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Supreme Court judge Justice BV Nagarathna said on Saturday that the Indian Constitution was not only enacted to redress colonial wrongs but also to overcome social and economic domination.
Justice Nagarathna recalled that the moment when the Constitution of India and several other countries were adopted were moments of profound transformation against the background of historical grievances.
As such, the Constitution sought to overcome two kinds of domination
“First, alien colonial rule; Second, indigenous social, economic and social rule. It is against this background that the framers of our Constitution envisioned, conceptualized and formulated the vocabulary of rights and liberties,” she said.
The judge was speaking on the topic ‘Transformative Constitutionalism’ at the Chief Justice KK Usha Memorial Lecture organized by the Kerala Federation of Women Lawyers as part of Women’s Day 2023 celebrations.
She explained that, first, the Constitution transformed the legal relationship between the individual and the state by transforming the subjects of the colonial regime into citizens of the republic. It then contemplated a thorough reconstruction of society, which at the time was plagued by oppressive hierarchical systems.
“In a more complex transformative avatar, the Constitution recognized that the state had never been the sole locus of concentrated power in Indian society. Deeply pervasive hierarchies were maintained by structures that took various forms; one of them was caste. Understood in this sense, the formulation of the Constitution did not merely mean the end of the struggle against political subjugation, but also demonstrates the struggle for self-determination against multi-layered oppressive structures such as race, caste, etc.
She pointed out that this is clearly visible in the relatively unique horizontal rights provisions of the Indian Constitution, such as Article 15(2) which prohibits discrimination in access to restaurants and roads, Article 17 which abrogates untouchability, and Article 23 , which prohibits forced labor.
In his lecture, Justice Nagarathna first discussed approaches to constitutional interpretation that underpin the vision of a transformative constitution, such as the “living tree” approach.
She then discussed how the courts, along with other parts of democracy, have dealt with the three themes of the constitution that reflect the goals of transformative constitutionalism – equality, fraternity and liberty.
Excerpts from the speech below.
On Equality – The Constitution enjoins the state to redress not only the wrongs of the colonial past but also ancient wrongs such as untouchability, the status of women and Hindu patriarchy. The status of women was central to this self-conscious modernization project, and the judiciary was a crusader for a transformative agenda on women’s rights.
On Fraternity – Transformative constitutionalism calls for the realization of full human potential through the cultivation of positive social relationships, and fraternity is the vehicle for achieving this transformative agenda. This is particularly important for the deepening of our democracy and its values.
On Liberty – In order to ensure that the rights enshrined in Article 21 are not limited to ensuring the mere “existence of animals”, the protective umbrella of Article 21 has been interpreted and grown to include rights of the highest scope, including the right to bodily integrity, the right to die with dignity, the right to reproductive choice, the right to self-identify gender, the right to privacy, etc.
After going through several seminal decisions of the Supreme Court to elaborate on the above, Justice Nagarathna suggested that India’s unique public interest litigation is a means to ensure the transformative objectives of the Constitution.
“So that the ‘golden key to unlock the doors of injustice’ does not remain with the deep-pocketed, the Supreme Court of India pioneered the concept of Public Interest Litigation (PIL), thereby opening the portals of the courts to the common man. by embodying judicial activism in its people-oriented judicial dimension. For a long time, the Supreme Constitutional Court was seen as an “arena of legal antics for men with long wallets”. the last resort for the downtrodden and confused,” she said.
PILs have provided the Supreme Court with a mechanism to directly confront the problems faced by the more vulnerable sections of society and to address these problems, the proverbial lakshman rekha often needs to be changed, she said.
“These concerns are said to be remedied rather by extraordinary remedies which, to the extent permitted by the constitutional scheme, sometimes push the line or Lakshman Rekha, so to speak, between adjudication and legislation on the one hand and administration and adjudication on the other,” the court said.
The judge concluded by stating that despite the ongoing debate about the transformative potential of the Constitution, it is clear that he envisions a state that can create conditions for the exercise of freedoms by understanding the people for whom the Constitution was created.
“The tyranny of unfreedom that restricts the growth and development of the individual, such as systematic social depravity, intolerance etc., must be uprooted to bring out the true transformative potential of the Constitution,” Justice Nagarathna concluded.
Held at the Kerala High Court Auditorium, the lecture was dedicated to the memory of late Chief Justice KK Usha, who was the first woman Chief Justice of Kerala and also a founder member of the Women Lawyers Federation of India (Kerala Branch). .
Kerala High Court Judge Justice Anu Sivaraman delivered a special speech recalling her interactions with the late Chief Justice.
Advocate KK Shanthamma, President Kerala Federation of Women Lawyers (KFWL) delivered the Presidential Address and Advocate Karthika S, Vice President KFWL delivered the vote of thanks.
