Supreme Court Judge, Justice B.V. Nagarathna, on Saturday said that the Constitution of India was a great social document, almost revolutionary, which aimed at transforming the society.
The Supreme Court judge expressed these views, while delivering the Chief Justice K.K. Usha Memorial Lecture on the topic ‘Transformative Constitutionalism,’ organised by the Kerala Federation of Women Lawyers as part of the Women’s Day Celebrations, 2023 at the Kerala High Court Auditorium.
Justice Nagarathna said the enforcement of the Constitution in India was a moment of transformation of the country. It transformed the relationship between the individuals and the State. It shifted the locus of concentration power from the State to ‘We The People’ of India.
The Constitution sought to overcome alien colonial domination through this concept. Transformative became part of Constitutional discourse recently, though it was in practice in the country, she added.
She said transformative constitutionalism has always remained an intimate part of the judiciary, which not only helped in healing the wounds of the past, but also guided the lawyers and judges to a better future, ensuring peaceful coexistence and developmental opportunities for them.
Stating that the Constitution was not a stagnant document, but a living and dynamic one, Justice Nagarathna said the interpretation of the Constitution has to be an evolving one.
She said a living tree approach has been invoked to read it and justify new rights, adding that it was the duty of both the lawyers and judges to ensure this living tree always remained evergreen.
As per the Supreme Court judge, the task of Transformative Constitutionalism was to identify and express the three foundational principles of Constitution, which were:
1. Courts entrusted with upholding rights of people
2. Popular democracy
3. Dynamic executive for achieving distributive justice, attainment of socio economic rights and good governance
As per Justice Nagarathna, equality in Articles 14, 15 and 16 of the Constitution enshrined substantive equality.
She said the fraternity recognised that liberty and equality were threatened not only by concentrated state power, but also by private persons who had the ability to block access to goods for dignified life. The trinity of liberty, equality and fraternity would shine every time the constituents reinforced each other, she added.
While interpreting laws, the lawyers and judges had the responsibility to always keep in mind the transformative principles engraved in the Constitution, she noted.
She said mere words of the Constitution were broadly phrased, but to breathe life into it, it was ultimately for lawyers who assisted and interpreted the Court and for the judiciary, which understood the interpretation and guided the discourse.
She said the Apex Court had several cases decided with respect to the aspect of equality.
Talking about the Anuj Garg Case, Justice Nagarathna said this decision has become the foundation for transformative constitutionalism in gender equality.
She said earlier to this, there was the Air India vs Nergesh Meerza case, wherein the Supreme Court had ruled that discrimination was in the interest of women and it was not only on grounds of sex. However, this decision required a correction. The Nergesh Meerza’s case would require a course correction in later years, she added.
Talking about the Sikkim case, Justice Nagarathna said it was a very discriminatory provision. They forgot that individuals included women and third gender also.
While an individual was exempted from payment of Income Tax under the provision, a Sikkimese woman who married a non-Sikkimese man, was bound to lose the exemption, she pointed out, adding that this was the reason why the bench comprising Justice MR Shah and her quashed that judgment.
Talking about the Babita Punia and another case, she said the Apex Court had shown traces of Transformative Constitutionalism. In Shah Bano, an expansive interpretation was adopted, but it didn’t last long, she added.
Talking about the NALSA case, Justice Bagarathna said the judgment upheld constitutional morality over social morality.
She mentioned the NM Thomas case, stating that it was instrumental in forging the Part III and Part IV of rights relationship, besides being transformative in the sense that it replaced the caste blind version of equality.
Terming fraternity as one of the grand ideals enumerated in the Preamble, Justice Nagarathna said while Justice, Equality and Liberty had progressed, but fraternity has not been as rewarding.
She said the PIL movement and dynamic interpretation of the Constitution was a reaction of the Supreme Court to the excesses during the Emergency period.
Speaking about changes in environmental jurisprudence, the Supreme Court judge said the judiciary was required to breathe life into substantive rights and freedoms. Since liberty was the most significant and cherished value apart from equality, various tribes in the country need to be treasured and nurtured, she said, adding that the state must play an active role in constituting society based on these principles. She pointed out that it was time to uproot the systemic social deprivation.
Justice Nagarathna said the judges must have the pulse of people, whom they adjudicate in their hearts and justice in their minds, while interpreting the laws and enforcing rights.
She further said that April 24, 2023 would be the golden jubilee day of Kesavananda Bharati case and Kerala must take credit for giving the case to the country
She said the broad vision of judges who constituted the Bench of 13 judges and who enunciated the basic structure was a fine example of transformative constitutionalism.
Stating that the Constitution was stronger now because of the Kesavananda Bharati judgment, Justice Nagarathna said it was the duty of each person in the legal fraternity to go through the judgment and reassure themselves on the impact it has had on the country.
Justice Nagarathna said she was delighted to be in Kerala, which was known as God’s own country, having a picturesque landscape and exotic wildlife. More impressively, more than 96 percent of the population was educated, she added.
The Supreme Court Judge said in the legal field, women from Kerala have always triumphed. She further said that when she was a child, her father always used to mention certain names to inspire her, which were etched in her memory.
Justice Nagarathna said that much like Justice Usha, who became the first woman judge to be elevated from the Bar, she was the first woman to be elevated from the Karnataka Bar. However, the transfer of Justice Sukumaran, husband of Justice Usha, was not a right decision, added the Supreme Court judge.
The Memorial Lecture was dedicated to the memory of late Chief Justice K.K. Usha, who was the first woman Chief Justice from Kerala and also a founding member of the Indian Federation of Women Lawyers (Kerala Branch). Advocate Gisa Susan Thomas, Secretary of the Kerala Federation of Women Lawyers (KFWL), delivered the Welcome Address.
The Presidential Address was given by Advocate P.K. Santhamma, President of KFWL. The Special Address was delivered by Justice Anu Sivaraman, Judge, Kerala High Court. She said Justice K.K. Usha was a remarkable Judge and woman. There was no better way to remember her than by a commemorative lecture.
Vice President of KFWL, Advocate Karthika Sukumaran, delivered the Vote of Thanks. She thanked members of the Bar and the Bench, who supported the Federation and also left a mark in various initiatives taken for the welfare of women lawyers.