TRANSFORMATIVE CONSTITUTIONALISM

-MAYANK BHANDARI

190101092

The constitution is an organic document which is dynamic and changes the way society desires .The
understanding of a constitution as a transformative document is certainly not new and has an
established lineage in several post-colonial constitutions. The idea of transformative constitutionalism
lies in its emancipatory pursuit and in the conviction that large-scale social change within a certain
political system is possible through the process and instrumentality of the law. Transformative
constitutionalism enjoins a certain reading of the constitutional text that eschews formalism, pure
positivism and legalism and advances an interpretation that acknowledges and responds to the reality
of hierarchical structures and power relationships within a society. Most importantly, however, a
transformative constitution breaks with the legal tradition of situating private relationships and
community conventions outside of the constitutional mould, subjecting societal mores to
constitutional values.

After critically examining the topic, the dynamism of a democratic society which transforms law has
its own merits and demerits as for example: Reservation was actually a blessing in disguise from the
British Raj. In 1933, British introduced the Communal Award, according to which separate
representation was to be provided for the Muslims, Sikhs, Indian Christians, Anglo-Indians, Europeans,
Dalit. The depressed classes were assigned a number of seats to be filled by election from special
constituencies in which voters belonging to the depressed classes only could vote. This was protested
by Mahatma Gandhi and he went on a hunger strike but prominent leaders like Dr. Bhimrao Ambedkar
persuaded Gandhi into signing an agreement known as the Poona Pact. After the pact, even though
the norms were relaxed but reservation was still provided. Gandhi knew the tactics of British 'Divide
and Rule' policy, he saved the nation from it at that time, but alas! He couldn't have guessed that it
would be such a major issue in coming years. Now this transformation is used as topic for capturing
vote.

Similarly in the case of Article 370 and Article 35A there is a necessity to transform the laws which
were present in the past because they developed a feeling of depravity amongst other states because
of perpetuity of transformation. Finally news of happiness strikes that article 370 and 35A would be
no more a albatross hung on the neck of India which is a sad news for Jammu and Kashmir and Pakistan
as well, as if Pakistan had vested any interest in Jammu and Kashmir. Jokes aside but this is how
dynamism of constitution helps in progress of nation and also shows how strong a nation we are.

Now comes the biggest challenge of all time against the constitution, which is to grant equal rights to
women in temples and to do away with the patriarchal society of sabrimala who have stereotypes
against impurity of women which is challenged by Indian Young Lawyers' Association. Another big
challenge is to do away with adultery which is also against the right to equality.
We have come miles in transforming the constitution but there still many more miles to cover, like
laws related to robots for example Google and Facebook encroaching our right to privacy and Alexa
selling our voices. We are forced to agree to terms and conditions given by playstore(android) and
appstore(ios), this should change and a uniformity should be brought for all apps. The implications of
adopting transformative constitutionalism will certainly have a bearing on the future decisions of the
Supreme Court. One will have to wait and see how this will play out in the two upcoming decisions,
i.e. the Aadhaar judgement, and the decision in referring the Babri Masjid case to a larger Bench. In
both these upcoming decisions, it will have to be observed how transformative the Court will be.