What is Transformative Constitutionalism?

Why in News? The term was recently used in an article.

What  is Transformative constitutionalism?

Transformative constitutionalism is a concept that emphasizes the ability of a constitution to be a tool for social change. It argues that the constitution is not a static document, but rather a living document that can be interpreted and applied in ways that promote social progress and equality.

• In the Indian context, transformative constitutionalism is particularly important because the country inherited a deeply hierarchical and unequal society from colonialism. The Constitution’s framers aimed to create a more just and equitable society, and transformative constitutionalism provides a framework for interpreting the Constitution in a way that furthers these goals.

Key aspects of transformative constitutionalism in India:

Focus on social justice: Transformative interpretations of the Constitution prioritize the realization of fundamental rights and the elimination of historical injustices. This includes issues like caste discrimination, gender inequality, and the rights of marginalized groups.

Evolving interpretation: The Supreme Court plays a crucial role in interpreting the Constitution in a way that reflects changing social realities. As society progresses, the Court can re-interpret existing provisions to ensure they continue to uphold the core values of the Constitution.

Balancing rights: Transformative constitutionalism doesn’t advocate for absolute rights. The Court must sometimes balance competing rights and interests to achieve a just outcome.

Examples and Recent Case Laws:

Right to Privacy (2017): The Supreme Court recognized the right to privacy as a fundamental right, a transformative interpretation that empowers individuals and safeguards their autonomy.

Sabarimala Temple Entry (2018): The Court struck down a centuries-old practice that barred women of menstruating age from entering the Sabarimala temple. This judgment advanced gender equality and challenged traditional patriarchal structures.

Decriminalization of Homosexuality (2018): The Court decriminalized homosexuality under Section 377, recognizing the right to life and dignity for LGBTQ+ individuals. This decision reflected a transformative approach to equality and non-discrimination.

Debatable Points:

Balance between stability and change: Transformative interpretations can be seen as a way to keep the Constitution relevant, but some argue it creates uncertainty and undermines the rule of law.

Role of the Judiciary: The power of the judiciary to shape social change through interpretation is significant. However, concerns exist about judicial activism and exceeding its legitimate role.

Social context and implementation: Landmark judgments are only effective if translated into real change on the ground. Implementation challenges and social resistance can hinder transformative goals.

Transformative constitutionalism is a complex and evolving concept.  It offers a framework for using the Constitution to address social inequalities and promote a more just society in India, but it also raises important questions about the role of the judiciary and the balance between stability and change.