"Equality is the soul of liberty; there is, in fact, no liberty without it."
- Frances Wright
It is interesting to note that the phase 'Transformative constitutionalism'
which is most commonly used by Supreme Court of India in its recent judgments
does not find express mention in the Indian Constitution as well as
constitutions of the most jurisdictions. Constitutions of every country are
generally understood as a document that contain rules which will govern the
interactions between various organs of state and that imposes limits on the
power of state so that such powers are not abused by the state. But in reality
constitution of any country is much more than that.
It not only contains provisions that will impose restraints on state power, but
also include such provision that "echo the aspirations of the nation' to bring
about a transformation in the order of things as they exist." Constitution is
not a static document or black letter law. Rather it is a living document. It is
grows with society; evolves with society. It changes according to the needs of
Origin Of The Term Transformative Constitutionalism
Origin of the term transformative constitutionalism is to be traced after the
end of apartheid (mean a policy or system of segregation or discrimination on
the ground of race) in the Republic of South Africa. As per the former judge of
South Africa, foundation of T.C. can be traced into the preamble of South
African Interim constitution, which read as:
"A historic bridge between the past of a deeply divided society characterized by
strife, conflict, untold suffering and injustice, and a future founded on the
recognition of human rights, democracy and peaceful co-existence and development
opportunities for all South Africans, irrespective of colour, race, class,
belief or sex."
It means transformative constitutionalism is seen as bridge in South Africa that
will help South African citizen to heal the wounds of past that is full of
injustices, discriminations, segregation policies, inequalities that were deep
rooted in the society and move toward a better future where there will exist a
more equitable society and developmental opportunities will be provided to all
irrespective of color, race, class, belief or sex.
If we have to trace the origin of principle of transformative constitutionalism
in India then we must refer to constituent assembly debates to understand the
mindset of Farmers of Indian Constitution when they were drafting Constitution
of India. At the time of making Indian Constitution all the members of
constituent assembly seems to have agreed on the point that there exist deep
rooted structural inequalities which is inherent part of our Indian
society/culture and constitution of India will the document that will serve as a
transformative documents and help Indian society to overcome such deep rooted
structural inequalities. One such step toward the goal of equitable society was
to make provision for the reservation of ST and SC in the constitution itself.
From the above constitutional assembly debate it is can be said that makers of
constitution of Indian had a the consensus at the time of making of constitution
that our constitution should not be read as a static document rather it is a
living document that should transform itself with change in society needs so
that it does not loss it's relevancy. In order to understand the concept of
transformative constitutionalism in Indian context we must refer to point of
views expressed by Dr. B.R Ambedkar, which read as:
"We must make our political democracy a social democracy as well. Political
democracy cannot last unless there lies at the base of it social democracy. What
does social democracy mean? It means a way of life which recognizes liberty,
equality and fraternity as the principles of life."
Meaning Of Transformative Constitutionalism
The term transformative constitutionalism includes three terms:
- Transformative constitutionalism
Dictionary meaning of word transformative is "causing a major change to
something or someone, especially in a way that makes it or them better." i.e.
bringing change through structured method" .
Dictionary meaning of word constitutionalism is "adherence to or government
according to constitutional principles." It is important to note that
Constitution is different from constitutionalism. Constitutionalism is basically
a set of legal rules which governs the government. Constitution is a document
which contains rules that govern the government and thus it describe the
structure and working of government.
Whereas the constitutionalism is an ideology which explains a way of life,
values, beliefs and ideals of the people of a nation. Constitutionalism is a
goal which a nation has to achieve and for achievement of such goal constitution
is a means through which we achieve our goal. Constitutionalism is a broad term
which includes constitution as well.
There is no single definition of this term. It has been interpretated
differently by different jurists and scholars in various jurisdictions because
of their different experiences in their country but there are certain the key
elements that constitute transformative constitutionalism which are as follow:
- Transformative constitutionalism is a tool to attain sustainable
equality in the society by recognizing every form of discrimination that
existed in past or that may arise in future and taking steps toward
eliminating such discriminations.
- Another important element is the active role of the states (when we call
states it includes courts as well) in achieving constitutional ideals such
as liberty, equality, fraternity and state will establish such a society
that will be founded on above mentioned constitutional ideals.
- Not restricting application of this principle only to the interaction
between state and its subjects rather this principle should be given wide
application by extending its application to private sphere as well.
United States scholar Professor klare define Transformative Constitutionalism
"a long-term project of constitutional enactment, interpretation, and
enforcement committed to transforming a country's political and social
institutions and power relationships in a democratic, participatory and
Indian Judicial Approach
Over the last few years, we are witnessing progressive judgments delivered by
Supreme Court of India to eradicate deep rooted historical inequalities existed
in Indian society against Dalits, women and the marginalized by reinterpreting
constitution of India to make it a document that has a transformative capacity
rather than document which will be rigid. Transformative constitutionalism is a
tool which is continuously used by judiciary to make Indian society more
equitable. Through this concept discrimination against Dalits, women and the
marginalized were eliminated by the Indian judiciary.
Supreme Court of India plays dual role, one as of the protector of fundamental
rights of Indian citizens and second one is guardian and custodian of the
Constitution. In India constitution various rights has been guaranteed to Indian
citizen as well as non-citizen under the part III of constitution as a
fundamental right but mere mentioning of rights in the Indian constitution does
not means that those rights will be automatically will be available to every
Hence, for securing the availability of these rights drafters of Indian
constitution incorporate Article 32 in the constitution which is titled as
'Right to Constitutional Remedies" and moreover such right has been status of
"This article guarantees the right to move the Supreme Court by appropriate
proceedings and Supreme Court has been empowered to issued directions or orders
or writs including the writs in the nature of habeas corpus, mandamus,
prohibition, quo warranto and certiorari."
Thus, the power of Supreme Court of India is very wide. Moreover, this rights to
constitutional remedies cannot be suspended except as for by the constitution of
itself. Even the Dr. B.R. Ambedkar pointed out in the debates of constitutional
assembly that the right available under Article 32 is "the heart and soul of the
In Prem Chand v. Excise Commissioner
AIR 1963 SC 996, underlying the
importance of Article 32 of the Constitution, Justice P.B. Gajendra Gadkar has
said as follow:-
"The Fundamental Rights to move this court can, therefore, be appropriately
described as the cornerstone of the democratic edifice raised by the
constitutions. This is why it is natural that this court regards itself as the
Protector and Guarantor of Fundamental Rights."
This role has enables Supreme Court to bring such changes in the laws in order
to achieve our constitutional goal of equitable society.
When we talk about equal society, it means a society that should be free from
every kind of discrimination not only vertical discrimination but also from
horizontal discrimination that is prevalent in our society. Horizontal
discrimination means discrimination existed in private sphere.
The preamble of the Indian Constitution Starts with the word "WE THE PEOPLE OF
INDIA…. ." The word "WE" used in the constitution must be comprehend in the same
sense, same spirit that existed at the time of commencement of the constitution,
at the time of constituent assembly debates, dialect process. It is our
responsibility not to judge / prejudice anyone on the basis of caste, sex, race,
religion, sexual orientation etc.
We must tolerate each other, respect each other belief, choices, thought etc.,
intermingle with each other, respect each other preference. Such basic things to
be done then only we can achieve our goals of equitable society.
Similar ideology is reflected by farmers of Indian constitution while
incorporating Article 15(2) and Article 17 of Indian constitution. Both these
articles talk about elimination of deep rooted horizontal discrimination existed
in our society from time immemorial. Here Horizontal discrimination means
Fundamental rights guaranteed by Indian constitution can be enforced against
private action as well.
Article 17 of Indian constitution deal with Abolition of Untouchability .
Article 17 does not define word "Untouchability" as such. Here the word
Untouchability is used in wider sense. It also includes all kinds of
untouchability such as discrimination based on sexual orientation, race,
religion, gender etc. Idea behind incorporating article17 in the constitution is
to remove all forms discrimination that had existed in Indian society in past or
that may arise in future. This shows that framers of Indian constitution
deliberately chosen not to give specific meaning to the term "Untouchability".
Article 15(2) of constitution deal with Abolition of discrimination existed in
Example of some of the recent judgments of Supreme Court in this regard are as
follow Navtej Singh Johar judgment where court decriminalize homosexuality,
Joseph shine case which saw an end to decades of criminalization of adultery,
Sabarimala judgment of 2018, NALSA judgment which recognizes rights of third
gender and many more.
The term 'Transformative constitutionalism' has not been defined anywhere
expressly in the constitution itself. It is a broader term. It is inherent in
our subjective existence. In the case of Navtej Singh Johar v Union of India
Chief Justice of India Dipak Misra state that.
"The Indian Constitution is a great social document, almost revolutionary in its
aim of transforming a medieval, hierarchical society into a modern, egalitarian
democracy and its provisions can be comprehended only by a spacious, social-
science approach, not by pedantic, traditional legalism. The whole idea of
having a Constitution is to guide the nation towards a resplendent future.
Therefore, the purpose of having a Constitution is to transform the society for
the better and this objective is the fundamental pillar of transformative
In the case of Indian Young Lawyers' Association v State of Kerala which is also
known as Sabarimala case in the legal fraternity. This case has been decided by
the Supreme Court by 4:1 majority. In this cases court held that the temple
practice of excluding women from entering lord Ayyappa temple is
"Transformative potential lies in recognizing its supremacy over all bodies of
law and practices that claim the continuation of a past which militates against
its vision of a just society. At the heart of TC is a recognition of change.
Individualization, as the basic unit, is at the heart of the constitution. All
the right and guarantee of the constitution are operationalized and aimed toward
the self realization of the individual. This make anti exclusion principle
firmly rooted in the transformative vision of the constitution".
He further emphasized that "physiological characteristics of women like
menstruation, have no significance or bearing on the entitlement guaranteed to
them under the constitution. The menstrual status of a women cannot be a valid
constitutional basis to deny her the dignity and the stigma around the same had
no place in a constitutional order. Article 17 is a powerful guarantee against
exclusion and con not be real to exclude women against whom social exclusion of
the worst kind has been practices and legitimized no notions of purity and
Similar approach was adopted by Supreme Court in 2018 in the case of Joseph
Shine v Union of India that decriminalised adultery. In this case Court
acknowledged the historical error of treating women as a property which form the
basis of adultery law in India.
"The hallmark of a truly transformative Constitution is that it promotes and
engenders societal change. To consider a free citizen as the property of another
is an anathema to the ideal of dignity…Constitutional values infuse the letter
of the law with meaning. True to its transformative vision, the text of the
Constitution has, time and again, been interpreted to challenge hegemonic
structures of power and secure the values of dignity and equality for its
Supreme Court of India noticed transformative power of constitution in NALSA
Judgment, which recognize rights of third gender. Court observed that it is a
need of an hour that court must understand that main aim of having constitution
in a country is to achieve the goal of welfare state. Indian constitution is a
Our Constitution is based on the social as well as factual realities which
changes constantly, therefore constitution must be change itself so that it does
not lose it relevance. Sometime it may happen that societal change precedes
change in law or it may happen that a change in law precedes change in society.
Moreover sometime it happens that changes in law are made due to the fact that
there are changes in society.
At this stage one thing need to be very clear that when Supreme Court of India
talk about transformative power of constitution it need not be understood in a
narrow sense that is just a means to correct historical wrongs rather it has to
be seen as a step toward more equitable future, beyond mere course correction.
Views of former South African judge, Justice Pius Langa in this regard must be
taken into account, which read as follow:
"…transformation is not a temporary phenomenon that ends when we all have equal
access to resources and basic services and when lawyers and judges embrace a
culture of justification. Transformation is a permanent ideal, a way of looking
at the world that creates a space in which dialogue and contestation are truly
possible, in which new ways of being are constantly explored and created,
accepted and rejected and in which change is unpredictable but the idea of
change is constant.
This is perhaps the ultimate vision of a transformative, rather than a
transitional Constitution. This is a perspective that sees the Constitution as
not transformative because of its peculiar historical position or its particular
socio-economic goals but because it envisions a society that will always be open
to change and contestation, a society that will always be defined by
In the case of B K Pavithra and others v Union of India (2019)
caste based inequalities were compensated by Supreme Court by introducing
transformative constitutionalism to justify affirmative action.
Is Indian Judiciary by giving such progressive judgments overreaching the
'Proper role' that has been assigned to them in a democratic Set up?
The term transformative constitutionalism has been evolved by judiciary. "The
judiciary has been given the power to breathe life into the letters of the law
by interpreting constitutional provisions. In recent years, the judiciary in
India has come under attack by many scholars for 'over-reaching' or playing an
'activist' role". One of the main assumptions behind such criticism is that
there is a 'proper role' that has been assigned to judiciary in a democratic
setup which it is overreaching.
Real sovereignty lies with public and public has surrender its sovereignty to
state so that they will work for welfare of people. Elected representative have
real power and they are accountable to public: judiciary is not accountable to
In Marshallian Model of constitutionalism which is applicable in countries
having written constitution. Constitution is a touchstone of legitimacy of all
government organ actions and decisions. Constitution is a source of deciding the
question whether government action and decision is legitimate or not. And
Legitimacy of government and legislature action will be decided by the original
will mentioned in written constitution. Original will here means intention of
makers of constitution at the time of drafting the constitution. Therefore every
government action in order to be must satisfy the conditions laid in the
Government institutions are considered as the trustees or agents of the
sovereign people. If any action or decision of the Government institutions is in
violation of the rights of the people provided on the constitution or in
violation of any condition laid down in the constitution for the legitimacy of
government action or decision then if court exercise its judicial review power
in order to check the validity of such action or decision and as a result if it
declare such action as invalid or unconstitutional. "Then court is not exceeding
its power rather it actually upholds the will of the people." Because will of
the sovereign people is expressed through constitution.
In Indian Constitution there is no such article that laid down that Supreme
Court has the final authority to interpret the whole constitution. Article 13,
32,141 gives power of interpretation only with respect to fundamental rights.
But when it comes to interpretation of entire constitution then there is no
specific provision that confer Supreme Court has the final authority to
interpret the whole constitution. This situation is completely different in the
case of US. Supreme court of US rely on the Article 6 of the US constitution.
Article 6 is a supremacy clause of the US constitution.
It gives exclusivity as well as finality to Federal Supreme Court when it comes
to interpretation of entire constitution. If executive made any law or pass any
order that goes against the written constitution then such law can be declared
void by courts court. Courts derive this power from the constitution itself.
Article 6 made it clear that courts have judicial supremacy when it comes to
interpretation of constitution.
But in Indian there is no such direct provision that gives Indian judiciary
absolute ordinary power to interpret the entire constitution. That is why in
India there is always a conflict between legislature and judiciary when it comes
to establish its supremacy over other organ of government. For example schedule
9 was added in the constitution by the legislature in order to establish its
supremacy and to eliminate judicial review power.
There is always a tendency to move toward Parliamentary Supremacy. Legislature
does not want any other organ to come near them. There is always a power
struggle. Therefore Indian judiciary develops basic structure theory as a
defence mechanism. Court derives it supremacy to interpret constitution from the
"It is a cardinal principle of our Constitution that no one, howsoever highly
placed and no authority however lofty, can claim to be the sole judge of its
power under the Constitution or whether its actions are within the confines of
such power laid down by the Constitution. The judiciary is the interpreter of
the Constitution and the judiciary is assigned the delicate task to determine
what is the power conferred on each branch of Government, whether it is limited,
and if so, what are the limits and whether any action of that branch
transgresses such limits. It is for the judiciary to uphold the constitutional
values and to enforce the constitutional limitations." (Emphasis Applied)
In simple words it means whenever court make any enquiry into the legitimacy of
government actions and make it must take into his consideration two things:-
first, constitution and secondly intention of constitution maker at the time of
making that particular provision in the question. Then only judicial review of
government action will have more accepted in the society.
Originalism (need to look at the constitution in order to justify your power) as
well as historical inquiry into the drafting of that particular provision in
question is a most appreciated method. More over such decision will have a
binding effect. Such decisions will act as precedents for future courts.
For example "new interpretation to the term Procedure established by Law" has
been given by the Apex court in the Maneka Gandhi v. U.O.I
procedure through which person is deprive from his/her personal liberty cannot
be any and every procedure rather it must be non arbitrary, reasonable, fair,
principle of natural justice followed in every procedure. While framing the
constitution framer of Indian constitution had rejected the American concept of
due process because of it is elastic and uncertain.
However, by Maneka Gandhi Judgment this concept of due process has been brought
back in India." In this judgment court did not move beyond written text rather
Supreme Court try to find justification after going through constitutional
assembly debates. Apex court try to stimulates and give better interpretation of
original text. This method is most appreciated.
Such types of constitutional interpretation will have a binding effect and
cannot be over rule in future by larger bench. Therefore those who argues that
by such progressive judgments Apex Court overreaching the 'proper role' that has
been assigned to them in a democratic setup, they must remember that when with
course of time state has transform it role from policing state to welfare state
so why not judiciary who plays dual role, one as of the protector of fundamental
rights of Indian citizens and second one is guardian and custodian of the
Constitution give such interpretation to constitutional provisions that ideals
of welfare state mention the constitution are turned into reality. According to
South African judge SM M benenge:
"This definition makes judges, other functionaries and institutions role-players
in transformative constitutionalism. Indeed, judges are custodians of
constitutional values such as human dignity, equality and freedom, and bear the
obligation to ensure that constitutional provisions are applied in ways that
'improve the quality of life of all citizens and free the potential of each
Supreme Court must realize that when they are giving such progressive judgments
in the name of transformative constitutionalism, they should not deviate from
the originalism in the name progressive judgments. Because if we start giving
liberal interpretation in the name of progressive approach then it may happen
that position may become paradoxical. There can be positives as well as
negatives of such interpretation. For example we have two cases dealing with
transgender community but in both cases approach of Supreme Court is different:
- First one is NALSA judgment.
- Second one is Suresh koushal v. Naz foundation.
In case of NALSA judgment Apex Court recognizes LQBT as a separate class for
the purpose of job, facilities i.e. for the welfare activities. Article 14 and
15 of the constitution were given progressive interpretation Supreme Court found
justification in the text/constitution itself. Textualist approach was followed
by the Apex Court.
Textualist approach was laid down by dicey. As per this approach court needs to
find justification of its decision while interpreting constitution and statues
made by the legislature that is, text itself. As per the dicey it is not
required to look into the history of making the statue and debates of
constitutional assembly debates. But this approach is not applauded by the
Scholars around the world.
On the other hand we have Suresh koushal v. Naz foundation judgment where court
refused to recognize community having sexual orientation as a separate class,
when petition was fill claiming the protection of Article 21 so that sexual
intercourse among consulting adults cannot be made criminal under section 377
I.P.C. In this case High Court of Delhi rely on foreign judgment because it did
not find justification of their judgment in the constitution.
Such types of constitutional interpretations will not have a binding effect and
can be over rule in future by larger bench. Therefore, Suresh koushal judgment
was overrule by larger bench of Apex Court of India in the case of Navtej Singh
Supreme court of India must realize that when they are giving such progressive
judgments in the name of transformative constitutionalism, they should not
deviate from the originalism in the name progressive judgments. Originalism
(need to look at the constitution in order to justify your power) as well as
historical inquiry into the drafting of that particular provision in question is
a most appreciated method. More over such decision will have a binding effect.
Such decisions will act as precedents for future courts.
Supreme Court must try to achieve equality through the process of
transformation, as it was done in the case of NALSA instead of achieving
equality through the process of inclusion. Because merely recognizing inequality
and granting them rights will not eliminate their difficulties completely rather
some more steps need to be taken that will result in inclusions of transgender
into the society and to ensure that such kind of discrimination will not raise
its ugly head in future again. We need to strike at the root cause of inequality
in order to achieve equality.