Constitution of India: Transformative or Not?
Anshul Vats *
The doctrine of transformative constitutionalism, as propounded by Karl E Klare has provided room for debate on whether constitutions of countries and their interpretation by judicial forums transform societies or not. By saying this, Klare wanted to convey the idea of “a long-term process of enactment and interpretation of a document which leads to the transform in the social and political institutions which further leads to a democratic and egalitarian society.”[i] In this paper, I argue that the Constitution of India is transformative in nature, but its judicial interpretation is inconsistent and sometimes not in alignment with its transformative nature.
TRANSFORMATIVE NATURE OF INDIAN CONSTITUTION
In recent judgments delivered by the Supreme Court, much emphasis has been put on the transformative nature of our Constitution. Whether it is the Sabarimala issue (Indian Young Lawyers Association and ors v. State of Kerala) or the Privacy issue (KS Puttaswamy v. Union of India), some judges have always glorified the transformative nature of the Constitution. Klare talks about Etienne Mureinik’s idea of democratic transition and says that “democratic transition is intended to be a bridge from authoritarianism to a new culture of justice in the society.”[ii] These words are truly applicable in the Indian context. The pre-colonial and colonial era were about the exploitation of people, either by the upper caste or by the British and its allies, which deprived them of their inherent rights (e.g. right to equality, right to live with dignity).[iii] As a leap from that era, the Constitution provides for social, political and cultural rights to every citizen in the country.
Historically, the first prominent change was providing the right to vote to every citizen.[iv] The Government of India Act, 1935 provided for voting rights to the Indian citizens but it was limited to a few persons and it did not provide for universal franchise. Voting rights were given based on caste, religion, property etc.[v] The effect of providing for differential voting rights to people of the sub-continent in pre-colonial and colonial era further divided them on communal, caste and gendered lines. In colonial times, people ended up choosing representatives from their own caste, class or creed and completely ignore the other considerations. The enactment and enforcement of the Constitution of India aims to end this discrimination. The right to vote provided by Article 326 has guaranteed that every citizen is on equal footing in terms of choosing their representative. The idea of providing the right to vote to everyone irrespective of their caste, creed, gender, etc. has tried to transform the identity of people from oppressed to respected citizens of a democratic nation and put them at an equal footing.[vi]
Many assembly members such as Mehboob Ali Beg and PS Deshmukh have argued that the Constitution of India is a mere continuance of the Government of India Act 1935. However, I would disagree with such argumentation. The Constitution has been referred to as a transformative document that has a clear goal of developing the society which espouses social and substantive equality.[vii] Klare talked about how a constitution is intended to carry a positive valence in social transformation. The Constitution provides for certain rights which are alien to the Government of India Act, 1935. The Fundamental Rights enshrined in Part III of the Constitution finds no mention in colonial law. Article 14 provides for right to equality which ensures that the executive cannot discriminate on the basis of gender, colour, caste, creed. In contrast, during the colonial period, women were barely accorded any rights and were not treated as equals to men in any aspect. One of the most important characteristics of the society which the Constitution sought to change is the menace of discrimination on the basis of caste.[viii] In the pre-colonial and colonial era, the society was divided according to the Varna and Jaati system and tasks were specified for every caste. There were lots of restrictions on an individual’s life. There seemed to be no departure from the socially constructed prisons people were living in. Part III recognizes the existence of social inequality and gives the right to be equally treated in society. The Indian Constitution attempts to rewrite political and social structure and takes into account the fact that even private entities can orchestrate oppression.[ix] Article 17 in the Constitution enshrines the abolishment of untouchability and makes the practice of untouchability a punishable offence.
Similarly, Article 23 prohibits bonded labour which ensures that citizens are not subject to discrimination on the basis of caste, class and other factors.[x] Part III marks a radical change in the administrative system in India. It tries to change the exploitative Indian society to an egalitarian society. The drafters of the Constitution of India desired an egalitarian society which is evident from the provisions entailed in the Constitution of India. Hence, it is argued that the Constitution of India is a transformative document and not just a mere reproduction of the colonial act. The Constitution sought to embody the vision of economic and social equality in the society by posing certain duties to promote social justice mentioned in part IV.
The idea behind transformation is to promote change in society which leads to social equality.[xi] The Constitution of India furthers this goal. The principle of affirmative committed towards the goal of providing equal opportunities to the people which was denied to them in the past. The legacy of discrimination on the basis of caste in the country could have remained the same if the drafters of Constitution of India did not attempt to end it. The drafting committee, led by Dr. Ambedkar, provided for rights to Dalits and other lower caste people in order to assist and help in social transformation of the Indian society. The whole idea of reservation, as provided for in the Constitution under Articles 15 and 16 is an attempt to restore the position of the people who have been disadvantaged in the past. The Constitution gives the idea of positive discrimination which is necessary to outweigh the imbalance created by historical discrimination. In the colonial period, many regional leaders promoted the idea of division of work on the basis of caste. The Savarnas were provided opportunities to excel in various fields whereas Dalits were forced to work under them. Articles 15(4) and 16(4) protect people from injustices and attempt to redress the past exploitation faced by people.[xii] The purpose of introduction of these articles was to improve the socio-economic conditions of the people and to ensure that they have equal participation in all societal activities.
Klare, in his article, primarily focused on the transformative nature of the Constitution of South Africa. The conditions there were similar to those in India. Both nations have witnessed severe discrimination in the past hence, the constitutions of both countries aim for equality in the society. South Africa faced the issue of apartheid and we can draw an analogy with the caste issues faced in our country. Therefore, it can be argued that the Indian Constitution is transformative in nature and in line with transformative constitutionalism doctrine propounded by Klare.
JUDICIAL INTERPRETATION: DOES TRANSFORMATIVE CONSTITUTIONALISM EXIST IN INDIA?
The Indian judiciary, through its recent judgments, has tried to engage and instil the idea of the transformative nature of the Constitution but it is not consistent in its stance.
The Delhi High Court in the case of Naz Foundation v. Government of NCT of Delhi said that the Constitution acts as a bulwark against the laws which exclude individuals or groups eventually leading to the undermining of their dignity.[xiii] The court rejected the claims based on social morality and provided a ray of hope to the LGBTQ community. The court recognized the exclusion faced by the queer community and rightfully decriminalized Section 377 of the Indian Penal Code. The jurisprudence of equality promising the non-discrimination and equal treatment before the law allows us to say that the court truly tried to invoke the transformative nature of Constitution.
Unfortunately, this judgment was overturned by the Supreme Court in Suresh Kumar Kaushal v. Naz Foundation. This judgment was again overturned by a five-judge bench of the Supreme Court in the case of Navtej Singh Johar v. Union of India. The Bench recognized the dynamic nature of the Constitution, and considered it as the duty of courts to deliver judgments accordingly. Although, the Supreme Court ruled in the favour of decriminalizing Section 377 of the Indian Penal Code 1860, it remained silent on legality of same sex marriage. The new petitions filed before the various High court could have been prevented if the court would have legitimised the same sex marriage in the aforementioned judgment.
In the Sabarimala case, the court allowed the entry of women and rejected the imposition of social morality. Justice Chandrachud also connected the ban with infringement of their fundamental right to violation of untouchability. Moreover, while interpreting the morality under Article 25, he propounded the idea of constitutional morality rather than social morality.[xiv] Though, court talked about the adherence to Constitutional morality in this case, but the inclination of judiciary in penning down judgment complying with the social morality is a problematic situation.[xv] The Indian courts have talked about their aim to reach the progressive ends in society but their alignment with social morality rebuts their very own claim.
The inconsistencies of judgments by courts signifies the possibility of arbitrary adjudication. This lack of certainty cannot promise the achievement of true transformative potential of the Constitution. The judges have praised the transformative nature of the Constitution but the discrepancies in their judgments allows us to call for a stricter adherence to the idea of transformative constitution as envisaged by Dr. Ambedkar. The imposition of social morality in judgments should be avoided and judges should abide by constitutional morality which aims to achieve the goal of an egalitarian society. There exists a need to look at the intent of the constitutional framers to address this issue.
The Constitution drafters intended to achieve the goal of an egalitarian society by providing a document which can act as a guiding force to achieve the intended goal. The Fundamental Rights incorporated in the Constitution enshrine this transformative nature but there is a need on part of the judiciary to act to achieve the same purpose. In recent times, the judiciary has tried to instil the idea of its transformative nature by delivering judgments adhering to the idea of providing equality but inconsistencies in the stance of the judiciary has led to ambiguity in minds of law enforcers and other stakeholders. The transformative nature of constitution as talked by Justice Chandrachud in theaims to break colonial practices and achieve equality in the society but the irony is that the same judiciary has delivered judgments which are inconsistent to the idea of transformative constitutionalism.
* Anshul Vats is a 3rd Year Law Student at National Law School of India University, Bangalore.
** Image Source : Bar & Bench
[i] Karl E. Klare ‘Legal Cultural and Transformative Constitutionalism”  14 South African Journal of Human Rights 146, 150 on definition of transformative constitutionalism.
[ii] Klare (n1) 148. [iii] Suraj yengde “Caste Matters” (Published in 2019, Pengiun Vixin) [iv] Gautam Bhatia, The Transformative Constitution: A Radical Biography in Nine Acts (Published in 2019, Harper Collin) xxiv. [v] Government of India Act 1935, Sixth schedule [vi] Bhatia (n4), xxv. [vii] Granville Austin, The Indian Constitution: Cornerstone of a Nation (OUP 1966) [viii] The constitution of India 1950, Article 17 [ix] Article 17 allows the citizens to sue state and private individuals. [x] The Constitution of India 1950, Article 23. [xi] Ibid. [xii] The Constitution of India 1950, Article 15(4) and 16(4) [xiii] Naz Foundation v. Govt. (NCT of Delhi)  SCC Online Del 1762 [xiv] Indian Young Lawyers Assn v. State of Kerala and ors.  SCC Online SC 1690 Para 95 [xv] The overturning of Delhi High Court’s judgment in Naz foundation is one of the example of Courts adhering to the social morality rather than constitutional.