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REJUVENATING THE RIGHT TO EQUALITY AND LIFE UNDER THE PARADIGM OF TRANSFORMATIVE CONSTITUTION

Section: B

Category: Article

Paper Code: RA-DC-22

Page Number: 295 - 301

Date of Publication: February 10, 2021

Citation: Dr. Daisy Changmai, Rejuvenating the Right to Equality and Life under the Paradigm of Transformative Constitution, 1, AIJACLA, 295, 295-301, (2021).

Details Of Author(s):

Dr. Daisy Changmai, Faculty of Law, National Law University and Judicial Academy Assam

Former Principal of Dibrugarh Hanumanbux Surojmal Kanoi Law College


ABSTRACT The Constitution of India sets the goal of justice, equality, liberty, and fraternity to achieve for its citizens and the welfare of the society. The framers of the Constitution were well-aware of the aspirations of the people and had respect for the values of the constitutional ideals, as such, they have incorporated some significant fundamental rights in the heart of the Constitution which are vital to human existence. These fundamental rights are dynamic and as a result always adaptable to changes in the context of social and economic development. It is pertinent to mention that fundamental rights derive their dynamic nature from the Constitution itself as this comprehensive document contains the extra-ordinary power of transformation. Advancing the transformative power of the Constitution the judiciary is endeavoring to achieve constitutional goals in all possible ways. In a series of landmark decisions in the recent past, namely, the Triple talaq case, the Right to Privacy case to Sabrimala temple case, the Supreme Court of India left no stone unturned to attain transformative equality and justice to all. In an attempt to secure gender justice which is central to the social reform as well as necessary to prevent the widespread social and economic inequalities that prevailed in the Indian society ever before, the part played by the judiciary is always appreciable. Through this paper, the researcher intends to throw some light on reviving the two most significant fundamental rights, namely, the right to equality and right to life resulting from the transformative nature of the Constitution, and also emphasis has been given on the role of the judiciary in redefining the rights. KEYWORDS Transformative Constitution, Dignity, Equality, Fraternity, Constitutional ideals.

INTRODUCTION The Constitution of India being the living document is adaptable to changes that come on its way to give life and blood to the citizens of India. The objective of welfare society leads the Constitution to confronts changing situations from time to time which further experienced the Constitution to transform itself under the circumstances. Keeping the constitutional ideals of liberty, equality, and fraternity at the forefront our Constitution has undergone many remarkable changes since its inception. Among others, the expanding horizon of the right to life and liberty under Article 21 as well as the right to equality under Article 14 that transforms into a new chassis is noteworthy that portrays the dynamic nature of this document. Recognizing the ‘transformative power’ of the Constitution, the Supreme Court of India in the ‘NALSA judgment’ hold the view that “The role of the Court is to understand the central purpose and theme of the Constitution for the welfare of the society. Our Constitution, like the law of the society, is a living organism. It is based on a factual and social reality that is constantly changing. Sometimes a change in the law precedes societal change and is even intended to stimulate it. Sometimes, a change in the law is the result of the social reality.” Hence, the idea behind the transformation of the Constitution is to ensure the welfare of society while keeping the originality intact. Undoubtedly, in such an incredible transformation of the Constitution, the contribution of the judiciary is commendable. Judiciary in exploring the constitutional goals gifted the society with a good number of legal rights by promoting to the stage of fundamental rights. In recent times we have been witnessed several landmark judgments where the judiciary departed from conservative constitutional concepts into a dynamic and vibrant constitutional framework.

TRANSFORMATIVE CONSTITUTION: CONCEPT The idea of making the Constitution a transformative document was formulated by the Constituent Assembly at the very outset. Although the members of the Constituent Assembly had borrowed the central theme from the Government of India Act, 1935, they took a massive dig in it by incorporating a remarkable document in the form of the Constitution ensuring freedom, dignity, and equality to the individuals. As against the criticism framers of the Constitution made a vital departure from the colonial regime on many aspects, such as, declaring the territory as a sovereign republic, it also transforms the legal relationship between the State and the individual and converts the subjects into citizens of India by guaranteeing public participation in the democratic process. Moreover, the insertion of fundamental rights in its stands proves its transformative character prominently. Change is the law of life– the mantra behind emancipating the notion of transformative Constitution. For a transitional shift of the societal setup and also to fulfill the aspiration of the people, a departure from the conservative colonial rule becomes the ardent necessity. All these factors together led to the formation of the Transformative Constitution. Originally the notion of transformative constitutionalism was propounded by US scholar Professor Karl Klare in his seminal writing titled “Legal Culture and Transformative Constitutionalism. He explains 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.

RIGHT TO EQUALITY AND LIFE UNDER THE PURVIEW OF THE TRANSFORMATIVE CONSTITUTION Right to equality and right to life and personal liberty are two fundamental freedom gifted to the citizens of India to fulfill the constitutional milestone. The Constitution of India extends to all without any discrimination equal treatment, respect, and freedom to live their life which he is entitled to being a human. After the NALSA’s case guarantees that given under Articles 14 and 21 reach out to every person including citizens, non-citizens, and trans-genders as well. Although these rights form the very foundation of fundamental freedom, the expressions ‘equality’ and ‘life and liberty’ seem to be a dynamic concept from the very beginning that opens new avenues with the changing times and as such we have been witnessed some remarkable transformation in the magnitude of these expressions in recent years. It must be accepted that fundamental rights are basic rights necessary to carry a dignified life, but they should be read and understood in the given situation and social context. To name a few we can first take the judgments of the National Legal Service Authority (NALSA) v. Union of India,[1]in which the Apex Court set up another milestone of gender equality by recognizing the transgender community as the third gender in the eye of law. The Court directs the Central and State to take proactive action in securing transgenders’ rights and grant recognition of gender identity as male, female or third gender. While recognizing the transgenders’ right, the Court interpreted “dignity” in terms with Article 21 of the Constitution to express their self-identity. It also directs to include transgender under the purview of the Right to equality (Art. 14) and freedom of expression [Art.19(1)(a)]. The judges, in this case, opted for the protection of the transgender community under Articles 15 and 16 against the extreme discrimination faced by them in their social life. Declaring the age-old practice of triple talaq as illegal in the case of Shayara Bano v. Union of India[2] which is also popularly known as the ‘triple talaq case’, over and again set up transformative gender equality. The highest court abolished the practice of instant triple talaq as the court finds that it is arbitrary to women that restrict the Muslim women’s right to equality (Art. 14) and dignity of life (Art. 21) under the Constitution. Moreover, the Court opined that instant triple talaq is not an essential religious practice of Islam, hence it can be struck down. The Court further directed the Central Government to enact legislation for the protection of Muslim women's rights. As a result, the Central Government taking gender justice as the key issue enacted the Muslim Women (Protection of Right on Marriage) Act, 2019. In K. S. Puttaswamy v. Union of India,[3] upheld the continuing demand of declaring the right to privacy as a fundamental right under the broader amplitude of right to life and personal liberty and also laid down a test of reasonableness and proportionality for determining the nature of the violation of individual privacy. This was the second-largest hearing in the history of the Supreme Court to decide on the matter of compulsory biometric authentication for issuing Aadhar cards to individuals. It is pertinent to mention that initially when Aadhar was introduced, enrolment was made voluntary; thereafter, it was made compulsory for an opening bank account, or mobile SIM card, etc. Thus, in the prevailing situation, many questions raised before the Supreme Court, such as, whether such mandatory authentication is justifiable for the marginalized section of the society; whether taking fingerprints and an iris scan is not amount to a violation of privacy; and how far allowing private entities to collect larger biometric data is justifiable? In answering to manifold issues arises before it and also considering the AADHAR Legislation passed thereby the Court upheld the individual privacy right as an important facet of life. The Court cited a decade of landmark cases while founding the transformative liberty of persons by recognizing such a right. Continuing the trend of transformative equality four years later the Navtej Singh Johar v. Union of India case[4] establishes a transformation in the way of State function that co-existed with the societal response. The phenomenal rulings of the ‘Navtej Singh Johar’ will always be counted among the significant incidence of Indian judicial history as it recognized consensual sexual acts between two adults whether it is homosexual or heterosexual. The judgment also important from the point of partial struck down of Sec. 377 of IPC which criminalizes homosexuality and thus, gives legal recognition to LGBTI identity in India. The opinion authored by Justice AM Khanwilkar in this case on the notion of Transformative Constitutionalism as, “The whole idea of having a Constitution is to transform the society for the better and this objective is the fundamental pillar of transformative constitutionalism.” A breakthrough came with the Sabrimala temple case[5], which upheld transformative equality as well as Constitutional morality to assure the dignity of women. In this case, the Court struck down Rule 3(b) of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965 which bars the entry of women between the ages of 10-50 years to the Sabrimala temple. The Supreme Court observed that restricting women to enter into religious places is not an essential religious practice, thus, such practice can be abolished. Justice Chandrachud leading the majority judgment opined that “Religion cannot be cover to deny women right to worship as children of a lesser god is to blink at Constitutional morality”.

ROLE OF THE JUDICIARY IS APPRECIATING The contribution of the judiciary as a guardian and custodian of the Constitution is always commendable. In recent times, our Constitution is re-interpreted by the Supreme Court to transform the rigid and orthodox ideas into a broader prospect to establish an equitable society. Our Constitution being a radical document is always inclined to transform itself under the mandate of social needs and given situation. Judiciary has given a wider implication to the notion of the transformative constitution that happens to be in the essence of the Constitution. In the run to achieve the constitutional goal of equality, dignity, and fraternity, the judiciary has culled out several rights to the broader image of the fundamental right to equality and right to life and personal liberty. Holding its root in the spirit of the Constitution, the judiciary tries to expand the horizon with massive growth. While affixing new avenues to the ideals of the Constitution, our judiciary has always worked with new vigor and enthusiasm. Addressing a lecture on “Transformative Constitutionalism” Senior Advocate Indira Jai Singh stated that the judiciary has started its role towards transformative constitutionalism since the emergency declared during the regime of the Congress government. However, in the post-emergency period, the judiciary anchored the phenomenon of public interest litigation to ensure access to justice to all.[6] Reaffirming the role of the judiciary as a custodian of the Constitution in establishing a social democracy rather than a political democracy Justice SM Mbenenge of the South African High Court explained that,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.”[7] Thus, it is understood that the judiciary became the catalyst in bringing out the transformative nature of the Constitution that is the power that is inhibited in the inner core of the Constitution. In all the previously mentioned cases, from K.S. Puttaswamy case to Sabrimala temple case it appears to us that the courts bridled the transformative power of the Constitution through its choices and progressed a method of making a deciding about the circumstance saving its hold in the estimations of regard for dignity, equality, and fraternity.

CONCLUSION It is well known to us that fundamental rights are vital to human existence and indispensable for the all-round development of personality that embodies the values of dignity and equality. The right to equality and right to life as a fundamental right always cherished the constitutional values of justice, equality, liberty, and fraternity. Recognizing the three ideals of the Constitution, “liberty, equality and fraternity” as “Trinity of the Constitution” Ambedkar observed that Liberty cannot be divorced from equality; equality cannot be divorced from liberty. Nor can liberty and equality be divorced from fraternity. Without equality, liberty would produce the supremacy of the few over the many. Equality without liberty would kill individual initiative. Without fraternity, liberty would produce the supremacy of the few over the many. Without fraternity, liberty and equality could not become a natural course of things. It would require a constable to enforce them.”[8] Ambedkar had rightly interpreted the connection and essence of the trinity of the Constitution and that is why he favored for insertion of the fundamental rights for the attainment of self-fulfillment of the individuals and society. At par with the Constitutional ideals and respecting the importance of the fundamental rights, the Courts in India perceives through several landmark judgment that the Constitution of India a transformative document. Among others, the fundamental right to equality and right to life and personal liberty receives a new manifestation under the patronage of the judiciary in a good number of cases which time and again proves that our Constitution is transformative. Thus, we must appreciate the affirmative contribution of the judiciary in this regard and should also be mindful that it is a continuing task to guard the legacy in the future as well. However, the then CJI Dipak Mishra opined that the mandate to transform society is a task vested in the State, judiciary, and the citizen to ensure a better society for the future generation.[9]


[1] National Legal Service Authority (NALSA) v. Union of India (2014) 5 SCC 438. [2] Shayara Bano v. Union of India (2017) 9 SCC 1. [3] K. S. Puttaswamy v. Union of India (2017) 10 SCC 1. [4] Navtej Singh Johar v. Union of India (2016) 7 SCC 485. [5] India Young Lawyers Assn. v. State of Kerala, (2017) 10 SCC 689. [6] Speech of Noted Lawyer Indira Jai Singh on Transformative Constitution (Oct. 2020, 08, 11:55 AM), www.scroll.in. [7] Constitution Day 2019: Transformative Constitutionalism and the Indian Supreme Court, (Oct. 2020, 10, 03:00 PM), www.barbench.com. [8] Gautam Bhatia, Republic at 70: The Importance of Fundamental Rights, (Oct. 2020, 10, 07:35 PM), www.hindustantimes.com. [9]Arvind Narrain, Sec. 377: A greater transformation, Sept. 10, 2018, (Oct. 2020, 11, 09:00 AM), www.thehindu.com.

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