ENDORSEMENT IN TRANSFORMATIVE CONSTITUTION AND PART OF JUDICIARY
Author: Shalini Jha, II year of B.A.,LL.B. from School of Law,KIIT Deemed to be University,Bhubaneswar, Odisha, India
Co-author: Astha, II year of B.A.,LL.B. from School of Law,KIIT Deemed to be University,Bhubaneswar, Odisha, India
“The dead should not rule the living”
These words delineate that the previous generations are not capable of tying up the present generation to pay their debts or undertake the laws and constitution formulated by their ancestors. Whenever the law is transformed through a statute it depicts a transformation in the constitution by enacting a new law in the place of the preceding one to bring absolute change. The Constitution of India contains several elements that are transformative. The transformation of the system to uphold these values is a constitutional measure. Whenever there is a societal change in a state the law needs to blend itself so that it is revoked producing modification that has a "transformative purpose" and needs to be followed to maintain peace and Harmony. This paper seeks to develop a deep understanding of how Constitutionalism restricts Democracy, a historical aspect blended with the role of the judiciary in law and policy making. This paper also brings the limelight to the fundamental rights of the people empowered from landmark cases and how the Indian judiciary system has proliferated and enriched democracy. This paper undertakes the study of judicial creativity and the growth of the pivotal values entrusted by the Constitution which is ratified by making changes in the legal scenarios.
KEYWORDS: Constitutional, Judiciary, Judicial Activism, Transformative Constitutionalism
Transformative Constitutionalism was the word coined by American academic Karl Klare. According to him, he signed the explanation that was a lengthy project encompassing and transforming the country's political, power relationships and social institutions in a democratic and meritocratic path. Transformative means changing in something or someone. Constitutionalism is comparatively a very broad term to comprehend. The ideology of constitutionalism depicts not just a document but a legal system that lays down powers and boundaries confined in governance which shows consent and acceptance of the public. A Constitution should bring a social transformation as per the needs of society. The philosophy of the Constitution revolves around words like secular, egalitarian, secular, federal, and open to all communities.
The Indian Constitution is very extensively channelizing towards empowerment and enabling social transformation. The inkling of transformative constitutionalism is not new to India. The basic fundamental of transformative Constitutionalism is on the formula of "constant change". As discussed earlier Constitutionalism restricts Democracy in many forms as it is based on certain principles by our constituent makers and it should not be changed as well. But the need of society varies accordingly and the state needs to change the module itself along with conserving the Constitutional values and norms. Whenever there is a societal change in a state the law needs to blend itself so that it is revoked producing a brand new law to bring the modification which has a "transformative purpose" and needs to be followed to maintain peace and Harmony.
CONSTITUTIONALISM AS A NEW FRAMEWORK FOR GOVERNMENT
In 1933, history can be traced back to the British era when the British raj decided to divide and rule India with the policy of separate representation of Hindu Muslims and Sikhs. It was the very first stone of separation of the country.[i] But on 15th August 1947 when India gained independence from British rule, India was transforming from a full-fledged colonial-run government to a government-run by its people.
Although the majority of the framework was adopted from the Government of India act 1945 the transformation was paving its way through. The basic structure remained the same but the values and the governance were new. Thus the government of India can be seen as a creation of transformative Constitutionalism. The constitution is ratified by making changes in the legal scenarios. The concept of constitutionalism is a form of government that inducts limited government as hostile to arbitrary authoritarian or totalitarian rule.[ii] It is worth noting that unlike the Preamble of the statutes the Preamble of the Constitution is a part of it and can be invoked just like any other provision for direct application. Any change in the Preamble on the ground of violation may also be the subject matter of litigation regarding the basic structure of the constitution.
HISTORICAL BACKGROUND OF CONSTITUTION AND INDEPENDENT JUDICIARY
The origins are traced back to the South African Constitution and their moment of freedom. As mentioned above the definition was coined by American Academician Karl Klare who tried to explain the ideology by emphasizing the word "a long-term project".[iii]
He was trying to decipher its futuristic interpretations which ultimately aimed at developing present political and social institutions and their improvements in the long term. Dikgang Moseneke, a former Deputy Chief Justice of South Africa believes that Transformative constitutionalism is a magnificent goal for a constitution and it would guide us to a better future, therefore, the core idea of transformative Constitutionalism is that we must change. He also believed that the concept should reach other democracies as well including India.
The meaning of the independence of the judiciary is ambiguous after years of its existence. The independence of the judiciary is not defined anywhere in the constitution but the provisions indicate it. The doctrine of separation of powers was the primary point on the independence of the judiciary. The executive and the legislature together comprise an institution in the independence of the judiciary. Judges can either permit the government action or forbid it.
FUNDAMENTAL RIGHTS CLASHING WITH MODERN LAW MAKING PROCEDURE
The exhaustion in the standard of contemplation in Parliament over years has prompted calls for reform. Not long ago, the Chief Justice of India (CJI) of India has pointed out how the gaps and ambiguities are developed and passed without relevant deliberation triggering avoidable litigation. Lawyers enter to play a vital role in ameliorating the lawmaking process; this was put forward by Chief Justice. These are the certain areas where rights of the people came to blow with the modern law making procedure.
(a)Issues with the Legislative Process
The priority of representatives is more towards their party and politics rather than their electors. Legislators are expected to exercise duties for voters and legislation. Queries for the particular Minister require posting amendments with the standing committees. Issues with the measure of efficiency are dependent upon the volume of Bills passed by Parliament.
(b) Lack of effectiveness
There is a lack of effectiveness and deliberation in such a forum which is ensuring that views are adversely affected by opinions unheard. Rushed lawmaking and sacrificing are the two core ideas of the constitution which implies participation and exercising fundamental rights. The detailed constitutional provisions are laying out how laws are passed by parliament and state legislative assemblies.
(c) Misusing Money Bills Provision
In Article 110, the specific description does not meet with the Rajya Sabha which bypasses the bills certified as money bills. If the judiciary addresses their violations promptly, the provisions will be taken solemnly. The Supreme Court is a continuing constitutional convention. It is also called a policymaker because they establish or build up a foundation of new rules and principles.
ROLE OF JUDICIARY IN LAW MAKING
There should be a concept of the constitution for implementing it. Constitutionalism can be seen as a political spirit, so the states that have a charter don't have to be embodied with the idea of constitutionalism. One of the roles of the judiciary is to uphold constitutionalism based on the preamble. It is the court's right to review judicial acts and has the power to check the validity of legislation practiced whether it is legitimate or not. Judicial review is the process for balancing the separation of powers.
There is a fundamental need for people to influence government schemes, policies, and programs looking for a good governance body. When we go into the Indian Judiciary, judicial activism plays the role of an activist promoting the interest of marginal sections. In a framework, the judiciary calls for the separation of powers and this equals to both legislature and executive branches. On the other hand, the government cannot interfere with the functions and powers of the judiciary.
Some key purposes of the judicial review as checking arbitrariness, maintaining federal equilibrium between center and states, being unjust in constitutional laws, maintaining the supremacy of the constitutional law, determining the unconstitutionality of the legislative acts, and protecting the fundamental rights of the people are at its paramount importance.
Functions of the government should go hand in hand with the provisions of the constitution so that the actions of the government must contemplate constitutionality. Constitutional government and democratic government should work cooperatively.
TRANSFORMATION FROM THE JUDGEMENTS
1. Navtej Singh johar vs union of India (2018)
Section 377 was previously considered as a punishment and an explanation of "unnatural offences" as sexual intercourse was just between cis gender males and women. Naz foundation vs union of India was one of the first cases to raise a voice against it however, in 2009 Delhi high court decriminalised consensual sex between the members of the LGBTQ community which was earlier termed unnatural in the words of the law. In 2013 the Supreme Court of India re-criminalized the Delhi high court judgment. Witnessing several protests in the country and how inadequately the LGBTQ community was treated, the Supreme court in September 2018 Struck down a part of 377 of IPC that criminalized consensual sexual intercourse between two adults. Articles 14, 15, 19 and 21 were being violated as fundamental rights of India. This is one of the major examples of transformative Constitutionalism in India. As human rights were addressed for the members of the LGBTQ community this is encouraging the values of the constitution.
2. M Siddiq (D) Thr Los vs Mahant Suresh Das & Ors. (2019)
This is a very complex case that involves two religions in our country Hindu and Muslim. The facts go that there is about a piece of land in Ayodhya which is considered to be the birthplace of lord ram according to the Hindu worshipers. During the Mughal rule of Babar, a mosque was built on that land which was felt wrong by many Hindu worshippers.
In 1992 Hindu radicals demolished the mosque which hurt the Muslim population during a political rally and this case was handled by Allahabad High Court which gave a decision that the land will be divided into three parts among the aggrieved parties.[iv] This particular case had the sentiment of many people and considered many historical facts and religious beliefs. Hindus believe that during Mughal rule the land was captured and broke a temple and constructed a mosque. Muslims believed that their mosque was demolished forcefully.
On November 9th 2019 the final verdict in the Supreme Court of India was announced that the court relied on a report by the Archaeological Survey of India that the remains after demolishing the mosque were not Islamic and the disputed land was to be handled by the Government of India to build a Hindu Temple and also gave 5 acres of land to the Sunni Waqf board to build a mosque.[v] This case of transformative Constitutionalism reflects that a judgment can be passed by the court without hurting the sentiments of either religion. As Indian Constitution says to be secular and safeguarded it without any disparity or discrimination.
Changes occur in society so often that sometimes it is not possible to amend the legislation keeping pace with it and the parliamentary scrutiny of laws is no more a guarantee of protection of rights of citizens. Therefore, the Constitution, written or unwritten, cannot be rigid and the institutions must be able to amend it keeping pace with the changing society. The proportional approach is found in the Constitution of India, the legislature enacts the law and it is reviewed by the judiciary and if obligatory it is also declared as unconstitutional. The recent judgments of the Supreme Court of India have recognized the rights of the minority and marginalized groups. This exhibits a very notable role by the Indian Judiciary.
[i] https://niu.edu.in/sla/online-classes/Judiciary-Functions,-Importance-and-an-Essential-Quality-of-Judiciary.pdf [ii]https://www.researchgate.net/publication/342766261_The_Role_of_Judiciary_in_India [iii] https://www.ijlmh.com/wp-content/uploads/2020/01/Transformative-Constutionalism.pdf [iv] https://blog.ipleaders.in/transformative-constitutionalism/ [v] https://www.scobserver.in/journal/1-ayodhya-title-dispute/#:~:text=On%20November%209th%202019%2C%20in,Ram%20temple%20at%20the%20site