AN INTRODUCTION TO TRANSFORMATIVE CONSTITUTIONALISM

Introduction

On January 11, 1944, at State of Union Address the President of United States Franklin D. Roosevelt delivered the greatest speech of 20th century. In his speech he excoriated those American’s with selfish and partisan interests, who tried to profit themselves from war and those who had sought to avoid the prodigious sacrifices it required. If there was a time to subordinate individual or group selfishness to the national good, Roosevelt proclaimed, “that time is now”. This was the beginning of the concept of Transformative Constitutionalism.

The Constitution of India was one of the Constitutions in the world, which came into existence in the after years of UDHR and FDR’s address. The principles and provisions of UDHR 1948 and FDR’s second bill of rights can be seen in the Indian Constitution. Some of it is found as Fundamental Rights and some are as Directive Principles of State Policy. These Fundamental Rights are binding in nature but the Directive Principles of State Policy are not of binding nature. The Directive Principles under the Constitution is of much similar thought as FDR once had. The rights which FDR proposed in his address are somehow seem more relative to the Directive Principles of Constitution. The similarity of these two concepts becomes more important when it comes to the enforcement of them. After death of Franklin D. Roosevelt no single president of United States ever talked about enforcement of his Second Bill of rights neither in Indian case it is ever attempted by any government to make this part of the Constitution enforceable in the Court of law.

Constitutionalism means the limited government or limitation on arbitrary powers of government. Constitutionalism recognizes the necessity of powerful government but with reasonable restrictions in order to avoid misuse of powers. Absence of constitutionalism will lead to despotism. A government, which goes beyond its limits it, loses its authority and legitimacy. To preserve the basic freedoms of the individual and to maintain his dignity the Constitution should be permeated with Constitutionalism.

Meaning of Transformative Constitutionalism

A constitution apart from laying down the interrelationship between the state organs and their scope and powers, embodies the ideals and aspirations and the values to which the people have committed themselves. Baxi defines Constitutionalism as “Constitutionalism, most generally understood, provides for structure, forms, and apparatuses of governance and modes of legitimation of power. But constitutionalism is not all about governance; it also provides contested sites for ideas and practices concerning justice, rights, development, and individual associational autonomy constitutionalism provides narratives of both rule and resistance.”

Transformative constitutionalism as such means using the law to effect comprehensive social change through non-violent political means. American Academic, Karl Klare coined the term “transformative constitutionalism” and described it 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.”

Therefore, constitutionalism as a concept conveys legal restraints on the exercise of state power and adherence to the constitution to the rule of law to the will of the people. Various provisions of the Indian Constitution exemplify the transformative goal of the Constitution. Transformative Constitutionalism envisages a mechanism to bring in social change from an unjust past to a democratic future using the Constitution as a tool to achieve this objective.

Relation of Part III and IV of Constitution with Transformative Constitutionalism

The Constitution of India is divided into XXIV parts with 395 numbered Articles. Under part III of the Constitution the Fundamental Rights are secured and under part IV the Directive Principle of State Policy are provided. With the addition of these two parts to the Constitution it became welfare centric from administrative.

Part III provides basic human rights as fundamental rights and puts obligation on the State to secure them for citizens and non-citizens as the case may be. Initially when the Constitution was drafted and presented there were 21 Articles in part III, but after the Constituent Assembly Debates and adoption of the Constitution 27 Articles in part III including definitions of State and Law. The rights that part III contains are of civil and political nature. Under part III the rights secured are; right to equality, right to freedom, right against exploitation, right to freedom of religion, cultural and educational rights, rights to constitutional remedies. These rights are the promise to the people of India that they will have these all protection and the State shall take guarantee to provide these rights to them. When constitution was formed these fundamental rights were not widely interpreted but with the passes of time they were interpreted in possible widest manner. In various judgment of the Supreme Court it was again and again held that these fundamental rights are not only matter of linguistic interpretation only they are subject of juristic interpretation. In the most famous and revolutionary judgment of Kesavananda Bharti v. State of Kerala (1973) 4 SCC 225 , it held rightly held that the Constitution of India should be interpreted in widest possible manner.

The framers of the Constitution of India borrowed the idea directive principles from the Irish Constitution. When the Constitution was drafted there were 13 Articles and today there are 20 Articles in the part VI. The DPSP are the main objectives of the State to achieve. These principles guide the Government as well as provide a blueprint for welfare of the people of the nation. At one time it was thought that State was mainly concerned with the maintenance of law and order and the protection of life, liberty and property of the subject. Such a restrictive roe of the State is no longer a valid concept. Today we are living in an era of a welfare State, which has to promote the prosperity and well being of the people. The Directive Principle of State Policy lay down certain economic and social policies to be pursued by the various governments in India. They impose certain obligations on the State to take positive action in certain direction in order to promote the welfare of the people and achieve economic democracy.

Since we know that the concept of the welfare state is largely discussed in the Directive Principles and Fundamental Rights of Constitution of India. The phrase “economic and social justice” under Art.38, which would promote the welfare of people, had acquired a meaning, which is conveniently described by the phrase ‘welfare state’. As defined in Collins English Dictionary, the definition of Welfare State as follows “a system in which the government undertakes the responsibility for providing for the social and economic security of its population, usually through unemployment insurance, old age pensions and other social security measures.”

In his speech in the Constituent Assembly Dr. B. R. Ambedkar repeatedly said that the main object of Directive Principle of State Policy are to set standards before the legislature and the executive, the and the other authorities, by which the success and failure can be achieved. These are of social, economic and political nature. In other words they are positive Human Rights. But the Fundamental Rights and Directive Principles of State Policy are different in the Constitution of India. Where Fundamental Rights are justiciable and Directive Principle are non-justiciable. It means if some person infringes others Right to freedom of free speech under Article 19(1)(a), the person may file a suit against the violation of his fundamental right and it will be the duty of the State to protect that individuals interest but if some right provided under Directive Principle of State Policy for instance, Right to work under Article 41, is not given to an unemployed person, he can not sue the State for it. Directive Principles are those rights, which the State needs to provide to all but due to some economic reason the State is not willing to do so. In landmark judgment of Kesavananda Bharti , the Supreme Court has said that “ fundamental rights and directive principles aim at the same goal of bringing about a social revolution and establishment of a welfare State and they can be interpreted and applied together. They are supplementary and complimentary to each other. It can well be said that the directive principles prescribed the goal to be attained and the fundamental rights lay down the means by which that goal it to be achieved.”

The Supreme Court in above judgment explained that directive principles are interconnected, that they are related to each other. In the cases of State of Madras v. Champakam Dorairajanand AIR 1951 SC 226 In re Kerala Education Bill, 1957, the words used in Art. 37 were not analyzed and the fundamental rights prevailed over the directive principles. But from F. N. Balsara v. State of Bombay AIR 1951 SC 318 , things changed and the Supreme Court said that the directive principles were in the nature of an instrument of instruction, which both the legislature and the executive were expected to respect and to follow. In later period, whether it was Minerva Mill’s AIR 1980 SC 1789 case or Randhir Singh v. Union of India AIR 1982 SC 879 or Rural Litigation and Entitlement Kendra, Dehradun v. State of Uttar Pradesh AIR 1985 SC 652 , the Courts while delivering the judgments started taking cognizance of Directive Principles. Directive principles of State Policy provide guidance for interpretation of Fundamental Rights as also the statutory rights. In a number of decisions the Supreme Court has given many Directive Principles of State Policy, the status of Fundamental rights. In Unnikrishnan v. State of A.P. AIR 1993 SC 217 , the directive principle contained in Article 45 has been raised to the status of fundamental rights. It has been that the children from the age of 6 year to 14 years have fundamental right to free and compulsory education. Similarly, ‘equal pay fro equal work’ has been held to be a fundamental right in Randhir Singh v. Union of India, AIR 1982 SC 879, and therefore enforceable in Courts. In M.H. Hoslot v. State of Maharastra AIR 1978 SC 1548, it has been held that legal aid and speedy trial are fundamental rights under Article 21 available to all prisoners and can be enforced. If we look towards the Judgments of the Courts regarding Article 21 of the Constitution, the embed of it has become so large that all the human rights which necessary for living of a person and all the duties of the State to make a better life of its citizens are embodied in it.

Conclusive Remarks

The idea of adding of the Directive Principles to the Constitution of India was to provide the State a path to walk towards the welfare State. But due to weak economy and backward technology the idea of being a welfare State is still waiting. Although, now it is not justified to say that India is a weak Economy and backward in technology, today we have sufficient means to proceed towards a Welfare State. Now the time has come to achieve the dream of our Constitution framers and our father who built this great nation. This is the right time to move towards the revolution to change parameters and imply the directive principles as mandatory rights. The amendment in the Constitution is required to bring the directive principles within the judiciable force.

However, the Judiciary has started the transformation of making the directive principles enforceable. Now it is our duty to give enough support to the judiciary. Once this dream was seen by the great American President but unfortunately it was not succeed. Today we are standing at such time and we can make our dreams to come true, our dream of being a great nation, our dream of having higher standard of living, our dream of being prosperous. This transformation may lead to fulfill our dreams and it will also be the best tribute to our Constitution maker and to those who built our nation.

About Author

Prateek Mishra

I am law student from Law College Dehradun, Faculty of Uttaranchal University.