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Transformative Constitutionalism

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 post-colonial constitutions.

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.

We have 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.

The 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.

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