Constitution enacted to overcome not just colonial domination but social and economic domination: Justice BV Nagarathna

Supreme Court judge, Justice BV Nagarathna on Saturday said that the Constitution of India was enacted not merely to right colonial wrongs, but also to overcome social and economic domination. .Justice Nagarathna recalled that the point of time at which the Constitution of India and those of several other countries were enacted, were moments of profound transformation, in the backdrop of historic wrongs. As such, the Constitution sought to overcome two kinds of domination"First, alien, colonial domination; Second, indigenous social and economic and social domination. It is in that backdrop that the framers of our Constitution imagined, conceptualized and articulated a vocabulary of rights and freedoms," she said..The judge was speaking on the topic of 'Transformative Constitutionalism' at the Chief Justice KK Usha Memorial Lecture, organised by the Kerala Federation of Women Lawyers as part of its Women's Day 2023 celebration..She explained that first, the Constitution transformed the legal relationship between the individual and State by transforming the subjects of a colonial regime into citizens of a republic. It then contemplated a thorough reconstruction of the society which at the time was plagued by oppressive hierarchical systems. "In a more comprehensive transformative avatar, the Constitution recognized that the State had never been the only locus of concentrated power in Indian society. Deeply pervasive hierarchies were maintained by structures that took various forms; caste, being one such form. Understood in that sense, the framing of the Constitution did not only mark the end of a struggle against political subjugation, but equally demonstrates a struggle for self-determination against multi-layered oppressive structures, such as race, caste etc," she said. She pointed out that this is clearly visible in the Indian Constitution’s rather unique horizontal rights provisions such as Article 15(2), which bans discrimination when it comes to access to restaurants and roads, Article 17, which abolishes untouchability and Article 23 which proscribes forced labour..In her lecture, Justice Nagarathna first discussed the approaches to constitutional interpretation that underlies the vision of the transformative Constitution, such as the ‘living tree’ approach..She then proceeded to speak about how Courts, along with the other limbs of the democracy, have dealt with the three themes of the Constitution that reflect the goals of transformative Constitutionalism - equality, fraternity and liberty. .Excerpts from the speech below.On Equality - The Constitution mandates the state to redress not just the injustices of the colonial past but also ancient wrongs such as untouchability, the status of women, and Hindu patriarchy. The status of women was central to this self-conscious modernizing project and the judiciary has been a crusader for the transformative agenda on women’s rights. On Fraternity - Transformative constitutionalism calls for a realisation of full human potential, by way of cultivating positive social relationships and fraternity is the vehicle for achieving this transformative agenda. This is especially significant in order to deepen our democracy and its values. On Liberty - With a view to ensure that the rights enshrined under Article 21 are not reduced to securing merely “animal existence,” the protective umbrella of Article 21 has been interpret and cultivated to include rights of the highest amplitude, including, the right to bodily integrity, right to die with dignity, right to reproductive choice, right of self-identification of gender, right to privacy, etc. .After going through several landmark decisions of the Supreme Court to elaborate on the above, Justice Nagarathna propounded that India's unique Public Interest Litigation is a vehicle to secure the Constitution's transformative goals."Lest the “golden key to unlock the doors of injustice” remains only with people with deep pockets, the Supreme Court of India pioneered the concept of Public Interest Litigation (PIL) thereby throwing open the portals of Courts to the common man. PIL is the incarnation of judicial activism in its people-oriented litigative dimension. For long, the Apex Constitutional Court had been viewed as “an arena of legal quibbling for men with long purses.”However, thereafter, the Court came to be identified as the “last resort for the oppressed and the bewildered,” she said.PILs have provided a mechanism for the Supreme Court to directly confront the issues faced by the more vulnerable sections of society and to address these issues, the proverbial lakshman rekha often may sometimes need to be shifted, she opined. "These concerns are said to be remedied by rather extraordinary remedies, which, to the degree permissible under the Constitutional scheme, sometimes shift the line or the Lakshman Rekha, so to say, between adjudication and legislation on the one hand and administration and adjudication on the other," the Court said..The judge concluded by saying that despite continuing debate over the transformative potential of the Constitutional, it is clear that it envisions a State that can create conditions for exercising freedoms by understanding the people for whom the Constitution was made. "The tyranny of unfreedoms, that restrict growth and development of an individual, such as systematic social depravation, intolerance, etc., must be uprooted in order to unearth the true transformative potential of Constitution," Justice Nagarathna said in conclusion..The lecture which was held at the Kerala High Court Auditorium was dedicated to the memory of the late Chief Justice KK Usha, who was the first woman Chief Justice from Kerala, and also a founding member of the Indian Federation of Women Lawyers (Kerala Branch). Judge of the Kerala High Court, Justice Anu Sivaraman delivered the special address in which she recalled her interactions with the late Chief Justice. Advocate KK Shanthamma, President of the Kerala Federation of Women Lawyers (KFWL), delivered the presidential address and advocate Karthika S, Vice President of KFWL, delivered the vote of thanks.