India’s Constitution and the Transformative Nature of Its Social Fabric
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Rohit De’s book, “A People’s Constitution: The Everyday Life of Law in The Indian Republic” underscores the importance of India’s Constitution in the lives of citizens. In the book, De argues that the people of India utilized this “public resource” as rights-bearing individuals to enforce indisputable guarantees of freedom, dignity, and equality. However, the recent remarks of the Solicitor General (SG) of India, Tushar Mehta, in front of the Supreme Court that marriage equality is not the judiciary’s prerogative display a lack of knowledge of India’s constitutional jurisprudence evolution. The Central Government’s argument that marriage equality does not have “popular will” or the support of the people of India, raises questions about the true nature of India’s Constitution. The Constitution is not an exhaustive document, but a living one that can accommodate the changing social realities and lived experiences of its citizens. The Indian Constitution was developed as an enabling framework, which could be interpreted and re-interpreted to balance competing interests. The judiciary serves as a formidable limitation on the law-making power of the legislature through the power of judicial review. The transformative nature of India’s Constitution can be attributed to the nationalist struggle for independence, where the prevailing ideal was the superiority of its citizens’ rights, not the pre-eminence of the State. Over the past 70 years, the Constitution has continued to be transformative, and the Supreme Court of India, as its final arbiter, has played a pivotal role in shaping India’s social fabric. Through its liberal reading of fundamental rights, the Supreme Court of India has called into question – and invalidated – any State action that falls foul of fundamental rights or any other part of the Constitution. The Court’s insistence on the “positive obligations” of the State to not only avoid violating fundamental rights but also to ensure that they are upheld has been a key feature of its approach towards the interpretation of fundamental rights. This has led to the creation of the Public Interest Litigation (PIL) regime, allowing citizens to enforce their fundamental rights. The Court has struck down many ills using the PIL jurisdiction, such as bonded labor and prisoners’ release, among others.
Re-reported from the story originally published in The Quint
