MEANING, DEFINITION & EXPLANATION

Transformative constitutionalism refers to the use of constitutional law as a tool to effect profound social change, aiming to transform a country’s political and social institutions and power relationships in a democratic, participatory, and egalitarian direction. In the Indian context, this doctrine emphasizes the Constitution’s role in dismantling historical inequalities and injustices, fostering a society based on liberty, equality, and fraternity.

HISTORICAL BACKGROUND / EVOLUTION

The concept of transformative constitutionalism gained prominence in South Africa, introduced by legal scholar Karl Klare in 1998. In India, the Constitution, adopted in 1950, was envisioned as a transformative document to transition from colonial rule to a democratic republic, addressing deep-seated social hierarchies and discrimination. The judiciary has played a pivotal role in interpreting the Constitution to promote social transformation, evident in landmark judgments that uphold fundamental rights and social justice.

LEGAL PROVISIONS / PROCEDURE / SPECIFICATIONS / CRITERIA

The Indian Constitution incorporates several provisions that reflect transformative constitutionalism:

• Preamble: Declares India as a sovereign, socialist, secular, democratic republic, ensuring justice, liberty, equality, and fraternity.

• Fundamental Rights (Part III): Guarantees civil liberties, including the right to equality (Article 14), prohibition of discrimination (Article 15), and protection of life and personal liberty (Article 21).

• Directive Principles of State Policy (Part IV): Guides the state in formulating policies aimed at social and economic welfare, such as securing a social order for the promotion of welfare (Article 38) and providing equal pay for equal work (Article 39).

CASE LAWS / PRECEDENTS / OVERRULING JUDGMENTS

The Indian judiciary has reinforced transformative constitutionalism through several landmark judgments:

1. Kesavananda Bharati v. State of Kerala, AIR 1973 SC 1461: Established the Basic Structure Doctrine, asserting that Parliament cannot alter the Constitution’s fundamental framework, thus preserving its transformative essence.

2. National Legal Services Authority v. Union of India, (2014) 5 SCC 438: Recognized transgender individuals as the ‘third gender,’ affirming their fundamental rights and the right to self-identification, promoting inclusivity and equality.

3. Navtej Singh Johar v. Union of India, (2018) 10 SCC 1: Decriminalized consensual same-sex relations by reading down Section 377 of the IPC, advancing individual autonomy and dignity.

4. Indian Young Lawyers Association v. State of Kerala, (2019) 11 SCC 1: Allowed the entry of women of all ages into the Sabarimala temple, challenging age-old discriminatory practices and promoting gender equality.

5. Justice K.S. Puttaswamy (Retd.) v. Union of India, (2017) 10 SCC 1: Affirmed the right to privacy as a fundamental right under Article 21, emphasizing individual autonomy in personal choices.

DOCTRINES / THEORIES

Several doctrines underpin transformative constitutionalism in India:

• Basic Structure Doctrine: Asserts that certain fundamental features of the Constitution cannot be altered by amendments, ensuring its core principles remain intact.

• Doctrine of Progressive Realization of Rights: Recognizes that the enforcement of certain rights may evolve over time, allowing for gradual implementation in line with societal progress.

• Doctrine of Non-Retrogression: Prohibits the reversal of rights once recognized, ensuring continuous advancement in human rights protection.

MAXIMS / PRINCIPLES

Key legal maxims and principles associated with transformative constitutionalism include:

• “Salus populi suprema lex esto”: The welfare of the people shall be the supreme law, guiding the interpretation and application of constitutional provisions.

• Constitutional Morality: Adherence to the core values and principles enshrined in the Constitution, guiding institutions and individuals in upholding democratic ideals.

ROLE OF JUDICIARY IN TRANSFORMATIVE CONSTITUTIONALISM

The judiciary serves as a catalyst for social change by:

• Interpreting Constitutional Provisions: Broadly construing fundamental rights to address contemporary issues and societal needs.

• Judicial Activism: Proactively addressing social injustices through Public Interest Litigations (PILs) and progressive judgments.

• Ensuring Accountability: Holding the executive and legislature accountable to constitutional mandates, ensuring laws and policies align with transformative goals.

INTERNATIONAL INSTRUMENTS

India’s commitment to transformative constitutionalism aligns with international human rights instruments:

• Universal Declaration of Human Rights (UDHR): Emphasizes equality, dignity, and rights for all individuals, principles mirrored in the Indian Constitution.

• International Covenant on Civil and Political Rights (ICCPR): India, as a signatory, upholds civil and political rights, influencing constitutional interpretations.

• Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW): Guides legal reforms promoting gender equality in India.

CRITICISM / APPRECIATION

While transformative constitutionalism has been lauded for promoting social justice, it faces criticism:

• Judicial Overreach: Concerns arise when courts are perceived to encroach upon legislative functions, potentially disrupting the separation of powers.

• Implementation Challenges: Enforcing transformative judgments requires effective mechanisms, often hindered by bureaucratic inertia and societal resistance.