Indira Jaising & 'Transformative Constitutionalism'.

Senior  advocate, Indira Jaisingh is not a fan of the BJP. Yet she thinks 'transformative constitutionalism' is a good thing now the BJP is at last in a position to rewrite that constitution. It seems she is too stupid to understand that this doctrine is a license for the majority to loot, rape and ethnically cleanse the minority. That is why it is popular in South Africa- and nowhere else.

Jaisingh said in a recent lecture to the Law College-

Writing on the nature of the modern Indian State, political scientist Sudipta Kaviraj states that an institution that was traditionally understood as limited to the basic furniture of our society has come to be transformed into a “central moral force”.

If Kaviraj is right, why was Mahatma Gandhi so exercised about getting the Brits to scram? Even if he was a big fat racist- who hated White people- why did he not insist they take their 'basic furniture' with them?

We may also ask why India chose to revere lawyers- like Gandhi and Motilal Nehru and Ambedkar- and judges- like Ranade and Sir Subramaniya Iyer- and looked to them for leadership in the freedom struggle. It seems the Law has always been seen as a 'central moral force'.

The truth is Kaviraj is a cretin. He is not a scientist of any description. Rather he is a shite brown pedagogue showing shite white Americans why India is such a shithole. (Hint- it's coz brown peeps, like Kaviraj, got shit for brains.)

Perhaps the expression “constitutional morality” in our judicial decision-making is coming from there and in any event “morality” finds a place in Article 25 of the Constitution of India.
He goes on to describe how exactly the state has acquired this central importance: “It is implicitly invoked in every demand for justice, equality, dignity and assistance – because all such demands can be made only in its name; and it is the state’s responsibility to meet all these expectations.”

No it isn't. Demands for justice conflict with each other. No one can meet them all. It is a different matter that there are justiciable wrongs for which the Executive is bound by law to provide remedies. However, the existence of the State precedes its ability to provide such remedies. Indeed, it may continue to function even if it signally fails to do so.

One must, however, distinguish between the State and the Constitution and understand that the State is a creature of the Constitution.

This is nonsense. States may or may not have a Constitution. If the State bothers to observe the Constitution, then it may have some minor salience. Not otherwise.

Only a cretin would get confused between something which actually exists and another thing which is purely notional or normative. One can buy an air-ticket to India. One can't buy an air-ticket to the Indian Constitution.

Another thing to which I wish to point attention is that it has always amazed me that there is no definition of “government” in the Constitution.

The U.K had an unwritten constitution. India followed the Irish example by having a written constitution. No Constitution has a definition of Government. It is what Tarski called a primitive term.

This came home to me when I was arguing the case of Government of National Capital Territory of Delhi versus Union of India in the Supreme Court of India.

A case which changed absolutely nothing. The decision merely confirmed what everybody knew.

The Constitution does however describe “states” in Schedule 1 and “Union” in Article 1 when it says, “India that is Bharat shall be a Union of states.”

It does not give a definition of what a state is. The term is being used to describe something else- viz. India as a Union of states. This means there is a difference between the Union Government and the State or Union Territory Government. Furthermore, as Dr. Ambedkar said, a 'state' is whatever it is administratively convenient for the Union Government to prescribe. The Legislature of Andhra Pradesh opposed bifurcation of the State. This did not stop the Union Government with going ahead and dividing it.

Note however that this definition is a territorial one in that it describes territorial units and does not actually use the word “state” in the manner mentioned above. What Article 1 does do is to explain that India is a federation.

This is not true. There is no definition. Nowhere is the term 'territorial' or any synonym for 'territorial' used in connection with the word 'state'. Suppose the entire territory of India were to be submerged by the ocean or conquered by an enemy. The Union of India would still exist. No doubt, it would be a Government in Exile but it would be a perfectly legal Government nonetheless.

The Supreme Court, however, in my opinion does not quite tell us what is federalism in the Indian context.

It is whatever is convenient for the Union Government. This is settled in law.

It is sometimes described as quasi-federal, sometimes as federal state with a strong centre and more recently we talk about “cooperative federalism”.

These descriptions have no force in law. They are suggestive merely.

All these expressions have loose meaning in the context of a one party state that we have moved towards.

We have not moved to a one party state- i.e. one in which it is forbidden to set up a rival political party to the one in power. This is not 'loose meaning'. Perhaps it is 'loose motion'.

Take a look at the map of India on social media: India is orange.
Hence we have a host of confusing expressions: “State” “Government” and “Union” – the only unambiguous expression being “ Constitution”.
The question that we must ask is: Could the modern state be anything else but all-encompassing in nature?

Why ask this question? The answer is obvious. No modern state can be all-encompassing because of informational and resource constraints. Nor would any state without a 'resource curse' wish to be so because that would kill off private enterprise and thus tax revenue.

The answer to this and other similar questions lies in the experiences of American Independence movement as compared to various independence movements in the Global South.

WTF? All that happened long before we were born.

In the Global South, independence struggles, especially in India, have come to acquire central importance as a matter of choice.

Nonsense! Nobody gives a toss about that stupid mythology featuring Rahul's ancestors. Everyone can see that the Brits were leaving anyway. The Independence struggle was foolish save in that enabled certain people to gain power and for their cronies to make money. Ceylon got everything India did- before India without any stupid play-acting.

Such movements across the Global South have not only faced an external enemy in the form of a colonial power but rather, at the same time, they have also fought internal enemies, of much bigger proportions, in the form of extreme poverty, socio-economic inequality, hierarchies of caste, race, gender and much more.

Is this woman utterly mad? When did any politician or judge strip naked to mud-wrestle poverty or gender inequality? They may have said they were going to do so but they didn't at all.

India's 'external enemies' are China and Pakistan. Nobody wants to colonize India. It is not a paying proposition.

A state that actively takes up the task of eradicating internal inequalities has been of primary consideration for the Constitution framers.

States which 'actively take up' egalitarian policies don't bother with Constitutions or due process of law. They confiscate and redistribute wealth directly. They may choose to have a Constitution which affirms this redistribution but then again they may not.

In achieving this, the Constitution has also been the tool with which we the people have fought these internal enemies.

This has never been the case. There has to be Executive action of a direct, substantive sort. This may involve amending, suspending or abrogating the Constitution- but simply ignoring it works just as well.

It has never been the case that Judges have used the Constitution to affect substantive changes of the type Jaisingh is referring to. Any such attempt on the part of Courts has been quickly rendered a nullity unless the Executive, for its own reasons, allocates sufficient resources to ensure compliance.

Writing on India’s constitutional moment, several scholars have expressed a similar sentiment.
“When one considers, for example, the Directive Principles of the Constitution or the ‘strivings’ of the state, they include a fulsome engagement with matters of health, education, individual and communal safety, equality, and prosperity,” Uday Mehta writes. “This constitutionally enshrined vision of the future is what has often been seen as implying an activist and capacious state, responsible for creating conditions for the exercising of freedom.”

But Uday Mehta fails to mention the Directive Principle regarding cow protection. Since, in some states, bare possession of beef is a cognizable offence, 'transformative constitutionalism' could involve constant harassment of non-Hindus.

The origin of transformative constitutionalism is traced to post-apartheid South Africa.

So the thing is of very recent origin. It has no applicability to India because White people no longer own lots of nice property and successful businesses. I suppose, some nutjob may claim that Muslims stole whatever property they own from Hindus and invoke 'transformative constitutionalism' to rob them of the fruit of their labor and enterprise. But, this can scarcely be what Jaisingh wants.

It is very foolish of her to mention the subject.

A former chief justice of South Africa traces the core of transformative constitutionalism to the preamble of the Interim Constitution of South Africa, which reads: “A historic bridge between the past of a deeply divided society characterised by strife, conflict, untold suffering and injustice, and a future founded on the recognition of human rights, democracy and peaceful co-existence and development opportunities for all South Africans, irrespective of colour, race, class, belief or sex.”

Just as Blacks are the majority in South Africa and may, claiming historic discrimination, claim the property of even much poorer White people in the name of 'transformative constitutionalism' so too may, under the BJP (which will soon have the power to change the Constitution), the majority Hindu community claim to have been enslaved by Muslims and thus grab their property.

While Transformative Constitutionalism, with regard to its meaning, continues to draw debates in the face of different experiences across the world, key elements that define or differentiate Transformative Constitutionalism are the central role of the State (courts included) in fulfilling the project of emancipation and constant development of the Constitutional ideals of liberty, equality and fraternity.

Nobody in their right mind wants this garbage. Why? We can all see what happened to Mugabe's Zimbabwe or Idi Amin's Uganda.

It is these principles on which the society must sustain itself and the state must play an active role in constituting a society based on those principles.

If the State plays this 'active role', it will also decide what 'liberty' means. It may be they think it means suppressing the outward forms of the religion of a minority- as China is doing to Uighurs. 'Equality' may mean the ethnic cleansing of supposedly 'reactionary' sections of society. Fraternity may mean the guillotine.

In India, the principle proponent of this view in the judiciary has been Justice Krishna Iyer, a judge who has had an abiding influence on my own work. Reflecting on the need to interpret the Constitution as a transformative document, he remarked that”
  “The authentic voice of our culture, voiced by all the great builders of modern India, stood for abolition of the hardships of the pariah, the mlecha, the bonded labor, the hungry, hard-working half-slave, whose liberation was integral to our independence.

Mlecha? The Brits were mlechas. We got rid of them. We did not protect their rights.

'To interpret the Constitution rightly we must understand the people for whom it is made – the finer ethos, the frustrations, the aspirations, the parameters set by the Constitution for the principled solution of social disabilities.”  

Krishna Iyer was a Leftist. He was speaking of a time when the Left was in the ascendant. But it is now the BJP which can rewrite the constitution. This is the wrong time for Leftists to speak of 'Constitutional patriotism' or 'transformative Constitutionalism' because it is the BJP, not the Left, which will gain more power to pursue its own agenda.

Since the Left has been almost wholly annihilated, it needs to abandon substantive for procedural notions of justice and concentrate on the timely  redressal of wrongs rather than wide eyed activism.

BR Ambedkar, emphasising these principles remarked that: “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. What does social democracy mean? It means a way of life which recognises liberty, equality and fraternity as the principles of life.”

Ambedkar wasn't saying the Courts could do this. As a barrister himself, he knew the thing was impossible. Social Democracy required actual Social Work to secure its foundations.

A radical document
The Constitution has been interpreted as a radical document that seeks to reconstitute society, while being mindful that the old hierarchies cannot be wished away. The duty of ensuring that transition is placed on a state that truly imbibes the transformative character and pursues it relentlessly.

This interpretation is one which Jaisingh should be combating with all her might because it is the BJP which is power.

Therefore, two key aspects of the term Transformative Constitutionalism emerge:
1. It envisages attainment of substantial equality by recognising and eliminating all forms of discrimination as they may have existed or may develop in the future;

So, if the BJP says -'Hindus suffered historic abuse and discrimination. Their land was stolen from them by Muslims. This injustice must be removed.'- Transformative Constitutionalism would endorse their depriving Muslims of their property. Legal positivism, on the other hand, would provide Muslims with a legal remedy to any attempt to deprive them of their property without due process of Law.

2. It calls for a realisation of full human potential within positive social relationships – the use of the term “positive social relationships” instead of limiting it to an individual’s interactions with the state is indicative of the pervasive nature of Transformative Constitutionalism in the private sphere as well.

Thus, if the BJP says that Hindus have been intimidated and oppressed for hundreds of years by Muslims and thus prevented from developing 'positive social relations' and realizing their full human potential, then 'Transformative Constitutionalism' would let them ban the outward markers of Muslim identity- lest Hindus feel traumatized. But why stop there? Hindus may be traumatized by the use of Muslim names. Thus such names are unconstitutional.

The Left thought it would gain power and regarded the Law as an impediment. It now appears to be headed for wholesale extinction. Thus it needs the Law for protection.

Differentiating this understanding of Transformative Constitutionalism from Constitutionalism, Michaela Hailbronner

who is German and can quickly escape back there if Pretoria starts to burn

invites us to think of what Transformative Constitutionalism is not. Stating that US Constitutionalism is not Transformative Constitutionalism, she contends that “US constitutionalism does not entrust the federal state with the task of bringing about a more just and equal society. Its conception of law is “reactive”, to borrow from Mirjan Damaska, and its constitutionalism represents, in Somek’s useful terms, Constitutionalism 1.0 with its emphasis on liberty.”

Therefore, US constitutional experience is often understood as different from the project of Transformative Constitutionalism as envisaged by the Global South,

i.e. some elite Black South Africans eager to grab White property so as to emulate Mugabe's Zimbabwe.

Where would you rather live- the USA or Zimbabwe?

in which states play an activist role. This is because of the highly divisive hierarchies and acute lack of resources persisting in countries like India and South Africa that the constitution sought to outrun.

Pakistan and Bangladesh have shown that majorities can rob minorities and ethnically cleanse them. Even Uganda could do this. Lack of resources is not a constraint.

Jaisingh, being a Leftist, does not have a notion of India as a nation. Unfortunately, the BJP does have such a notion, which is why it is in power. Prakash Ambedkar might not like it, but the fact is the people he seeks to represent prefer to vote for the BJP.

They also prevented us from developing any notion of a nation in the first place, as Dr Ambedkar contended, since the distinctions based on caste belied any existence of fraternity, and hence a nation.

The RSS, unlike the Communist parties, did create fraternity between people of different castes and creeds. That is why its people are in positions of power while the Left has become wholly irrelevant.

India’s constitutional moment was said to be a shift away from old practices and hierarchies. More recently and over 70 years since the Constitution came into force, the full court of the Rajasthan High Court has resolved that advocates ought not to address judges as “My Lord”, given the mandate of Article 14, which relates to equality before law. The court led by the Chief Justice Ravidra Bhatt has given us a classic example of what transformation from colonialism to republicanism could mean, even if it be in language; language after all is the most powerful tool of transformation.

What great change resulted from this? None at all. It was not compulsory before and it was not prohibited afterwards. Many other courts had expressed similar sentiments in the past. But the thing made no difference to anybody.

As I said in my open letter to the Chief Justice of India, “Language is more than a mere communication tool. It is an intuitive social, cultural and political indicator, which reflects prevailing attitudes and ethos of any society.”

Indicators are still tools of communication. Language can't be more than what it is- viz. a tool of communication. Jaisingh is a cretin.

This was when the attorney general referred to me as someone else’s wife.

As opposed to what- his own wife?

To be fair to him, he followed this with a correction and as Justice Krishan Iyer once said, “We must ‘bring up our judges’” and I may add, our male colleagues at the Bar. Transformations happen in these small ways on a day-to-day basis when we refuse to let a small injustice happen to us.

A small injustice was done to Jaisingh when a guy said she was not his own but someone else's wife. He then corrected himself. Why? Did Jaisingh prove he too was her husband? We don't know. Jaisingh's imprecision of language piques our interest but draws a seemly veil over the actus reus. No doubt it was very transformative to the constitutions of all concerned.

A decolonialisation of the legal profession and of our laws is yet to take place.

The Indian Constitution is autochthonous on the Irish model. Why does Jaisingh not know this? Decolonization occurred long ago. Why pretend otherwise?

Indeed this was my own motivation in some small way to question the very institution of senior counsel (the equivalent of Queens counsel) and my motivation for shedding the senior gown on August 15, 2017. Since that day I have not worn a senior gown despite my peers urging and they tell me, “You have succeeded in that case so take back your senior gown.”

A Q.C charges higher fees or has been an M.P and may be considered for a judicial appointment. They are welcome to give up silk and take lower fees if they are economically or otherwise constrained to do so.

Jaisingh may believe she is some great big heroine for doing this but she has not challenged any institutional inequity at all.

I don’t know what success means. As far as I can see, that was my Rosa Parks moment: it came to me unasked for, refusing to wear the senior gown.

Rosa Parks risked being beaten, spat at, and thrown in jail for defying Jim Crow. What similar penalty did this cretin face? How bottomless is her ego? Does she also compare herself to Marie Curie and Joan of Arc?

You the students at the National Law School of India have had your own transformative moment inviting me, with full knowledge of the fact that an FIR has been registered against Lawyers Collective, Anand Grover and me and our premises have been “raided”, a word that finds no place in the Code of Criminal Procedure.

A raid is a journalistic expression meaning forcible entry, search and seizure.

I cannot resist telling you that on the day of the raid, Anand Grover was in court Number 4 in the Supreme Court of India arguing his part-heard matter. He told the CBI officers, “I have never let down a client and asked for an adjournment and I will not do it today.” It was a defining and a testing moment for us to be out there despite knowing that we were being targeted for being human rights defenders.

Jaisingh & her husband were not targeted for being human rights defenders. That is perfectly legal- though Jaisingh may not know it. They were targeted for   suspected violation of the Foreign Contribution (Regulation) Act.

She says-

This loose usage of language poses a threat to our liberties and Transformative Constitutionalism.

Her own language is so loose that she paints a picture of an Attorney General correcting himself for referring to her as another man's wife, as opposed to his own spouse. She refers to 'decolonisation'. But she was getting money from White foreigners despite the fact that White foreigners had once colonized India. The BJP could have its own Transformative Constitutionalism which targets her for her deracinated ways.

Towards substantive freedom
If the state assumes an active role in ensuring liberty, equality, freedom and other ideals enshrined,

then it gets to define what liberty and equality and liberty actually are. The BJP could say true liberty arises only from the overthrow of Muslim and British ideological hegemony. Equality involves restorative justice with respect to some great wrong inflicted on Hindus. Freedom involves being able to convert to Hinduism without fear of persecution etc.

the next question that arises naturally is with regard to the content of these ideals. What are the limits to which the state should pursue these ideals and enable people to achieve these ideals?

This is a fit subject for economic analysis.

An understanding of Transformative Constitutionalism demands that the state actively pursue these goals and remove all barriers to enjoyment of such ideals.

If all barriers to the exercise of the State's power are removed in India today, Jaisingh herself will get short shrift. Her people are not in power.

It is, perhaps, in this light that Amartya Sen talked about “development as freedom” and his capability approach.

He talked about it, yes. But nothing happened.

Sen, in his book, Development as Freedom alludes to the notion of substantive equality when he talks about the tyranny of unfreedoms that restricts growth and development of an individual. These unfreedoms that he refers to include: systematic social deprivation, neglect of public facilities, intolerance, or over activity of repressive states. He argues that the denial of these substantial freedoms are sometimes related to economic poverty, which robs people of the freedom to satisfy or to be adequately clothed, obtain remedies for treatable illnesses, etc.

Why not simply wish everybody had a magical butler?

Continuing the same argument, Martha Nussbum and Sen conceptualise the capabilities approach better addressed the idea of well-being. When evaluating well-being, Nussbum and Sen argue, the most important thing is to consider what people are actually able to be and do. The commodities or wealth people have or their mental reactions (utility) are an inappropriate focus because they provide only limited or indirect information about how well a life is going.

Similarly, what people are able to be and do are inappropriate focuses because they may not want to be and do those things. Ask any prostitute or Chartered Accountant. They would prefer to be Super Models or Movie Stars.

Transformative Constitutionalism and the judiciary
The jurisprudence around the constitutional ideals of equality, liberty, and fraternity began developing after the Emergency. Recovering from the defeat of the Congress government in the post-Emergency period, the Supreme Court, in search of legitimacy, articulated the jurisprudence of Public Interest Litigation.

This was an entirely reasonable attempt to act as a check and balance upon the Executive. However, the notion that PILs were a panacea has been shown to be absurd. 

Justice PN Bhagwati declared that the adversarial system of the Commonwealth was unsuited to Indian conditions, it was based on “self- identification of injury and self-selection of remedy”.

If Bhagwati was right then India should downgrade the role played by lawyers and move in the French direction to Examining Magistrates with substantial investigative powers. Why is Jaisingh mentioning an authority whose argument undercuts her own salience as well as that of the young lawyers she is talking to?

Why not simply say 'abolish the law. It is what Sen calls 'Niti'. We should just have a Commissar, or Party Supremo, who reallocates resources at his own whim and pleasure. This would be what Sen calls 'Nyaya'. 

Given the vast illiteracy of the people, this would not ensure access to justice.

So, we should get rid of lawyers and judges. The Ruling Party should take all decisions through its own local branches.

I have elsewhere pointed out that it is no accident that one of the pioneers of the Public Interest Litigation as articulated in SP Gupta, Justice Bhagwati was also one of the authors of the ADM Jabalbur judgment.

Unlike Justice Khanna, Bhagwati, Ray, Beg & Chandrachud had no problem denying habeas corpus for the victims of Indira Gandhi's reign of terror.

This limitation, which is at the origin of the PIL, must be remembered as a major limitation on PILs itself. More recently it is very clear that PIL can be an instrument of oppression perhaps more deadly than any other since it is so heavily dependent on the “discretion” of judges.

Moreover, judges look to the ruling party for post-retirement sinecures. This is the wrong time to start talking about 'transformative constitutionalism' or a 'committed Judiciary'.

And that brings me to the point out that rule of discretion is contrary to the rule of law in that it introduces the rule of predominantly men and occasionally women.

This is sheer nonsense. The rule of law is defeasible, discretionary and provides for equitable remedies in cases where 'akrebia'- i.e. rigidity in application would cause the law, by reason of its generality, to overstep the mark.

I am aware that no law can be implemented, no executive authority can function without “discretion” as a legal concept in decision-making.

If you are aware of it, why talk nonsense?

But India lacks a theory of “abuse of process” making it possible for decision to degenerate to favoritism, face law and not case law and targeting of dissenters, under cover of law.

This is not true. Such a theory has existed since the latter half of the seventeenth century.

This must be remedied forthwith. Power cannot be used for a collateral purpose in the name of “discretion”.

But if so, 'transformative constitutionalism' is itself an abuse of process because it involves discretionary interference in matters reserved for other branches of Government.

India lacks a theory of responsibility for wrongdoing.

Utterly false.

India lacks command responsibility for wrongdoing .

No country- save one defeated in war- admits any such doctrine. On the contrary, sovereign immunity obtains.

What has in fair measure, is impurity for decision makers.

Presumably, this should be 'What India has in fair measure, is impunity for decision makers'. However, it is not true.

We at the lawyers Collective too thought when we argued the Olga Tellis case and the Bombay Hawkers Union cases that economic rights is what we need to work on: it was a magic wand that would remove poverty.

Lawyers should know that rights are linked to remedies under a bond of law. If the obligation holder has neither the means nor the incentive to provide the remedy, the direction of the court will be fruitless.

I have since then realised that my generation took its civil and political liberties for granted.

Nonsense! This lady's generation had witnessed the Emergency and widespread extra-judicial killing of Naxals etc. They were not babes in the wood. Still, they wanted to virtue signal and attract publicity- which they did to their own profit.

We were Midnight’s Children and we inherited civil and political liberties.

From whom?

Life has come full circle. Freedom and independence can no longer be taken for granted, leaving us free to work on economic rights. For many, including me and Anand Grover, for cartoonists and poets, students, Dalits and farmers, for the accused in the Bhima Koregaon case, the fight for liberty has just begun all over again.

Because Indira's Emergency was such a glorious chapter in Indian history! What Jaisingh means is that she thought the Left was on the rise and so she would be protected. But, thanks to people like her, the Left imploded. This means the corruption and criminality of her own sort may be punished. Thus she is running scared.

That's not a bad thing. She and her ilk should stop talking about 'transformative constitutionalism'- because it lets the people in power do as they please- and speak instead of due process.

Battling to maintain its legitimacy in the eyes of the public, in the years following the Emergency, the judiciary has now reached an ambivalent space, still opening the doors to Public Interest Litigations when it wishes to, and closing then tight when it wishes to.

Which is why PIL was no panacea. The Judiciary should not try to usurp the role of the Executive or the Legislature because it can't itself provide remedies.

It is also not surprising that it was during this phase that the affirmative action policies came into picture through the Mandal Commission. Based on the idea of achieving substantive equality, and subject to wide ranging debates, reservations in educational institutes, and now in promotions also, as approved by the Supreme Court in BK Pavitra II have been single-handedly responsible for ensuring whatever little diversity in different walks of life we see today.

Nonsense! Modi himself is an example of 'diversity'. It is private enterprise, not everybody getting a government job, which lifts up a nation and ensures diversity based on merit and hard-work being able to get to the top.

Highlighting this importance of reservations, Justice Chandrachud in BK Pavitra remarked, “There is substantial evidence that the members of the Constituent Assembly recognised that (i) Indian society suffered from deep structural inequalities; and (ii) the Constitution would serve as a transformative document to overcome them. One method of overcoming these inequalities is reservations for the SCs and STs in the legislatures and state services.”

 Reservations can create a 'creamy layer'. They can't overcome inequality. Economic growth, on the other hand, has this power.

LGBTQI movement and the demand for privacy
In recent times, the jurisprudence around Transformative Constitutionalism has developed strongly, especially in relation to the rights of the LGBTQI communities, through a series of judgments.
In what has to be considered one of the most celebrated judgments that has been delivered by the Supreme Court in recent times, in Navtej Johar v. Union of India, the court held that Transformative Constitutionalism is considered to be one of the objectives of adopting a Constitution itself.

However the Court did not order the Executive to frame suitable legislation ensuring fair and equal treatment of homosexual and transgender people. 

The purpose of it is to have a Constitution that guides the nation of transforming itself from a medieval and hierarchical society to an egalitarian democracy to embrace the ideals enshrined in the Preamble to the Constitution.

What about the Directive Principle re. cow protection?

It was held that as a constitutional court whose job is to protect its people from humiliation and discrimination, it cannot provide a static interpretation to the rights of liberty and equality and remain a mute spectator to the struggle for the realisation and attainment of rights.

Or it could just do its job properly instead of talking high falutin' nonsense.

Highlighting what lies at the core of Transformative Constitutionalism, Justice Dipak Misra remarks: “The rights that are guaranteed as Fundamental Rights under our Constitution are the dynamic and timeless rights of ‘liberty’ and ‘equality’ and it would be against the principles of our Constitution to give them a static interpretation without recognising their transformative and evolving nature. The argument does not lie in the fact that the concepts underlying these rights change with the changing times but the changing times illustrate and illuminate the concepts underlying the said rights.”

So the Bench let the Legislature off the hook for bringing in a proper bill dealing with issues like marriage and inheritance rights for the LGBT community. It also praised itself in fulsome terms. Meanwhile, the case backlog in the Indian courts continued to grow.

I believe that every generation has the right to decide for themselves what the Constitution means for them, to interpret the Constitution after their own aspirations. 

Why say this is a 'belief'? It is a fact. Only people now living can interpret the Constitution. Similarly, only this generation can go to the toilet. The dead can't do it for them. 

Let us not however forget that the battle to decriminalise Section 377 was started 20 years before the Navtej case, by the Naz Foundation, supported by the Lawyers Collective and found its own in a judgment of the Delhi High Court in Naz Foundation, reversed in Koushal most shamefully. Navtej is a reaffirmation of Naz.

So some lawyers made some money and gained some publicity for themselves. They are welcome to pat themselves on the back. But there is no reason for the rest of us to believe that they are not all a bunch of stupid, self-serving, shysters.

The judgment of the Supreme Court in Navtej Johar was preceded by the judgment in Justice KS Puttuswamy v. Union of India. This judgment was instrumental in holding the right of privacy as a fundamental right under Part III of the Constitution. While the specific contours of privacy yet remain to be tested in specific factual scenarios, the judgment has set the ball rolling to initiate discourse rights that flow from the right to privacy such as the right to be forgotten, which will have significant impact on the functioning of the criminal justice system.

There is no need for some silly notion of 'transformative constitutionalism' here because there was a well known American precedent.

The fight for gender justice
While the slew of judgments in Puttuswamy, Nalsar, Shafin Jahan and Navtej Johar have reflected the progressive elements in the judiciary, the larger picture has no doubt been rather grim. The relief provided has been limited, and courts have largely shied away from taking any firm stand against the government of the day.

Which is why the Judiciary has not been reformed.

Nothing epitomises this limitation of the judiciary more than its judgments in several cases relating to rights of women, starting from 1950s to the recent cases of Sabrimala and triple talaq. Though the latter two do have a progressive impact, what is being suggested is that the reasoning could be more rigorous and transformative.

Very true! The Sabrimala decision led to the rout of the Communists in the Kerala elections. Thus Rahul was able to keep his seat in Parliament because his party opposed that Court decision in Kerala! Triple talaq is a bill that Modi has just now pushed through Parliament.


Towards the end of her speech, Jaisingh turns to the petition against her and her husband-

Students of Constitutional law must know that in any petition filed under Article 32, a fundamental right must be stated to have been violated. There is no such mention in the Petition against us an indeed there can be none.

This is not the case. The Court has discretion to entertain a petition and to decide if there has been a rights violation and if it is germane to the issue at hand. If government servants seek to influence electoral politics, a fundamental right of the citizen, relating to equality and freedom, is indeed violated.

What is more, we have been accused of undermining democracy. The petition states: “It is submitted that the activities of respondent no 1 while being the government servant clearly amounted to, directly or indirectly, affect or influence electoral politics, decision making process by public servants/bureaucrats, interference with administration of justice through lobbying and media advocacy….”

 Jaisingh herself may feel charges of this type should be brought against government officials who act ultra vires to advance an ideology she opposes. Whether she herself is guilty of any such thing is a matter of fact, not law.

I did not know whether to laugh or cry when I read this. We, Lawyers Collective, have influenced electoral politics and interfered with the administration of justice? No! If we did try as alleged, indeed we must have failed miserably, as the world can now see.

Failing miserably is not a defense. 'Impossible attempt' may be. In this case, the allegation is that these people were well paid by foreigners even if they knew they themselves knew they would fail miserably.

Transformative Constitutionalism for us at the Lawyers Collective now means personal liberty.

So, it means nothing at all except whatever it is convenient for this lawyer to claim it does so as to shield herself against any possible legal action. This is a very convenient doctrine- but it is not sound in law.

The right to free speech is now an endangered species of rights.

It was most endangered during the Emergency. Grover & Jaisingh showed their courage by going to Jail at that time- except they didn't at all. Perhaps they approved of Indira's brand of 'Transformative Constitutionalism'. Perhaps not. But they kept very quiet about it.

Lawyers may want the Law to discriminate between causes they are in favor of and those they disapprove off. They may give fancy names to this type of discrimination. However, it undermines the Rule of Law. It is better for everybody if lawyers concentrate on the minutiae of due process and think and write clearly- rather than engage in vacuous verbosity and virtue signalling.