is thus a deliberate "effort to reverse the socialization of bias, discrimination, and power predominance in a fractured society."

In addition to values of "liberty" and "equality," the Indian Constitution's Preamble emphasizes "Fraternity" as a leveling instrument that will flatten relationships among individuals and both liberate and equalize individuals from their society, family, and religion. At the core of the Indian Constitution's transformational nature is the vow to "...bring about a profound change in the foundation of Indian society... to eradicate every relic of autocracy, every inheritance of inorganic tradition..."

The Indian Constitution is transformational in that it anticipates independence and is founded on the concept that massive social transformation within a free democracy may be accomplished through the discourse and use of the law. Change envisioned as part of transformative constitutionalism is not only tinkering with periphery modifications, but change that is core to the society and polity's functioning. This understanding of constitutions as holding a mandate to reform communities avoids the formalism, pure positivism, and legalism associated with traditional liberal constitutionalism. It provides specific affirmative requirements for government officials to work toward the creation of a fair social order in which individual liberty, equality of opportunity, and dignity form an environment conducive to the full development of human potential.

Role Of Judiciary

The judiciary is a key component of transformative constitutionalism since It relies upon the power of the law to effect sociopolitical transformation, and because courts are authorized to interpret and implement the law, they operate as a catalyst for change.

The court can give spirit to the language of the legislation by evaluating constitutional provisions. It ensures that the Constitution is read constructively so that it does not become a stale testimony but instead stays important in the contemporary community.

The judiciary's responsibility is to retain the Constitution's spirit while understanding it concerning the latest situation The judiciary must provide checks and balances in authority while maintaining the separation of powers. The judiciary's job as a custodian of human rights is to ensure that justice has been served in every case and that liberties are held sacrosanct.

The true significance of transformative constitutionalism resides in the practical steps that the government should take to bring the Constitution closer to the poorest citizens. This has been accomplished through judicial activism, which has been accomplished by interpreting and integrating directive principles of state policy with basic rights through activism and a broader interpretation of constitutional aims.

Right to Privacy as a Fundamental Right, female entry into Sabarimala Temple, declaring adultery not a crime, The right to life of dignity, as well as the liberty to choose a companion, are all connected to the notion of Transformative Democratic ideals, wherein the Judiciary deciphers provisions of the constitution so that they are not restricted to the true definition of their phrases, but rather are given a constructive design that is indicative of their interpretation. The Supreme Court is bound by the provisions of the rules instead of the language.

Transformative Constitutionalism and Recent Judgements

The assertive function of the Indian judiciary through ‘transformative constitutionalism’ could be accessed in the light of the following judgments.?

Sabrimala judgment

Women aged ten to fifty were granted access to the shrine by a five-judge constitution bench on September 28, 2018. The five-judge panel rendered four different decisions: three in favor of women's admittance and one against. Two of the four decisions are remarkable in that they reflect opposing constitutional perspectives. Justice D Y Chandrachud's majority decision and Justice Indu Malhotra's dissenting opinion are notable and raise another concern. Liberal constitutionalism rests on the principle of individual dignity, according to Justice Chandrachud. The Indian constitution, he believes, is present the ideas of justice, liberty, equality, and brotherhood.

By constitutional ideals, he attempted to use 'transformative constitutionalism' to eliminate gender prejudice in society. Based on the Constitution's constitutional morality, he interpreted Article 25 in light of the individual's right to freedom of religion. He claims that visiting the Sabarimala shrine is a part of Article 25, which protects a woman's basic freedom to "profess, practice, and promote religion."

Likewise, Justice Indu Malhotra emphasizes religious rights as central to constitutional morality in her dissenting opinion. She understood constitutional morality through the lens of "secularism" and nonintervention, arguing that "judicial restraint" in religious affairs is required. According to her, constitutional morality is not aimed toward a transformational mission.

Shayara Bano v. Union of India

In the case at hand, the judiciary attempted to act as a reformer rather than a transformer by pronouncing triple talaq unlawful by a 3:2 majority.

However, two of the bench's justices stated that the practice is an integral element of Muslims' faith, and therefore that they are unable to intervene in the current case since it is protected by Article 25. The Constitution of India does not protect the practice of triple talaq because the Muslim Personal Law Application Act of 1936 does not protect activities that are considered "anti-Quranic." The Court noted global improvements in Islamic family law, including changes undertaken by "even theocratic Islamic regimes" in support of its decision.

Navtej Singh Johar v. Union of India

This decision by the Supreme Court was a landmark case, in which the Court used a transformative constitutional analysis to strike down a section of the Indian Penal Code that criminalized sexual relations between adults in violation of Articles 14, 15, and 21. However, the court ruled that the term 'sex' under Article 15 encompasses 'sexual orientation,' thereby recognizing and improving the conditions of the LGBTQ+ community.

Joseph Shine v. Union of India

The Supreme Court of India ruled that Section 488 of the Indian Penal Code and Section 189(3) of the Criminal Procedure Code are unconstitutional since they violate Articles 13, 15(3), and 22 of the Constitution. In a landmark ruling, the Supreme Court ruled that Section 497 of the Indian Penal Code should be struck down, which made adultery illegal for men in the absence of consent but not for women. This antiquated statute was declared unconstitutional because It was determined to be discriminating, capricious, and an infringement on a female's respect and liberty.

In this way, the Judiciary has demonstrated its capacity for transforming constitutionalism.

Conclusion

Because India is a multicultural society where individuals of many cultures and traditions enjoy camaraderie and peaceful coexistence, courts must use a liberal and pragmatic approach to ensure the nation's contentment. The Indian court acknowledges the living tree idea and has unquestionably taken significant measures to modify the Constitution and retain its vital spirit so that it remains relevant in today's society.

Transformative constitutionalism is difficult to accomplish even without the judiciary's unflinching dedication and support to bringing about positive social change. Citizens, in addition to the judges, have a key role to play in bringing about a revolutionary change in the Constitution that corresponds to the needs of today's society. While it is vital to retain the basic structure of our nation's living legislation, the constitution's change must persist to keep the current societal engine of socialist change moving.