Skip to main content

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.”
Labels:

Comments

Post a Comment

Popular posts from this blog

Section 58B of The Advocates Act - Special provision relating to certain disciplinary proceedings

 Section 58B The Advocates Act Description (1) As from the 1st day of September, 1963, every proceeding in respect of any disciplinary matter in relation to an existing advocate of a High Court shall, save as provided in the first proviso to sub-section (2), be disposed of by the State Bar Council in relation to that High Court, as if the existing advocate had been enrolled as an advocate on its roll. (2) If immediately before the said date, there is any proceeding in respect of any disciplinary matter in relation to an existing advocate pending before any High Court under the Indian Bar Councils Act, 1926 (38 of 1926), such proceeding shall stand transferred to the State Bar Council in relation to that High Court, as if it were a proceeding pending before the corresponding Bar Council under clause (c) of sub-section (1) of section 56: Provided that where in respect of any such proceeding the High Court has received the finding of a Tribunal constituted under section 11 of the Indian B
Post a Comment
Read more

Case Laws related to Defamation in favour of ClaimantCase Laws related to Defamation in favour of Claimant. TOLLEY Vs, J.S FRY & SONS LTD – (1931) Facts The defendants were owners of chocolate manufacturing company. They advertised their products with a caricature of the claimant, who was a prominent amateur golfer, showing him with the defendants’ chocolate in his pocket while playing golf. The advertisement compared the excellence of the chocolate to the excellence of the claimant’s drive. The claimant did not consent to or knew about the advertisement. Issue The claimant alleged that the advertisement suggested that he agreed to his portrait being used for commercial purposes and for financial gain. He further claimed that the use of his image made him look like someone who prostituted his reputation for advertising purposes and was thus unworthy of his status. At trial, several golfers gave evidence to the effect that if an amateur sold himself for advertisement, he no longer maintained his amateur status and might be asked to resign from his respective club. Furthermore, there was evidence that the possible adverse effects of the caricature on the claimant’s reputation were brought to the defendants’ attention. The trial judge found that the caricature could have a defamatory meaning. The jury then found in favor of the claimant. Held The House of Lords held that in the circumstances of this case – as explained by the facts – the caricature was capable of constituting defamation. In other words, the publication could have the meaning alleged by the claimant. The Lords also ordered a new trial limited to the assessment of damages. NEWSTEAD V LANDON EXPRESS NEWSPAPER LTD, (1939) Facts: A newspaper published a defamatory article about Harold Newstead. However, another person with this name brought an action in libel. He claimed that the article had been misunderstood as leading to him. The defendant newspaper recognised that they published the article. Also, they denied that they had the intention of being defamatory of him. Consequently, the claimant argued that the newspaper was under a duty. The duty was to give a clear and complete description of the correct person. Moreover, the claimant argued that the defendants were in breach of the duty. Issues: The issue in Newstead v London Express Newspaper, was if the reasonable persons would have understood the words complained of to refer to the plaintiff. Held: The Court of Appeal stated that in accordance with the current law on libel, liability for libel does not depend on the intention of the defamer; but on the fact of the defamation. Accordingly, a reasonable man, in this case a newspaper publisher, must be aware of the possibility of individuals with the same name and must assume that the words published will be read by a reasonable man with reasonable care.

  Case Laws related to Defamation in favour of Claimant.  TOLLEY  Vs,  J.S FRY & SONS LTD – (1931) Facts The defendants were owners of chocolate manufacturing company. They advertised their products with a caricature of the claimant, who was a prominent amateur golfer, showing him with the defendants’ chocolate in his pocket while playing golf. The advertisement compared the excellence of the chocolate to the excellence of the claimant’s drive. The claimant did not consent to or knew about the advertisement.   Issue The claimant alleged that the advertisement suggested that he agreed to his portrait being used for commercial purposes and for financial gain. He further claimed that the use of his image made him look like someone who prostituted his reputation for advertising purposes and was thus unworthy of his status. At trial, several golfers gave evidence to the effect that if an amateur sold himself for advertisement, he no longer maintained his amateur status and might be aske
1 comment
Read more

Rules as to delivery of goods

                             Rules as to delivery of goods Section 2(2) of Sale of Goods Act defines ‘delivery’ as a ‘voluntary transfer of possession from one person to another.’ Thus, if the transfer of goods is not voluntary and is taken by theft, by fraud, or by force, then there is no ‘delivery. Moreover, the ‘delivery’ should have the effect of putting the goods in possession of the buyer. The essence of the delivery is a voluntary transfer of possession of goods from one person to another. There is no delivery of goods where they are obtained at pistol point or theft. 1. Mode of Delivery: According to Section 33, delivery of goods sold may be made by doing anything which the parties agree shall be treated as delivery or which has the effect of putting the goods in the possession of the buyer or of any person authorized to hold them on his behalf. Delivery of goods may be actual, symbolic or constructive. 2. Expenses of Delivery: According to Section 36(5), unless otherwise agree
Post a Comment
Read more