Constitution Is Stronger Now Because Of Kesavananda Bharati Judgment : Justice BV Nagarathna

Supreme Court judge Justice BV Nagarathna said that the Constitution of India is stronger now because of the Kesavananda Bharati judgment, which laid down the basic structure doctrine. She opined that the basic structure doctrine is a fine example of transformative Constitutionalism. These comments assume relevance in the wake of the renewed debate on the basic structure doctrine after Vice President Jagdeep Dhankhar recently criticised Kesavanda Bharti judgment as laying down a wrong precedent. It is also relevant to note that Chief Justice of India DY Chandrachud had also recently highlighted the importance of basic structure doctrine, and lauded the same, by terming it as the “north star” which guides the interpretation of the Constitution.Justice B.V. Nagarathna, was delivering the Chief Justice KK Usha Memorial Lecture on the topic 'Transformative Constitutionalism' organised by the Kerala Federation of Women Lawyers at the High Court of Kerala. In her lecture, she termed the Constitution “a great social document almost revolutionary in its aim in transforming society”.She reminded that, "Judges must have the pulse of the people whom they adjudicate, in their hearts, and justice in their minds while interpreting the laws and enforcing rights". She added that in order to interpret the Constitution transformatively, one must first understand the people for whom it was made. Justice Nagarathna in her speech, underlined the duty of lawyers and the judiciary in ensuring that the Constitution would not remain a stagnant document, but last for future generations, as well. She explained how transformative constitutionalism aids in this approach by attaching sanctity to the text of the document. "We all know our Constitution is not a stagnant document but a living tree, and a dynamic one. Thus, the interpretation of Constitution is an evolving one. Living tree approach has been invoked to read, and justify new rights into the Constitution". She added that it was hence the duty of the members of the Bar and the Bench to ensure that this 'living tree' was 'evergreen'. Enactment Of The Constitution - A Moment Of Transformation Of The CountryTalking about the concept of 'transformative constitutionalism', Justice Nagarathna emphasized that although it had become a part of the Constitutional discourse only recently, it had already been in practice in the Country earlier. In fact, she stated that the very moment of enactment of the Indian Constitution was in itself, a moment of 'profound transformation' of the Country. She explained that this transformation of the Country by the enforcement of the Constitution had come about in two ways; firstly, by transforming the legal relationship between the individuals and the citizens, wherein the subjects from the colonial regime came to be citizens of the Republic; and secondly, by the reconstruction of the State, by having the locus of concentration power in the people of India and not in the State. "Understood in that sense, the framing of the Constitution did not only mark the end of the struggle against political subjugation, but equally demonstrates the struggle for self-determination against multi-layered oppressive structure in the society such as caste, race, creed, religion, and so on," the judge noted. Justice Nagarathna added that in its version of 'transformative Constitutionalism', the Constitution sought to overcome both alien colonial domination, as well as indigenous social and economic domination. She noted that even at present, the social relationships were sought to be transformed by this concept of transformative constitutionalism. The Judge noted that in this sense, transformative constitutionalism was a very 'intimate concept' for lawyers and judges, which is not merely utilized for "healing the wound of the past, but also for guiding us to a better future, and also to steer society in the direction of democratic egalitarianism, recognition and protection of fundamental freedoms, and peaceful coexistence and developmental opportunities". The Three Vehicles For Carrying Out Transformative Constitutionalism Justice Nagarathna in her speech, touched upon three foundational principles of the Constitution which also act as the three vehicles for realizing the agenda of transformation of the Constitution, namely, the Courts entrusted with task of 'breathing life' into the Fundamental rights and other provisions of the Constitution; the popular democracy; and a dynamic executive for achieving distributive justice, attainment of socio economic rights and good governance. She went on to add that the 'transformative vision' of the Constitution could be achieved through three means - equality, fraternity, and liberty. Justice Nagarathna highlighted that the provisions of equality in the Constitution understands this concept as overcoming institutional and structural barriers that had kept individuals and groups in a state of subordination. "The equality code...

Constitution Is Stronger Now Because Of Kesavananda Bharati Judgment : Justice BV Nagarathna

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