The Transformative Constitution Read online

  The problem with PIL, however, is not simply that it no longer maintains fidelity to the Constitution. Rather, in doing so, it misunderstands the role of the courts in our constitutional scheme vis-à-vis popular democracy. The Constitution is a transformative document, but its transformative vision has several components.81 Courts are not automatically entrusted with giving effect to the entire constitutional vision on their own.82 On the contrary, the Constitution has consciously selected different vehicles to carry out the separate items of its transformative agenda. To the courts is entrusted the task of breathing life into the Fundamental Rights chapter. And to popular democracy—through the Parliament and the executive—is assigned the task of achieving distributive justice, the attainment of independent socio-economic rights, and that boundlessly manipulable phrase: good governance.83 When it comes to these goals, the courts must not stand in the way of the other organs of State acting to achieve the Constitution’s transformative goals;84 but nor must they make themselves the vehicles for achieving the goals.85 As K.G. Kannabiran correctly recognized, ‘the attempt [of the framers] was to have a Constitution which would enable the people to cope with and transform India’s social reality within a liberal framework’.86

  D. The Framework of Democratic Politics

  But if transformative constitutionalism is neither merely about constraining State power, nor about guaranteeing socio-economic rights and securing distributive justice, then what is it about? The rest of this book is devoted to answering that question. Here, I shall attempt a brief summary: through a transformative understanding of liberty, equality, and fraternity, the Constitution is committed to creating the framework for a rich and substantive vision of democracy;87 in other words, the framework that makes democratic politics possible.

  By democratic politics, I mean a rough correspondence between State policies (including economic and social policies) and the popular will, expressed through constitutionally established channels such as periodic elections and the parliamentary structure, and with adequate safeguards against majoritarian tyranny.88 One of the greatest impediments to a thriving democratic politics is asymmetry of power: between individual and State, individual and community, and individual and individual (especially in skewed institutional contexts, such as the family and the workplace). Asymmetries in power enable domination and subordination at the point prior to participation in democratic politics, thereby skewing participation itself and, by extension, choking fair democratic outcomes.

  The liberty-equality-fraternity trinity aims to guarantee the preconditions that make possible any meaningful participation in democratic politics. It does so by deepening democracy in the public sphere, where it insists upon a ‘culture of justification’,89 i.e., every act of public power be justified by the touchstone of the Constitution. It also does so by expanding our notion of what constitutes the public sphere, and by democratizing the very spaces (such as the household and the family) that liberal constitutionalism has long deemed to be off-limits, because those institutions are as crucial in shaping individual participation in democratic politics as the State is.

  And that is where it stops. Transformative constitutionalism does not seek to interfere with the democratic process itself, or to determine outcomes. This is what separates the transformative constitutionalism that is articulated and defended in this book from the dominant, PIL vision of contemporary jurisprudence, which does involve the courts in shaping substantive outcomes.

  IV. The Nine Judgements

  It is not the aim of this book to glorify the courts as agents of constitutional transformation, or to place the language of rights that they speak upon a pedestal. The limitations of both are well known.90 Neither do I accord to courts normative priority over individuals, citizens, communities, and social movements in determining constitutional meaning or articulating constitutional truth.91 The Constitution is for all to interpret, for themselves, and ‘whichever story the Court chooses, alternative stories still provide normative bases for the growth of distinct constitutional worlds through the persistence of groups who find their respective meanings [elsewhere]’.92

  Nonetheless, in India and in many other parts of the world, it is the courts alone whose interpretations are authorized as legally final, and backed up (when necessary) by the force of the State. ‘Historical truth is hardly ever more than a descriptive hypothesis,’ the Italian oral historian Alessandro Portelli remarked wryly, ‘[but] legal truth, on the other hand, has a performative nature, measured in years in jail.’93 The transformative Indian Constitution is by no means limited to the courtroom (nor should it be), but the court remains an integral part of the story. Keeping that in mind, this book elects to tell the story of the transformative Constitution in the courtroom. It tells that story through nine judgements, ranging across our constitutional history, and selected from both the Supreme Court and the high courts. Together, these nine judgements articulate, in concrete terms, the transformative vision of the Indian Constitution.

  The first set speaks to the Equality Code (Articles 14 to 16 of the Constitution). The cases engage with gender equality, the decriminalization of sexual orientation, and the justifications for affirmative action and reservations. Taken separately and taken together, these judgements understand equality to be about overcoming institutional and structural barriers that have kept individuals and groups in a state of subordination. The text of the Equality Code, born out of more than a century of struggles for equal status and equal moral membership of the polity, locates and identifies sites of historical and current discrimination. It then commits the Constitution and the State to overcoming them, whether by the removal of discriminatory laws or by positive (affirmative) action. To use familiar shorthand—the Equality Code enshrines a vision of substantive equality as opposed to a merely formal (likes should be treated alike) one.

  The second set of cases engages with the concept of fraternity, and interprets those articles of the Constitution that have remained marginalized, both in judicial and in academic discourse. In dealing with economic exclusion (Article 15[2]), social boycotts and religious excommunication (Article 17), and workplace exploitation (Article 23), these judgements recognize that liberty and equality are threatened not only by concentrated State power but also by ‘private’ orderings (including religion and ‘custom’) that nonetheless have the potential to dominate individuals and block their access to the basic goods that are necessary to sustain a dignified life. This has been especially true in Indian history, where social and economic sanctions have often operated with far greater force than the coercive power of the State. The principle of ‘fraternity’ commits the Constitution and the courts to overcoming these ‘spheres of personal subordination’.94

  The last set of cases takes us back to the relationship between the individual and the State, and the Constitution’s ‘liberty code’ (Articles 19 to 22). These judgements interrogate the State’s role in upholding oppressive structures (in this case, family structures) that threaten individual freedom and the right to privacy. They examine the extent to which core civil liberties can be subordinated to claims of the ‘public welfare’ (especially in cases of an ‘Emergency’). And lastly, they look at how—by guaranteeing a right against self-incrimination—the Constitution stands between an individual accused of a crime, and the State in its most violent avatar: that of an interrogator and enforcer of laws. Together, these judgements indicate how the purpose of the Constitution is to transform a culture of authority under the colonial regime into a culture of justification in a free, open, and democratic society.

  And as we have seen, liberty, equality, and fraternity are not hermetically sealed off from each other. So, while these judgements are each worth studying individually, their transformative potential only shines through when we read them together: as integral elements of the three pillars of the constitutional trinity, mutually reinforcing and creating the necessary foundation for a free and egalitarian democratic politics.


  V. Emotion Recollected in Tranquillity: The Interpretive Approach

  What interpretive theory underlies this vision of the transformative Constitution? The contemporary, dominant approach to constitutional interpretation is that of the ‘living tree’:95 the Constitution is treated as an evolving document, with judges bearing the responsibility of ‘updating’ it so that it keeps pace with changing times. The living-tree approach is invoked to justify the expansion of Article 21, as well as the expansion of judicial power beyond what was contemplated by the framers96 (or is permitted by the text). However, without an explanation of the basis for evolution, and the direction in which the Constitution is meant to evolve,97 living-tree constitutionalism remains little more than an incantation, and a vehicle for judicial ideologies to masquerade as constitutional evolution. With a few exceptions,98 the Supreme Court is yet to provide us with a conceptual grounding for its evolutionary approach.

  By contrast, the intellectual opponent of living-tree constitutionalism, i.e., constitutional originalism, is discredited in India. Any reference to it draws derisive and fearful comments about a ‘return to the Gopalan era’99—the Supreme Court’s early, text-bound days. Trapped between the historical unacceptability of originalism and the boundless manipulability of the living tree, constitutional interpretation seems to be at an impasse.100

  Transformative constitutionalism takes seriously the text of the Constitution, its structure, and the historical moment of its framing. In order to glean the meaning of the Constitution’s provisions, it examines the discussions of the Drafting Committee, where these provisions were first proposed and given shape, and then the Constituent Assembly Debates, where they passed through the furnace of fierce opposition before being moulded into their final form. While conceding that this is by no means a definitive enquiry, transformative constitutionalism rules out interpretations that simply cannot be reconciled with a historically informed reading of the constitutional text.101 For instance, it rules out the judicial pyrotechnics that rewrote Article 21 in Maneka Gandhi v. Union of India—the jewel in the crown of living-tree constitutionalism. In that sense, transformative constitutionalism shares some of the commitments of originalism.

  Unlike the prominent variants of originalism, however, transformative constitutionalism is not frozen at the moment of framing. While taking text, structure, and history as crucial building blocks of constitutional meaning, it does not accord an overriding veto power to any of them. It does not bind itself to a mythical ‘original intent’102 of the framers, and nor does it tie itself to the ‘original meaning’ that the words used by the Constitution carried in 1950. Transformative constitutionalism recognizes that the framers were building a Constitution meant to last for generations. They were careful and conscious about the words they chose, and the words they chose (for the most part) expressed principles that would endure, not concrete commitments that would soon lose their salience and become antiquated in a rapidly changing world.103 Transformative constitutionalism’s task is to identify and express these founding principles that constitute the framework within which constitutional interpretation is to be carried on.104

  How are these principles to be identifed? It is here that transformative constitutionalism decisively parts company with both constitutional originalism and living-tree constitutionalism by embracing a more ecumenical interpretive canon, as discussed above. Transformative constitutionalism takes seriously Kannabiran’s insight that:

  … a constitution framed after a liberation struggle or a struggle for independence is like poetry, emotion recollected in tranquillity … there cannot be, there should not be two social histories, one for political theorizing and another for legal theorizing … the people who met in the Constituent Assembly were not mere technicians who had gathered there to prepare a handbook for running the government. They had participated in the struggles and, short of holding elections, every effort had been made to give their gathering a representative character.105

  To give expression to this ‘emotion recollected in tranquillity’, transformative constitutionalism examines the historical roots of the Fundamental Rights chapter in the liberation struggles: not just the dominant nationalist avatar of the freedom movement, but the plurality of liberation struggles that preceded the drafting of the Constitution, in the course of which Indians gave shape to their aspirations in the language of liberty, equality, and fraternity. For transformative constitutionalism, the Congress party’s 1931 Karachi Bill of Rights is as important as Rukhmabai’s letters to the Times of India in 1885, arguing for marital equality within the family; and Jyotirao Phule’s Gulamgiri is as relevant as the work of the Sub-Committee that drafted the Fundamental Rights chapter. Ultimately, it is a combination of all of these—text, structure, drafting history, and broader social and political history, including non-dominant dissenting strands of that history—that locates the constitutional document within its complete context and yields constitutional meaning. The task of this book, through the nine judgements that it examines, is to demonstrate how this approach to constitutional interpretation might work in practice.

  But to this interpretive approach, two objections may be raised. First, that colonial India had no vocabulary of ‘rights’ (whatever existed was merely derivative of Western conceptions). Therefore, any history-driven approach is anachronistic. This popular objection, which treats the concept of rights as a Western import that is somehow alien to India, is deeply misguided. To start with, it ignores language. As Anderson and Guha point out, the existence of words such as ‘insaf [justice], hak [right], nyaya [justice], and adhikara [right]’ should give pause before lazily subscribing to colonial scholarship (and its postcolonial variants) that holds that ‘South Asian “societies base their social structure on duties and obligations rather than on rights”’.106

  It also ignores the thriving discourse on rights that existed in colonial India, both within the formal channels of the nationalist movement107 and beyond.108 This included the domain of culture (such as the mediaeval Bhakti movement, which was translated by nineteenth-century reformers into the modern idiom of ‘equality’ and ‘justice’109). As this book will demonstrate, whatever the (Western) origins of the discourse of rights in colonial India, it arose out of the specific circumstances of the subcontinent,110 and assumed a shape that was far more than merely derivative. Whether it was Jyotirao Phule’s critiques of caste by using the vocabulary of slavery and freedom, Tarabai Shinde’s critique of gender relations in the language of equality, the Ad-Dharmi Movement’s ‘communal egalitarianism’, B.R. Ambedkar’s framing of his anti-boycott movement in terms of access to the public sphere, Gandhi’s uncompromising advocacy of the freedom of speech, and many more—Indians excavated the concept of rights, framed it to respond to the circumstances of the time, and made it their own.111

  The second objection is that transformative constitutionalism takes a historical approach without undergoing the full rigours of the historical method. To an extent, this peril exists with any approach to legal and constitutional interpretation. The nature of the legal enterprise requires the interpreter to draw conclusions from history and, to a lesser extent, from political philosophy, sociology, and other disciplines. This remains a fraught enterprise. As Alessandro Portelli observed, while discussing Italian terror trials of the 1970s:

  … the magistrates were thus involved in reconstructing the past, redefining its meaning, and attempting an overall interpretation. These are historical tasks, and it is appropriate to examine the way they were performed from the point of view of the theory and method of history …112

  The criticism is well taken, and, as will be clarified in the next section, transformative constitutionalism makes no claim to superior truth, whether legal or historical. It is also important to point out, however, that the form of interpretation is constitutional, not historical. Transformative constitutionalism does not seek to engage in a purely historical enquiry. Rather, it takes the constitu
tional text and the principles embedded in it as its starting point, and attempts to place them in their extended historical context in order to understand their meaning. This form of ‘contextual interpretation’ is the staple feature of numerous constitutional courts (such as those of Canada and South Africa). While it must, of necessity, remain sensitive to historiography and the historical method, it need not be judged on precisely the same yardstick that we would judge a claim that is made within the discipline of history.113

  VI. The Contrapuntal Canon

  Finally, to reiterate, this vision of the transformative Constitution does not make any claims to universal truth. It does not set itself up as the correct interpretation of the Constitution, or necessarily even as a superior interpretation of the Constitution. That would be a perilous claim, given the polyphony of the Constituent Assembly, the sheer diversity of its voices, as well as the silences and absences (of the Muslim League, the Socialist Party, and Gandhi, to name just three) that surrounded the Constitution-making process.114 Besides, grand narratives have a tendency towards becoming totalitarian.115 Any historically grounded interpretation must therefore acknowledge its own potential to exclude and marginalize voices from the past, and commit to remaining both open-ended and subject to revision. Otherwise, it risks stifling the very Constitution that it intends to liberate.116 So, my aims are more modest: I seek only to advance one reading of the Constitution that, when viewed in light of its text and context, is compelling on its own terms.117