Thread by @LiveLawIndia

A lecture by Supreme Court Judge, Justice B.V. Nagarathna on the topic 'Transformative Constitutionalism', as part of the Chief Justice KK Usha Memorial Lecture, is to commence shortly.

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The lecture is being organized by the Kerala Federation of Women Lawyers as part of the Women's Day Celebrations 2023. It is being held at the Kerala High Court Auditorium.

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Justice Anu Sivaraman, Judge, Kerala High Court, shall deliver the Special Address.

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The program has commenced.
Adv. Gisa Susan Thomas, Secretary of the Kerala Federation of Women Lawyers (KFWL) is delivering the Welcome Address.

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Adv. PK Santhamma, President of KFWL, is now delivering the Presidential Address.

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Adv. Santhamma thanks members of the Bar and the Bench who have supported the Federation, and have also left a mark in the various initiatives taken for the welfare of women lawyers.

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Adv. Santhamma notes the several activities carried out by the KFWL.

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Adv. Santhamma: We will utilize this year to make this year's Women's Day theme "DigitALL" reality.

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Justice Anu Sivaraman is now delivering the Special Address.

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Justice Sivaraman: Justice KK Usha, a remarkable Judge and a remarkable woman. What better way to remember her than by a commemorative lecture. I congratulate KFWL for organizing this august function.

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Justice Sivaraman: My first memory of Justice Usha was back when I was in school. That was when my father had been elevated. I remember a floral carpet being made in Justice Sukumaran's house for Onam. We were all guided by Justice Usha in that endeavor.

Justice Sivaraman: When I first appeared before her as a lawyer, I did not know how to address her. She called me aside and said, "in this court, I am Usha Chechi for everyone".
I'm eternally grateful to Justice Usha for inspiring me in this profession.
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Justice Sivaraman: It was a joy to see Justice Usha manage her Court. Everything in her court was managed perfectly. She was stern, strong and courteous. It is something all of us should try to emulate.
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Justice Sivaraman: We should never forget those women who sprouted the wings, so that we today have the wings to fly. We should never forget that.

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Justice Sivaraman concludes her speech.

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Justice BV Nagarathna is now going to deliver the lecture on the topic 'Transformative Constitutionalism'.

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Justice Nagarathna: At the outset, I must wish all women present here and all women in Kerala a Happy Women's Day, though belated.

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Justice Nagarathna: I am delighted to be in Kerala which is known as God's own Country. A picturesque landscape and exotic wildlife. More impressively, more than 96% of population are educated.

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Justice Nagarathna: In the legal field, women from Kerala have always triumphed. When I was a child, my father always used to mention certain names to inspire me, which are etched in my memory now.
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Justice Nagarathna: Justice Usha was first woman judge to be elevated from the Bar, just like I was the first woman to be elevated from Karnataka Bar. But what surprises me is why they had to transfer Justice Sukumaran, her husband for her that. In my opinion, that wasn't right.

Justice Nagarathna: Having regard to personality of Justice KK Usha, I thought I should select a topic, keeping in mind the audience also.

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Justice Nagarathna: Constitution of India, according to me on its enforcement was a moment of transformation of the country. It transformed relationship between individuals and the State.
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Justice Nagarathna: The Constitution also transformed reconstruction of State by having locus of concentration power in we the people of India and not in the State.

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Justice Nagarathna: 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.
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Justice Nagarathna: For us lawyers and Judges, transformative Constitutionalism is intimate. It is not just to heal wounds of past but to guide us to a better future.
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Justice Nagarathna: For peaceful coexistence and developmental opportunities
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Justice Nagarathna: We all know our Constitution is not a stagnant document but a living, dynamic one. Thus, interpretation of Constitution is an evolving one. Living tree approach has been invoked to read, justify new rights.
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Justice Nagarathna: It is our duty as lawyers and judges to ensure this living tree is evergreen.
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Justice Nagarathna: Task of Transformative Constitutionalism is to identify and express those founding principles
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Justice Nagarathna says there are 3 foundational principles of Constitution, namely:
1. Courts entrusted with upholding rights.
2. Popular democracy
3. Dynamic executive for achieving distributive justice, attainment of socio economic rights and good governance.

Justice Nagarathna: Equality in Articles 14, 15, 16 enshrines substantive Equality.
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Justice Nagarathna: Fraternity recognizes that liberty and Equality threatened not only by concentrated state power but also by private persons who have ability to block access to goods for dignified life.
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Justice Nagarathna: Third is liberty.
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Justice Nagarathna: This trinity shines when each of the constituents reinforces each other.
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JusticeNagarathna: We lawyers and judges have responsibility that when we interpret laws in light of Constitution, we have to keep in mind these transformative principles engraved in Constitution.
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Justice Nagarathna: Mere words of Constitution are broadly phrased, but to breathe life into it, it is ultimately for lawyers who assist Court and interpret and for judiciary who understand the interpretation and guides the discourse.
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Justice Nagarathna: Apex Court has several cases decided wrt Equality aspect.
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Justice Nagarathna touches upon Anuj Garg Case.
Justice Nagarathna: This decision has become foundation for transformative Constitutionalism in gender Equality.
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Justice Nagarathna: Earlier to this, there was Air India v. Nergesh Meerza case. Apex Court said that the discrimination was in the interest for women and it was not only on ground of sex. But I feel, this decision requires a correction.
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Justice Nagarathna: In my latest judgment in Sikkim case, I thought it was a very discriminatory provision involved. They forgot individual could include women and third gender.
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Justice Nagarathna:While individual can be exempted from payment of income Tax under the provision, a sikkemese woman who married non Sikkimese man lost exemption. Thus, Justice MR Shah and I quashed that judgment.
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Justice Nagarathna: Therefore, Nergesh Meerza's case where it was upheld as not discriminatory, would require a course correction in later years.
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Justice Nagarathna: Recently, in Babita Punia and another, Apex Court has shown traces of Transformative Constitutionalism. In Shaha Bano, an expansive interpretation was adopted, but it didn't last long.
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Justice Nagarathna: The next code is non-discrimination and discrimination aspect, which is also part of Equality I'd say.
Justice Nagarathna proceeds to discuss Joseph Shine case.
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Justice Nagarathna also discusses NALSA Case.
Justice Nagarathna: Judgment upheld constitutional morality over social morality
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Justice Nagarathna: Indian constitution is a great social document almost revolutionary in its aim in transforming society. And it rests on lawyers and Judges. As I said again.
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Justice Nagarathna: NM Thomas case was transformative in the sense it replaced caste blind version of Equality
Justice Nagarathna also explains how it was instrumental in forging the Part III and Part IV rights relationship
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Justice Nagarathna: Regarding Fraternity, it is one of the grand ideals enumerated in the Preamble. While Justice, Equality and Liberty, in my view has progressed, Fraternity has not been as rewarding.
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Justice Nagarathna: Transformative Constitutionalism calls for realization of full human potential and Fraternity is the vehicle to achieve this agenda.
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Justice Nagarathna: Since today, we're also commemorating women's day, I feel women can act as a uniform force in binding... I appeal to women to act as a unifying force.
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Justice Nagarathna: Initially, SC adopted a very cautious approach. In subsequent decades, it has played a vibrant role by transformative interpretation of the Constitution
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Justice Nagarathna: This evolving rights jurisprudence of Apex Court must be studied and analyzed.
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Justice Nagarathna: In AK Gopalan, question was wrt procedural fairness, where it adopted narrow view. But this audience is aware of what happened in Maneka Gandhi where SC took an expansive view.
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Justice Nagarathna: Maneka Gandhi Case has cultivated to include various other cases.
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Justice Nagarathna: Public interest litigation has also aided transformative Constitutionalism.
Justice Nagarathna says PIL is an incarnation of judicial activism in its people oriented approach.
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Justice Nagarathna: I'm happy to note I keep reading in LiveLaw many new and dynamic judgments from Kerala HC.
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Justice Nagarathna: It is said judiciary is crossing a Lakshman Rekha, but in my view, sometimes Lakshman Rekha has to be shifted.
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Justice Nagarathna: Role of Constitutional courts in dynamic society is continuing.
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Justice Nagarathna: In Bandhua Mukthi Morcha it was observed, Constitutional makers did not lay down any rigid proceeding for enforcement of fundamental rights.
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Justice Nagarathna explains how in the first phase, PIL was emancipation of voiceless and powerless. She adds that in the second phase, SC in PUCL case articulated right to food for very first time.
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Justice Nagarathna: Court also changed citizens and civil society's perception of their rights by saying right to food is part of right to life. Ultimately, Parliament was prodded to enact the statute.
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Justice Nagarathna: More recently, in KS Puttaswamy case, there was also a tectonic shift.
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Justice Nagarathna: I must say PIL movement and dynamic interpretation of Constitution is a reaction of SC to the excesses during Emergency period.
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Justice Nagarathna also touches upon the changes in environmental jurisprudence.
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Justice Nagarathna: The judiciary is required to breathe life into substantive rights and freedoms. Liberty is most significant and cherished value apart from equality
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Justice Nagarathna: Thus, various tribes in country also have to be treasured and nurtured.
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Justice Nagarathna: State must play an active role in constituting society based on these principles
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Justice Nagarathna: Judges must have pulse of the people whom they adjudicate, in their hearts, and Justice in their minds while interpreting the laws and enforcing rights.
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Justice Nagarathna says that the Systemic social deprivation, and so on must be uprooted.
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Justice Nagarathna: 24th April 2023 would be the golden jubilee day of Kesavananda Bharati case and Kerala must take credit for giving the case to the county

*to the country
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Justice Nagarathna: Broad vision of judges who constituted bench of 13 judges and who enunciated the basic structure is a fine example of transformative Constitutionalism.
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Justice Nagarathna: The Constitution of India is stronger now because of Kesavananda Bharati judgment. And it is duty of all of us in the legal fraternity to go through that judgment and reassure ourselves on the impact it has had on the country.
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Justice Nagarathna:On that note, I once again pay my respect to Justice KK Usha and thank everyone.
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Justice Nagarathna's speech concludes.
Felicitation is now by Adv. Naveen T.,Secretary of Kerala High Court Advocates Association.
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Two Awards have been presented. The Outstanding Lady Lawyer Award is presented to Adv. Dhanuja MS. The Upcoming Woman Lawyer Prize instituted by Justice Mary Joseph is presented to Adv. Shiby Ammu Pillai.
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Advocate Karthika Sukumar, Vice President of KFWL, delivers the Vote of Thanks.
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Event concludes.
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