Defining Transformative Constitutionalism
Transformative constitutionalism is a dynamic concept that envisions the Constitution as a living and evolving instrument aimed at fostering social justice, equality, and human dignity. It goes beyond the mere textual interpretation of constitutional provisions and seeks to bring about substantial social change by challenging historical inequalities and addressing structural injustices. In essence, transformative constitutionalism aims to bring the Constitution closer to the lived realities of marginalized communities and ensure that constitutional promises are not merely aspirational but are practically realized.
Origin and Conceptual Framework
The concept of transformative constitutionalism was first articulated in the South African context by Karl Klare, who described it as a long-term project of constitutional interpretation and enactment, aimed at transforming society’s socio-economic and political structures. In India, transformative constitutionalism is rooted in the Preamble, Fundamental Rights, and Directive Principles of State Policy (DPSPs), reflecting the aspiration to build a just, equitable, and inclusive society.
The Indian Constitution itself is inherently transformative, as it emerged as a response to colonial oppression, caste-based discrimination, gender inequality, and socio-economic deprivation. The Constitution’s core values—justice, liberty, equality, and fraternity—reflect the transformative aspirations of the framers who envisioned a democratic and socially inclusive India.
Core Elements of Transformative Constitutionalism
Transformative constitutionalism in the Indian context comprises several core elements that collectively contribute to its unique nature:
- Social Justice Orientation: The Constitution prioritizes social justice by addressing historic injustices and enabling the upliftment of marginalized communities.
- Rights-Based Approach: Fundamental Rights are not mere privileges but enforceable entitlements that safeguard human dignity.
- Constitutional Morality: This principle emphasizes adherence to constitutional values rather than societal norms and traditions that may perpetuate discrimination.
- Progressive Interpretation: Courts adopt a purposive and expansive interpretation of fundamental rights to align constitutional provisions with social realities.
Judicial Activism: Courts proactively interpret and enforce constitutional mandates to promote social transformation, especially in the face of legislative or executive inaction.
Judicial Interpretation and Transformative Constitutionalism
Indian courts have played a pivotal role in realizing transformative constitutionalism by interpreting fundamental rights in an expansive and socially responsive manner. A significant illustration is the Supreme Court’s interpretation of Article 21, which has evolved to include a wide range of socio-economic rights such as the right to livelihood, the right to privacy, and the right to a clean environment.
The landmark judgment in Navtej Singh Johar v. Union of India (2018) decriminalized homosexuality by reading down Section 377 of the Indian Penal Code. The Court emphasized constitutional morality and the fundamental right to equality and dignity, thereby dismantling archaic colonial-era prejudices. Similarly, in National Legal Services Authority v. Union of India (2014), the Court recognized the rights of transgender individuals, advocating for their right to self-identification and equal protection under the law.[1]
Pillars of Transformative Constitutionalism in India
Constitutional Vision: The Constitution envisions a society free from discrimination and inequalities, rooted in justice and human dignity.
- Judicial Innovation: Courts have adopted progressive stances to address socio-economic disparities and uphold human rights.
- Constitutional Morality: This principle transcends traditional and social norms, advocating for inclusive and egalitarian values.
- Institutional Accountability: Transformative constitutionalism calls for robust institutions committed to safeguarding constitutional values.
Critiques and Challenges
- While transformative constitutionalism has been lauded for its progressive approach, it has faced criticisms and challenges, including:
- Judicial Overreach: Critics argue that excessive judicial activism may undermine democratic principles by encroaching upon legislative and executive domains.
- Inconsistent Application: Some judgments reflect inconsistent interpretations of transformative constitutionalism, leading to ambiguity.
- Societal Resistance: Conservative societal values and entrenched biases often hinder the practical realization of transformative constitutional ideals.
Transformative constitutionalism in India is an ongoing process aimed at realizing the constitutional vision of a just, inclusive, and egalitarian society. It requires a concerted effort from the judiciary, legislature, executive, and civil society to bridge the gap between constitutional promises and societal realities. While significant strides have been made, persistent challenges call for renewed commitment to uphold the spirit of transformative constitutionalism.[2]
[1]Navtej Singh Johar v. Union of India, AIR 2018 SC 4
[2] Divan, Shyam, “Public Interest Litigation: Strategies for Social Change”, (2010) 5 NUJS Law Review 105.