Transformative Constitutionalism: A Pragmatic Lens Of The Judiciary By- Susan Baisil

Transformative Constitutionalism: A Pragmatic Lens Of The Judiciary

Authored By - Susan Baisil

 

ABSTRACT

This paper provides an overview about transformative constitutionalism. Transformative constitutionalism is basically to bring about a change in the society by infusing the basic features of the constitution. This concept is important as law must accommodate the changing needs of the society. The judiciary is the custodian of ensuring that the society is transformed according to its needs by keeping the ideals of the constitution alive. The research methodology undertaken for this study is doctrinal research with legislation as the primary sources and articles, journals, books, computer resources as the secondary sources. The study undertakes a comparative analysis of countries such as South Africa, India, UK and USA inorder to understand the position and evolution of these countries in terms of transformative constitutionalism, its implications and the role played by the judiciary in each of these countries to safeguard the same.

 

Keywords: Transformative Constitutionalism, Judiciary, India, UK, USA, South Africa

 

INTRODUCTION

Constitution is the supreme law and the radical document of a country. It can be written or unwritten. Constitutionalism is an ideology.  To put it another way, constitutionalism is a goal and constitution is a way to attain it. According to constitutionalism, the constitution not only grants authority to the several branches of government, including the executive, legislature, and judiciary but also aims to limit the powers of these authorities. The elements of constitutionalism are rule of law, separation of powers, judicial review, preamble and an independent judiciary.

 

 

The world in which we live is dynamic and undergoes constant change. Therefore, society must also make certain modifications in order to keep up. The nation's constitution has to be amended to reflect these developments. A commitment to social change is made in the Constitution. In other words, changes must be made to the constitution in order for it to keep up with the pace of society. Transformative constitutionalism entails instilling equality, liberty, fraternity, and dignity principles into society. It involves achieving the fundamental goal of the Constitution, which is to create a better society. It might be seen as aiming to place greater emphasis on constitutional morality than on morality as defined by society. Another way to look at it is that while the Constitution's fundamental principles and structure cannot be altered, it continues to adapt to the requirements of society. As a result, the following two crucial characteristics of transformative constitutionalism are revealed: a) it calls for the realization of full human potential within positive social relationships; the use of the term "positive social relationships" rather than restricting it to an individual's interactions with the State is indicative of the pervasive nature of transformative constitutionalism in the private sphere as we see it b) It envisions the attainment of substantial equality by recognizing and eliminating all forms of discrimination as they may have existed or may develop in the future and thereby transformative constitutionalism acknowledges change and strives to create an egalitarian society[1].

 

Judiciary is the custodian and guarantor of the constitution of a country. Judicial review and constitutional interpretation by the Judiciary has led to the introduction of ‘Transformative Constitutionalism’[2].The idea of transformative constitutionalism as a tool the court uses to guarantee a more just society is a phenomenon itself. The fundamental role of the State (including the courts) in completing the process of emancipation and the ongoing growth of the constitutional values of liberty, equality, and fraternity are important characteristics that characterize or distinguish transformative constitutionalism.

 

HISTORY OF TRANSFORMATIVE CONSTITUTIONALISM

The phrase "Transformative Constitutionalism" was first used in 1998, and since then, the idea of it has been around. Post-apartheid South Africa is where transformational constitutionalism first emerged. Karl Klare outlined it in a South African journal on human rights. The South African constitution, according to US academic Klare, needed to be understood in the context of South Africa's post-apartheid agenda since it significantly altered the state and society by nonviolent means. Since then, the term "transformative constitutionalism" has gained popularity[3]. The transformative constitution's fundamental principles are traced by a former South African Chief Justice  to the preamble of the Interim Constitution of South Africa, which reads: “A historic bridge between the past of a deeply divided society characterized by strife, conflict, untold suffering and injustice, and a future founded on the recognition of human rights, democracy and peaceful co-existence and development opportunities for all South Africans, irrespective of colour, race, class, belief or sex.[4]”

 

The study of the South African Constitution and the independence movement gave rise to the idea of transformative constitutionalism. Karl Klare, as previously noted, was the author of the piece Legal Culture and Transformative Constitutionalism (1998) in which he discussed transformative constitutionalism in relation to South Africa. Professor Klare viewed it as a long-term project of constitutional enactment, interpretation, and enforcement committed to transforming a country’s political and social institutions and power relationships in a democratic, participatory and egalitarian direction[5]. He described the idea of transformative constitutionalism as a "long-term endeavour" and continued by noting how the Constitution's creation, interpretation, and application altered the political and social institutions. Through his statements, he further emphasized that the theory had a futuristic perspective, implying that the ultimate goal was the expansion of the current democracy and its progress through time. Justice Langa[6] of South Africa, in his analysis of the concept of transformative constitutionalism, had said, “This is a magnificent goal for a constitution: to heal the wounds of the past and guide us to a better future as for me, this is the core idea of transformative constitutionalism: that we must change.[7]”

 

In a 2006 address, the South African High Court’s Justice SM Mbenenge took note of this definition and further explained that,

 

“This definition makes judges, other functionaries and institutions role-players in transformative constitutionalism. Indeed, judges are custodians of constitutional values such as human dignity, equality and freedom, and bear the obligation to ensure that constitutional provisions are applied in ways that ‘improve the quality of life of all citizens and free the potential of each person.[8]”

 

Transformative constitutionalism is an antidote for failed constitutionalism and weak protection of fundamental rights and freedoms in Africa. One of the instances enumerating the same was in Gibson Kamau Kuria v. Attorney-General[9],  whereby the Court illustrated the courts' connivance or helplessness in enforcing fundamental rights and the rule of law during the one-party era in Kenya.

 

The post-apartheid South Africa has mainly avoided the constitutional failures and unrest that befell much of Africa after the departure of colonial powers, despite the fact that South Africa's transition in 1994 saw the assumption of power by an African majority government[10]. Despite several obstacles that may put it at risk for a similar destiny, the nation has worked to safeguard democracy, constitutionalism, and the rule of law since the transition. Following the end of apartheid, South Africa underwent coordinated legal and political procedures to right historical wrongs and create an egalitarian constitutional order. This made South Africa a leading example of socio-political reform through law. The courts have played a crucial role as guardians of the transformation from the implementation of the 1993 interim Constitution to the enactment and operationalization of the 1996 final Constitution, handing down landmark decisions that affirm a resolute commitment to human rights and the new order.

 

In Speaker of the Senate & Another v. Attorney-General & Another[11], it was held that Kenya's Constitution of 2010 is a transformative charter and unlike the conventional 'liberal' Constitutions of the earlier decades which essentially sought the control and legitimization of public power, the avowed goal of today's Constitution is to institute social change and reform, through values such as social justice, equality, devolution, human rights, rule of law, freedom and democracy.

In Communications Commission of Kenya & 5 Others v. Royal Media Services Limited & 5 Others[12], the Supreme Court of Kenya, citing Klare, observed that in enacting the 2010 Constitution, Kenya had entered the league of India, South Africa, Colombia and other countries that have embraced transformative constitutionalism as a model for social and political change.

In Eric Gitari v. Non-Governmental Organisations Co-ordination Board & 4 Others[13],the Court affirmed freedom from discrimination on grounds of sex including sexual orientation.

In National Coalition for Gay and Lesbian Equality & Another v. Minister of Justice & Others[14], it was landmark decision whereby the Court struck down laws criminalising sex between consenting males.

 

In Minister of Home Affairs & Another v. Fourie & Another[15], the Court validated same sex marriages.

 

In Du Toit & Another v. Minister of Welfare and Population Development & Others[16], the Court affirmed the rights of a lesbian couple to jointly adopt a child.

 

In Government of the Republic of South Africa & Others v. Grootboom & Others[17], the Court affirmed the right to adequate housing for the most vulnerable in the society.

 

In Kituo Cha Sheria v. Independent Electoral and Boundaries Commission & 2 Others[18], the Court affirmed prisoners' rights to vote.

 

Klare also highlights transformative constitutionalism does not dispense with judicial deference and also describes historical self-conscious doctrine in adjudication which is another element in transformative constitutionalism[19]. Accordingly, it takes into account the "legal history, customs, and usages of the nation in question." In essence, it acknowledges historical injustices and works to make up for them.

 

Therefore, transformative constitutionalism is an antidote for failed constitutionalism and weak protection of fundamental rights and freedoms in Africa. As a result, although the idea of transformative constitutionalism first emerged in South Africa, it has since been adopted by democracies all over the world, including India.

 

TRANSFORMATIVE CONSTITUTIONALISM IN INDIA

The term "transformative constitutionalism" is not used explicitly in the Indian Constitution, but it is well known that the Supreme Court is the protector of fundamental rights and that the Constitutional Court plays a significant role in defending and advancing the underlying principles and value system of the Constitution, which also safeguard the viewpoints of minorities. The primary goals of the constitution, which is a living document, are to safeguard equality, freedom, and fraternity. The Supreme Court recognizes that the constitution is transformational rather than rigid and that individual freedom and human dignity are of utmost importance for the advancement of fundamental rights[20].

 

Dr D.D Basu viewed constitutionalism as “The principle of constitutionalism requires control over the exercise of governmental power to ensure that it does not destroy the democratic principles upon which it is based, these democratic principles include the protection of fundamental Right and the Constitution embodies aspiration to social justice, brotherhood, and human dignity and it is a text which contains fundamental principles and the tradition of written constitutionalism makes it possible to apply concepts and doctrine of unwritten living Constitution, thereby the Constitution is a living heritage and, therefore, you cannot destroy its identity.[21]”

 

It was said that India's constitutional moment represented a departure from traditional methods and hierarchy. More recently, almost 72 years after the Constitution's inception, the Rajasthan High Court's entire court decided that, in accordance with Article 14's directive, advocates should refrain from addressing judges as "My Lord." Even if it were just in words, the Court presided over by Chief Justice Ravindra Bhatt has provided us with a great illustration of what the transition from colonialism to republicanism may entail. After all, language is the most potent agent of change[22]. 'Personal liberty' is what transformational constitutionalism means to Indira Jaising, a senior advocate of the Indian Supreme Court. The key distinction between transformative constitutionalism and constitutionalism is that under the former, the state plays a major role in advancing the constitutional values of liberty, equality, and fraternity as well as the mission of liberation. According to advocate Indira Jaising, courts in India are continually striving to further this cause. She claims that the Constitution is a radical instrument that upholds traditional hierarchical structures while still guaranteeing freedom[23]. Therefore, it is the State's responsibility to make sure that transition keeps up with societal development.

 

In India, the principal proponent of this view in the judiciary has been Justice Krishna Iyer, who reflected on the need to interpret the Constitution as a transformative document, he remarked that “The authentic voice of our culture, voiced by all the great builders of modern India, stood for abolition of the hardships of the pariah, the mlecha, the bonded labor, the hungry, hard-working half-slave, whose liberation was integral to our independence. To interpret the Constitution rightly we must understand the people for whom it is made – the finer ethos, the frustrations, the aspirations, the parameters set by the Constitution for the principled solution of social disabilities.[24]” 

 

BR Ambedkar had remarked that: “We must make our political democracy a social democracy as well. Political democracy cannot last unless there lies at the base of its social democracy. What does social democracy mean? It means a way of life which recognizes liberty, equality and fraternity as the principles of life.[25]”

 

Constitutional law expert Gautam Bhatia explains the first school of thought as holding that the Constitution lacks any transformational qualities. Some of the defenses of this interpretation included the claims that the Constitution merely transferred authority once held by the British Government to the current administration, which governs the nation's citizens, or that we simply transitioned from a colonial regime to an elected administration. The Government of India Act, 1935, which was drafted by colonizers, serves as the foundation for the majority of the laws. The Constituent Assembly was established in accordance with colonial legislation and tasked with drafting the Constitution. Our Constitution still contains many of the oppressive provisions from that era, and we still uphold them now. He continues by explaining how a transformation in society resulted from individuals beginning to understand the true meaning of words like equality, privacy, and life. So, one approach to understand "transformative constitutionalism" is through the methodical adoption and development of our Constitution[26]. Another school of thought holds that transformative constitutionalism is an ongoing process that entails ongoing change or evolution of the state and society. It encompasses any legislative or administrative reforms that modify the way society develops and shape it to fit the nation's shifting dynamics. With time, the nation has witnessed notable rulings that have broadened the scope of our fundamental rights while also taking the demands of a changing society into consideration.

 

Even during the colonial era, there have been several instances of transformational constitutionalism in India. Following Raja Ram Mohan Roy's persistent efforts, Lord William Bentinck banned the practice of sati, which included immolating a Hindu lady after her husband's death on his funeral pyre. Lord Canning approved the Hindu Widow's Remarriage Act in 1856 as a result of several pro-act campaigns. The Female Infanticide Prevention Act was approved in 1870 to address the issue of the killing of female newborns. The Age of Consent Act, 1891, which raised the consent age for sexual activity for all females, married or not, from ten, was another event that had a transformational impact.[27]

 

The judiciary in India is the institution that acknowledges this social transformation and upholds justice. Post-independence the Supreme Court passed various judgments which embodies transformative constitutionalism. After the declaration of emergency in 1975, the Supreme Court developed the jurisprudence of public interest litigation in an effort to establish legitimacy. Judges like Justice P.N. Bhagwati, Justice V.R. Krishna Iyer, Justice H.R. Khanna, and Justice O.P. Chinnappa Reddy helped to widen the scope of judicial activism by delivering judgments that favoured citizens' rights and interests[28]. Justice V.R. Krishna Iyer recognized the social transformation and acknowledged inviolability of fundamental rights in Maneka Gandhi v. Union of India[29], human rights of under-trials and convicted person in Sunil Batra v. Delhi administration[30] and inadequacy of the rights of a divorced Muslim wife under the personal law in Bai Tahira v. Ali Hussain[31].

 

Justice Chandrachud in BK Pavitra v. Union of India – II[32]remarked that remarked: “There is substantial evidence that the members of the Constituent Assembly recognized that (i) Indian society suffered from deep structural inequalities; and (ii) the Constitution would serve as a transformative document to overcome them and one method of overcoming these inequalities is reservations for the SCs and STs in the legislatures and state services.”

 

The Supreme Court in Mohd Ahmed Khan v. Shah Bano Begum[33] held that the divorced muslim women has the right to maintenance under Section 125 of CrPC after the period of iddat and thereby led to the enactment of the Muslim Women (Protection of Rights on Divorce) Act, 1986.

 

In Shayara Bano v. Union of India[34], the Supreme Court struck down triple talaq unconstitutional and Justice Nariman opined that triple talaq is unreasonable and arbitrary with the help of constitutional reasoning.

 

In Vishaka v. State of Rajasthan[35], The Supreme Court set out guidelines to prevent sexual harassment at the workplace which eventually led to the enactment of The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.

 

In K.S.Puttuswamy v. Union of India[36], the Supreme Court stated that the Right to privacy is intrinsic to life and liberty and comes under the ambit of Article 21 of the Indian constitution. Justice Chamleswar observed that “silences of the constitution should also be read”.

 

In Anuradha Bhasin v. Union of India[37], the Court declared that the freedom of speech and expression to practice any profession or carry on any trade, business or occupation over the medium of internet enjoys constitutional protection under Article 19(1)(a) and Article19(1)(g).

 

The Supreme Court towards its manifestation of gender justice in Secretary, Ministry of Defence v. Babita Puniya and Ors[38], directed that Permanent Commission should be granted to women in army regardless of their service and it was held that complete exclusion of women from command is violative Article 14 of the Constitution of India.

 

In NALSA v. Union of India[39], the Supreme Court declared transgender people the 'third gender’, and affirmed that the fundamental rights granted under the Constitution of India will be equally applicable to them.

 

In Navtej Singh Johar v. Union of India[40], the Court decriminalized Section 377 of Indian Penal Code. Justice Dipak Mishra observed that “the Constitution of India is regarded as a social document. The society is ever changing and to cope up with the change the Constitution must evolve. This points out towards the transformative role of the Constitution. The ability of the Constitution to transform makes it an organic document.” Justice Chandrachud also regarded the Constitution as being transformative in character and upholding rights of marginalized and deprived sections in the society.

 

In Joseph Shine v. Union of India[41], the Supreme Court ruled that Section 497, which criminalizes adultery is unconstitutional and hence, struck it down. The court also said that section 497 strips a woman of her autonomy, privacy and dignity.

 

In Indian Young Lawyers Association & Ors. v. State of Kerala & Ors [42], the Supreme Court allowed the entry of women of all ages into the Ayyapa temple at Sabarimala in Kerela and said that 'devotion cannot be subjected to gender discrimination’.

 

One of the most recent instances of transformational constitutionalism where care was taken to guarantee that neither of the religious groups would be insulted and that communities would be brought together rather than separated over religious matters was in M Siddiq (D) Thr Lrs v. Mahant Suresh Das & Ors[43].

 

Judicial interventions have been catalytic in bringing civil and political rights into the political mainstream, allowing the political class to address them through legislation. The area of socioeconomic rights has also benefited greatly from judicial interventions, which have also aided in bringing the issues of the underprivileged into the political mainstream. As Justice Bhagwati points out, "The judge infuses life and blood into the dry skeleton provided by the legislature and creates a living organism appropriate and adequate to meet the needs of the society.[44]"

 

TRANSFORMATIVE CONSTITUTIONALISM IN THE UNITED STATES OF AMERICA

The Constitution of United States is a classic example of a modern liberal constitution. A higher law founded in popular sovereignty that would restrain authority and safeguard liberty was something that the late eighteenth century founders and ratifiers aimed to achieve. The classic constitutional tradition had an impact on American constitutionalism The Constitution of United States secures social benefits through fundamental laws, rule of law, entrenches political procedures, limits governmental power and thereby also guarantees basic human rights[45]. The modern constitution does not have to be contained in a single written document. Despite the fact that the British constitution is not on display, colonial Americans alluded to the English Constitution and lamented that they were being denied their constitutional rights as Englishmen.

 

The fundamental questions on constitutionalism were answered in McCulloch v. Maryland[46], whereby the Chief Justice John Marshall opined that the constitutional powers of the federal government should be broadly construed and that the state may not interfere in any way with exercise of legitimate national powers.

 

If we look at the evolution of constitutionalism in America, it has gone from a region with no constitution to one where academics and judges are working to create new kinds of constitutionalism. The first phase of constitutionalism that followed independence attempted to define a system of checks and balances but was biased in favour of the president and the center-federalist model of territorial organization. Social provisions favouring the weaker classes were not included in this constitutional design. Even while radical organizations sought to advance many social changes, their efforts were rejected by the liberal-conservative agenda, which resulted in structural inequalities and a totalitarian government. Even though this age was characterized by economic advancement and a stable government, the working class began to rise against the authoritarian government and growing inequality.

Between 1910 and 1950, this led to the second stage of social constitutionalism[47]. The working class' inclusion as a key political and economic player was the only shift that took place throughout this time. The third phase, which is distinguished by a rights-based philosophy, emerged in opposition to the dictatorial practices that were common in these areas.

 

Equality has been laid down as one of the formulae of the US constitution. Although the stringent scrutiny criteria have been incorporated into substantive legal equality, this does not mean that it can effectively fight structural inequality. Although the ant discriminatory principle is effective in isolated instances of discrimination, persistent behaviors of dominance have made it impossible to end inequality[48].

 

In Villagrán Morales v. Guatemala[49], the Court held that rights were violated by state omissions, more specifically by the failure of the state to implement positive measures to generate conditions for a dignified life.

 

In Yean and Bosico v. Dominican Republic[50], the Inter- American Court held that the Dominican Republic, by refusing to issue their birth certificates, had violated their rights to equal protection and to nondiscrimination, the rights to nationality, to a juridical personality, and to a name, and they were also barred from exercising their citizenship rights, all on account of their Haitian origin.

 

In González Lluy v. Ecuador[51],it was held that intersectional discrimination implies a number of discriminating factors that interact and produce a particular situation of vulnerability.

 

Renowned libertarian Judge Richard Posner argues that "The folks who drafted the Bill of Rights were worried that the government may do too much to the people rather than too little for them. Instead of guaranteeing Americans access to essential government services, the Fourteenth Amendment sought to safeguard Americans from state government[52]”.

 

Judicial review is an essential requisite for constitutionalism and the same was declared by John Marshall in Marbury v. Madison[53]. Some of the landmark judgments that bought in a change in USA are as follows:

 

In Brown v. Board of Education[54], secured equal protection of rights for the African Americans and reiterated that the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution prohibits states from segregating public school students on the basis of race.

 

In Fulton v. City of Philadelphia[55], a religious-backed foster care agency was denied a new contract by the City of Philadelphia, Pennsylvania, due to the agency's refusal to certify married same-sex couples as foster parents on religious grounds and the Court ruled that the city's refusal due to the agency's same-sex couple policy violated the Free Exercise Clause.

 

In Roe v. Wade[56], it was held that the constitution protects abortion rights and in Planned Parenthood v. Casey[57], the Supreme Court ruled that the Constitution is permitted to regulate but not ban abortion as it may depend on whether the Constitution of United States commits Americans to live by certain ideals or provide guidelines that enable persons with very different ideals to live together.

However, the Supreme Court’s decision in Dobbs v. Jackson Women's Health[58] marked the end of a woman's constitutional right to an abortion and thereby overturned the above landmark decision, leaving the legality of abortion to be determined by individual states.

 

The US constitutionalism, according to Michaele Hailbronner, is not transformative constitutionalism since it "does not entrust the federal state with the duty of bringing about a more just and equitable society[59]."

According to him, judges and lawyers have various perspectives on transformative constitutionalism depending on the country. Some nations link it to the function of judges, while others credit political processes with reform.

According to Michaele Hailbronner, the United States Constitution does not provide the judiciary the authority to promote a more equitable and just society.

As a result, the US constitutional experience is sometimes seen as being distinct from the global South's vision of transformational constitutionalism, in which governments play an activist role[60].

 

This is due to the deeply dividing hierarchies and severe resource shortages that still exist in nations like South Africa and India, which the Constitution aimed to combat.

 

 As Dr. Ambedkar said, they also hindered us from ever forming the idea of a nation since caste-based distinctions denied the possibility of fraternity and, by extension, of a nation.

 

TRANSFORMATIVE CONSTITUTIONALISM IN THE UNITED KINGDOM

England, Wales, Scotland, and Northern Ireland constitute the United Kingdom. Annexed into the Kingdom of England in 1536, the Kingdom of Wales joined the English Kingdom in 1707 to establish the Kingdom of Great Britain, and the Kingdom of Ireland joined the British Isles in 1801 to become the United Kingdom of Great Britain. Initially a monarchy, it eventually underwent a Great Revolution in 1689 and adopted a parliamentarian system of representative government to become a democracy[61]. The United Kingdom's constitution is unwritten. The British legal system does not have standing orders. Major governmental institutions' roles and the way that power is distributed have become institutionalized over many years of consistent use. The majority of the rules in the British legal system were created by precedent and have since then become established norms.

 

Nonetheless, the United Kingdom is often considered as a constitutional democracy. The Magna Carta (1215) and the English Bill of Charter (1689) both uphold the values of good governance. An alternative to written pronouncements in other constitutional systems is the English Constitution, which is made up of prevailing beliefs and understandings that exert pressure on the government just as effectively. Professor Charles Mellwain stated in 1947 that the fundamental ideas that Burke, Camden, and Otis referred to were "no less constitutional because they were unwritten.” In his view, "limitations on arbitrary rule have become so firmly fixed in the national tradition that no threats against them have seemed serious enough to warrant the adoption of a formal code.[62]" Radical shift is already occurring in Britain, which calls into question long-held notions of British constitutionalism.

 

The rights of British citizens did not include a list of assurances included in a written document. For British citizens, liberty and freedom are the leftovers of liberties that the Parliament left unaffected. Both judicial and legislative review of legislation and administrative actions were used to protect rights. The demand for the passage of the Bill of Rights, however, grew in the latter part of the 20th century. It was presumably due to the understanding that Parliament was no longer a reliable check on the executive branch. The Human Rights Act of 1998 was finally passed by the British Parliament in 1998 after at least three failed attempts[63]. The Human Rights Act of 1998 was passed to ensure that the rights guaranteed by the European Convention on Human Rights were properly protected. The government provided three justifications for passing the Human Rights Act of 1998: First, instead of taking their case to the Strasbourg Court of Human Rights, it would allow persons to exercise their Convention rights in local courts. Second, it would be more meaningfully introduced into British courts; otherwise, courts have relied on Convention rights to interpret rights accessible to British individuals in the past. Thirdly, it would provide British courts the opportunity to shape European legal interpretations of Convention rights[64].

 

People did not have direct access to Strasbourg Court until 1998. They had to submit an application to the European Commission on Human Rights, which would then bring a lawsuit on behalf of the aggrieved party before the Strasbourg Court on Human Rights[65]. The difficulty the judiciary had prior to the adoption of the Convention rights was that it had to use the Convention rights as a guide while interpreting domestic laws. Any domestic laws that conflict with the rights guaranteed by the Convention would take precedence. The British Parliament did pass laws protecting people' rights. However, the same appeared insufficient to guarantee people' rights. In Taylor v. Co-operative Retail Services[66], Taylor, an employee was subjected to some pressure to join Trade Union Association which was legal under the domestic law of United Kingdom but violated rights guaranteed under the under the European Convention on Human Rights. The court observed that the Judiciary recognized the disparity between the domestic law and Convention rights and there is a necessity for ratifying the Convention Rights and to enact legislation[67].

 

As a result, the Parliament was completely ineffective as a check on the government's arbitrary authority, and the judiciary had to step in and there has been a rise in cases of human rights violations in the United Kingdom since the Human Rights Act of 1998 was passed[68].

 

The UK Supreme Court in Basfar v. Wong[69], concluded that the alleged exploitation of a domestic worker in circumstances of modern slavery falls within the “commercial activity” exception to diplomatic immunity in Article 31(1)(c) of the Vienna Convention on Diplomatic Relations, 1961.

 

The Supreme Court in its current form was founded barely a decade ago but however, the debate over the judiciary's relationship with politics can be traced back to at least 1625, when Francis Bacon, who was then Lord Chancellor, said that judges may be lions, "but yet lions beneath the monarch.[70]" When Sir Edward Coke declared the guiding principle of a constitutional monarchy in the 1611 Case of Proclamations[71], "The King hath no prerogative but what the law of the land allows him," and the lions started to come out from under the throne, according to former Court of Appeal judge Sir Stephen Sedley. The Supreme Court determined that in addition to the fact that the judiciary has long had a supervisory role over executive actions, it is also the Court's duty to uphold the principles of our constitution, a duty it cannot avoid "simply on the ground that the question raised is political in tone or context." As demonstrated in Case of Proclamations, from the 17th century, the courts have guarded parliamentary authority against the misuse of prerogative powers. Lord Sumption, a former member of the Supreme Court who had no problem with the Divisional Court's "orthodox" viewpoint, acknowledged that this decision is required in reaction to the government's constitutional vandalism[72].

 

The preservative interpretation of the constitution, however, is logically and practically flawed since it is unable to explain the multipolar and decentralized changes of the past. The legal and political modifications to the constitution are viewed as "transformative" by a certain segment of the populace. Due to a variety of constitutional provisions and continuing procedures for the devolution of power within tiered systems of government, this perspective emphasizes the U.K. constitution's fragility. The constitution's preservation model encourages a universalist approach, but the transformational model demands a contextualist one. The core conceptions underlying the United Kingdom's constitution have undergone a major change as a result of supranational (European Union)[73].

 

CONCLUSION

Transformative constitutionalism serves as a tool for establishing an equitable social order. Making legislation that follow the evolving cultural standards is beneficial. It is essential to the smooth functioning of a democracy that is concerned with the welfare of all social groups, including the marginalized ones. We may thus conclude that transformational constitutionalism aims to eliminate societal ills like discrimination based on sex, caste, colour, sexual orientation, or religion while also defending human rights, which are the cornerstone of a civilized society.

 

Given the significance of the law and its constitutional responsibility to interpret and uphold basic rights, it is evident that the judiciary has a crucial role within the setting of transformative constitutionalism. Transformative constitutionalism embraces judicialism in order to accomplish this, giving the law and, thus, the courts a significant role in the reform process. In order to do this, judges must be aware of the historical context that shapes the social and political issues it aims to address today. Additionally, it inherently calls for less emphasis on legal and procedural details that frequently make it impossible to enforce fundamental rights and obligations under the law. In many nations, including the US and South Africa, the constitutions serve to create a new political and moral framework for their societies, particularly when they result from the success of a revolutionary movement, as was the case with the early US constitution, which was adopted in response to historical atrocities. In UK, it is both preservative and transformative model of constitutionalism. India truly undergoes through transformative constitutionalism through its judicial pronouncements post-independence as they were under colonial rule.

 

Access to equitable justice, legal education, legal culture, sustaining the separation of powers while ensuring that all branches of government cooperate, and reconciliation are therefore obstacles to achieving transformational constitutionalism. In the framework of transformative constitutionalism, judges must be ready to use the law more creatively in order to achieve its goals. This entails a psychological adjustment that allows them to recognize the great expectations put on their shoulders and take on a more certain role within the framework of government. This inevitably calls for the development of "rights-friendly jurisprudence," or a philosophy that supports the enjoyment of fundamental rights, as well as the willingness to reject judicial deference to political arms when the law and the Constitution are being violated or are in danger of being violated.

 

 

 

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[1] Indira Jaising, Transformative Constitutionalism- A post-colonial experiment, The Leaflet, July 2019, available at https://theleaflet.in/transformative-constitutionalism-a-post-colonial-experiment-indira-jaising/ (last visited Nov 6,2022).

[2] Indrani Kundu, Constitutionalism to Transformative Constitutionalism: The Changing Role of the Judiciary, Indian Journal of Law and Justice, Vol. 11, No. 2, September, 2020.

[3] T Roux, ‘Transformative constitutionalism and the best interpretation of the South African Constitution: Distinction without a difference?', (2009) 2 Stellenbosch Law Review 260.

[4] Heinz Kling, The Constitution of South Africa- A Contextual Analysis, Hart Publishing ,2010, pp.1-17; See also Solange Rosa, Transformative Constitutionalism in a Democratic Developmental State, Stellenbosch University SUN Scholar Repository,2011, available at https://core.ac.uk/display/188223973?utm_source=pdf&utm_medium=banner&utm_campaign=pdf-decoration-v1 (last visited Nov 7,2022).

[5] Meera Emmanuel, Constitution Day 2019: Transformative Constitutionalism and the Indian Supreme Court, Bar and Bench, 26 November, 2019, available at https://www.barandbench.com/columns/constitution-day-2019-note-on-transformative-constitutionalism (last visited Nov 7,2022).

[6] P Langa,'Transformative constitutionalism’, (2006) 17 Stellenbosch Law Review 351.

[7] Emmanuel, supra note 5.

[8] Emmanuel, supra note 5.

[9] High Court Miscellaneous Application 279 of 1985; See also Matiba v. Moi, Election Petition 27 of 1993.

[10] K Van Marle, 'The spectacle of post-apartheid constitutionalism', (2007) 16 Griffith Law Review 418.

[11] [2013] eKLR; See also S v. Makwanyane & Another, (CCT3/94) [1995] ZACC 3, Democratic Alliance v. Speaker of the National Assembly & Others, [2016] ZACC 11.

[12] [2014] eKLR.

[13] [2015] eKLR..

[14] 1999 (1) SA 6 (CC).

[15] [2005] ZACC 19.

[16] 2003 (2) SA 198 (CC).

[17] (CCT11/00) [2000] ZACC 19.

[18] [2013] eKLR; See also Trusted Society of Human Rights Alliance v. Attorney-General & Others, [2012] eKLR (HCK), Institute of Social Accountability & Another v. National Assembly & 4 Others, [2015] eKLR.

[19] Eric KibetI and Charles Fombad, Transformative constitutionalism and the adjudication of constitutional rights in Africa, African Human Rights Law Journal,Vol 17,No.2,2017,available at http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1996-20962017000200002#top_fn104 (last visited Nov 7,2022); See also Oscar Vilhena ,Upendra Baxi and Frans Viljoen, Transformative Constitutionalism: Comparing Apex courts of Brazil ,India and South Africa,Pretoria University Press,2013,available at https://www.pulp.up.ac.za/edited-collections/transformative-constitutionalism-comparing-the-apex-courts-of-brazil-india-and-south-africa (last visited Nov 7,2022); Speaker of the Senate & Another v Attorney-General & 4 Others ,[2013] eKLR.

[20] Sunil Khilnani, Vikram Raghavan and Arun K. Thiruvengadam, Comparative Constitutionalism in South Asia,Oxford University Press ,2013; See also John Hatchard, Comparative Constitutionalism and Good Governance in the Commonwealth , Cambridge University Press, 2004.

[21] Prof. Mahendra Pal Singh, CONSTITUTIONALISM IN INDIA IN COMPARATIVE PERSPECTIVE, NUJS Law Review, 2018, available at http://nujslawreview.org/wp-content/uploads/2020/08/11.4-MP-Singh-CONSTITUTIONALISM-IN-INDIA-IN-COMPARATIVE-PERSPECTIVE.pdf (last visited Nov 14,2022).

[22] Indira Jaising, Transformative Constitutionalism- A post-colonial experiment, The Leaflet, July 2019, available at https://theleaflet.in/transformative-constitutionalism-a-post-colonial-experiment-indira-jaising/ (last visited Nov 14,2022).

[23] Jaising, supra note 20.

[24] Jaising, supra note 20.

[25] Mohammed Shabbir, Ambedkar on Law, Constitution and Justice, Rawat Publications,2005; See also Rosalind Dixon and Tom Ginsburg, Comparative Constitutional Law in Asia, Edwar Elgar Publishing Ltd,2014.

[26] Gautam Bhatia, The Transformative Constitution, HarperColins Publishers ,2019.

[27] TRANSFORMATIVE CONSTITUTIONALISM: A NECESSITY?, Jus Corpus Law Journal,2021, available at https://www.juscorpus.com/transformative-constitutionalism-a-necessity/ (last visited Nov 14,2022).

[28] Md. Saif Ali Khan and Dr. Sharafat Ali, Transformative constitutionalism: Contemporary Issues and Challenges in India, International Journal of Law Management & Humanities, Vol. 3, Iss.3,2020; See also Priya Shekhawat, Transformative Constitutionalism, International Journal of Law Management & Humanities, Volume 2, Issue 5,2019.

[29] AIR 1978 SC 597.

[30] (1978) 4 SCC 409.

[31] 1979 AIR 362.

[32]Writ Petition (C) No. 764 of 2018.

[33] (1985) 2 SCC 556; See also State of Bombay v. Narasu Appa Mali, AIR 1952 Bom 84, Danial Latifi v. Union of India, (2001) 7 SCC 740.

[34] (2017) 9 SCC 1.

[35] (1997) 6 SCC 241.

[36] (2017) 10 SCC 1.

[37] (2020) 3 SCC 637.

[38] 2020 7 SCC 469.

[39] AIR 2014 SC 1863.

[40] AIR 2018 SC 4321.

[41] 2018 SC 1676.

[42] (2017) 10 SCC 689.

[43] CA 10866- 10867/2010.

[44] TRANSFORMATIVE CONSTITUTIONALISM: A NECESSITY?, Jus Corpus Law Journal,2021, available at https://www.juscorpus.com/transformative-constitutionalism-a-necessity/ (last visited Nov 14,2022).

[45] Mark A Graber, A NEW INTRODUCTION TO AMERICAN CONSTITUTIONALISM, Oxford University Press, 2013, pp.1-39.

[46] 17 U.S. 316.

[47]Akshaya Chandani, The Development of Transformative Constitutionalism and Ius Commune in Latin America, The Indian Yearbook of Comparative Law, Springer,2018, available at https://doi.org/10.1007/978-981-13-7052-6_17 (last visited at Nov 9,2022).

[48] Martin Aldao, Transformative Constitutionalism in Latin America, Oxford University Press, available at www.researchgate.com (last visited Nov 9,2022).

[49] (1 November 1999) Series C No. 63.

[50] (November 23, 2006) Series C No. 156.

[51] (September 1, 2015) Series C No. 298; See also Castañeda Gutman v. Mexico, (August 6, 2008) Series C No. 184, Yatama v. Nicaragua, (June 23, 2005) Series C No. 127.

[52] Jackson v. City of Joliet, 715 F.2d 1200.

[53] 5 U.S. 137 (1803).

[54] 347 U.S. 483 (1954).

[55] 210 L. Ed. 2d 137.

[56] 410 U.S. 113 (1973).

[57] 505 U. S. 833.

[58] June 24, 2022.

[59] Jaisingh, supra note 1.

[60] Lee Epstein and Thomas G Walker, Constitutional Law for a Changing America, Co Press, 9th Edition; See also Rosalind Dixon and Tom Ginsburg, Comparative Constitutional Law, Edwar Elgar Publishing,2014.

[61] Sir David Lindsay Keir, The Constitutional History of Modern Britain Since 1485, A&C Black, 1969.

[62] Mark A Graber, A NEW INTRODUCTION TO AMERICAN CONSTITUTIONALISM, Oxford University Press, 2013, p.24.

[63] Elizabeth Wicks, The Evolution of a Constitution: Eights Key Moments in British Constitutional History, Oxford and Hart Publishing, 2006, pp.195-201.

[64] Constitutional Reform in the UK: Practice and Principles, The University of Cambridge Centre for Public Law, Hart Publishing,1998.

[65] Indrani Kundu, Constitutionalism to Transformative Constitutionalism: The Changing Role of the Judiciary, Indian Journal of Law and Justice, Vol. 11, No. 2, September,2020.

[66] 1982 Indus. Cas. R. 600.

[67] Kundu, supra note 39.

[68] Responding to human rights judgments, Ministry of Justice, December,2021, available at https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/1038601/human-rights-judgments-2021-print.pdf (last visited Nov 12,2022).

[69] [2022] UKSC 20.

[70] Id.

[71] [1610] EWHC KB J22.

[72] Hala Ali Alhedeithy and Emily Nicholson, The UK Supreme Court’s “One Off” Judgment,Oxford Human Rights Hub,2019, available at https://ohrh.law.ox.ac.uk/the-uk-supreme-courts-one-off-judgment/ (last visited Nov 12,2022).

[73] Jo Eric Khushal Murkens, Preservative or Transformative? Theorizing the U.K. Constitution Using Comparative Method, The American Journal of Comparative Law, Volume 68, Issue 2, June 2020,available at https://doi.org/10.1093/ajcl/avaa015 (last visited Nov 12,2022).