Sunday, 23 January 2022

Transformative constitution

 Indian Constitution: A living document

By Shreya Verma

Hans Kelson gave the concept of grundnorm (basic norm), i.e., the basic rule or norm defining legal system of a land. Constitution of a country is therefore the grundnorm or ‘supreme law of the land’ or the parent statute from which all other rules and statutes derive their validity. It consists of the set of rules upon which the other laws of that nation are based and anything inconsistent with the provision of the constitution are non-est. The constitution binds the society on the basis of its essential principles. The constitution is a mirror of the society and it will contain those principles only which are the essential binding principles of the society.

 72 years ago, on 26th of January 1950, India enacted and adopted its constitution. The reason why the longest written Constitution of the world has not lost its relevance even after seven decades is because of its transformative nature. 

With respect to transformative constitutionalism Senior advocate of Supreme court Indira Jaisingh, while citing Navtej Singh Johar judgement in a conference stated, “Transformative constitutionalism is considered to be one of the objectives of adopting a constitution itself. The purpose of it is to have a constitution which guides the nation in transforming itself from mediaeval and hierarchical Society to an egalitarian democracy to embrace the ideals enshrined in the preamble to the constitution.

The constitutional court whose to job is to protect its people from humiliation and discrimination cannot provide a static interpretation to the rights and liberty and equality and remain a new spectator to the struggle for the realisation and attainment of rights.”

It is considered to be a living document which changes with time. The idea is that, the constitution will always remain at work. It keeps adjusting according to the changes in society. However, the essence of the Constitution never changes, it may evolve with the passage of time.

It was held by the supreme court in M. Nagaraj vs Union of India that the Supreme court is not bound by the text of the Constitution rather it is bound by the spirit of the constitution. So, the supreme court while deciding a case is not bound to strictly adhere to constitutional text rather it shall go with the purpose of that text.

Many of judicial pronouncements have supported the notion that Indian constitution is a living document and keeps on changing with the requirement of time. Like, the landmark case of Kesavananda Bharti, which evoked the basic structure principle, also lied down that whole of the constitution can be changed except for its basic structure, i.e. the essence of the constitution.

The Supreme Court in National Legal Services Authority v. Union of India (2014) SC, in which it validated the equal rights to transgenders by declaring them the status of ‘third genders’ stated 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 realty 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 in the social realty.”

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