"The purpose of having a constitution is to transform society" and to embrace the "ideals of

justice, liberty, equality, and fraternity.1”

- Justice Deepak Mishra

The constitution of the nation establishes the basic law of the land. It defines the political and
procedural framework for the nation. It expounds the duties and powers of government, the
procedure and structure to be followed, and the directive principles of state policy. It was framed
after rigorous discussions in the constituent assembly and represented the common consensus of
the people i.e the will of the people in democratic nation.2

“Constitutionalism, most generally understood, provides for structures, forms, and apparatuses
of governance and modes of legitimation of power. But constitutionalism is not all about
governance; it also provides contested sites for ideas and practices concerning justice, rights,
development, and individual associational autonomy. Constitutionalism provides narratives of
both rule and resistance.”3

This concept was first coined by US Prof.Karl Klare in his writing titled as the Legal Culture and
Transformative Constitutionalism (1998), he described it as,

"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 egalitarian direction."4

The constitution is a document that was formed during the colonial period. The society at that
time was fragmented and faced injustice and hardships. According to the Historical school of
jurisprudence, the law must be made according to the time, place, situation, and the conduct of
the people. Thus transformative constitutionalism brought a wave of change in the interpretation
and formation of statues, as the need to develop a law that satisfies the current scenario was
recognized by the scholars.5
1
Navtej Johar & Ors. v. Union of India, AIR 2018 S.C. 4321 (India).
2
Dr. Ansari Zartab Jabeen, Indian judiciary, and transformative constitutionalism, The LexWarrier: Online Law
Journal (2019) 2, pp. 107 - 115, ISSN (O): 2319-8338.
3
Upendra Baxi, Postcolonial Legality, In a Companion To Postcolonial Studies,2000.
4
Klare, E. Karl, Legal Culture and Transformative Constitutionalism, 14 South African Journal On Human Rights,
(1998) p. 146.
5
Alisha Dhingra, Indian Constitutionalism: Case of Transformative Constitutionalism, Asian Journal of
Multidisciplinary Studies 2(7), (2014) P. 135.
Transformative constitutionalism is just a transformed understanding of the text and content of
the constitution and an expanded understanding of values such as justice, liberty, equality, and
fraternity. It can be said that it is a reinterpretation of the constitution, thus making it clear that it
is not a rigid document rather welcomes changes according to the current scenario and
compensate for the historical wrongs committed in the past.6

As said by former Chief Justice of South Africa, Justice Pius Langa, “This is a magnificent goal
for a Constitution: to heal the wounds of the past and guide us to a better future. For me, this is
the core idea of transformative constitutionalism: that we must change.”7

Further in this article, we would discuss how the Indian Judiciary played a major role in
acknowledging the wrong and setting a discourse for the future; how the courts and the judges
realized the fact that it is impossible to correct the historical wrongs but we can create a better
future and set a benchmark in protecting the values of justice, equality, liberty and fraternity
enshrined in the Constitution of India.

The Judicial Approach in Transformative Constitutionalism

Constitution of India is the supreme law of India and its main function is to have checks and
balances among the three branches i.e. legislative, executive, and judicial branch; it defines the
powers of the main organs of the states, demarcates their responsibilities and regulate their
relationship with each other and with people, moreover ensures the rights and freedoms of a
citizen of the country. Transformative Constitutionalism ensures faith in the law as it is an
instrument of socio-political change with the help of the judiciary, along with the courts as a tool
in this process of transformation as they are vested with the powers to interpret and apply the
law.

The functioning of the court is not limited to giving major decisions but also has a significant
impact on the minor changes that it brings into. In recent Order passed by the Rajasthan High
Court where it has ordered that advocates in the court ought not to address judges as “My Lord”,
in light of Article 14 of Indian Constitution pertinent to the principle of equality before the law.
Furthermore, in a court led by Chief Justice Ravindra Bhatt has put forth a great example in front
6
Vilhena, Baxi, and Viljoen (Eds.), Transformative Constitutionalism: Comparing The Apex Courts of Brazil, India
and South Africa, Pretoria University Law Press, Pretoria, 2013.
7
Pius Langa, Transformative Constitutionalism, 17 Stellenbosch L. Rev. 351, 352 (2006).
of us about what transformation could mean from the time of colonialism to the republicanism,
no matter if it is related to language. After all, language is the most dominant instrument in the
process of transformation. Last year, Indira Jaising shared an open letter where she wrote down
to CJI that “Language is more than a mere communication tool. It is an intuitive social, cultural,
and political indicator, which reflects the prevailing attitudes and ethos of any society." 8
Therefore language is not only the tool to just communicate but also to represent our values to
the society, it matters and it is an initial step in the process of Transformative Constitutionalism.

People are usually dogmatic and rigid in their approach and at times fail to welcome new
changes in the society, however, it is important to shift to a more modern approach and ensure
equal protection of the rights of every individual. This Transformative Constitutionalism concept
intends to restructure society on the new principles to address issues of inequality and violation
of other fundamental rights. The supreme objective of the constitution of India is to make society
a just and humane society, thus promotes the idea of Social Justice. This saddle with the
responsibility on the state to maintain high standard operations to protect the public interest in
the society and with the help of Transformative Constitutionalism can improve the social justice,
which is opposite of the Gandhi’s concept of social justice which stated that it is achievable even
without the government regulation but by the improvement of individual in the society.

The abolition of untouchability envisaged in Article 17 of the Indian Constitution highlights the
fact that the constitution has values of transformation since its compilation. 9 Thereafter, as an
assenting action by the state, it is vested with constitutional power to introduce the Reservation
Policy for the eradication of stereotypical mentality as it masks deep-rooted social prejudice and
hinders the equal access or equal opportunity to all. For around 70 years, we have the concept
called Reservation for the historically social and economically backward classes in our society
but the question that whether we have enough evidence of it serving the purpose behind the
reservation is still unanswered. For that reason, the Supreme Court in its recent judgment of B.K.
Pavitra v. Union of India argued the issue of the promotions for the reserved categories such as
Schedule Castes and Scheduled Tribes and concerning the issue of seniority. 10 The Indian
Constitution has enriched the Article 16(4A) which allowed the consequential seniority in cases
8
Indira Jaising, ‘For me, it now means personal liberty’: Indira Jaising explains Transformative Constitutionalism,
Scroll (Jul 30, 2019, 06:30 AM).
9
INDIA CONST. art. 17.
10
B.K. Pavitra v. Union of India, AIR 2019 S.C. 2723 (India).
of reservations in promotions.11 In M. Nagaraj case, where a Constitution Bench of the Supreme
Court has upheld the amendment in question and pointed out the duties of the government that
they were responsible to first collect data which indicates the “inadequacy” of SC/ST
representation in the services and their “backwardness”; and also the data which indicates the
impact on the "efficiency" before the government could enact any laws in light of the Article
16(4A).12 Therefore, in 2007, the Hon’ble Supreme Court held that the case of B.K. Pavitra did
not act following the case of M. Nagaraj because it failed to exclude the "creamy layer" and sent
for presidential assent which was wrongly passed and hence is unconstitutional.

At the beginning of the judgment, Justice Chandrachud J. correctly observed that it was the first
time in the post-Nagaraj (case) era where the Court was unequivocally asked to decide on the
exercise of data collecting by the State, which is now a constitutional requirement for any law
intending to give reservations with consequential seniority in the promotions in their services.
Court for the first time points out the responsibility of all the three branches and not only of the
judiciary for achieving the constitutional goals. The second loophole is of interrogating
inefficiency, where the responsibility is on the judiciary. The focus is on the balance between the
upliftment of the backward classes and violation of individual rights given in the light of Article
16(1) of the Indian Constitution that is equal rights of non-SC/ST candidates. The basis of this
can be traced in the Constituent Assembly but to improve the situation of these backward classes
a deeper idea of philosophical individualism is involved, which at last aimed at the
transformation. Thus the concept of the creamy layer cannot be asked out in the question of
promotion with seniority as in such situations oppression is usually defined by the characteristics
of attached social stigmas.13

So, here the role of Transformative Constitutionalism shows how courts have acknowledged that
the Constitution ideals matter a lot, and it enlightens how it proceeds to it. Furthermore, it points
out an essential convention of reasoning on affirmative action given by judiciary that does not
consider conceptions like “merit” and “efficiency” as self-evident, but forced them to decisive
assessment, from the perception of the original constitutional vision, tracing how they are
entrenched within our social realities and inequalities.

11
INDIA CONST. art. 16, cl. 4A.
12
M. Nagaraj v. Union of India, AIR 2010 12 SCC 526 (India).
13
INDIA CONST. art. 17, cl. 1.
Let’s take another case where the role of Transformative Constitutionalism has been evident
from the Sabarimala case where the state ought to take positive actions for the most deprived
with the help of the constitution. Judicial Activism has played an essential role in entailing a
higher assessment opportunity to state legislation that constricts individual rights and should
meet the test of constitutional morality rather than just public/social morality. In this case, a 5
judge constitution bench assured the right of women between the age of 10 & 50 to enter the
shrine, where the Justice Chandrachud wording in the judgment is as follows:

“The constitution believes in the values of the principles of justice, liberty, equality and fraternity
and hence all constitutional provisions including the freedom of religion, must be interpreted in
such a way that Individual dignity must be upheld”.14

He tried to put an end to gender inequality in society by applying Transformative

Constitutionalism in light of Article 25 pertinent to an individual's freedom of religion;
restraining women's movement in the religious place in violation of the fundamental right of a
woman to profess, practice and propagate one’s religion. 15 Also, Justice Indu Malhotra construed
constitutional morality based on the principle of secularism and non-intervention in the religious
matter; where ‘judicial restraint’ must be pragmatic in such religious matters. Although
previously judges have taken up a considerate approach by giving the option to the followers of a
religion to identify what their essential practices were but with time, nevertheless, the judiciary
has come up with the approach that would take up a more scrupulous set of standards paving
way for transformative constitutionalism.

The constitution of a country is usually known as the “living law” of the land as it transforms
depending on the conditions prevailing in the society and keeps the spirit of the constitution
alive. Shayara Bano v. Union of India 16was another such example of major transformation as the
Hon’ble SC declared the triple talaq practice as unconstitutional by the majority of 3:2. However,
the other two judges had a dissenting opinion as they said that such a practice does not form an
essential part of the Muslim religion and the court could not interfere in such matters as in light
of Article 2517. Besides, the Court held that the Muslim Personal Law (Shariat) Application Act

14
Indian Young Lawyers Association v. The State of Kerala, AIR 2018 S.C. 1094 (India).
15
INDIA CONST. art. 25.
16
Shayara Bano v. Union of India, WP(C) No.118 of 2016 Triple Talaq.
17
INDIA CONST. art. 25.
of 1937 does not constitutionally protect practices considered “anti-Quranic,” and emphasized
that the practice of triple talaq cannot be protected in light of the Indian Constitution. The
Judiciary has established by how it can act as a medium in the process of Transformative
Constitutionalism18

In several judgments in different front, it is evident that Transformative Constitutionalism

reforms the existing social structure that violates the fundamental rights or any other rights. Like,
Joseph Shine v. Union of India, where Supreme Court struck down Section 497 of the Indian
Penal Code19 which criminalized adultery for man in the case where there is absence of consent
but the same does not applies in women case 20; Puttaswamy and Anr. V. Union of India, where it
has recognized that privacy is a constitutionally protected right under Article 21 21 reads with
Article 19 of the Indian Constitution.22

In the case of Navtej Johar & Ors. v. Union of India, which has proved to add feather in the cap
of Indian judiciary by upholding the constitutional rights of all citizen, irrespective of their
gender identity or sexual orientation. The Honorable SC declared Section 377 of IPC (which is
also a archaic provision)23 to be unconstitutional which till date criminalized the same-sex
consensual sexual relationships between adults but SC in this judgment decriminalized
homosexuality in India.24 This judgment rejects all the social stigmas attached to society and the
unpopular acceptance of same-sex marriage by the society and the majoritarian notion of
morality by upholding rights to equality, dignity and liberty to LGBTQ+ community. The court
had preferred the constitutional morality over the social morality and norms, and also guaranteed
that the lives of LGBTQ+ community were not pressed into gloom by a suppressive colonial law.

It was a push towards civil rights which guaranteed against horizontal discrimination in the
spheres of education, housing, and access to services under the Article 15(2) of Indian
Constitution25 which is a potential right towards an affirmative action derived from the wordings
of the judgment of NALSA v. Union of India and certainly in due course to equal marriage, if
18
Id 2.
19
Indian Penal Code, 1860, Act No. 45 of 1860 §497 (India).
20
Joseph Shine v. Union of India, AIR 2018 S.C. 4898 (India).
21
INDIA CONST. art. 21.
22
INDIA CONST. art. 19.
23
Indian Penal Code, 1860, Act No. 45 of 1860 §377 (India).
24
Navtej Singh Johar and Ors. v. Union of India, AIR 2018 S.C. 4321 (India).
25
INDIA CONST. art. 15, cl. 2.
demanded. Although how difficult the path it would be towards the goal of full and equal moral
membership, obviously, remains to be seen.26

The significance of this judgment lies in acknowledging the impacts of how we deal with social
conflict today so it will travel far beyond the orthodox and conservative mentality in which they
are explored; that is similar to all of the above mentioned cases where Judiciary has tried to
decrease the gape and have a balance between both the constitutional morality and the social
morality which at last results in Transformative Constitutionalism.

The Indian courts have looked at the Constitution as not only an combination of parchment
guarantees against state excesses but also as a document symbolizing a vision of a fairer, more
inclusive and progressive society.27 In the judgement of Harsh Mander v. Union of India28, where
the Delhi High Court de-criminalized the practice of begging and declared several provision of
the draconian colonial law of Anti-Beggary Act. The court stated that it was inconsistent with the
Article 14 reads with the Article 19(1)(a) and Article 21 of the Indian Constitution. Lastly it can
be said that the court in Harsh Mander case truly highlighted the awesome transformative
potential of the Indian Judiciary.

CONCLUSION

After discussing the concept of Transformative Constitutionalism and how the Indian Judiciary
helped in protecting the rights and freedoms envisaged in the Constitution by having a
transformed understanding of the text. It can be concluded that the concept of Transformative
Constitutionalism has its adherence to the Sociological jurisprudence usually described as
“experimental jurisprudence” or “jurisprudence of interests”. According to this school of law,
Law is a social function and the focus should be on how the law and society affect each other. It
devoted its attention not only to the content and aim of law but also to the actual circumstances
which give rise to legal institutions and which condition their scope and operation. 29

26
NALSA v. Union of India, AIR 2014 S.C. 1863 (India).
27
Rahul Bajaj, Gautam Bhatia on an Introduction to a Transformative Constitution, South Asian Law Discussion
Group, University of Oxford,29 Jan 2019. https://www.law.ox.ac.uk/current-students/graduate-discussion-groups/
south-asian-law-discussion-group/blog/2019/01/gautam-0
28
Harsh Mander v. Union of India, 2018 SCC OnLine Del 10427, dated 08-08-2018.
29
Roscoe Pound, The Scope and Purpose of Sociological Jurisprudence, Harvard Law Review, Vol. 24, No. 8 (Jun.,
1911), pp. 591-619.
On the same terms we can say that the concept of Transformative constitutionalism works as it
also aims to study law in terms in terms of immediate needs and requirements of individuals and
other varying social groups. The predominant theme of socio-economic good of society through
law is central to transformative constitutionalism. The orientation of this concept is functional,
pragmatic and realistic. However, the role of indian courts cannot be undermined but the need of
the hour is that the requirement for a transformed and reinterpreted constitution must be
recognized not only by the courts or judges but also by the legal scholars, bureaucrats and the
people of the nation. However the Hon’ble Supreme Court in some cases have shown ardent
devotion to such constitutionalism 30but in some cases it has just rendered adherence to the word
of law and gave up all responsibility. 31Thus the judiciary must ensure that the transformation is
brought by bringing a change within the society and by winning the faith of citizens and not by
building a legal regime32.

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 constitutionalism. 33

“When you speak of transformative constitutionalism, you speak of infusion of the values of
liberty, equality, fraternity and dignity in the social order.”

- Justice Chandrachud

30
See for example Maneka Gandhi v. Union of India, AIR 1978 SC 597; Vishaka v. State of Rajasthan, AIR 1997
SC; Kesavananda Bharati v. State of Kerala, AIR 1973 SC 1461; Bandhua Mukti Morchha v. Union of India, AIR,
1984 SC 802; NALSA v. Union of India, (2014) 5 SCC 438.
31
See for example Suresh Kumar Koushal v. Naz Foundation, (2014) 1 SCC 1; A. K. Gopalan v. Union of India,
AIR 1950 SC 27; ADM Jabalpur v. Shivkant Shukla, AIR 1976 SC 1207.
32
Id 5.
33
Navtej Johar & Ors. v. Union of India (2018) 10 SCC 1.