Principles Of Democracy & Judicial Review Intertwined, Both Form Core Of Basic Structure Of Constitution : Justice BR Gavai
Justice BR Gavai, judge of the Supreme Court, delivered a lecture on the topic "75 years of Transformative Constitutionalism" at the Columbia Law School on March 26.The lecture was organized by CEDE, the American Constitution Society, the Center for Constitutional Governance, and the Institute for Comparative Literature and Society.In his, Justice BR Gavai discussed how the...
Justice BR Gavai, judge of the Supreme Court, delivered a lecture on the topic "75 years of Transformative Constitutionalism" at the Columbia Law School on March 26.
The lecture was organized by CEDE, the American Constitution Society, the Center for Constitutional Governance, and the Institute for Comparative Literature and Society.
In his, Justice BR Gavai discussed how the Indian Constitution reflects a transformative intent and how this intent has been upheld by the legislature and the Supreme Court of India. He outlined the concept of transformative constitutionalism as articulated by constitutional scholar Karl Klare, emphasizing its commitment to transforming political and social institutions towards democratic, participatory, and egalitarian ideals.
"While democracy needs to be protected and upheld at all times by the people, the courts play a seminal role in reinforcing the supremacy of the Constitution and determining the validity of legislative and executive actions on the touchstone of the principles of the Constitution. The principles of democracy and judicial review are intertwined and complementary. These form the core of the basic structure of the Constitution," Justice Gavai said.
Justice Gavai highlighted the transformative intent of the Indian Constitution, noting its shift from an unequal society to one that upholds justice, equality, and dignity for all. He discussed the importance given to provisions of equality, liberty, and fraternity, and how the Constitution addresses issues such as caste discrimination, gender discrimination, and untouchability.
Regarding legislative enactments, Justice Gavai mentioned several laws enacted to uphold constitutional ideals and secure the rights of vulnerable and marginalized sections of society, such as the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, and the Rights of Persons with Disabilities Act, 2016.
In terms of judicial pronouncements, Justice Gavai discussed how the Supreme Court has interpreted the Constitution broadly, expanding the scope of fundamental rights and upholding principles of non-discrimination and equality. He mentioned landmark cases such as Maneka Gandhi v. Union of India, Navtej Singh Johar v. Union of India, and cases related to affirmative action and reservation policies.
Overall, Justice Gavai underscored the transformative potential of the Indian Constitution and the role of the Supreme Court in upholding its ideals in a dynamic and evolving society.
Prof. Madhav Khosla and Disha Wadekar also spoke at the event.
The full text of the lecture can be read here :
It is an honour for me to be invited to Columbia Law School. I was particularly interested in visiting Columbia University, as this University has a special place in the heart of Indians. Dr BR Ambedkar, who is considered the chief architect of the Indian Constitution, pursued his MA and PhD at Columbia. In his honour, a bust is installed in a library at Columbia University. As I said on 28th of January 2024, i.e., the beginning of the diamond jubilee of the Supreme Court of India, it is only because of Dr. Ambedkar and the Constitution of India that I have reached this position. I have been told that there is also a BR Ambedkar Chair at Columbia Law School.
The topic for my lecture today is “75 Years of Transformative Constitutionalism”. I will be speaking in three heads to traverse the path of transformative constitutionalism marking the 75 years of the Indian Constitution. I will begin with how the Indian Constitution reflected a transformative intent. I will then discuss the legislature's commitment to uphold the same through some of its enactments. Lastly, I shall deal with how the Supreme Court of India has upheld the ethos of transformative constitutionalism through its judicial pronouncements in various realms. Before I delve into the lecture, I will briefly discuss what I understand by transformative constitutionalism.
The meaning of transformative constitutionalism is traced back to the connotation given by constitutional scholar Karl Klare, 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 transformational value of the Constitution is neither limited to ending colonial oppression nor is it concluded with specific socio-economic objectives. Instead, it is a perpetual ideal, a mindset that fosters an environment where dialogue and debate thrive, novel ways of existence are continuously explored and forged, embraced and challenged, and where change remains unpredictable, yet the concept of change persists. Dr. Ambedkar considered the Constitution as a weapon for bloodless revolution. I will now talk about the transformative intent of the Indian Constitution.
Transformative Intent of the Indian Constitution
The Constitution of India was adopted on 26 November 1949, and came into force on 26 January 1950. The historical narrative of the Indian Constitution is marked by a shift from an unequal society rotted by social division and injustice and subsequent colonial regime to one that upholds justice, equality, liberty, and the individual dignity of all. The Constitution is mounted on the ideals of equality, liberty, and fraternity that reinforce the ideals of social democracy and tend to transform society for the better. Dr Ambedkar advanced that these principles “form a unity of trinity”, meaning that they are integrally connected and do not operate in isolation.
The Framers of the Indian Constitution gave the most importance to the provisions of equality, as evident from the fact the first few provisions of the Fundamental Rights chapter deal with equality. We have the constitutional guarantees for ensuring equality under Articles 14 to 18. Article 14 provides for equality before the law and equal protection of the law. Linked with the idea of equality is the principle of non-discrimination, which is enshrined in Article 15 of the Constitution. Article 15 prohibits caste discrimination, gender discrimination, etc. The framers of the Indian Constitution were conscious of the existing “graded inequality”, hence they made active efforts to remedy these inequalities by incorporating several provisions in the Constitution. Unlike any provision of the
U.S. Constitution, the Indian Constitution, through Article 16, provides for affirmative action for the backward classes in India. This caste-conscious provision of affirmative action reflects the vision of equality enshrined in the Indian Constitution. Article 17, as part of the equality principle, bans the practice of “untouchability”, which treated the members of India's oppressed castes as physically untouchable and were excluded physically from public spaces. Furthermore, Article 17 embodies the transformative vision of the Constitution, articulating the hopes of socially disempowered individuals and communities and establishing a framework for profound social change.
The principle of liberty is reflected in the rights to freedom guaranteed under Articles 19 to 22. Further, Articles 23 and 24 prohibit economic exploitation by prohibiting human trafficking and other similar forms of forced labour, as well as the employment of children below fourteen years in factories, respectively. Moreover, the Constitution promises political equality under Article 326, whereby every citizen of
India who is above 18 years of age shall be entitled to be registered as a voter at any such election. Simultaneously, the principle of fraternity is promised to ensure that the liberty and equality of individuals are realized with respect to the community, society, and workplace, and not only with respect to the State. In this context, in addition to the guarantee for non-discrimination, Articles 29 and 30 protect the interests of minorities and the right of minorities to establish and administer educational institutions, respectively.
The transformative potential of the Indian Constitution is more prominent in the accreditation of social and economic rights, which are enshrined in Part IV of the Constitution, as the directive principles for the state policy (DPSPs). DPSPs encapsulate numerous principles characteristic of a social- democratic welfare state designed to facilitate and enable the State to carry out programmes to achieve economic and social justice. For instance, the State shall strive to promote social order, ensure equitable distribution of resources, provide the right to work, education and public assistance in certain cases, promote interests of weaker sections of society, and provide robust labor safeguards, etc.
I will now shed light on the legislature's commitment to give effect to the transformative nature of the Indian Constitution through some of its enactments.
Legislative Enactments
In his last address to the Constituent Assembly, Dr B.R. Ambedkar, the chief architect of the Constitution, articulated the transformative constitutional vision in the following words, and I quote: “We must make our political democracy a social democracy as well. Political democracy cannot last unless there lies at the base of it social democracy”. Over the decades, the legislature has enacted pioneering laws to uphold constitutional ideals and secure the rights of vulnerable and marginalized sections of society. I would like to mention examples of several such legislations.
Ending Discriminatory Practices: The “Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989” was enacted to prevent discrimination, violence, and atrocities against oppressed castes. It rendered practices of untouchability and caste discrimination as offences, inviting punishments ranging from imprisonment to fines. Further, “The Prohibition of Employment as Manual Scavengers and their Rehabilitation Act, 2013” recognized the discrimination
and indignity faced by lower castes and officially abolished all forms of manual cleaning of excreta and insanitary latrines.
Gender Justice: The legislature has enacted several legislations providing for equal property rights to women, protection of women from sexual harassment in the workplace, declaring dowry as an offence, prohibiting sex selection before or after conception, and regulation of pre- natal diagnostic techniques, etc. respectively. Following the judgment in NALSA v. Union of India, which had directed the government to recognize transgender as the third gender and ensure their rights as equal citizens, the Parliament enacted “the Transgender Persons (Protection of Rights) Act, 2019” that enables legal recognition of self-perceived gender identity through certification by district authorities. The Act prohibits discrimination against the transgender community.
Child Rights and Protection: Aligning with Article 24 of the Constitution, which states “no child below the age of fourteen years shall be employed to work in any factory or mine or engaged in any other hazardous employment”, the “Child Labour (Prohibition and Regulation) Act, 1986” prohibited employment of children below 14 years in hazardous occupations and regulated their working conditions in other permissible areas. Another pivotal legislation is “the Prohibition of Child Marriage Act 2006”, which cracked down on the regressive practice of underage marriages. The Act makes solemnization of child marriages or its promotion/abetment an offence and prescribes punishments of rigorous imprisonment. Ensuring every child's fundamental right to free and compulsory education was another ground-breaking initiative with the introduction of “the Right of Children to Free and Compulsory Education Act, 2009”.
Rights of Persons with Disabilities: Furthering the vision of the United Nations Convention on the Rights of Persons with Disabilities, the legislature enacted “the Rights of Persons with Disabilities Act, 2016”. The Act prohibits discrimination against persons with disabilities, explicitly stresses accessibility and inclusive education, and has designated special courts to ensure equal opportunities.
Forest Rights: Redressing the historical injustice of displacement suffered by India's forest-dwelling communities, enacting “the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006” was a landmark move. The Act recognized the pre-existing rights of tribes to forest lands and resources and granted ownership rights over forestlands, the right to collect and dispose of minor forest produce, and the rights of habitat and community tenures to tribals and traditional forest dwellers.
Constitutional Interpretation and Role of Courts
I shall now discuss the role of the Supreme Court of India in advancing transformative constitutionalism.
The Broader Interpretation
In interpreting the Constitution, the courts are often contested with the argument on whether to take a textualist or living constitutionalist approach. This was seen in the interpretation of Article 21 of the Indian Constitution, which provides, “No person shall be deprived of his life or personal liberty except according to procedure established by law”. In the early years, the Supreme Court, while interpreting “procedure established by law” under Article 21, adopted the textualist approach, primarily focusing on the black letter of the law and refusing to read the principle of natural justice.
Rights' and the 'Directive Principles of State Policy' together are soul of the Constitution. Neither of them is superior or inferior. They are complementary to each other. Whereas the 'Fundamental Rights' has a place of pride in the Constitution, the 'Directive Principles' are aimed at fulfilling the promise of establishing an egalitarian society. A very insightful perspective on how the Constitution ought to be read and interpreted is articulated by JUSTICE H.R. KHANNA in the said case in the following words (and I quote): “A Constitution must of necessity be the vehicle of the life of a nation. It has also to be borne in mind that a Constitution is not a gate but a road. Beneath the drafting of a Constitution is the awareness that things do not stand still but move on, that life of a progressive nation, as an individual, is not static and stagnant but dynamic…” (end quote). In this spirit, let me mention how the Supreme Court of India has broadened the scope of the fundamental rights chapter of the Indian Constitution.
Expanding Horizons of Fundamental Rights
In this process, the Supreme Court of India not only draws from its own experience over time, but also refers to international treaties and agreements. The Supreme Court has repeatedly broadened the scope and reach of fundamental rights provisions under Part III, considering various factors.
As I said a few minutes ago, Article 21 of the Constitution which guarantees the right to life and personal liberty, has been given expansive interpretation by the courts. The Supreme Court has acknowledged and encompassed several rights for full realization of the essence of the right to life, such as the right to live with human dignity, right to shelter, right to health, right to sleep, right to protest, right to clean air or water, right against noise pollution, right against illegal and wrongful detention, right to education, right to privacy, right to free legal aid, right of arrested persons, right to choose a partner, rights to autonomy and self-determination concerning the most intimate decisions of a human being.
In the landmark decision of Navtej Singh Johar v. Union of India, the Supreme Court recognised the rights of the LGBTIQ++ community that were not explicitly provided for in the Constitution. It expounded the concept of
transformative constitutionalism with regard to the Indian Constitution as its ability to adapt and transform with the changing needs of the times. While categorically decriminalizing homosexuality under Section 377 of the Indian Penal Code, 1860, the Supreme Court observed, and I quote: “the Constitution has been conceived of and designed in a manner which acknowledges the fact that 'change is inevitable'. It is the duty of the courts to realize the constitutional vision of equal rights in consonance with the current demands and situations and not to read and interpret the same as per the standards of equality that existed decades ago”. (end quote)
In 2017, the Supreme Court faced the challenge of answering whether the right to privacy is implied under the Constitution. An argument was made that the right to privacy was not included in the text of the Constitution at the time of its drafting. In the context of changing and evolving times, the Supreme Court took note of the technological advancement in the contemporary era, as against at the time of the drafting of the Constitution, and declared privacy to be a fundamental right. It observed that the relevance of the Constitution “lies precisely in its ability to allow succeeding generations to apply the principles on which it has been founded to find innovative solutions to intractable problems of their times”. While affirming the right to privacy, the Court expanded the right of privacy to include informational privacy and advocated for a data protection regime.
I will now discuss a few cases of non-discrimination and equality.
Non-Discrimination and Equality
The Indian Constitution, in its preamble and various provisions, enshrines the ideals of equality, non- discrimination, and social justice. The Supreme Court has time and again upheld these principles through its progressive interpretation and application of the law. The Supreme Court of India elucidated the concept of social justice as a part of social change necessary for the orderly growth and development of the personality of every citizen.
The Supreme Court has come down heavily on employers for subjecting women employees to service rules and regulations that discriminate against them on the grounds of marriage and pregnancy. In the cases of C.B. Muthamma, IFS v. Union of India, and Air India v. Nargesh Meerza, the Court admonished the employers for making such rules outrightly defiant to Article 14 and Article 16 of the Constitution. In another instance, the Court reinforced equality of opportunity for women and held that the policies of a blanket ban on women army officers to be considered for permanent commission in the Indian Army, and administrative impediments in evaluation pattern for grant of permanent commission to women, as violative of Article 14 of the Constitution. Specifically, the Court has upheld the autonomy of women to make decisions about their sexual and reproductive health that include “the right to access education and information about contraception and sexual health, the right to decide whether and what type of contraceptives to use, the right to choose whether and when to have children, the right to choose the number of children, the right to access safe and legal abortions, and the right to reproductive healthcare”.
Moreover, the Court's jurisprudence extends to safeguarding the rights of vulnerable groups, including Scheduled Castes and Scheduled Tribes. In Hariram Bhambhi v. Satyanarayan, the Court condemned the persisting atrocities and discrimination these communities face, emphasizing the State's duty to protect their rights and ensure their socio-economic empowerment. Let me now briefly deal with cases of employment and quotas for India's oppressed castes.
Employment, Education, and Reservation
In India, the reservation policy or quota is the core of affirmative action, essentially a preferential treatment policy for certain disadvantaged groups. The objective of these policies is to fill in the gaps created by systematic and multifaceted discrimination and to provide equal access to opportunities to marginalized sections of society akin to dominant groups. In the initial years, the Supreme Court did not favour affirmative action policy in the case of State of Madras v. Srimathi Champakam Dorairajan. However, in subsequent years, the Supreme Court declared affirmative action as a facet of equality.
In the landmark cases of Indra Sawhney v. Union of India, and B.K. Pavitra v. Union of India, the Court affirmed the constitutionality of reservation policies, recognizing them as essential tools for achieving substantive equality and rectifying centuries of discrimination faced by marginalized communities. The judgments emphasize the transformative potential of affirmative action in ensuring equitable representation in public institutions and leveling the playing field for historically disadvantaged groups.
Moreover, the intervention of the Supreme Court in educational access and equity has had far-reaching implications for India's quest for universal education. In Unnikrishnan, JP v. State of Andhra Pradesh, the Court emphasized the fundamental right to education and called upon the State to adopt affirmative measures to realize this right, laying the groundwork for legislative measures such as the Right of Children to Free and Compulsory Education Act, 2009. The Supreme Court of India has also adopted the concept of public interest litigation or the PIL.
Public Interest Litigation
The innovative interpretation of Article 32 of the Constitution, which guarantees the right to move the Supreme Court to enforce fundamental rights, has led to the development of the concept of PIL. PIL is a legal mechanism that allows any citizen to approach the constitutional courts and seek redress for matters that impact public interest. The concept of PIL was first introduced in India during the 1980s. In the landmark case of Hussainara Khatoon v. State of Bihar, JUSTICE P.N. BHAGWATI observed that the legal system in India was inaccessible to the poor and marginalized sections of society. He suggested that PIL could serve as a means of delivering justice to those who could not access the courts directly.
PIL has been instrumental in driving significant progress in environmental protection in India. In the case of M.C. Mehta v. Union of India, the Supreme Court directed to shut down the industries that were generating pollution in Delhi and further directed the establishment of the Central Pollution Control Board, which is responsible for monitoring and regulating pollution levels across the country. Furthermore, cases such as Bandhua Mukti Morcha v. Union of India and Vishaka v. State of Rajasthan demonstrate the transformative potential of PILs in protecting the rights of the marginalized and vulnerable. In Bandhua Mukti Morcha, the Court intervened to rescue bonded labourers from exploitation and directed the State to enforce statutory provisions for their rehabilitation. Similarly, in the Vishaka case, the Court laid down guidelines for preventing sexual harassment in the workplace, filling a legislative void, and providing recourse to victims of gender-based violence. I will now discuss how the Supreme Court, in line with the transformative vision, has expanded the aspects relating to democracy.
Democracy and Judicial Review
The Constitution of India is evidence of the transformation of the governance structure in India from colonialism to democracy and from the “order of the Queen” to the “will of the people”. In this context, the Supreme Court made a categorical observation, and I quote, “the essential hallmark of a genuine democracy is the transformation of the 'ruled' into a citizenry clothed with rights which in the case of the Indian Constitution also consist of fundamental rights, which are also being freely exercised and the concomitant and radical change of the ruler from an 'emperor' to a public servant”. (end quote)
While democracy needs to be protected and upheld at all times by the people, the courts play a seminal role in reinforcing the supremacy of the Constitution and determining the validity of legislative and executive actions on the touchstone of the principles of the Constitution. The principles of democracy and judicial review are intertwined and complementary. These form the core of the basic structure of the Constitution.
The Court has underscored the necessity of the compliance of the electoral process with the principles of the Constitution and the laws for the success of democracy. In doing so, it has repeatedly stressed on free and fair participation of voters in the electoral process. The Supreme Court has declared that voters have a right to have information about the antecedents, including the criminal past of candidates contesting elections. In a very recent judgment on the validity of anonymous electoral bonds, the Supreme Court held that disclosure of information on electoral bonds to the voter cannot be restricted on the grounds of the informational privacy of the financial contributions to political parties. The expansion of the freedom to speech and expression under Article 19(1)(a) to include the right to information is a crucial recognition for the citizenry to effectively participate in the elections, which, in turn, is an intrinsic feature of democracy.
In conclusion, I would like to say that since its inception, the Indian Constitution has been hailed as a transformative document that seeks to uphold justice, equality, and dignity for all citizens. It is the duty of the courts to ensure that the law remains relevant amid shifting societal norms, and when faced with multiple interpretations, the court opts for the one that best advances the constitutional values. Central to this transformative ethos is the role of the Supreme Court, which has to act as the custodian of the Constitution and the ultimate arbiter of justice.
The video of the lecture can be watched here.
1. Karl E. Klare, “Legal Culture and Transformative Constitutionalism”, 14 South African Journal of Human Rights 146 (1998).
2. Pius Langa, “Transformative Constitutionalism”, 17 Stellenbosch Law Review 351-352 (2006) cited in Vrinda Narain, “Postcolonial Constitutionalism in India: Complexities & Contradictions”, 25 S. Cal. Interdisc. L.J. 109 (2016).
3. Parliament of India, Constituent Assembly Debates, Vol. XI, 25 November 1949 (speech of Dr B.R.Ambedkar). Available at http://164.100.47.194/loksabha/writereaddata/cadebate.
4. Parliament of India, Constituent Assembly Debates, Vol. XI, 25 November 1949 (speech of Dr B.R.Ambedkar). Available at http://164.100.47.194/loksabha/writereaddata/cadebate.
5. Indian Young Lawyers' Association v. State of Kerala, (2017) 10 SCC 689.
6. Michael Rosenfeld, “The Role of Justice in the Constitution: The Case for Social and Economic Rights in Comparative Perspective”, 42 Cardozo Law Review 764 (2021).
7 Article 38, the Constitution of India, 1950.
8 Ibid. at Article 39.
9 Ibid. at Article 39.
10 Ibid. at Article 46.
11 Ibid. at Articles 42, 43
12 Parliament of India, Constituent Assembly Debates, Vol. XI, 25 November 1949 (speech of Dr B.R. Ambedkar). Available at http://164.100.47.194/loksabha/writereaddata/cadebate.
13. 2014 INSC 275.
14. Sections 4, 5, 6 and 7, The Transgender Persons Act, 2019.
15. Section 2(a) “child” means a person who, if a male, has not completed twenty-one years of age, and if a female, has not completed eighteen years of age.
16. A.K Gopalan v. State of Madras, AIR 1950 SC 27.
17. (1978) 1 SCC 248.
18. (1973) 4 SCC 225.
19. Francis Coralie. Mullin v. The Administrator, Union Territory of Delhi, (1981) 2 SCR 516.
20. State of Karnataka v. Narsimhamurthy, 1995 SCC (5) 524.
21. Consumer Education and Research Centre v. Union of India AIR 1995 SC 922.
22. In Re: Ramlila Maidan Incident, (2012) 5 SCC 1.
23. Ibid.
24. Subhas Kumar v. State of Bihar, 1991 SCR (1) 5.
25 In Re: Noise Pollution, (2005) 5 SCC 733.
26. Bandhua Mukti Morcha v. Union of India, AIR 1984 SC 802.
27. Unni Krishna v State of Andhra Pradesh, AIR 1993 SC 2178.
28. Justice K.S. Puttaswamy (Retd.) v. Union of India, (2017) 10 SCC 1.
29. Hussainara Khatoon v. Home Secretary, State of Bihar, AIR 1979 SC 1360.
30. Sunil Batra v. Delhi Administration, 1980 SCC (3) 488; D.K. Basu v. State of West Bengal, 1997 1 SCC 416; Neelabati Bahera v. State of Orissa AIR 1993 SC 1960.
31. Shafin Jahan v. Asokan K.M., 2018 INSC 222.
32. Navtej Singh Johar v. Union of India, (2018) 10 SCC 1.
33. (2018) 10 SCC 1.
34. Ibid. at para. 86.
35. Justice K.S. Puttaswamy (Retd.) v. Union of India, (2017) 10 SCC 1.
36. Justice K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1, para. 151.
37. Consumer Education & Research Centre v. Union of India, (1995) 3 SCC 42.
38. AIR 1979 SC 1868.
39. AIR 1981 SC 1829.
40. Secretary, Ministry of Defence v. Babita Puniya, 2020 INSC 198.
41. Lieutenant Colonel Nitisha v. Union of India, 2021 INSC 210.
42. X v. The Principal Secretary Health and Family Welfare Department Govt. of NCT of Delhi, 2022 INSC 103.
43. AIR 2021 SC 5610.
44. Ashwini Deshpande, Affirmative Action in India 6 (Oxford University Press, New Delhi, 2013), at pg. 9.
45. 1951 AIR 226.
46. State of Kerala v. NM Thomas, 1977
47. 1992 AIR 477
48. (2019) 16 SCC 129.
49. AIR 1993 SC 2178
50. AIR 1979 SC 1360.
51. AIR 1987 SC 965.
52. (1984) 3 SCC 161.
53. (1997) 6 SCC 241.
54. Anoop Baranwal v. Union of India, (2023) 6 SCC 161, at para. 217.
55. Minerva Mills v. Union of India, AIR 1980 SC 1789.
56. Ibid.
57. Union of India v. Association for Democratic Reforms, (2002) 5 SCC 294.
58. Association For Democratic Reforms v. Union of India, 2024 INSC 113.