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(Ishaan Paranjape and Kedar Dhargalkar are third year students of Adv. Balasaheb Apte College of Law, Mumbai.) Constitutionalism is an idea based on the belief that the government can and should legally limit its powers, and the governmental authority and legitimacy depends upon these limitations. It may be said that the touchstone of constitutionalism is the concept of limited government under a higher law. The absence of this phenomenon will lead to despotism. When the phenomenon of constitutionalism is seen through the lens of changing time, it can be referred to as 'transformative constitutionalism. Transformative constitutionalism stands for the principles of the Constitution and frowns upon the dogmatic reference of the text, and the former is often used to supersede the concepts envisaged even in the Constitution This principle of constitutionalism was clarified recently in Indian Constitutional jurisprudence through Navtej Singh Johar, wherein Chief Justice Dipak Misra had observed that "…it is only when we adhere to constitutionalism as the supreme creed and faith and develop a constitutional culture to protect the fundamental rights of an individual that we can preserve and strengthen the values of our compassionate Constitution…”. This observation fails to answer a serious question as to whether the standard values of an unsubstantiated and theoretical culture that rests in a man-made document can be imposed by a weaponized form of equality upon a diverse citizenry such as of India. The populace hosts very diverse views based on an extended historical context and deep-rooted notions of civilizational heritage in a homogeneous and harmonious social construct. Thus its intersectional social issues beg to be resolved using an objective democratic scale instead of being adjudicated upon by subjecting them to idiosyncratic judicial standards. It might be argued that, in the past, super majoritarian Parliaments have plagued the constitutional text with radical amendments. But this cannot be a ground for legitimising judiciary’s attempt of piercing into the veil of substantive aspects of legislations by introducing doctrinaire degrees of reviews on the anvils of philosophical principles such as constitutional morality, democratic legitimacy, transformative constitutionalism, etc. Neither can the alleged democratic erosion by the Parliament be selectively or prospectively used to legitimise judiciary’s attempts of tapping into the constituent power by recognising new unenumerated rights into the Constitution by the virtue of transformative constitutionalism. An opinion is often tabled, that the judiciary is the least dangerous branch amongst the organs of governance and thereby its expanding contours of justiciability are necessary to keep watch on the overstepping of the boundaries by the remaining two branches of the government, i.e., legislature and the executive. This argument does not hold an ounce of water as has been exposed by the almost suo moto order of constituting, hearing and subsequent dissolving of the bench by the then Chief Justice A. N. Ray, during the review of Kesavananda Bharati.[i] After being susceptible to aforementioned historic blunder or its verdict denying judicial access to the lawfully detained petitioners in ADM Jabalpur, it is evident that the courts are not in authority for sitting on a moral high ground to judge and invalidate the actions of Parliamentarians or other constitutional high functionaries in regards to the constitutional morality attached to their authority and there is a manifest need to keep a watch on the watchman themselves. Either both Parliament and courts are organs or both are masters of the text. Though it is debatable, the former stance of both organs being the creatures of the Constitution hits the middle ground and thereby it is advocated. This perspective clearly dictates that one organ cannot deny the exercise of a similar power by the other and consequently use the same power to invalidate constitutional amendments or even extend that degree of review to ordinary legislations. , Especially in cases post emergency, the isolated incident of radical amendments by the Parliament has been selectively championed by the constitutional courts to secure and legitimize its judicial access into non justiciable fields of public morality or to sanction the exercise of unforeseen and unbridled constituent power for doing away with the intent of the framers in the dignified life and personal liberty jurisprudence. This is noticeably moral basis which the judiciary has harped upon to allow itself to take an activist stance in recognizing more rights with changing times and this might have been the need if that hour but it is unequivocally categorized as transgressing of authority in light of current circumstances wherein the electorate is not that easily swayed and the legislative mechanism is mature.
This phenomenon, de jure, seems to be infallible; but there are several lacunae. Transformative constitutionalism is equated with 'rights advancing' interpretation of the Supreme Law. Such an understanding of the law leads to a conflict between individual rights and group rights. The probability of such a subjective interpretation on the buttress of transformative constitutionalism leading to a tussle between the rights granted and restrictions imposed is not at all meek. However, this legitimate disagreement will be trampled by such an understanding of the law. Owing to the transformative nature, the rights can be interpreted so widely that the 'fundamentalism' of the fundamental rights gets diluted to a considerable extent, and several rights can be placed under the umbrella of Part III. At the same time, one cannot be unmindful of the flagrant nexus between the basic structure and transformative constitutionalism. The judiciary whacks the legislature and executive's power by relying on the basic structure and gives to itself an unfettered power on the buttress of transformative constitutionalism. In matters of conflict between the basic structure and transformative constitutionalism, which entity prevails over the other remains unanswered. The recent uses of this doctrine in cases such as Navtej Singh Johar and Joseph Shine may appear to be appropriate as the end results of these judgements seem to be constitutionally sound. Nevertheless, it is possible to argue that the same results were achievable without using the doctrine of transformative constitutionalism. A vibrant, dynamic and pragmatic interpretation is desirable, but this interpretation has to be used sparingly without widening the limits so much so that the judiciary assumes the position of a super-powerful entity, thereby rendering the existence of other organs of the State to be a mere academic exercise. In light of all these factors, we proceed to examine this doctrine. The implosion of Fundamentality in the Influx of Civil Rights Transformative constitutionalism generally involves a "rights granting" analysis of the Constitution. This approach aims at an ideal egalitarian society wherein the laws, conventions or customs which do not have a right bestowing cardinal core within them as expected by the "constitutional patriots" are struck down. They are declared unconstitutional without a holistic approach of considering the reasonableness of regulatory facets of that particular law or tradition. This one-way method of interpretation gives way to conflicts between individual rights and group rights and compromises public morality. Directly or indirectly, and even before the conception of this terminology, various unenumerated rights found their place in the Constitution. As an outcome of such an aggressively progressive interpretation, Right to Education, Right to Healthy and Clean Environment, Right to Speedy Justice, Right to shelter, Privacy, Reputation became crucial and indispensable constituents in Part III, which were not explicitly declared by the Constitution. If the doctrine of transformative constitutionalism is employed continuously, then a host of newly emerging civil rights will become a creature of subjective satisfaction of the Courts. In a catena of judgements, several unenumerated rights were expounded by the Supreme Court in its vast wisdom. The Court has accepted such a far-flung approach with Part III, especially concerning Article 21, that it is possible to derive an entire bundle of human rights from the same.[ii] The entire journey from A. K. Gopalan to Maneka Gandhi is a prominent example of transformative constitutionalism. The Constitutional Advisor of the Constituent Assembly, Mr B. N. Rau, after having discussion with the American Supreme Court Judge, Justice Frankfurter, was able to convince the Assembly that the Indian Constitution needs to move away from the ‘due process of law’ and Article 21 should restrict itself only to the procedural aspect.[iii] Owing to this, the proposal of ‘procedure established by law’ was considered to be ideal and thereby incorporated into the Indian Constitution.[iv] In Mohd Arif, Justice Nariman declared that "The wheel has turned full circle. Substantive due process is now to be applied to the fundamental right to life and liberty." The above instance has proved that even the original intent of the framers which has been explicitly mandated by the Constituent Assembly cannot be a bar to stop “progressive” interpretation of rights. Nowadays, the law or the procedure established by law has to pass the muster of basic structure review and the judicially evolved doctrinal standards such as constitutional morality and democratic legitimacy. These notions are not explicitly mandated. They are neither fully developed nor intricately or exhaustively worded to guide the legislature while fabricating any law. While undoing the diametrically opposite stand of the Constituent Assembly, the judiciary has exercised the unlimited constituent power, not vested in it. This has effectively turned the judges into co-legislators and has highlighted the high-handedness of the institution, which is not ready to trust the legislative wisdom and confer the same kind of power to its democratic authority, thereby denying it an exclusive sphere of activity for formulating a non-justiciable procedure established by law. Moreover, by the subjective interpretation of societal needs and standards through the doctrine of transformative constitutionalism, the judiciary has encroached upon the legislative domain of determining the society's needs without having any democratic authority. Indian jurisprudence involving judicial activism dictates that the judges have always leaned towards bestowing individual rights by resorting to different interpretative shades of transformative constitutionalism and on occasions, they have even eased the barricades of technicalities mandated by some of the most unambiguous, detailed and inflexible statutes or specific constitutional provisions. It can be argued that none of the rights have a fixed content. Most of them are "empty vessels" into which each generation pours its content by judicial interpretation in the light of their experience, as said by Justice Learned Hand.[v] The judicial interpretation has since long been riding the tide of changing times, and it has had a domineering and overbearing influence over the subsequent crop of judges who are themselves bound by strictly worded precedents. This has made the well-settled judicial philosophy of originalism a taboo in the process of constitutional interpretation, while, transformative constitutionalism has been simultaneously ingrained as the correct interpretive mechanism. Under the influence of such principle, some of the judges, while adjudging and striking down S.377 of the Indian Penal Code have vigorously condemned this provisions for being outdated and socially immoral in the light of the allegedly transformed social standards instead of adjudicating the issue upon the anvil of fundamental rights. While doing so, they have devised a doctrine of progressive realisation of rights in the judgement, which mandates that new facets of rights are enlightened with changing times notwithstanding if they are explicitly or implicitly enshrined in the Constitution, and it is an obligation on the judges to realise them. However, the judges have made conferring of rights a ‘one-way street’ by encompassing another doctrine of non-retrogression within the envelope of progressive realisation of rights, which declares that, there must not be any regression of declared rights and in a progressive and an ever-improving society, there is no place for retreat. The society has to march ahead. Under the aegis of this newfound principle of non- retrogression, the judiciary has cushioned its position to recognise new unenumerated and subjectively implicit rights. Further, by declaring that these newly declared will be non-retractable, it has bound the successive benches by the virtue of this precedential principle. The constitutional courts have encroached upon this authority over time which is evident from dignified life and personal liberty jurisprudence of our country but now this repeated expansionist interpretation of Article 21 has cumulated into an unbridled power into the hands of judges who are empowered to recognise new fundamental rights from the core or essence of pre-existing ones. This has demoted the fundamentality or fundamental nature of newly recognised rights by making them susceptible and subject to judicial interpretation because, under the pretext of forward-looking interpretation, anything and everything can be brought under the heading of fundamental rights. This has watered down the sanctity of the pre-recognised rights in Part III A Liaison between Basic Structure and Transformative Constitutionalism Nearly four decades ago, in April 1973, the Kesavanand Bharati judgement brought a revolution in the Indian constitutional jurisprudence by laying down the foundation of the abstract philosophical concept of 'basic structure.' The Apex Court pioneered the said doctrine to keep a check on the ever-extending arm of the lawmakers. Minerva Mills v. Union of India loosely defined the term basic structure as ‘Amend as you may even the solemn document which the founding fathers have committed to your care, for you know best the needs of your generation. But, the Constitution is a precious heritage; therefore, you cannot destroy its identity.’ In essence, the judiciary prevents the Parliament from distorting, disfiguring, or mutilating the basic features of the Constitution, which are sacrosanct to Indian society's ideals.[vi] a) Judicial Hypocrisy The basic structure doctrine has been used by the judiciary to belittle the power of the legislature.[vii] One must not and cannot be unmindful that in Kesavanand, Mr. Nani Palkhivaka had given the hypotheses of extreme amendments and thereby highlighted the need for certain recourses to protect Constitution from such unwarranted and excess State actions.[viii] Therefore, the basic structure is meant to be a protection from extreme amendments, which can change the Constitution to an extent where the spirit of the Constitution will vanish. But over the course of Indian constitutional jurisprudence, judiciary has widened the scope of basic structure review by subjecting not just radical constitutional amendments to it but encompassing even the ordinary legislations or statutes within its ambit, which was never intended by the makers of basic structure doctrine. Thus it is possible to say that the judiciary has systematically clipped the wings of the other two organs of the State by resorting to its interpretative monopoly. It might be argued that judgements of courts are not always, just a result of subjective judicial philosophies, and it is true. But this does not form the basis of validating the use of personal perception of societal or stereotypical standards to buttress an anti-majoritarian view in one’s judgement while striking down a democratically legitimate legislation. However, at the same time, in the matters which tend to erode the courts' power, the judiciary conveniently shrouds itself in transformative constitutionalism. It is well settled that legislature legislates laws as per the definition; while doing so, the socio-economically beneficial legislations, which are able to fulfil the need of hour, might need to be radical in nature These laws are subjected to basic structure review, and irrespective of them being otherwise intra vires the Constitution are struck down by the judiciary not on the grounds of the legalities involved therein but on the touchstone of mere subjective intricacies of the judicial authorities or by metaphysical constitutional technicalities. On perusal of these arguments put forth, a ‘Judicial Hypocrisy’ can be conjectured. The judiciary snatches the authority of the legislature and the executive under the garb of basic structure and simultaneously gives to itself (judiciary) an unquestionable power under the pretext of transformative constitutionalism. b) Stale-Mate Basic structure doctrine propounds few cardinal concepts insulated by the judiciary and protected from the legislature's sword of amendments. Even then, the judiciary has the potential to carry out drastic alterations owing to its ever-evolving interpretative power. For example, there are two schools of thought- the one which advocates the existing parliamentary form of governance[ix] and the other, which romanticises the presidential form of government.[x]Assuming arguendo, as a riposte to changing scenarios, it becomes imperative to swap the pre-existing parliamentary form of governance with the presidential form. In such a surmise, whetherthe Apex Court would uphold such an amendment on the anvil of transformative constitutionalism ideal thereby recognising the need of the contemporary society or would it consider itself bound by the judgement of Chief Justice Sikri who led the majority in Keshavananda and had opined that parliamentary governance is a constituent of the basic structure. Herein, it needs to be understood that the exact constituents of basic structure are not the actual ratio of Kesavananda which the subsequent benches would be bound by and especially the parliamentary form of democracy was a facet which was propounded exclusively by one judge from the majority and no other judge has included it as a feature of the basic structure in their respective judgements. So by attaching a morality of progressive realisation of rights to transformative constitutionalism ideal and synchronously attaching the morality of ever depreciating amending power to the basic structure doctrine, the courts by their undoing have entrenched these antithetical philosophies in constitutional precedents. Basic structure doctrine essentially advocates stagnancy[xi] and is against the theory of changing times but equally exists with transformative constitutionalism ideals in the jurisprudence which the courts are bound by. Fact of the matter is that all this has pitted these two concepts having contradictory philosophical under-fillings against each other which would lead to an inevitable stale mate. Thus there is a broad aperture left open for ambiguity, and the question regarding who prevails over whom is left unanswered; this inter alia leads us into a gridlock. Conclusion Transformative Constitutionalism stems from a personal and instinctive need felt by the judiciary, which materializes into a judge-made attempt to pull the subjectively-alleged backward society at par with the judicially evolving standards of the Constitution. On the other hand, 'living constitution doctrine' has its foundation in the process of judiciary bringing the Constitution on the same footing with the changing needs of society. Interestingly, however, the result of both these concepts is the same, i.e., the advancement of more rights. In the former one, the judiciary steps into the prerogative of the legislature by trying to bring radical socio-cultural reforms according to the allegedly transformed societal needs, the analysis of which has actually been constitutionally mandated as the domain of legislature. This is a scar on the separation of powers. The judiciary and the legislature stand at the centre stage in the development of Constitutional law. Certain issues are best discussed in Parliament than in the Courts[xii] as everything cannot be determined by 'law' alone, especially the 'needs of the society.' Hence, each arm of the State has to respect the autonomy of the other. Owing to an overstretched and excessively widened application of transformative constitutionalism by the Courts, Judiciary can become a super-powerful entity. By placing its judgements in the garb of transformative constitutionalism, the judiciary develops all the potential to expropriate raison d'être of other organs of the State. This will lead to several legal wrangles in the near future. In the very same way, the rights advancing approach has been widely propounded to be the sole right recourse in adjudication, whereby more and more rights are read and will be read into the Constitution. Availability of binding precedents in this jurisprudence has consequently constricted and delimitated the scope of reasonableness of the restrictions which are imposed on fundamental rights to such an extent that today the courts strike down legislations or invalidate restrictions, even when the circumstances demand a certain extent of curtailment. Furthermore, by resorting to doctrinaire approaches for adjudicating upon contemporary socio-economic legislations, the courts have bound the jurisprudence in unprecedented philosophical notions which are not the ratio of the judgment, nor are they deliberated upon by every judge in majority but are open to be selectively picked up and used by the judges in subsequent cases as a part of binding majority judgement. One such doctrine is that of ‘Non-Retrogression’ which has been laid down by single judge Chief Justice Dipak Misra in Navtej Singh Johar but was set as an essential component of ‘Secular Values’ in Ram Janmabhoomi Case which essentially converted a subjective philosophical concept into a yardstick for secular values which are a part of basic structure. Thus, the judicial hypocrisy because of basic structure and transformative constitutionalism cannot be ignored at all. The confusion created because of these abstract and purely subjective concepts needs to be highlighted and kept in mind. Lord Denning summed up the essence of the rule of law by quoting Thomas Fuller, 'Be you ever so high, but law is above you.[xiii]’ It is imperative to understand that the aforementioned quote stands for supremacy of law and not the supremacy of any arm of the State- legislature, executive or judiciary.[xiv] Such a vague & lenient use of transformative constitutionalism indirectly conceptualises supremacy of the judiciary owing to the subjectivity, exclusivity, and absence of judicial standards of interpretation involved in the process of analysing the ‘apparent needs’ of the contemporary society. Thus while recapitulating this write-up, the authors submit that transformative constitutionalism, of course, has a laudable objective of social evolution by the judiciary; nevertheless, this phenomenon will lose its essence and spirit if it is used so casually by the Courts. The judiciary has to be vigilant enough to use this doctrine sparingly to maintain the sanctity of the Constitution and leave no room for unwarranted and excessively generous interpretation. [i] Percival Billimoria and Faraz Sagar, ‘Kesavananda Bharati v. State of Kerala and Basic Structure’ Mondaq (October 2, 2017) <https://www.mondaq.com/india/constitutional-administrative-law/633634/kesavananda-bharati-v-state-of-kerala-and-the-basic-structure-doctrine> accessed July 14, 2020. [ii]Jain, M., Chelameswar, J., and Naidu, S., 2018. Indian Constitutional Law. 8th ed. Lexis Nexis, pp.1207, 1472. [iii] Prateek Singh and Farheen Arshad, ‘Essence of “Due Process” in the Constitutional Jurisprudence: A Study in terms of Rights of Accused’, LegalVoice Blog (December 2, 2016) < https://legalvoiceblog.wordpress.com/2016/12/02/essence-of-due-process-in-the-constitutional-jurisprudence-a-study-in-terms-of-rights-of-accused/ > accessed on July 14, 2020. [iv] CAD, Vol. VII, p. 853-855 [v] Justice Ruma Pal, 'Judicial Oversight or Overreach: the Role of Judiciary in Contemporary India,' [2008] 7 SCC J- 9. [vi] Navjyoti Samanta and Sumitaya Basu, ‘Test of Basic Structure: An Analysis’ [2008] 1 NUJS L Rev 499 <http://www.commonlii.org/in/journals/NUJSLawRw/2008/29.html> accessed July 1, 2020. [vii] Suhrith Parthasarathy, ‘Legitimacy of Basic Structure’ The Hindu (February 4, 2019) <https://www.thehindu.com/opinion/lead/legitimacy-of-the-basic-structure/article26168775.ece> accessed July 1, 2020. [viii] Hemant Varshney, ‘Kesavanand Bharati Vs. State of Kerala- Case Summary’ Law Times Journal (August 13, 2018) <http://lawtimesjournal.in/kesavananda-bharti-vs-state-of-kerala-case-summary/> accessed on July 1, 2020. [ix] P. P. Rao, ‘Basic Features of the Constitution’ [2000] 2 SCC J-1. [x] Trimbak K. Tope, ‘Should India Adopt a Presidential System of Government’ [1982] SCC J-25. [xi] Ramesh D. Garg, ‘Phantom of Basic Structure of the Constitution: A Critical Appraisal of Kesavananda Case’ [1974] 16 JILI 243 [xii] P. Rajeev, ‘Parliamentary Supremacy under Attack’ The Hindu (August 7, 2013) <https://www.thehindu.com/opinion/lead/parliamentary-supremacy-under-attack/article4996588.ece> accessed July 1, 2020. [xiii] Thomas Fuller, Gnomologia: Adagies and Proverbs; wise sentences and witty sayings, ancient and modern, foreign and British (Barker and Bettesworth Hitch, London 1732) pp. 321. [xiv] Geoffrey Robertson, ‘Rule of law’ Newstatesman (February 5, 2010) <https://www.newstatesman.com/books/2010/02/law-rule-rights-british> accessed July 1, 2020.
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