The Constitution as a Dynamic Instrument of Change

Introduction and Outline

1. In the contemporary imagination, constitutions are curious instruments, constructed to achieve ends seemingly at odds with one another. They must stabilise the society that they operate in and preserve its polity. They must endure. At the same time, they must also progress their parent society and polity. In effect, so many of the preoccupations of constitutional theory are in fact dialogues about the best path to harmonizing these two seemingly contradictory functions of Constitutions.

2. This evening, I propose to reflect with you all on the life of the Indian Constitution and the purposes of the Constitution, as they relate to the Constitution’s endurance and enacting its programmatic call to change and to progress. To show that progressive change and constitutional durability are both mutually reinforcing ideas, and to show their interplay, I will dwell on two themes that have each preoccupied scholars of Indian constitutional law. The first theme is that of social revolution. The second theme is the values and priorities that the process of constitutional amendment under our Constitution expresses. 

3. Before I do so, let me present to you the case I urge in brief:

4. The first of my ideas for this evening is a variation on the theme of progressive change through the vehicle of the written constitution. It is the concept of transformational constitutionalism. Born in the post-independence and democratic states of the Global South, this idea has come to inform and inflect discourses in constitutional law and theory across the globe, including in the classical liberal orders of an earlier vintage – in the United States and Germany. Its rise creates new and important reason for comparative constitutionalists to have serious regard to South Africa as well as our own country. I would argue that both countries are sites in which new, important feats of constitutional imagination are underway; feats of applying the governance machinery to hastening the journey of entire nations towards material and relational dignity.

5. Secondly, I will address some unique particulars of the social contract codified by the Indian Constitution which has led scholars to give its main heart and purpose the name of ‘social revolution’. My aim is to show to you that though the nomenclature of transformational constitutionalism is new and happily received from the great strides made in South African constitutionalism, the elements of that very idea have always been deeply embedded in the Indian constitutional text and in its working since 1950.

6. Thirdly, I will present to you the idea that our work as lawyers has weight. Through the everyday activity of reading and deliberating on the words in the Constitution, we chose for our people their collective moral vision and, through the Courts, we motivate the state and our societies to unmake the old and re-make the material world into one we want to inhabit. In other words, I want to show that through legal reasoning, lawyers are the chief movers of transformational constitutionalism.

7. My final idea – and the postscript I propose to end on – relates not to change but rather to the endurance of our constitutional order. It relates to the special way in which our amendment process balances necessary permanence and necessary change. If the Constitution is to serve as the instrument by which our commitment to justice, freedom and equality is realised, we must protect and preserve its instantiation of these commitments from uprooting or erosion. So, an unspoken minor premise of the transformative constitutionalist project is that the defence of the universal, timeless fundamentals of the constitutional order is a continuing and ever-present task.

8. Let us consider each of these ideas.

Transformational Constitutionalism Today

9. In South African constitutional thought, there has emerged a powerful body of arguments about the true nature and spirit of constitutions like ours, enacted after the jettisoning of an earlier oppressive legal order. These arguments posit that post-independence constitutions are signals and blueprints of the replacement of an old and alien order with an indigenous legal order that mandates the active pursuit of substantive equality and human dignity in material and moral terms for their constituent peoples.

10. In India, many vestiges of the pre-independence order survive in statute and remain to be weeded out. A great many of them subvert the central constitutional premise of substantive equality for all in some way. So, it is only natural that when the Supreme Court has had occasion in recent years to consider questions bearing on equal citizenship, it speaks in the register of transformational constitutionalism.

11. In Navtej Singh Johar v. Union of India, the idea of transformative constitutionalism is cast as the judicial posture by which Part III and its commitment to dignity (in Article 21 as also in Articles 14 to 16) must dissolve and overcome highly unjust pre-independence continuities, such as those codified into Section 377 of the Indian Penal Code. On the historicity of the wrong the Constitution redressed in that case, the Court says the following:

“Indian citizens belonging to sexual minorities have waited. They have waited and watched as their fellow citizens were freed from the British yoke while their fundamental freedoms remained restrained under an antiquated and anachronistic colonial-era law — forcing them to live in hiding, in fear, and as second-class citizens. … But this case involves much more … The case is about an aspiration to realise constitutional rights. It is about a right that every human being has, to live with dignity. It is about enabling these citizens to realise the worth of equal citizenship. Above all, our decision will speak to the transformative power of the Constitution. For it is in the transformation of society that the Constitution seeks to assure the values of a just, humane and compassionate existence to all her citizens.”

12. Navtej was, in the eyes of the Court, a ”dialogue about the transformative power of the Constitution. ... In recognising the rights of the LGBT community, the Constitution asserts itself as a text for governance which promotes true equality.

13. In the case concerning adultery — Joseph Shine v. Union of India — we can truly appreciate the depths of the Supreme Court’s commitment to vindicating human dignity and to the “true equality” it espoused in Navtej. The rationale in Joseph Shine was as simple as it was elegant: equality of the sexes – if it is to deserve the name – must extend to “all spheres of life”. A necessary sequitur would be that the public-private divide cannot be invoked as a shield to the emancipation of women:

“The hallmark of a truly transformative Constitution is that it promotes and engenders societal change. To consider a free citizen as the property of another is an anathema to the ideal of dignity. Section 497 [of the IPC] denies the individual identity of a married woman, based on age-old societal stereotypes which characterised women as the property of their spouse. It is the duty of this Court to break these stereotypes and promote a society that regards women as equal citizens in all spheres of life — irrespective of whether these spheres may be regarded as “public” or “private”.

14. Women are again the focal point of the Supreme Court in the Sabarimala case — Indian Young Lawyers Assn. v. State of Kerala. In disallowing a discriminatory practice based on certain essentialisms connected to the human body, the Constitution’s purpose was seen not simply as transformation but as radical social and political transformation oriented towards the final object of ameliorating the rights-bearing Indian’s position:

“…The Constitution was brought into existence to oversee a radical transformation. There would be a transformation of political power from a colonial regime. There was to be a transformation in the structure of governance. Above all the Constitution envisages a transformation in the position of the individual, as a focal point of a just society. … Fundamental to [the Framers’] vision was the ability of the Constitution to pursue a social transformation.”

15. As to the character of the transformation we must pursue, the Supreme Court is clear that it must be of a kind that maintains and enhances individual human dignity:

“What transformation in social relations did the Constitution seek to achieve? What vision of society does the Constitution envisage? The answer to these questions lies in the recognition of the individual as the basic unit of the Constitution. This view demands that existing structures and laws be viewed from the prism of individual dignity.”

16. This progressive impulse enlivens not only questions relating to gender or to sexual identity, but also to the persisting problem of social and economic disparities among citizens on the basis of caste. On the question of reservations in promotions in B.K. Pavitra v. Union of India, a Division Bench of the Supreme Court, speaking through Justice Chandrachud, has argued that such measures are supported by the Framers’ intent:

“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.”

17. This spirit of the Framers, of undoing profound and deep-rooted injustices is an important feature of the transformative constitutionalist outlook. In an important volume that he edited on the subject, Upendra Baxi notes the “therapeutic dimension” of transformational constitutionalism.

18. Baxi explains the Framers’ trailblazing adoption of an action-minded approach to removing historical discrimination in the following way:

“…the Indian Constitution frontally addresses millennial wrongs such as untouchability; indeed, the Constitution is transformative on this normative register. It is historically the first modern constitution not merely to declare constitutionally unlawful the practice of discrimination on the ‘ground of untouchability’ (article 17) and of agrestic serfdom described as a human right against exploitation (articles 23 and 24). A unique feature of these provisions consists in the creation of constitutional offences, even to the point of derogation of the design and detail of Indian federalism because article 35 empowers a parliamentary override over the legislative powers of the states within the Indian Union.”

19. So far, I have claimed that transformational constitutionalism was born in post-independence India and post-apartheid South Africa. Both had to confront and undo the wounds of the past before true freedom and equality could be pursued. But transformational constitutionalism is not concerned with the continuing effects of the injustices of the past alone. It is concerned with change and moral progress in the present and the future – with the ultimate end of advancing justice and rights for all. To return to Justice Chandrachud in Navtej:

“It is difficult to right the wrongs of history. But we can certainly set the course for the future. That we can do by saying, as I propose to say in this case, that lesbians, gays, bisexuals and transgenders have a constitutional right to equal citizenship in all its manifestations… The constitutional values of liberty and dignity can accept nothing less.”

20. In addition to this course-setting for the future, transformative constitutionalism entails looking forward in an even more important way. As Justice Pius Langa, a former Chief Justice of the South African Constitutional Court puts it:

“[T]ransformation is not a temporary phenomenon that ends when we all have equal access to resources and basic services and when lawyers and judges embrace a culture of justification. Transformation is a permanent ideal, a way of looking at the world that creates a space in which dialogue and contestation are truly possible, in which new ways of being are constantly explored and created, accepted and rejected and in which change is unpredictable but the idea of change is constant.

This is perhaps the ultimate vision of a transformative, rather than a transitional Constitution. This is a perspective that sees the Constitution as not transformative because of its peculiar historical position or its particular socio-economic goals but because it envisions a society that will always be open to change and contestation, a society that will always be defined by transformation.”

The Motif of ‘Social Revolution’ in the Indian Constitutional Imaginary

21. I made a bold claim earlier this evening: that India can also claim authorship of the idea and practice of transformational constitutionalism.

22. Let me give grounds for this claim.

23. Two features of Indian constitutionalism signal its progressive character. The first is the Constitution’s textual commitment to substantive equality and to the uplift of a country that needed to regenerate after its independence. The second is our express embrace of social revolution.

24. The bridge between the South African sensibility and our own can best be expressed in Chief Justice Langa’s conception of transformation. He says that: “Transformation … is a social and an economic revolution.” Our Framers’ first priority was no more and no less than to set such a revolution into motion by the enactment of our Constitution. Without freedom from want, and some minimal guarantee of food, shelter and the like, no pursuit of true human dignity and freedom can succeed. An acute awareness of the need for the Indian Constitution — and the whole edifice of the state that it would create — to attend to providing some commitment to socio-economic subsistence for all is patent in Part IV of the Constitution.

25. In fact, the main ambition of the Constituent Assembly, in Jawahar Lal Nehru’s words, was to secure freedom from want that so many impoverished Indians suffered. He said that:

“The first task of this Assembly is to free India through a new constitution, to feed the starving people, and to clothe the naked masses, and to give every Indian the fullest opportunity to develop himself according to his capacity. This is certainly a great task. Look at India today. We are sitting here and there in despair in many places and unrest in many cities. The atmosphere is surcharged with these quarrels and feuds which are called communal disturbances, and unfortunately, we sometimes cannot avoid them. But at present, the greatest and most important question in India is how to solve the problem of the poor and the starving. Wherever we turn, we are confronted with this problem. If we cannot solve this problem soon, all our paper constitutions will become useless and purposeless. Keeping this aspect in view, who could suggest to us to postpone and wait?” 

26. In the mind of its chief architect Dr BR Ambedkar, the problems of poverty and of caste discrimination were so serious that they would imperil the democratic form of government that Indians had given to themselves. He remarked on our ‘life of contradictions’ as follows:

“On the 26th January 1950, we are going to enter into a life of contradictions. In politics, we shall be recognising the principle of one man one vote one value. In our social and economic life, we shall, by reason of economic structure continue to deny [this principle.] How long shall we continue to live this life of contradiction? If we continue to deny it for long, we will do so by putting our democracy in peril.” 

27. Many of these thoughts are so poignant, particularly during the current COVID-19 crisis. I will return to this question of our constitutional law’s approach to poverty again.  

28. It is often forgotten that our framers took a wholly unprecedented and trailblazing approach to constitutionalism. At the time, to take the Constitution and make it an instrument, not just of advancing us towards justice – of bending the arc of our history, to put it in Martin Luther King’s words – but to suggest that the Constitution must itself be the vehicle and author of transformation and even of revolution was truly extraordinary.

29. Until the Indian Constitution, the conventional wisdom was that constitutions were bulwarks against change. They are usually put in place after a period of bloody upheaval, often war or revolution (as was the case of the United States, France, Japan or Germany). They are lodestars of stability and continuity. Our example turned this notion on its head. Born through a peaceful transfer of power, the Constituent Assembly fashioned a vehicle for the very outcome other constitutions sought to prevent: a wholesale social and economic revolution. South Africa’s post-Apartheid Constitution is one among many new states to validate the power of this conception of constitutions.

30. In contemporary times, there is another reason to celebrate and admire our Constitution’s foresight. Everywhere today, the preoccupation with economic inequality abounds - it seems to be the singular and root problem of our times. Few liberal and democratic constitutions of their time open the field to the welfare state and adopt such an active posture to the problem of poverty as did ours. A vast number of decisions under Article 21 adopt this sensibility to affirm such essential guarantees as the rights to food and to health. In recent years, the social justice bench of the Supreme Court has attended to such symptoms of acute poverty as homelessness through the call for the provision of night shelters in winter.

31. Numerous constitutions including that of the United States continue to fall short on acknowledging and addressing the ways in which acute poverty can strip us of our freedoms. The conventional understanding throughout history has been that the problem of poverty is unsuited to the courtrooms and to the particular tools and methods of ordinary adjudication. Lon Fuller argued in 1978 that this was because of its extreme complexity or, in his words, “polycentricity” or “many centred-ness”. In the incremental successes that social action litigation and has shown in India, and in other countries as far-flung as Latin America which have been inspired by it, Indian constitutionalism and striving for progressive change upended yet another element of global historical assumption about the capacity of constitutions to engender material justice.

Transformational Constitutionalism as Call to Imaginative Legal Reasoning

32. To properly appreciate how Constitutions — mere words, after all — trigger meaningful change in our societies, it would be useful to begin at that most quotidian of activities that we as lawyers participate in: the interpretation of legal texts.

33. In The Descent of Man (1871), Charles Darwin affirms for us the abiding power of the human imagination. He says that:

“The Imagination is one of the highest prerogatives of man. By this faculty he unites, independently of the will, former images and ideas, and thus creates brilliant and novel results …”

34. I want to put to you all that the methodology and practice of transformational constitutionalism consists of applying imagination to the legal reasoning in which we engage every day. Powerful as the words of the Constitution are, their capacity for meaning-making and for social, economic and political transformation can only be harnessed by bringing them to bear on the injustices of our time through our hands – lawyers’ hands, and the hands of young, aspiring law students. Transformational constitutionalism is the pursuit of the “brilliant and novel results” that Darwin sees human imagination capable of producing when we direct our imaginations towards justice.

35. Our courts are an important site in which the Constitution’s promise of transformation can be brought alive. As Karl Klare (who theorised the subject of transformational constitutionalism in his seminal 1998 article Legal Culture and Transformative Constitutionalism would put it: “We may … legitimately expect constitutional adjudication to innovate and model intellectual and institutional practices appropriate to a culture of justification.”

36. A humane and imaginative approach has always characterised the Supreme Court’s treatment of cases concerning individual dignity. One need only refer to how it has pressed Article 21’s moral heft into service (along with the transformative vision of Part IV) in order to secure basic subsistence rights to Indians in need of food, shelter and water.

37. In addition to producing just and humane outcomes of this kind, the Court has also developed methods by which to reason towards transformative justice in cases where the plain meaning of constitutional text does not yield an immediate or obvious route to just outcomes. Two important devices have been crafted by our Supreme Court to channel our efforts in bringing imagination to legal reasoning on the words of the Constitution. The first is the idea of constitutional morality. The second is the beautiful and evocative metaphor of the constitution as a ‘living tree’.

38. Both are powerful resources for the transformative constitutionalist’s project. They offer us a way in which to exploit the open texture of the law in a way in which brings us nearer to the full enjoyment of the dignity and freedom that the Constitution’s text assures us, and also to argue for the endurance of its animating values.

39. What do we mean by ‘open texture’?

40. ‘Open texture’ is simply a way of conveying that all language – including the written word of the law – is elastic. Every law’s words stretch to take in circumstances unknown to those who drafted the law. Every legislator ensures the black letter of the law is supple enough to retain its core purpose and principle while stretching to take in new circumstances. Thus, statutes survive over time.

41. In the storied Chapter 7 of his Concept of Law, the noted Oxford legal positivist HLA Hart explains how the words of the law respond to change. When we word the legal rules that bind us in general terms, they are capable of attending to a great number of particular circumstances that arise over time. This, Hart posits, is because language, as a fellow Oxford Don by the name of Friedrich Waismann (known for his work on the philosophy of language) theorises, has open texture.

42. Because of the open texture of legal language, the simple efflux of time coupled with a spirit of compassion and justice, can yield sweeping constitutional transformations. Consider the history of the conception of the ‘person’ in law, and in charters of rights more particularly. This legal conception would decide who enjoys rights. This is a very telling part of the intellectual history of Constitutions and of rights:

43. Written into the Magna Carta was a limited applicability to noblemen. Grand as its proclamation of rights was, only a select and privileged few could enjoy them

44. Then, in more recent history, there was the dehumanisation of black slaves as a feature of American law. Their Constitution in its original form included the Three-fifths Compromise in Article I, Section 2, Clause 3, by which the enslaved black persons in a state would be counted as three-fifths of the number of white inhabitants of that state, for the purposes of deciding the quantum of representation it would have in the US Congress. It was not until the Fourteenth Amendment that this grotesque notion was overcome, at least in formal law.

45. Women were similarly excluded for the preponderance of historical time from being counted in the law’s idea of ‘persons’. Indeed, at a global level, it was only by the intervention of Hansa Mehta, the Indian delegate to the UN Commission on Human Rights (1947 to 1948), that Article 1 of the Universal Declaration of Human Rights was altered from the opening phrase to its current, non-discriminatory and expansive view of who is a bearer of the rights guaranteed by laws. Article 1 was initially worded as “All men are born free and equal”. Today, it reads “All human beings are born free and equal.”

46. Once again, here the Indian Constitution was unusual. At the time of its enactment, rather than decades or centuries after as in the rest of the world, the Indian Constitution enabled (through the Representation of People Act) a truly universal franchise by including adult women as eligible voters.

Postscript: Human Perfectibility & Constitutional Amendment – A New Lens on the Call to Transformation in the Indian Constitution

47. Recently, in 2019, Richard Albert, a scholar of comparative constitutional law made an unusual and important claim. He argued that the most important part of any constitution is not its charter of rights or its institution of democratic government or of separated powers. It is the amendment procedure that it adopts. Albert is correct for two reasons:

48. First, without securing the Constitution’s core ideals and moral ethos from erosion, the transformative constitutionalist’s agenda would be unimplementable.

49. And second, the very factum of an amendment procedure’s existence invites and validates the transformative constitutionalist lawyer and judge’s efforts.

50. As the noted American constitutional theorist Sanford Levinson argued in 1995, amendments are effectively acknowledgements of the imperfection of existing schemes of constitutional ordering and government.

51. It has not been the historical default to codify a supple amendment procedure into constitutions. In fact, in the reckoning of the political theorists from whom modern constitutionalism flows, inalterability rather than responsiveness to change was prioritised. So, for example, John Locke drafted the 1669 Fundamental Constitutions of the Carolinas to include the following words: “these fundamental constitutions shall be and remain the sacred and unalterable form and rule of government . . . forever.” In the same spirit, James Madison wrote in The Federalist No. 49 that “a reverence for the laws” is necessary to a Constitution’s endurance and that allowing amendment “would carry an implication of some defect in the government.” That “sacralisation” - as Levinson calls it - of the United States Constitution has yielded an amendment procedure that is extremely unresponsive and rigid

52. By contrast, our Article 368 is stringent but, as our history shows, entirely workable. The key to unlocking it lies in finding – in Parliament – a high degree of deliberative consensus.

53. There is an important value that transformative constitutionalists must take from this.

54. The design and workability of our amendment provision is our Framers’ most express articulation that the Constitution’s project is always to be a work in progress. Our Constitution’s procedure for amendment codifies a radical and constructive departure from a commitment to rigidity and endorses a critical deliberation in our supreme and constant striving towards the Constitutional ends.

55. In fact, we could argue that there is a touch of the Rousseauvian ideal of human perfectibility in our constitution’s approach to amendment as also to social revolution. In his 1754 Discourse on the Origins of Inequality, Jean-Jacques Rousseau, the celebrated social theorist, argued that “human beings are distinguished from the other creatures with which they share the primeval world only by two characteristics: freedom, and perfectibility. Freedom, in this context, is simply the ability not to be governed solely by appetite; perfectibility is the capacity to learn and thereby to find new and better means to satisfy needs. Together, these characteristics give humans the potential to achieve self-consciousness, rationality, and morality.”

56. It is routine to proclaim the significance of Kesavananda’s entrenchment of the basic structure doctrine but we need to remember that it is in fact a feat of constitutional imagination. There are universal and timeless ideas that make up the premises upon which the meat of the constitution rests ----- these are ideas concerning the fundamental tenets of human nature and the factum of innate human worth. Richard Albert’s 2019 work introduced the concept of “constitutional dismemberment” to scholarly discourse as a contrast to “constitutional amendment”. With the basic structure doctrine, our Supreme Court has given us an important device by which we can defend the essential and ageless elements of the constitutional fabric and draw the line between the two.

57. The amendment procedures and the idea of basic structure should remind all who are committed to progressive lawyering and to transformative constitutionalism of the nature of our Constitution and of our two-fold duties.

58. Our constitution is exemplary. It offers unparalleled cognitive and moral resources by which to effect worthwhile changes in our material world. It actively enables the effort to put dignity, freedom, justice and human flourishing within the reach of all.

59. Thus, it is not enough to just strive to realise dignity, equality and socio-economic rights. We must first and always defend from erosion the universal and timeless ideas that make this striving possible. Transformative constitutionalism begins only when we see ourselves as custodians of the basic structure.

60. It is true that power arises from an asymmetrical interdependence. Keohane and Nye, in their celebrated work called Power and Independence, followed by Albert Hirschman’s book National Power and the Structure of Foreign Trade, refers to the political influence justified by an appeal to intuitively plausible ideas.

61. This requires introspection and above all, it must bear constitutional validity. Whether it be nations or individuals, new theory of economic dependence and its political use is a facet of all current history. Coercion, oppression, denial of rights can often be justified on the basis of economic growth and politically styled developmentalism.

62. The pursuit of happiness can often be misunderstood as the strange struggle for power. Human power is different from market power. The negotiation of one’s rights is not intended to be a struggle under our constitution. Free speech and dissent are central to any democracy. The power of the amendment of the constitution is an available resource but must carefully and organically evolve out of history. Works of art, the freedom of expression, a free press, critical acculturation are some of the indicia by which the working of the constitution and its success can be measured.

63. While it is true that overdependence on any organ of the state is inconsistent with democratic dignity, the rule of law and the rule of constitutionalism place substantial value on judicial independence and for courts to review the actions of the executive and the legislature. Human dignity is not the maximisation of discounts offered by any state to its citizens. It is more intrinsic in character.

64. In his book Tyranny and Legitimacy, James Fishkin discusses the theory of choices and how certain choices can impose severe deprivations. The constitution, while it offers hope, is also a document of caution. It is aware that any procedural principle, any theory of absolutism, can legitimise arbitrariness and tyranny.

65. The Indian constitution is not simply inclusive because of a pluralist society, but the very idea of fraternity implies distributive justice in terms of the distribution of goods as well as services including the promotion of the well-being of all individuals.

66. Some of the considerations which could accentuate arbitrariness may even remain anonymous and not transparent. The concept of the rule of law as well as governance under the constitution is the negation of anonymity in governance. A simple act of redistribution can actually lead to retardation.

67. The conditions which the constitution contemplated for its citizens are those of happiness and optimisation. This requires self-visitation by all institutions from time to time to analyse and reflect about their progress in terms of objective milestones of the furtherance of constitutionalism and the immanence of the rule of law.

68. A developmental model of care is often a relevant consideration in a helpful state which is sworn to constitutionalism and its inability to collapse divisions based on boundaries. The practice of religion and fate, while being personal matters and choice of personal freedom, the state has to take utmost care that there is no semblance of any transgression. The promotion of personal freedom must be always in the direction of what is often referred to as mainstreaming under the constitution.

69. The work of Dr Ambedkar in terms of anthropology and social anthropology, in particular, has had the most beneficent impact in the design of the constitution where the constitution was a deliverer and a vehicle for emancipation.

70. The constitution was intended to be liberal because the very nature of freedom, and human freedom, after the Universal Declaration of Human Rights, laid a premium on rational and humanistic foundations. At its core text, the constitution concerns itself and promotes the human content about every other social factor and sanctifies life itself. This does require a robust approach on the part of the legal profession whoever be its constituents.

71. The effectiveness of the approach is only judged in retrospect and in history, but that is no invitation for not addressing the present. The remarkable changes wrought in social behaviour by a pandemic, place the state in a more important and significant position of the health of its people, but nevertheless new designs, new solutions, new possibilities always emerge out of periods of depression and disease.

72. That can be achieved by not only transformational constitutionalism but helpful perspectives of courts of justice to uphold the principles of equality and non-discrimination in changing times.

73. When times change, equality and discrimination may acquire a different context. The rule of law and ever vigilant courts are the only guarantees wherein the exercise of power there can be a subtle mixture of persuasion, manipulation and a trifle of coercion.

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