CONSTITUTIONALISM, TRANSFORMATIVE CONSTITUTIONALISM AND CONSTITUTIONAL MORALITY

In this chapter we will understand the concept of Constitution and several derived concepts from Constitution like Constitutionalism, Transformative Constitutionalism and Constitutional Morality. These derived terms have not been defined in the Constitution but Judiciary had used these concepts for determination of cases involving constitutional issues.

CONSTITUTION

Constitution is the fundamental law of a Country according to which it is governed.

Constitution provides for constitution of government and decision making by them. It defines powers and responsibilities of different organs of the state. In Indian context if we see, the Constitution provides for detailed provisions for functions of executive, legislature and the judiciary.

Constitution provides for a set of rules that allow for minimum coordination amongst members of society. A nation can have citizens belonging to different religions, denomination and interests but constitution is commonly acceptable among citizens.

Constitution also puts limits on the power of the State. For example, in USA there is Bill of Rights which cannot be taken away by State. Similarly Indian Constitution grants Fundamental Rights to citizen and provides remedies also in cases of infringement of Fundamental Rights.

Many of the Constitutions are not limited only to governance aspects but also have social objectives. Such Constitution also enable government to fulfill aspirations of society and create conditions for just society. For example, in our Constitution Directive Principles have been provided for which State has to strive for.

Constitution provides a common national identity to its people. It fosters feeling of fraternity and oneness among them.

Constitution can be written one or unwritten one. In many countries like India and USA, the Constitution is in written form while in countries like UK, Constitution is a collection of documents, statutes and conventions.

CONSTITUTIONALISM

Constitutionalism denotes that Constitution grants limited power to every organ of State. Every organ of the State has to act within the framework of the constitution. Constitutionalism prevents any organ of the State from becoming arbitrary. Constitutionalism is antithesis of despotism.

The features of constitutionalism are Popular Sovereignty, Independent Judiciary, Separation of Powers, Responsible and Accountable Government, Rule of Law, Police Accountability, Civil Control of the Military Affairs etc.

Supreme Court in I.R. Coelho Vs. State of Tamil Nadu ( AIR 2007 SC 861 ) had observed that Constitutionalism requires control over the exercise of Government Power to ensure that it does not destroy the democratic principles upon which it is based.

The principle of constitutionalism is now a legal principle which requires control over the exercise of Governmental power to ensure that it does not destroy the democratic principles upon which it is based. These democratic principles include the protection of fundamental rights. The principle of constitutionalism advocates a check and balance model of the separation of powers, it requires a diffusion of powers, necessitating different independent centers of decision making. The principle of constitutionalism underpins the principle of legality which requires the Courts to interpret legislation on the assumption that Parliament would not wish to legislate contrary to fundamental rights. The Legislature can restrict fundamental rights but it is impossible for laws protecting fundamental rights to be impliedly repealed by future statutes.

TRANSFORMATIVE CONSTITUTIONALISM

Professor Karl Klare’s in his work titled Legal Culture and Transformative Constitutionalism published in 1998 viewed “ Transformative Constitutionalism” 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.

The concept of “Transformative Constitutionalism” emphasizes the role of Constitution in transformation of society for the better. This is much more true for countries which were colonies of several empires and achieved independence after long struggle. Constitution for them are like guiding principles for a better future.

There is no doubt that Indian Constitution was a transformative document. Indian Constitution granted adult suffrage at a stroke which was nothing but a social revolution. The preamble of the Constitution, Fundamental Rights and Directive Principles of State Policy are transformative features of Indian Constitution.

The concept of “Transformative Constitution” was already part of South African jurisprudence. Supreme Court applied this concept in Navtej Singh Johar Vs. Union of India ((2018) 10 SCC 1).

96. The concept of transformative constitutionalism has at its kernel a pledge, promise and thirst to transform the Indian society so as to embrace therein, in letter and spirit, the ideals of justice, liberty, equality and fraternity as set out in the Preamble to our Constitution. The expression transformative constitutionalism can be best understood by embracing a pragmatic lens which will help in recognizing the realities of the current day. Transformation as a singular term is diametrically opposed to something which is static and stagnant, rather it signifies change, alteration and the ability to metamorphose. Thus, the concept of transformative constitutionalism, which is an actuality with regard to all Constitutions and particularly so with regard to the Indian Constitution, is, as a matter of fact, the ability of the Constitution to adapt and transform with the changing needs of the times.

CONSTITUTIONAL MORALITY

Constitutional morality has been first used by George Grote in “History of Greece”. By Constitutional morality Grote meant “a paramount reverence for the forms of the Constitution, enforcing obedience to authority acting under and within these forms yet combined with the habit of open speech, of action subject only to definite legal control, and unrestrained censure of those very authorities as to all their public acts combined too with a perfect confidence in the bosom of every citizen amidst the bitterness of party contest that the forms of the Constitution will not be less sacred in the eyes of his opponents than in his own”.

Dr. Ambedkar quoted Grote while introducing Draft Constitution to the Constituent Assembly in context of need of incorporating provisions of administration in Constitution. Dr. Ambedkar noted that only where constitutional morality is saturated , risk can be taken of omitting administrative provisions from Constitution. Democracy in India was only a top-dressing on Indian Soil, which is essentially undemocratic. Constitutional morality was yet to be cultivated in India.

While everybody recognizes the necessity of the diffusion of Constitutional morality for the peaceful working of a democratic Constitution, there are two things interconnected with it which are not, unfortunately, generally recognized. One is that the form of administration has a close connection with the form of the Constitution. The form of the administration must be appropriate to and in the same sense as the form of the Constitution. The other is that it is perfectly possible to pervert the Constitution, without changing its form by merely changing the form of the administration and to make it inconsistent and opposed to the spirit of the Constitution. It follows that it is only where people are saturated with Constitutional morality such as the one described by Grote, the Historian, that one can take the risk of omitting from the Constitution details of administration and leaving it for the Legislature to prescribe them. The question is, can we presume such a diffusion of Constitutional morality? Constitutional morality is not a natural sentiment. It has to be cultivated. We must realize that our people have yet to learn it. Democracy in India is only a top-dressing on an Indian soil, which is essentially undemocratic.

The Supreme Court of India has recently has used the term constitutional morality in much wider sense. It has used the term constitutional morality in form of commitment to constitutional norms and values.

The Supreme Court in Manoj Narula Vs. Union of India (2005) 7 SCC 5 observed as under:

The principle of constitutional morality basically means to bow down to the norms of the Constitution and not to act in a manner which would become violative of the rule of law or reflectible of action in an arbitrary manner. It actually works at the fulcrum and guides as a laser beam in institution building. The traditions and conventions have to grow to sustain the value of such a morality. The democratic values survive and become successful where the people at large and the persons-in-charge of the institution are strictly guided by the constitutional parameters without paving the path of deviancy and reflecting in action the primary concern to maintain institutional integrity and the requisite constitutional restraints. Commitment to the Constitution is a facet of constitutional morality

The Supreme Court in Navtej Singh Johar Vs. Union of India (2018) 10 SCC 1) held that when the social morality comes in conflict with the constitutional morality, constitutional morality will prevail over social morality.

121. In this regard, we have to telescopically analyse social morality vis-à-vis constitutional morality. It needs no special emphasis to state that whenever the constitutional courts come across a situation of transgression or dereliction in the sphere of fundamental rights, which are also the basic human rights of a section, howsoever small part of the society, then it is for the constitutional courts to ensure, with the aid of judicial engagement and creativity, that constitutional morality prevails over social morality.

The Supreme Court also applied doctrine of Constitutional morality in Indian Young Lawyers Association Vs. State of Kerala (Sabarimala Temple Case) (2019) 11 SCC 1 and observed that “constitutional morality” is nothing but the values inculcated by the Constitution, which are contained in the Preamble read with various other parts, in particular, Parts III and IV thereof

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