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Transformative Constitutionalism in the Late 20th Century: Paradigm Shift in the Judicial Approach

Updated: Feb 20, 2022

Written By: Varunendra Pandey


Constitutionalism when looked at from a broader perspective is nothing but a term engulfing all the ideals that are defined in the document termed as the constitution. The ideals are to be achieved by the effective governance of the elected Government, irrespective of the political agendas manifested in their political identities. In a nutshell, the limitation of Government by the means of rightful obstruction (i.e., law) is called Constitutionalism.

The constitution being the fundamental law of the land embraces its supremacy by obliging to the ideas of Rule of Law and Equality in India. The Constitution in its structure has been framed in a fashion that it tends to modify and change according to the needs of the society. Transformative constitutionalism is a commitment to the fundamental ideals of statehood that are Liberty, Equality, and Fraternity and a strong guarantor of substantive equality, as well as social security of the subjects of the State.

Constitutionalism - Introduction

Aristotle defined, “Constitution is the way in which, citizens who are the component part of the state are arranged in relation to one another[1]”. It forms the Grundnorm law of the society thereby laying down the foundations for the other laws in conformity to the principles priorly established by the constitution. The legislature while legislating must remind itself of the obligations that it has to fulfill towards the swore ideals of the constitution. Therefore, the harmonious functioning of these interrelated obligations with the welfare of the state itself is called Constitutionalism.

Klare defines constitutionalism 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[2]”. Therefore, in totality Constitutionalism, as a concept acts as a legal restraint on the powers of the Government and brings its actions under the scrutiny of democratic and moral adherence.

Transformative Constitutionalism in India

The concept of transformative constitutionalism when observed under Indian Framework has multiple dimensions to explore. India is a country that was plunged under devious colonialism for a couple of centuries, hence the deceitful policies of the British rather became a custom immemorial in nature. The departure of colonial rule did not change the nature of policies but solidified it in its extent owing to its existence from a longer period. When the country gained its independence the most prominent task afront was framing a constitution that derogates the outrageous British policies and further establish fundamentals that provides for setting up an egalitarian society. While comprehending with the hard-earned independence India had to also keep up with the democratic values and discourage the stigmatic customs that have been haunting liberal ideas of equality. Some of the customs that were defenestrated in the constitution are Child Marriage, Untouchability, caste discrimination, and gender inequality.

Part III of the Constitution openly guarantees Equality[3], Liberty[4], Speech and Expression[5] as the fundamental rights of the subjects of the state, however, the courts on multiple occasions have also identified these three rights as the bedrock of the Indian democratic structure. In the Indian paradigm, transformative constitutionalism is the process of achieving the self-determined goals recognized by the preamble. It is everything that it could achieve and it encompasses not only constitutional legality but also keeps in mind the morally enchanted facets of the democratic society. Transformative constitutionalism has been a great means in achieving the alteration of a police state into a welfare state. It has certainly transformed the paternal character of the state into a maternal one with the help of proactive participation of legislature and judicial bodies. However, despite the commendable efforts of the legislature, the road to social security and inclusive approach is yet long.

Judicial Approach: Transformation from Narrow to Wider Interpretation

The duty-bound distinction between the organs of the state has been enshrined in the Constitution, wherein the Judiciary is to scrutinize the laws formulated by the legislature without transgressing the pre-determined limits, therefore the judiciary cannot be allowed to legislate. The Indian Constitution is partly rigid and partly flexible thereby opening the possibilities of improvisation, and the post-emergency era witnessed these improvisations. It was in the early 70s that put forth the question of the limitation of judicial interventions. Indian transformative constitutionalism cannot be deciphered without understanding the interpretation, specimen of courts, Pre-Maneka Gandhi era and Post-Maneka Gandhi Era.

In Pre-Maneka Gandhi, the Courts followed the pattern of a narrow interpretation of the statutes, wherein strict adherence to the formulated statute was acknowledged with a lesser discretion invested in the courts. The case of A.K. Gopalan vs state of Madras[6] is one classic example of the same. The court while determining the ambit of Liberty held that the term Personal liberty is limited in strict sense to bodily liberty and nothing more than that. The court further interpreted the term law as state-made law and not the principles of natural justice. This narrow interpretation of Personal liberty, therefore, imputed the course of a wider response to blatant infringement of rights. The practice of narrow interpretation significantly went down after this historic judgment and its practical application was palpable in the case of Kharak Singh. Thereafter, came the landmark case of Maneka Gandhi[7] that confronted courts on their interpretation of liberty. Court Side-lining with the previous pattern of interpretations held that liberty is much more than physical liberty, it is a set of rights that formulates the idea of personal liberty. The ambit of article 21 is wider than what was defined in the case of A.K. Gopalan.

Post-Maneka Gandhi Case it was thereby earmarked that article 21 is not exhaustive in nature and rather inclusive. In Olga Tellis[8] case Supreme Court again reemphasized that the order of deprivation of rights shall only be violated in conformity to Procedure established by Law. The court went further and determined the rights of livelihood of the pavement dwellers of which also includes a residing structure. The court directed the responsible authorities for the relocation of pavement dwellers thereby securing their social security. The sterile approach of the apex court in the A.K. Gopalan proved itself to be a deterrent example for forthcoming issues. In the case of Bandhua Mukti Morcha vs Union of India[9], the ambit of article 21 was further extended to a dignified life, free from exploitation. With time the Judicial approach has emancipated two important results;

o Many directive principles which though are not enforceable but have received the judicial backing and thus incorporated under part III.

o Article 21 is not an exhaustive list of rights.

This wave of judicial interpretation marked its presence in the environmental layout as well. In the case of Shubhash Kumar vs State of Bihar[10], the Apex court walked a step forward and recognized the right to a clean environment as the ‘sine qua non’(i.e., an essential condition) for a decent enjoyment of life. In the Indian setup, transformative constitutionalism was achieved majorly from judicial intervention. The pro-active determination of the rights of the citizens by the courts formed the bedrock for the broader interpretation of the constitutional definitions. Fortunately, the trend started from a comprehensive exposition of article 21 which in return disclosed the set of rights that never existed on paper. Hussainara Khatoon vs state of Bihar[11], communicated the populace that speedy trial is their right and delay in trial infringes their right to constitutional remedy. In the case of indigent persons free legal aid has been also brought under the ambit of article 21[12]. While answering to the discrepancies of the irregular trial of the accused, Apex court granted the right of fair trial under its fundamental nature.

These Significant pronouncements formed the foundational corridor on which the ideals of 21st century were to be designed. The ideals of equality, fraternity, and liberty and their extensions were recognized as obligations of the state towards its subjects. Recognition of certain principles of state policy and incorporating them as the fundamental right defines the essence of Constitutionalism in Indian Framework. The recent approach of the courts has also been praiseworthy "Decriminalizing Homosexuality", "Striking down adultery" and judgments like "Triple Talaq" have brought out the illicit backdrop of codified laws that have been violating the privacy and sovereignty of the individual ever since its inception.


Egressing from a colonial rule towards autonomy and self-rule the country had too much to comprehend at a time, but the foremost task ahead it, was drafting a constitution that guides the country towards a stable democracy. A detailed constitution was made but not flawless. Improvising, then and now, shaped its structure that suited the needs of society. Post emergency the need for proactive participation was felt by the judicial establishments. It was after the Maneka Gandhi case that courts took the responsibility of analyzing the roles and obligations of state towards subjects and realized that the same should be seen from a wider perspective, therefore that facilitated the paradigm shift. The transformation of approach can never be stopped, it must continue to cater the needs of society, and with time, change itself to serve the altered requirements of a democratic and right-based society.

[1] R.C. Agarwal, The Political Theory 316 (S. Chand Publication, 2014) [2] Klare, E. Karl, “Legal Culture and Transformative Constitutionalism”, 14 SAJHR 146 (1998). [3] Constitution of India, 1950, Article 14 [4] Constitution of India, 1950, Article 21 [5] Constitution of India, 1950, Article 19(1)(a) [6] 1950 AIR 27 [7] Maneka Gandhi vs. Union of India, 1978 AIR 597 [8] Olga Tellis v. Bombay Municipal Corporation, 1986 AIR 180 [9] AIR 1984 SC 802 [10] AIR 1991 SC 420 [11] AIR 1979 SC 1369 [12] M.H. Haskot v. Union of India, AIR 1978 SCC 1548

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