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Introduction

Transformative Constitutionalism is not a particularly new concept. It has

been around since 1998 and was first described in Legal Culture and
Transformative Constitutionalism, a piece by American Professor Karl Klare.
This article aims to identify the meaning behind transformative
constitutionalism by exploring some recent cases in which the concept was
applied to the reasoning of the courts and analysing the impact on
contemporary society.

Concept of Transformative
Constitutionalism
Transformation means a structured method of bringing about change while
constitutionalism encompasses the concept of adhering to the basic structure
of values that are defined by a system of government. These two concepts
together form the term transformative constitutionalism. Transformative
constitutionalism is a process based on subjective interpretation. It is not one
that has a singular definition or understanding. In fact, each definition is
highly contested and as of now, there is no stable understanding of the
concept.

Origin of Transformative Constitutionalism

The concept of transformative constitutionalism came from the study of the
South African Constitution and the freedom movement. As mentioned above,
it was Karl Klare who in his piece Legal Culture and Transformative
Constitutionalism (1998) spoke of transformative constitutionalism in the
South African context. He explained the concept of transformative
constitutionalism as a “long-term project” and went on to state that it shaped
the political and social institutions through the enactment, interpretation and
enforcement of the Constitution. Through his words, he further expressed
that the theory was futuristic in its approach, by which he implied that the
aim was the development of the existing democracy and its improvement in
the long run. Justice Langa of South Africa, in his analysis of the concept of
transformative constitutionalism, had said, “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.”Thus, the concept of transformative constitutionalism
originated in the South African context but has further been applied to
democracies across the globe including India. Before we discuss the Indian
application of the concept, let us first understand the major interpretations of
transformative constitutionalism.

Different interpretations of Transformative

Constitutionalism
However, the concept of transformative constitutionalism came to be
interpreted in several ways. Today, some people believe that it is a single
event in the history or present of a State while others argue that it is a
process. There is common ground in many of these interpretations but views
of scholars and writers keep changing and developing and thus it has become
difficult to establish it. There are two major interpretations of the concept of
transformative constitutionalism, particularly in the Indian context:

Transformation from a colonial rule to self-

governance
This is seen as a form of transformative constitutionalism in the sense that
there was a systematic adoption of a new framework for the Government of
India. According to this interpretation, a case of transformative
constitutionalism was seen when India gained Independence on 15th August
1947 from the British Colonial Rule. The transformation came about not only
in the form of governance but also in the entities in whose hands the power
to run the country now lay. India was transformed from a country run by
foreign colonisers to a country that was run by its own people; the people
could now choose their own government and their own leaders. Although a
majority of the framework of the British rulers was adopted by the country
from the Government of India Act 1945, the transformation paved the way
for a new system that was created of the people, by the people and for the
people. New values were established in the Constitution; of dharma and
justice. The transformation of the system to uphold these values was a
constitutional measure. Thus, the systematic adoption of a new framework
for the Government of India and the creation of the Indian Constitution can
be seen as transformative constitutionalism.

Transformation of society and state

This interpretation is less event-specific in nature and addresses the ever-
evolving legal and administrative changes being implemented in a country.
According to interpretation, there is a constant transformation of the way a
State functions in correlation to the way society functions and vice versa.
Both the state and the society are affected by one another and both continue
to change and grow. This is also transformative constitutionalism wherein the
basic values as provided by the Constitution are upheld by bringing in
change, such as in the legal scenario. One example of this could be
the Navtej Singh Johar vs Union of India case of 2018 in which the portion
of Section 377 of the Indian Penal Code was decriminalised as it did not
permit consensual acts of sex between individuals belonging to the LGBT
community. This change was brought about after over 70 years of
Independence because the needs of the society changed. There are several
other examples of this form of transformative constitutionalism.

These are not the only interpretations of the concept. As expressed above,
Justice Langa gave his own interpretation of the concept. In an article, one
research fellow has described transformative constitutionalism as using the
legal framework to bring social change in a political system. Indira Jaising, an
Indian lawyer who is known for her efforts in the field of human rights had
said in her speech at NLSIU Bengaluru in 2019 that transformative
constitutionalism for her means personal liberty. Thus, there may be several
other interpretations of the same concept and it is extremely subjective.
Thus, it becomes important to identify a common definition or a term by
which one may be able to understand the essence of the term. Although it is
difficult to define, transformative constitutionalism may be described as the
process of using the values set by a constitutional framework of a State to
usher in a change in the social, legal, economic or political systems. This
change is essentially brought forward by legal amendments or enactments
and comes with a futuristic approach.

Examples of Transformative
Constitutionalism in contemporary Indian
society
There are several examples of transformative constitutionalism in some
important judgements of the past couple of decades in the Indian Society.
These attempt to bring in positive change and provide a window into the
future of how the legal framework and mechanisms may change and
improve. Some of the major decisions and provisions of the law that have
relied on or applied the concept of transformative constitutionalism are as
follows:

Decriminalisation of Section 377

Before this judgement of the Supreme Court in 2018, as per Section 377’s
explanation of “unnatural offences,” sexual intercourse other than that
between cisgender men and women was not permitted. This meant that the
law imposed punishment on the sexual intercourse of persons within the
LGBTQ+ community. With a view to change this, cases were filed before
courts and the first major case was that of Naz Foundation vs Union of India.
In 2009, the Delhi High Court in its judgement decriminalised consensual
sexual intercourse between the members of the community which was earlier
termed as unnatural in the words of the law. However, the Supreme Court in
2013 re-criminalised that particular part of the Section and overturned the
decision of the Delhi High Court. It stated that the High Court had erred in
deciding that the Section was unconstitutional. Several protests followed and
as a consequence of the filing of a curative petition before the apex court, it
decided to hear the matter again in 2018.

Navtej Singh Johar vs Union of India is the landmark case that was decided
on 6th September 2018 where the Supreme Court struck down the part of
Section 377 of the Indian Penal Code that criminalised consensual sexual
intercourse between adults by declaring it unconstitutional. It violated as
many as four Fundamental Rights of the persons as under Articles
14, 15, 19 and 21. This was a major breakthrough for the LGBT Community
and their legal as well as human rights.

This judgement also applied the concept of transformative constitutionalism,

keeping in mind the stigma that silently exists in Indian society regarding the
LGBTQ+ community. This judgement propels these issues into the limelight
and has enabled several people to come forth with their concerns and be able
to put forth their views. The human rights of the members of the LGBTQ+
community have been addressed and this is clearly positive enforcement of
the Constitution and its values.

Ayodhya Dispute verdict of 2019

M Siddiq (D) Thr Lrs vs. Mahant Suresh Das & Ors was a complex case
revolving around two religious communities and their dispute over a piece of
land. The disputed property is in Ramkot, Ayodhya and is believed to be the
birthplace of Lord Ram by Hindu worshippers. A mosque was built on the
same land and was known as the Babri Masjid, having been created under
the direction and rule of Mughal Emperor Babar. Several Hindus felt wronged
since the land they worshipped as the birthplace of their deity had been
taken over by the Mughals during their rule.
The Babri Masjid was demolished by Hindu radicals on 6th December 1992
during a political rally. Following this, a case was filed before the Allahabad
High Court and the court decided that the land be divided into three equal
portions among the aggrieved parties. It went on to confirm during that time
that the disputed land was the birthplace of Lord Ram and that the mosque
had been built post the demolition of a Hindu temple, which itself went
against the tenets of Islam. The main issue, in this case, was the
involvement of historical facts and traditional and religious beliefs. Many
Muslims felt wronged as their mosque was torn down by Hindu radicals.
Hindus also felt wronged since a sacred place of worship had been taken over
by a foreign Mughal Emperor for the construction of a mosque. Each group
had their own grievances and views and the issue was an extremely sensitive
one to be dealt with. The Supreme Court held the final hearing of the case
after all the parties appealed before it in 2019. On 9th November 2019, the
Supreme Court of India gave its final verdict of this case. The Court relied on
a report by the Archaeological Survey of India according to which were
remains of a building underneath the demolished structure of the Masjid that
was “not Islamic” and in its judgement decided that the disputed land was to
be handed over to a trust to be set up by the Government of India with the
purpose of building a Hindu temple. The Court also directed that 5 acres of
land be provided to the Sunni Waqf Board for the purpose of building a
mosque and stated that the demolition of the mosque had been against the
rule of law.

This is one of the most recent cases of transformative constitutionalism

where efforts were made to ensure that neither of the religious communities
was offended and to ensure that communities are brought together instead
of being divided over religious issues. Here, transformative constitutionalism
may be used to describe a systematic movement towards a society where all
religions can co-exist without any disparities and discrimination, a process
that the Constitution had sought since its creation. This judgement has
received various responses but it is clear that it has been decided with a
futuristic approach and one that insists on national unity over religious
differences.
Conclusion
The term “transformative constitutionalism” has been around for over 20
years. However, as a process, it has been around for much longer and will
continue to exist in the current legal scenario. As observed, several of the
most important judgements that India has seen in the past few years have
revolved around the concept of transformative constitutionalism and have
given great importance to it, using the Constitution as a tool to further
improve the existing conditions of human rights, legal rights and other
constitutional rights in the country. Thus, although transformative
constitutionalism may prove difficult to express or define, it is a process and
an event that has played an important role in defining the essence of
democracy and a constitution within it