The constitution is an organic document which is dynamic and changes the way
society desires .The understanding of a constitution as a transformative
document is certainly not new and has an established lineage in several
The idea of transformative constitutionalism lies
in its emancipatory pursuit and in the conviction that large-scale social change
within a certain political system is possible through the process and
instrumentality of the law. Transformative constitutionalism enjoins a certain
reading of the constitutional text that eschews formalism, pure positivism and
legalism and advances an interpretation that acknowledges and responds to the
reality of hierarchical structures and power relationships within a society.
Most importantly, however, a transformative constitution breaks with the legal
tradition of situating private relationships and community conventions outside
of the constitutional mould, subjecting societal mores to
constitutional values. After critically examining the topic, the dynamism of a
democratic society which transforms law has its own merits and demerits as for
example: Reservation was actually a blessing in disguise from the British Raj.
In 1933, British introduced the Communal Award, according to which separate
representation was to be provided for the Muslims, Sikhs, Indian Christians,
Anglo-Indians, Europeans, Dalit. The depressed classes were assigned a number of
seats to be filled by election from special constituencies in which voters
belonging to the depressed classes only could vote.
This was protested by
Mahatma Gandhi and he went on a hunger strike but prominent leaders like Dr. Bhimrao Ambedkar persuaded Gandhi into signing an agreement known as the Poona
Pact. After the pact, even though the norms were relaxed, reservation was still
provided. Gandhi knew the tactics of British 'Divide and Rule' policy, he saved
the nation from it at that time, but alas! He couldn't have guessed that it
would be such a major issue in coming years. Now this transformation is used as
a topic for capturing Vote.
Similarly in the case of Article 370 and Article 35A
there is a necessity to transform the laws which were present in the past
because they developed a feeling of depravity amongst other states because of
perpetuity of transformation.
Finally news of happiness strikes that article 370
and 35A would be no more an albatross hung on the neck of India which is sad
news for Jammu and Kashmir and Pakistan as well, as if Pakistan had vested any
interest in Jammu and Kashmir. Jokes aside but this is how dynamism of the
constitution helps in the progress of a nation and also shows how strong a
nation we are. Now comes the biggest challenge of all time against the
constitution, which is to grant equal rights to women in temples and to do away
with the patriarchal society of sabarimala who have stereotypes against impurity
of women which was challenged by Indian Young Lawyers' Association.
come miles in transforming the constitution but there still many more miles to
cover, like laws related to robots for example Google and Facebook encroaching
our right to privacy and Alexa selling our voices. We are forced to agree to
terms and conditions given by playstore (android) and app store (ios), this should
change and a uniformity should be brought for all apps. The implications of
adopting transformative constitutionalism will certainly have a bearing on the
future decisions of the Supreme Court.
One should see how this played out in the
two remarkable decisions, i.e. the Aadhaar judgement, and the decision in
referring the Babri Masjid case to a larger Bench. In both these decisions, it
has been observed how transformative the Court will be. like in the former
decision the court gave precedence to the right to privacy and gave it as a
status of fundamental rights but is mere providing the status of fundamental
rights enough? The answer would be no, So we can foresee the upcoming judgment
related to amendment in IPC, Indian Evidence Act , CPC ,and CRPC to include
Right to privacy.
We can also foresee amendments in Rape Laws like gender neutralizing of Rape Laws, which is not neutralised yet because of the reason
that men will file counter rape charges against women and it will be very
difficult to identify who is the rapist and who is the victim. But isn’t this
option available in every gender neutral law like sexual assault and difficulty
in identifying a accuse can not be a reason for not providing justice to every
gender like LGBTQ who because of this barrier are not getting justice.
constitution has grown 70 years old but it is the duty of the legal fraternity
to keep it evergreen by transforming to the changes which are the need of an
hour. Transformative constitutionalism is not mere concept , it is the oath
taken by the legal fraternity which includes every person whether Lawyer,
professor , scholar or just a first year student in law to commit to the
constitution and make this document evergreen.