top of page
  • Nandini

Transformative Constitutionalism

Authored by Mohammad Mustafa Hasan & Aysha Sasmin, 4th-year law students at NIMS University, Rajasthan. The author has secured 10th Rank in the Article Writing Competition organised by The Society For Constitutional Law Discussion



Transformative Constitutionalism
Supreme Court of India

Abstract

The use of transformative constitutionalism tries to bring out the solution arising in the process of enactment, interpretation and enforcement of the Constitution. This article discusses various case laws that become easier to decide with the help of the concept of transformative constitutionalism. This concept recognises the changing nature of society and declares the Constitution as a transformative, legally binding document rather than a rigid one. The history of transformative constitutionalism hails from the post-apartheid era of South Africa, which at that time, there were many changes around the nation that were fulfilled by the process of transformative constitutionalism. It was then it gained more recognition than ever around the globe. Transformative constitutionalism helps to deliberately put efforts to empower the previously excluded segments of society with the help of protection of socio-economic rights.


Introduction

The Constitution is the legally binding document that is foundational to democracy, the rule of law, human rights, and good governance, crucial for the survival and health of a democratic country. This is the reason why our constituent assembly met for 166 days, which were spread over a period of 2 years, 11 months, and 18 days for drafting and adopting our constitution. Every democratic country has their written constitutions but in no way it amounts to an abiding constitutionalism. It is more important to have constitutionalism in the constitution than having a mere written constitution because it focuses on providing legitimacy to a democratic government rather than focusing on the legality of actions done by government officials.


What is Constitutionalism? 

Constitutionalism is a political and legal doctrine that asserts the legitimacy of the action of government that is determined by the body of laws. It helps in improving the preexisting designed mechanism about who can rule how and for what reason for the betterment of the nation. These are the reasons why the constitution is called as the living law of the country because it changes in response to changing circumstances. Constitutionalism embodies some basic principles which need to be followed such as Separation of powers, judicial control and accountable government.


Transformative Constitutionalism 

According to Justice Chandrachud, transformative constitutionalism refers to the values of liberty, equality, fraternity, and dignity in social order. Thus, transformative constitutionalism is an inevitable as well as significant process that helps to define the essence of democracy and the constitution within it. Changing and adjusting are the only constant in a society where the needs of human beings change. With the changes and needs of people, it is expected that the law will also change with time. The updation of everything in this world is necessary, and it is the universal law that says transformation/ change is the rule of nature. 


Many law jurists and writers have a say on transformative constitutionalism; as a very well-known lawyer of our country, Indira Jaising, has said, “for me, transformative constitutionalism means personal liberty”, which clearly tells us about the importance of transformative constitutionalism. When the constitution was adopted, the needs were perfectly fulfilled by our astonishing law makers, but as time passes, the needs and demands change so do the rights, too.


Transformative constitutionalism plays a vital role in changing the values of liberty and dignity in our contemporary world. Transformative constitutionalism aims to understand the deep root values of which the constitution has been drafted and how these values play a key role in maintaining the perfect and continuous relation between society and the state. In order to achieve transformative constitutionalism, it is essential to incorporate principles that promote radical social and political changes and provisions to give basic socio-economic rights to all the citizens of the country. There are some essential elements that are required for attaining transformative constitutionalism, such as

The existing principles that explain law by themselves require a commitment to examine for forming transformative constitutionalism.

  1. Influence on socio-political institutions. The power of socio-political in our country aims to build the relationship towards democracy participation and egalitarianism.

  2. Socio-economic rights give fair access to vital socio-economic goods and services.

  3. Judicial activism plays a significant role in the transformation process with the help of judges and enforcing the constitution in a radical manner to attain justice, democracy and peace.

  4. Adjudicative context, as transformative constitutionalism, depends on the law of the land and courts as their final resort for succeeding in their objectives in the determination of the law. 

By incorporating these elements, constitutionalism can be made transformative, and it acts as a tool for achieving the required social and political changes in society.


Origin of Transformative Constitutionalism 

The concept of transformative constitutionalism is not a new concept in this modern world. It originated from a publication in a South African journal (Legal Culture and Transformative Constitutionalism) in 1998 that was published by Prof. Karl Klare, a US scholar. It has gained broader meaning in South Africa as well as all around the globe in this new generation. While the phrase “transformative constitutionalism” is not expressly mentioned in the constitution of India, the Supreme Court has recognised the transformative power of the constitution in various judgments, such as the 2014 NALSA judgment and the Navtej Singh Johar case. The courts have always considered the importance of the role of the Constitution in guiding the nation towards a better future and transforming society for the betterment.


Why do We need Transformative Constitutionalism? 

Transformative constitutionalism is the near-perfect way to define the word democracy; as democracy says, “it is for the people, by the people, and of the people”. Transformative constitutionalism does the same by giving the citizens their rights according to their needs at a particular time. That’s how the concept of transformative constitutionalism fulfils the phrase “for the people, by the people and of the people”.


This process involves judges playing a crucial role in interpreting the Constitution radically to achieve justice, democracy, and egalitarianism promised by transformative constitutions. Constitutionalism also emphasises justiciable socioeconomic rights and fair access to vital socio-economic goods and services. In this context, judges are required to go beyond legal formalism and positivism, justifying their decisions based on overarching principles and values rather than solely on legal authority. The judiciary’s role is pivotal in transformative constitutionalism, as it helps in achieving substantive equality, social justice, and human rights norms infiltration into private relationships and fostering a culture of justification for public power exercises. The concept of transformative constitutionalism is not limited to specific regions but has global relevance. It influences political and social institutions by establishing, interpreting, and enforcing constitutional principles to bring about positive societal changes. In countries like India, the constitution plays a crucial role in addressing inequities, biases, and discrimination in power relationships beyond the state level, emphasising values like liberty, equality, and fraternity for societal transformation.


Transformative Constitutionalism and Judiciary 

As judiciary is one of the most important pillars to strengthen the democracy of the nation. The judiciary plays a significant role in this process by radically interpreting the constitution, which is crucial to the attainment of the justice, democracy and egalitarianism that a transformative constitution promises. The major part is where the judiciary ensures that the constitutional requirements are met and brings practical change into society through transformative judgments.


It is a well-established fact that alone judges or the judiciary cannot ensure social change without interference between lawmakers and executive agencies. We all know that these are the main organs that uphold individual rights and promote human welfare. 


Transformative constitutionalism has also been associated with much better adjudication, which continues to enhance the betterment of life of the people. Even though it receives some minor criticism, it has always relied on law and court decisions.


The concept of transformative constitutionalism emphasises the role of code in the interpretation and application of the Constitution. The Supreme Court has also protected the constitutional validity by striking down unconstitutional provisions and has protected fundamental rights. 


In the landmark judgment of Kesavananda Bharathi  v. State of  Kerala,  the apex court laid down the concept of basic structure doctrine in which the 24th constitutional amendment was established and partly found the 25th amendment to be ultra vires. It was held that parliament can amend fundamental rights but should maintain and preserve the basic structure of the constitution. The decision came from the bench, which comprised 13 judges. It was in favour of the ratio of 7:6. This case is considered in Indian constitution history and is popularly known as a fundamental right case and not just this case law. Still, there are so many cases in which the Supreme Court has protected the amendment of the basic structure of the Constitution by labelling them unconstitutional.


In the case of Justice Puttaswamy (retd) vs Union of India, which is also known as the right to privacy verdict, this case holds that the right to privacy is protected as a fundamental right under articles 14, 19 and 21. The case revolves around the question of the constitutionality of Aadhar card schemes. In 1950, there was no such existence of an Aadhar card, but in this modern time, it is the unique identity that everyone needs. So with this, the question of constitutional validity also arises, which can be easily tackled by transformative constitutionalism, which allows us to make new rules and amendments according to the needs of the hour. 


Whereas in the case of the National Legal Service Authority (NALSA) VS Union of India, the judgment of the Supreme Court was delivered on 15th April 2014. The case declared transgender people as the third person and confirmed their fundamental rights under the constitution of India. This is the first case in which the non-binary gender receives legal recognition and identifies their gender as male, female or third gender. The court also held that transgender people are socially and economically backward and granted them reservations in securing jobs and admission to educational institutions. 


Recent Judicial Trends 

Same-sex Rights:

In the case of  Navtej Singh Jauhar v. Union of India, section 377 was decriminalised, which was about the same-sex relationship between adults in violation of articles 14,15 and 21 using the concept of transformative constitutionalism. The court also ruled the term sex under Article 15, which includes sexual orientation. In further judgment, the apex court is also concerned about the rights and conditions of the LGBTQ community.


The Sabrimala Saga:

In the case of the Indian Young Lawyers' Association and Ors. v. State Of Kerala and Ors. The Women aged 10-50 were granted access to enter the sabrimala shrine by a constitutional bench comprised of five judges. According to Justice Chandrachud, “liberal constitutionalism depends upon the principle of individual dignity.” he also believes in present ideas of justice, liberty, equality and brotherhood by eliminating general prejudice by using transformative constitutionalism. The court and its judgment play a vital role in promoting gender equality and challenging traditional norms.


The applicability of the 1950s was not that much appreciated as it is gaining in modern changing times with transformative people, and that also can be done if it seems correct by following transformative constitutionalism.


Artificial Intelligence (AI) and legal system:

With technological development and the use of artificial intelligence, also known as AI, through transformative constitutionalism, the judiciary, as well as lawmakers, are also expected to adopt changes by incorporating AI and other emerging technologies into the legal system.


Conclusion

The main idea behind the concept of transformative constitutionalism is to promote social, economic and political changes through the interpretation and using the other ways of applying the provisions that are already being mentioned in the constitution. It is only because of transformative constitutionalism the Supreme Court was able to deliver the significant decision whether it comes to the point of gender equality while entering religious places like Sabarimala or it is about the decriminalisation of same-sex relations or giving rights to the third gender. This demonstrates the impact of transformative constitutionalism towards the interpretation of the constitution of India.  It is also the citizen’s responsibility to bring and adopt the changes by making the job of the judiciary easier. Without the commitment of the judiciary to bringing up positive social changes, it would be impossible to carry out transformative constitutionalism, and that is exactly why it is important to have a proactive and independent judiciary to get the best outcome from the use of transformative constitutionalism.

Disclaimer: The Society For Constitutional Law Discussion makes endeavours to ensure that the information published on the website is factual and correct. However, some of the content may contain errors. In the blog/article, all views expressed are those of the author(s) and do not necessarily reflect the opinions or views of TSCLD or its members in any manner whatsoever. In case of any Query or Concern, please reach out to us.

bottom of page