Constitutionalism refers to sticking to the ideals specified by a system of
government, whereas transformation refers to bringing about change in an
organised manner. Transformative constitutionalism is constantly in opposition
to the constitution's rigidity. It plays a critical role in the change of
society and the protection of the constitution's essential principles and value
system, which we cannot compromise because the constitution's major goal is to
safeguard individual liberty.
India, as a democracy, is constantly threatened by the political executive
exercising violent majority power over the "law of the land." Political
dissenters and outspoken opponents have been seen being pursued by political
parties seeking to establish the government. While an active judiciary just
applies the existing laws to the facts, an activist judiciary goes a step
further to interpret the laws in light of the current circumstances, in order to
provide justice to those who have been wronged by simple application of the law.
This is where the need of an activist judiciary comes into play, as it serves as
a philosophic counsellor
whose opinion is vital to democracy.
A constitution is a live biological document that embodies the people's will.
The creation of a constitution is generally a watershed point in a country's
history. This is especially true for countries that have been colonised in the
past. In such nations, the constitution contains not just restrictions on
governmental authority, but also clauses that "reflect the ambitions of the
country" to bring about a change in the current order of things.
Constitution, which has a similar historical context, is seen as a
transformational constitution. By interpreting constitutional provisions, the
court has been granted the ability to give life to the letters of the law. Many
experts have criticized India's judiciary in recent years for "overreaching" or
adopting a "active" role. However, such criticism is predicated on the idea that
the judiciary has overreached its 'proper duty.'
Transformative constitutionalism entails instilling principles such as equality,
liberty, fraternity, and dignity into society. It entails achieving the
Constitution's primary goal of transforming society for the better. It tries to
give paramount significance to Constitutional morality rather than what
constitutes morality in society, according to one interpretation.
interpretation is that the Constitution's core structure and substance will
never change, but it will continue to adapt to the requirements of society. The
constitution is transformational, and there is an unambiguous focus throughout
the constitution on our commitment to changing relationships, both between
individuals and between individuals and between individuals. Our constitution's
operation and interpretation are highlighted by this transformational vision.
Transformative Constitutionalism is an idealistic approach to achieving
specified goals by protecting people's fundamental rights and opportunities.
The judiciary is a crucial aspect of Transformative Constitutionalism since the
ideology embeds religion in the law as a tool for social and political change,
and the courts act as a catalyst for change because they are sworn to interpret
and administer the law. There is frequently a fear of becoming upset while
accepting change; nevertheless, this fear may be disentangled via group efforts.
Transformative constitutionalism aspires to build a society based on continually
History of transformative constitutionalism in colonial India
A publication in the South African Journal of Human Rights in 1998 by Karl Klare,
a US scholar professor, that drew the attention of many legal academics and
sparked a flurry of debates and discussions about the subject. He defined
transformational constitutionalism as a long-term undertaking including
constitutional enactment, interpretation, and enforcement. He went on to say
that this notion is dedicated to democratically reforming a country's political
and social structures, egalitarian orientation, and power dynamics.
Even during colonial times, there have been some instances of
transformative constitutionalism in India. Sati, the practice of a Hindu woman
immolating herself on her husband's funeral pyre after his death, was prohibited
in 1829 by Lord William Bentinck after Raja Ram Mohan Roy's continuous attempts.
Lord Canning approved the Hindu Widow's Remarriage Act, 1856, which legalized
widow remarriage after several campaigns in support.
The Female Infanticide
Prevention Act of 1870 was enacted to address the issue of female infanticide.
The passage of the Age of Consent Act, 1891, "which raised the age of consent of
sexual intercourse for all females, married or single, from ten to twelve
years," was another transformational event.
Various social groups and social reformers who pushed for women's rights backed
it up. Although these changes were criticised by orthodox and conservative
individuals at the time, they served to improve the lives of Indian women by
providing them with essential rights that they had previously been denied.
Transformative constitutionalism and judiciary
The Supreme Court's function as custodian and interpreter of the Constitution,
together with increased acknowledgment of the Indian Constitution as a
transformative, rather than rigid, constitution, has enabled it to effect these
reforms. Several recent Supreme Court decisions have bolstered the ethos of
Some instances are as follows:
Kesavananda Bharati v. State of Kerala (1973
The topic of whether or not the parliament has the right to modify the
Constitution sparked a lengthy debate. C. Golaknath & Ors versus State of Punjab
& Anrs (1967), Indira Nehru Gandhi vs Shri Raj Narain & Anr
(1975), and Bhim
Singh vs U.O.I & Ors
were among the numerous cases heard by the Supreme Court
The extent of judicial review was also disputed during the debates for
the Constitution's 24th and 42nd amendments. In the case of Kesavananda Bharati
versus State of Kerala
, this debate was eventually settled (1973). The basic
structure theory was established, and it was agreed that while the Parliament
might change the Constitution's essential rights, the Constitution's basic
structure should be retained and kept as is.
The Supreme Court, as the guardian
of the Indian constitution, ruled that if the constitution's 'Basic structure,'
or basic structure, is changed, the constitutional amendment might be declared
illegal. It defined the Indian Constitution's 'Basic Structure Doctrine.' This
was a seminal decision that served as a model for other courts throughout the
Justice K.S.Puttaswamy v. Union of India (2018)
In the case of ADM Jabalpur versus S.S. Shukla (1976), four out of five judges
decided that even the right to life granted by Article 21 of the Indian
Constitution might be suspended under an emergency declared by Indira Gandhi
during the Congress administration in 1976. Privacy is a basic right under
Article 21 of the Indian Constitution, According to the Supreme Court, the
'Right to Privacy' is fundamental to life and liberty and is protected by
Article 21 of the Indian Constitution.
This case established a landmark in
India's Right to Privacy jurisprudence. As a result, Justice Khanna was
confirmed correct, and the basic right to life under Article 21 cannot be
suspended, even after a proclamation of emergency or a suspension order from the
Dr. Maya D Chablani vs Radha Mittal (2021)
Dr. Maya D Chablani versus Radha Mittal (2021) was a recent case heard by the
Delhi High Court, and its decision was well praised. The Indian Constitution's
'Right to Life' was extended generously to street dogs under Article 21. In this
case, it was determined that street dogs had a 'right to food,' and citizens
have the right to feed them as long as they do not infringe on the rights of
others. The HC also established comprehensive rules for the nutrition of these
dogs. It was claimed in relation to Article 21 that such a right protects the
lives of animals as well.
Anuradha Bhasin vs Union of India (2020) 
This is a case from earlier this year, when the Jammu and Kashmir Reorganisation
Bill 2019 was approved, and the government announced an internet ban as well as
a complete shutdown of all communications. There were also restrictions on
public movement and assembly imposed under section 144 of the CrPC. Journalists
were barred from travelling and publishing anything that may be construed as a
breach of Article 19(1)(a), or the right to freedom of expression. The Supreme
Court ruled that article 19(1)(a) includes the right to access the internet, and
that the ban on journalists breaches article 19(1)(g), which guarantees the
freedom to practise any profession, occupation, trade, or business through the
Joseph Shine v. Union of India (2018)
Another major decision, this time interpreting Article 21 of the Constitution to
legalise adultery. Section 497 of the Indian Penal Code had previously made
adultery a crime. A man who engaged in sexual intercourse with a married lady
without her husband's consent was punished under that provision. Because it was
silent on a married woman's permission, this section was considered to be
arbitrary and discriminatory, and it was knocked down.
By interpreting the constitution in such a way that more and more societal
interests are served, the Supreme Court plays an essential role in balancing
societal interests with social changes. Every article of the constitution is
intended to eliminate some form of harm in society, and if two or more
interpretations are conceivable, the interpretation that best eliminates
mischief will be accepted.
The sole goal of transformational constitutionalism
is to maintain and strengthen the principles of our humane constitution.
According to justice Chandrachud, the Constitution aims to transform society,
and by recognising the rights of others in terms of constitutional discourse, we
are not only empowering those whose rights we recognise, but we are also, more
importantly, attempting to transform ourselves when we recognise the freedom of
others. Too often, we are so focused on our own freedom that we overlook the
necessity of recognising the freedom of others, for it is by acknowledging the
freedom of others that society is transformed and eventually becomes.
Transformative constitutionalism is impossible to achieve without the
judiciary's unwavering support and commitment to effect constructive change in
society. In addition to the courts, citizens have a critical role in bringing
about a transformative change in the Constitution that matches the necessities
of today's world. Recognizing our own rights and ideals is the first step, as is
remembering not to infringe on the rights of others.
Whereas it is critical to
preserve the core framework of our country's living constitution, the evolution
of our basic fundamental rights must be continual in order to keep the wheel of
social revolution turning in society
- (1973) 4 SCC 225.
- (2017) 10 SCC 1.
- (2019) 3 SCC 39.