Rolling Series

Constitutionalism as an instrument for Transformation

The blog is authored by, Khushal Gurjar, and Kripa Pokhrel, post-graduate in law from  National Law University, New Delhi.

Header Image Credits: Pexels Free Photo


Introduction

Constitutionalism can be defined as the doctrine that keeps check on the legitimacy of government’s action      and governs whether the act of public official is in accordance with pre-determined laws and rules. “The Constitution of a country shall be called of having respected the essence of the Constitutionalism where as a minimum such a Constitution provided for its Supremacy over other laws, lay down conditions by which government is subjected to the rule of law, enumerate fundamental rights which an individual may assert against the state guarantee the protection of minority interests, vest a power of judicial review in the highest court, contain mechanism of ensuring the separation of powers, establish checks and balance, contain the basic requirement for free and fair elections, and ensure the political accountability to the government.”[1]

There are varieties of constitutionalism and constitution is considered as a benchmark for identifying such constitutionalism. Marshalian model of constitutionalism is basically the American model of constitutionalism in reference to reasoning given by Chief Justice Marshall[2] whereas Diceyan model is basically the B     ritish model of constitutionalism in reference to theory propounded by A.V. Dicey.[3] Marshallian Constitutionalism basically deals with supremacy of written constitution which provides legal foundation for validity of all political action and decision. It gives the idea that supremacy is derived from the will of the sovereign people. As per him, people have ‘original right’ to establish their constitution at their own will and such consent by sovereign makes written constitution supreme law of the land and justifies the act of judicial review of the constitutionality of the governmental action and decision. With reference to British constitution, Dicey identifies sovereignty of parliament, rule of law and constitutional convention as main character of British constitution. Under Rule of law, he expressed the idea that the law of the constitution is the consequence of the rights of private persons as determined by the courts in particular cases which can be considered as his model of constitutionalism. He considers the principle of constitution as an induced idea of judges pronounced on particular judgement of the courts with regard to the individual right. Accordingly, he considered constitution as ‘judge made’ and its source as ‘judicial decision’. Canadian Constitutional Jurisprudence is also somewhat similar to American model of constitutionalism. However, constitutional adjudication has been different in practice i.e., inconsistent with originalism. As court has stated that the norms of constitution should not derive from original intention and regarded that the ‘intent’ of legislative body as nearly impossible. Also, court is of opinion that constitutional interpretation must be progressive to be able to address new social, political and historical needs that was beyond imagination of framers. Likewise, Transformative Constitutionalism was invoked in South Africa to evade the gloominess of apartheid which deprived its people from all basic elements necessary for sustaining human life and remedy such loss. Likely, in Germany to remedy the wrong committed in Nazi Era. Similarly, framers of Indian Constitution also intended to bring social change through Constitution by healing the wounds caused during colonial era.

Goal for a Constitution: To heal the wound of past and lead to a better future.

There were inequalities among people based on caste, and there was a need to address such issues to eliminate       inequalities and discrimination from the society while enacting constitution. Being majorly collective issue and highly discriminated and suppressed for long period of time, provisions in the constitution was brought as a compensatory provision to uplift them. Also, Hindu society believes in karma, so arbitrary power exercised by so called higher caste people had to compensate others for their ‘wrong karma’ that had been practiced for long time. Only uplifting individual’s ability was limited to his success rather than society at large. So there had to be change in structure. For that reason, constitution focused on collective approach to equality and affirmative action which undertakes remedial steps to reduce initial disadvantaged faced by certain section of the society. Beginning with the preamble of the constitution, it ensures “justice, liberty, equality and fraternity”[4] among all its citizens. The constitution provides for “equality before the law, or the equal protection of the laws”[5] and prohibits discrimination on the basis of caste[6] and also empowers state to make special provisions for “socially and educationally backward classes or for scheduled caste and the scheduled tribes”[7] and made an act of untouchability punishable[8]. Idea of equality has also been placed in the category of directive principles of state policy which is to be followed as a fundamental approach for the state while making laws and policies.[9] It deals with the promotion of social welfare by eliminating inequalities existed among group of society and not among only individual[10]. Article 46 directs state to create special protection to promote educational and economic interest of legally recognized backward communities to compensate social injustice. Also, it provides reservation public services and promotion to schedule caste and schedule tribes.[11] Validity of article 335 was challenged[12] and court observed it to be enabling provisions giving discretionary power to state to make such reservation policy if required showing quantifying data for its necessary and affirmed the ‘creamy layer principle’ to be essential for equality principle enshrined under the constitution. Further, Constitution provides for “formation commission to investigate the condition of backward classes to recommend policy.”[13] In consonance with this provision Mandal Commission was formed and it recommended that mere prohibition in the Act is not sufficient to eradicate the social issues of caste system, but equality of opportunity has to be ensured to empower socially backward or disadvantaged people and imposed quotas for the “backward class”. Later report was challenged in Indra Sawhney case[14] where affirmative action was approved and reservation rather than being exception to equality was observed as a gateway to ensure equality.

Preamble reflects the intent of parliamentarian whereas Part III and Part IV of the Constitution demonstrates the commitment of framers to bring fundamental change in the life of people of India. Fundamental rights under Indian Constitution are enforceable in courts whereas directive principles of state policy are not justiciable[15] in the court of law but are to act as a fundamental approach for the state while making laws and policies. We can see active role of judiciary in conceptualizing constitution and law as a means of transformation in a society. At the same time, Indian Judiciary has played active role in checking the power of amendment of the constitution by elucidating ‘basic structure doctrine’[16] which says that the basic structure of the constitution cannot be amended.

With regard to active role of judiciary in transformation, right to food has been realized in India as a fundamental right through judicial adjudication,[17] which was a result of various efforts by Judiciary to realize socio-economic rights under the broad definition of human dignity.[18] Indian Supreme Court has approached social right matters in two ways. One is the Comprehensive Mandatory Order (CMO) approach which obliges states to follow certain instructions compulsorily to ensure that a particular right is fulfilled.[19] Another is known as Continuing Mandamus, which includes a series of interim orders specially issued at periodic hearings and aimed to monitor government progress on judicial directions[20] which was used in the PUCL case[21] to ensure better enforcement of the right to food through periodic interventions and status observation. The court directed all state governments to ensure that “nobody dies of starvation”[22] along with a direction for efficient implementation of various policies and schemes[23] already in place, especially targeting vulnerable sections of the society who are unable to get adequate food and nutrition.

Conclusion

The approach of judiciary towards constitutionalism has been broadened in India as they not only interpret law as it is but also addresses the current situation to meet ends of justice and promote social welfare of underprivileged society. The role of Supreme court to interpret constitution has acted as a means of transformation in a society to bring social change such as decriminalization of homosexuality[24], adultery.[25] Court has observed that the purpose behind constitution is to transform a society for a splendid future and this idea of transformation is fundamental pillar of transformative constitutionalism.[26] Indian constitutionalism has been transformative in nature as it has been through 104 amendments and there have been several judgements with regard to interpretation of the constitutional provisions to ensure just and equitable society. Constitution of India serves as a transformative document as it provides for affirmative action by making provisions for reservation in politics, services[27] and education[28] and has provided various scholarship, loans, health facilities and legal aid to socially backward people to empower themselves through various schemes and policies and also ensure distributive justice to aid socially disadvantaged people.


[1] Daniel E. Hall, Constitutional Law: Cases and Commentary, New York Delmar Publishers, 1997.    

[2] Marbury v. Madison, 5 U.S. 137 (1803)

[3] Introduction to the study of the law of the Constitution.

[4] India Consti., pmbl.

[5] Id., art. 14.

[6] Id., art. 15.

[7] Id. art. 16(4).

[8] Id. art. 17.

[9] Id. art. 37

[10] Id. art. 38

[11] Id. art. 335,16(4)A

[12] M.Nagaraj v. Union of India, (2006) 8 SCC 212.

[13] India Consti. art. 340.

[14] Indra Sawhney v. Union of India, 80 A.I.R. 1993.S.C.477.

[15] Minerva Mills v. Union of India, 1980 AIR 1789 (India) (however, this position has changed after the concurring opinion of Justice Bhagwati in this case)

[16] Kesavananda bharati v. State of Kerala, (1973) 4 SCC 225.

[17] People’s Union of Civil Liberties [hereinafer PUCL v. Union of India, W.P.(C) 196 OF 2001 (India); PUCL v. Union of India, (2013) 2 SCC 688 (India)

[18] Francis Coralie Mullin v. UT of Delhi, (1981) 1 SCC 608, 619 (India).

[19] Olga Tellis v. Bombay Municipal Corporation (1985) 3 SCC 545 (India) (the court not only recognized the right of slum inhabitants but also mandated state to ensure substitute accommodation).

[20] Surabhi Chopra, Legislating Safety Nets: Comparing Recent Social Protection Laws in Asia, 22(2) Indiana Journal of Global Legal Studies 573, 594 (Summer 2015).

[21] PUCL v. Union of India, W.P. (C) 196 OF 2001(India); PUCL v. Union of India, (2013) 2 SCC 688 (India)

[22] Id.

[23] Public Distribution System and Mid-day meal Scheme etc.  

[24] Navtej Singh Johar v. Union of India, (2018) 10 SCC 1.

[25] Joseph Shine v. Union of India, 2018 SC 1676.

[26] Navtej Singh Johar v. Union of India, (2018) 10 SCC 1.

[27] India Consti. art. 16.

[28] Id. art. 15(5).

Views expressed are personal.

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