white black legal international law journal ISSN: 2581-8503

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Authored By : Bijolse Johnkutty

Email Address: Bijolsejohnkuttyphd@Nuals.Ac.In

Designation: Research Scholar

 Institution:  Nuals Kochi

Phone: 8075576669




The principal objective behind every legislation is to regulate human conduct and ensure the rights and needs of the people. No lawmakers can provide the complete legal framework for circumstances that arise in the future. The judiciary plays a significant role in such situations; they will interpret the legislation according to the circumstances and needs of the people. This maintains the Constitution flexible to accommodate the shifting demands of the people. The concept of transformative Constitutionalism opposes the rigid nature of the Constitution, and the primary intention is to ensure the progress of society in all aspects. It is crucial to the evolution of society and the preservation of the fundamental values of the Constitution because, as we all know, these values cannot be compromised. Its primary goal is to safeguard individual freedom. Transformative Constitutionalism necessitates the development of jurisprudence by the judiciary that is consistent with that progressive goal. Acknowledging the Constitution, its background, and the efforts of disadvantaged communities is necessary.  Constitutionalism after independence is an example of how the judiciary considers human suffering significantly while considering legal rights seriously.


 In the last few years, the supreme court of India, through its decisions, has confirmed the significance of constitutional morality over social morality. India is a multicultural society. Many people follow some customs and practices which are discriminatory and unconstitutional. Currently, courts have adhered to Constitutionalism, which occasionally disregards social morality. In modern courts, constitutional morality is emphasized while interpreting a particular statute or custom. Then, it is recommended that the court strike a balance between constitutional and social morality to maintain the public’s faith in the judiciary while preserving transformative Constitutionalism and changing society, which is the goal of the Constitution. This paper critically examines the apex court’s decisions, strengthening the development of transformative Constitutionalism in India. It also analyses its impact on personal laws, freedom, gender justice, etc. through the analysis author tries to find the various challenges faced by the concept in India.


Keywords -Judiciary, Constitutional morality, Activism, Constitutionalism.



The Indian Constitution is the supreme law of the land because all other laws derive their validity from this. It is regarded as the grundnorm that legislation inconstant with Constitution shall be void to the extent of the inconsistency. All three organs function in accordance with the provisions of the Constitution. Before understanding transformative Constitutionalism, it is necessary to have an idea about Constitutionalism. Simply put, it determines the legitimacy of the actions and whether the conduct of the government is in accordance with the law or not. The definition demonstrates that Constitutionalism cannot be guaranteed or brought about by a constitution alone. Nowadays, every country and State has a written form, except for a few states.


But nevertheless, this does not imply that Constitutionalism is practiced in all these states. In light of this, Constitutionalism has much broader relevance than a constitution[1]. The primary ingredient of Constitutionalism is limited government; this limitation prevents the government from acting arbitrarily. According to this, every action of the government requires legislative backup. A doctrine that deals with the legal validity of governmental activity is known as Constitutionalism. It ensures that all government choices and actions adhere to the established legal standards. Constitutionalism means that the law gives the government its power. A nation could have a Constitution, but not necessarily Constitutionalism. The structure of the various government organs and their areas of responsibility are laid forth in the country’s Constitution. But, it is also essential to prevent any misuse of authority by governmental entities. Constitutionalism is the process that prevents arbitrary decisions by governmental institutions.[2]


According to different legal experts, the essential elements of Constitutionalism differ. According to Upendra Baxi, Constitutionalism, as it is most commonly understood, establishes the structures, techniques, and apparatuses of administration. Yet, Constitutionalism is not just about governing; it also offers conflicting spaces for beliefs and methods relating to fairness, rights, growth, and individual associational liberty. Constitutionalism provides accounts of both command and opposition.[3] Through Constitutionalism, the government’s unlimited actions were restrained by the legislative provisions.


Transformational Constitutionalism is a doctrine that understands how society is evolving and that the Constitution needs to be amended to keep up with the changes.  “Transformative Constitutionalism has its roots in South Africa. According to carl Clare US professor, transformative Constitutionalism is 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]


In the last decade, the supreme court delivered many judgments related to transformative Constitutionalism the primary objective behind such decisions is to uplift social morality. The supreme court of India plays a crucial role in interpreting the constitutional provisions with the changing socio-political aspects of society.


This paper primarily focuses on the apex court’s behavior towards different matters under transformative Constitutionalism. The paper is divided into three parts; firstly, it deals with the idea of transformative Constitutionalism and its meaning, nature, and scope; second, how it connected with the Constitution of India and the interpretation of the different constitutional provisions. Thirdly the significant role played by the supreme court of India in the transformation.



The world in which we live is dynamic and undergoes recurrent change. Thus, society must also make certain modifications to keep up. The nation’s Constitution will have to be amended to reflect these changes. A commitment to social change is made in the Constitution. For the Constitution to keep up with the pace of society, it must be changed. The changes needed for different constitutions will differ according to the society’s circumstances and history. There shall not be any common standards in the matter of transformation required. The idea can be distinguished by the role played by different governments in developing constitutional ideals. The constitutional models, while framing it, need to change with changing needs of the people. One of the significant aspects of transformative Constitutionalism is equality against all sorts of discrimination. Equality has different dimensions, so it requires proper judicial intervention to interpret the concept with constitutional values. The idea of transformative Constitutionalism can be traced back to post-apartheid South Africa. It seems to be found in the preamble of the interim Constitution. According to that, “A historical 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 color, race, class, belief or sex.” The Constitution of South Africa shows the objective of social transformation and the development of an egalitarian society in all aspects. The study based on the judicial decisions in the last 15 years in south Africa envisages the importance of a transformative perspective toward constitutional ideals[5].


The critical distinction between transformative Constitutionalism and Constitutionalism is that the State plays a significant role in advancing the emancipation process and the constitutional objectives of liberty, equality, and fraternity in the former. In the case of Constitutionalism, the limited government idea is projected to complete adherence to the legal provisions made by the State. Transformative Constitutionalism has taken on numerous interpretations over the years, as is typical of successful endeavors. This is especially true now that it is a topic in comparative law. One of the most well-known definitions is transformative Constitutionalism, which embraces the idea of constitutions as society’s new moral and political base, mainly when they result from the success of a revolutionary movement, as the early French Constitution did, or when they are adopted in response to historical inhumanity, as in Germany. In many Eastern European states, constitutions establish new political and moral foundations for their societies.


There are two significant aspects of transformative Constitutionalism. Firstly it advocates the idea of equality against all kinds of discrimination that were present in the past and possibly arise in the future. It includes all forms of discrimination against the people, social, political, and cultural. Even that where accepted at the time of formulation of the Constitution can be changed with the progression of the society for the protection of justice. Secondly, using the term “positive social relationships” rather than restricting it to a person’s interactions with the State indicates the pervasive nature of transformative Constitutionalism in the private sphere. It calls for the realization of full human potential within such relationships.[6]



Even before the colonial era, Indian society was infected with many social evils. Untouchability and caste discrimination were part of Indian culture through the varna system, considered the caste hierarchy system. Each varna is allotted a particular occupation and cannot do any other job. If they do that, they will get punishment according to the shastras. The practice of untouchability has its roots in the varna system. Hindus are discriminated against by savarana and avarna inside that there were subdivisions. The avarna includes Dalit communities and tribes, which itself considered untouchables by the other castes. The practices are deemed to be heavily discriminatory and exploitative. Gender-based discrimination was also present before the independence and colonial period; books like manusmrithi explicitly discuss gender discrimination. Women were unable to remain independent as a result. It created caste systems for people and high Brahmins to the social aristocracy. Women were never given more thought than a shoe. Manu’s Hindu text has drawn criticism because it elevates men and members of upper castes while devaluing women and members of lower castes.[7]


In the colonial era also, social evils were present differently. The ideas of equality, liberty, and justice were also absent during their reign. Most of the legislations enacted by them were with the intention of smooth administration for their goals, ignoring the needs of the society and aspirations of the people. Britain organized communal prizes in 1933, requiring distinct representations from religions such as Christians, Hindus, and Muslims. The depressed classes were also given some seats, but only the depressed classes were allowed to vote for them. M.K. Gandhi opposed this by going on a hunger strike, which led to the Poona Pact, an agreement between Gandhi and Ambedkar. Following the accord, some rules were relaxed. At the time, M.K. Gandhi rescued the country, but he was unaware that the reservation system would eventually be used to expand the voter base.


As a reason for these past experiences, the framers of the Constitution included the aspects of progressive transformation at the time of formulation of the Constitution itself. It is visible from the preamble portion itself, the preamble which contains the document’s objectives. It deals with ideals of justice, liberty, equality, and fraternity, which protect the people according to their needs. These concepts are dynamic and will change with the changing circumstances of society. The roots of secularism, socialism, and democracy can also see in the preamble part.[8] Part three also introduced a set of fundamental rights that intended to change the previous social and political hierarchies. By submitting a set of rights as essential, the framers tend to transform society by introducing new standards. Equality itself was introduced and equated with the concept of equity to ensure the social transformation and upliftment of the weaker section[9]. Because blind following the principles of equality will not address the needs of the people and won’t address the social and political discriminations suffered by different areas of society. The special provision to abolish untouchability also transforms society through the living document[10].


 The social hierarchy existed through religious discrimination, and other forms were abolished using the provisions in part 3 of the Constitution. Through article 32, any person whose rights are violated can approach the supreme court to enforce it, which is a fundamental right according to the framers of the Constitution. In one way, it gives the authority to the supreme court to interpret the provisions according to the needs of society. The framers were conscious that the rights require interpretations in different lights in the future. In another way, it was to ensure the protection of fundamental human rights from government actions.



The judiciary plays an essential role in the dynamic nature of the Constitution. The court is entrusted with the duty of interpreting of law. A simple literal interpretation of a document made 70 years back will not meet the needs of the people. But here, the judges progressively interpret the Constitution by understanding the objectives and ideals behind the document, also considering the needs of the people by giving weightage to the circumstances that prevail. The judges in the supreme court have to protect constitutional goals as well as the needs of the people. At the same time, they are interpreting the provisions not allowing the separation of powers to be breached.[11] It is evident through Constitutionalism that the limited government will protect the ideals of liberty, justice, and equality as prescribed in the Constitution. Still, transformative Constitutionalism ensures the protection of fundamental values with the reorganization of transformation of society. In the latter, one gives priority to equity principles.


 In the first two decades after the independence supreme court strictly follows the literal meaning of the provisions doesn’t exhibit any signs of activism. At that time, the government supported social transformation, and the judiciary was considered the obstruction. In the case of the State of Madras v. Champakam Dorairajan[12] , the court struck down the government order for reservation, enacted using article 46[13] of the Indian Constitution. The supreme court, in this case, overruled the high court by deciding that directive principles of state policy cannot override the fundamental rights contained in part 3 of the Constitution. Here the particular government reservation was found to be violative of articles 15 and 29 of part three of the Constitution. The Supreme Court also held that the term “backward classes” in Article 15(4) of the Constitution, which allows reserving reservations for socially and educationally backward classes, cannot be restricted to caste alone. This judgment led to the abolition of the communal reservation system in Madras and other states in India. It paved the way for the introduction of a more inclusive system of reservations based on social and economic criteria. Even society required such a progressive interpretation in the initial phase, and the apex court was not ready to interpret it like that. The same judicial attitude was visible in the case of A.K. Gopalan v. State of Madras[14] ; the prevailing Constitutionalism can be identified from the judgment. The apex court gives predominance to the legislative provisions rather than interpreting the ideals of justice and liberty enshrined in the Constitution considering the case’s circumstance. This was one of the earliest cases dealing with the fundamental rights on which the apex held the preventive detention laws to be valid even if they violated the fundamental rights of human beings. The right of procedural fairness was first raised in this case, but the court refused to accommodate the concept under fundamental rights. But later, we can see the proactive supreme court taking a different approach over the same matter. It was explicitly noted that the premise in Gopalan that some Constitutional articles dealt with particular issues solely and precluded the applicability of its other sections was wrong. As a result, the citizen was guaranteed procedural fairness. The fact that Gopalan and Bank Nationalization[15], despite stating opposing ideals, were against the constitutional values. It will now be revealed how the fundamental change forces have used the idea outlined in the Bank Nationalization to call for fairness in other areas. Another notable instance of the strike by the judiciary over constitutional values and goals can be seen in the case of A. D.M. Jabalpur. Shivakant Shukla,[16] the court held that fundamental rights are suspended during the time of emergency—all the aspects of progressive interpretation of the fundamental rights struck down by the apex court[17].


 The initial phase of judicial activism can be identified from the post-emergency period. During and after that, the apex court always acted designer of social transformation. The supreme court stands in favor of citizens’ rights and liberties, and along with the legislative provisions, the supreme court gives weightage to the prevailing social and political circumstances. Judges like V.R. Krishna Iyer, P.N Bhagawathi, and O Chinnappa reddy played a significant role in developing the scope of judicial activism and social transformation. The change in the behavior became more visible in the case of Maneka Gandhi v. Union of India[18] the supreme court equated the procedure established by law with the due process of law in the American Constitution. Earlier, the same court refused to consider the right of procedural fairness along with fundamental rights but now held that the procedure established by law should be fair, just, and reasonable. This decision gives a foundation for different interpretations of article 21 of the Constitution of India. There were a series of decisions showing the activist role of the supreme court. In the case of Ratlam municipality,[19] the supreme court encroached into the administrative sphere, directed the municipal authorities regarding sanitization, and struck down the order made by the municipality. The attitude towards the reservation issues also witnesses transformation in the case of N. M Thomas[20] and K.S Jayasree.[21] The supreme court interpreted the equality concept considering the needs and circumstances of the people. The court developed the concept of legal assistance and providing justice in the cases of sunil batra[22] and hussainara khatoon.[23] There were a series of environmental law issues on which the supreme court played the role of protector. In which the supreme court came out of its limits.

The Supreme Court’s increased authority has drawn criticism. The Supreme Court has been referred to as a counter-majoritarian by academics. It is frequently suggested that excessive judicial involvement could result in judicial dictatorship and change the judiciary from the weakest organ to the most vital organ due to a feeble system of checks over the apex court. The Indian Supreme Court’s approach to Constitutionalism has shown inconsistent behaviors. The Supreme Court sometimes takes a fiercely activist stance, while other times, it simply abdicates all authority and conforms to the exact letter of the Constitution.



The supreme court decisions in the last five years show several instances of transformative Constitutionalism. In some cases, that was necessary; in other instances, judicial overreach is also visible. In the decisions related to transgender people, the apex court delivered real justice even if it was delayed. In Naaz Foundation v. Government of NCT[24] and NALSA v. Union of India, [25]the supreme court recognized different rights of transgender people, which led to the landmark judgment—in Navtej Singh Johar v. Union of India[26] , the court declared that transformative Constitutionalism is one of the primary objectives behind the Constitution. The decision also contains the need for transformation and an apology to the community for the discrimination suffered for such a long period. The supreme court reaffirmed the supremacy of constitutional morality over social morality—also, the same rights and freedoms to the minority as the majority community. 


Another instance of the dominance of constitutional morality was witnessed in the case of Joseph Shine V. Union of India[27] the law of adultery was told more than a century that decriminalized by observing it as anti-woman and ignoring the principles of social morality by Appling the new dimensions of equality. In matters relating to personal laws, the initial decisions supreme court restricted itself and considered it the State’s duty to formulate rules for equality and avoid discrimination. The court took different approaches in matters related to personal law according to time. In the initial phase, the court was not ready to decide on the issues connected with religion. Whenever the case came before the court, consider it as a duty of the legislature to formulate legislation interfered only when there is a gross violation. But when we analyze cases relating to personal laws, the supreme court consistently exhibits inconsistency. In T. Sareetha vs. T. Venkata Subbaiah,[28]  section 9 of the Hindu marriage is null and void as it violates article 14 and is overruled in Harvinder Kaur vs. Harmander Singh Choudhary[29] mentioned the need for self-restraint in the religious matters. Supreme court interfered even in personal laws when it grossly violated fundamental rights. When we consider essential religious practice principle, it creates a safety valve for the supreme court to exercise its discretion to interfere without any rationale. There are no clear guidelines to distinguish between an essential religious practice and what is not. There was a series of issues on which the court was silent, considering religious freedom. Still, the Indian Young Lawyers Association v. State of Kerala[30] court held, “The courts have to ensure that what is protected conforms with fundamental Constitutional values and guarantees and accords with Constitutional morality.”



Transformative Constitutionalism is an approach to interpreting and applying a constitution that emphasizes its transformative potential to bring about social change and promote justice. In this context, the role of the Supreme Court is crucial in ensuring that transformative Constitutionalism is realized in practice. The Constitution of India is an example of a transformative constitution that aims to promote social change and justice. The Supreme Court has been critical in fostering transformative Constitutionalism in India. The intention of the framers of the Constitution was also to adopt the Constitution according to changing needs of the people and circumstances. Supreme Court plays a critical role in promoting transformative Constitutionalism by interpreting and applying the Constitution to advance transformative goals, striking down laws or actions inconsistent with those goals, engaging in public interest litigation, and promoting affirmative action to promote social and economic transformation. The ideas of Constitutionalism are recognized in the Indian Constitution even if it is not explicit, and our founding fathers made sure to include measures to ensure balances on any likely advancements. Just two mechanisms might make such limitations possible: the self-regulation of the relevant organs and the control mechanism established by the Constitution and afterward upheld in text and spirit. The insertion of such provisions in the Constitution could only guarantee the idea of monitoring. The latter was preferable to the former since humans manage the organs with all the inherent fallibility and human vices. As a result, each organ is required under the Constitution to continue monitoring other organs.


But here, most of the transformations are initiated through judicial intervention, which is against the basic idea of democracy. The judiciary has to interpret the law when the matter is questioned before the court. Still, here supreme court interfered in the spheres of legislature and executive to bring transformation, ignoring the principles of separation of powers. In a democratic country, the legislature has to bring changes and reform through amendment. But in many instances, the legislature fails to do so because of vote politics. When the supreme court changes in a few cases, it will amount to a judicial dictatorship. The balance between constitutional morality and social morality is losing due to unchecked decisions.



















[1] Maru Bazezew, Constitutionalism, Vol. 3 MIZAN LAW REVIEW, September 2009.

[2] Indrani Kundu, Constitutionalism to Transformative Constitutionalism: The Changing Role of the Judiciary, 11 INDIAN J.L. & Just. 347 (2020).

[3] UPENDRA BAXI, A COMPANION TO POSTCOLONIAL STUDIES 540, Black well publishing 2005.

[4]Karl E. Klare , 'Legal Culture and Transformative Constitutionalism' cited Indrani Kundu, Constitutionalism to Transformative Constitutionalism: The Changing Role of the Judiciary, 11 INDIAN J.L. & Just. 347 (2020)


[6] Priya Shekhawat, Transformative Constitutionalism, Volume 2 IJLMH Issue 5, ISSN: 2581-5369


  [7]   Pallvvjain, What does Manusmriti say about women?, GROUND REPORT(5-03-2023,11AM), https://groundreport.in/what-does-manusmriti-say-about-women/


[8] INDIA CONST.preamble.

[9] INDIA CONST.art14.

[10] INDIA CONST.art17.

[11] Sanskriti Prakash & Akash Deep Pandey, Transformative Constitutionalism and the Judicial Role: Balancing Religious Freedom with Social Reform, 4 INDIAN J.L. & PUB. POL'y 108 (2017).

[12] State of Madras v. Champakam Dorairajan, AIR 1951 SC 226.


[13]INDIA CONST. art.46 "The State shall promote with special care the educational and economic interests of the weaker sections of the people, and, in particular, of the Scheduled Castes and the Scheduled Tribes, and shall protect them from social injustice and all forms of exploitation."

[14] A.K. Gopalan v. State of Madras, AIR 1950 SC 27.

[15] R.C Cooper vs Union of India, AIR 1970 SC 564.

[16] A.D.M. Jabalpur. Shivakant Shukla, AIR 1976 SC 1207.

[17] O.Chinnappa Reddy, JUDICIAL PROCESS AND SOCIAL CHANGE, 25 Journal of the Indian Law Institute, 149,149-157 (1983.

[18]Maneka Gandhi v. Union of India, AIR 1978 SC 853.

[19] Municipal Council, Ratlam vs Shri Vardhichand & Ors, AIR 1980 SC 1622.

[20] State of Kerala & Anr vs N. M. Thomas & Ors, AIR 1976 SC 490.

[21] Kumari K.S. Jayasree & Anr vs The State Of Kerala & Anr, AIR 1976 SC 2381.

[22] Sunil Batra vs Delhi Administration, AIR 1980 SC 1579.

[23] Hussainara Khatoon & Ors vs Home Secretary, AIR 1979 SC 1369.

[24] Naaz Foundation v. Government of NCT Delhi, WP (C): 7455/2001.

[25] NALSA v. Union of India, (2014) 5 SCC 438

[26] Navtej Singh Johar v. Union of India, (2018) 10 SCC

[27] Joseph Shine V. Union of India, AIR 2018 SC 4898

[28] T. Sareetha v. T. Venkata Subbaiah, AIR 1983 AP 356

[29] Harvinder Kaur vs Harmander Singh Choudhary, AIR 1984 Delhi 66

[30] Young Lawyers Association v. State of Kerala, (2019) 11 SCC 1


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