Transformative Constitutionalism: The Ball in The Judiciary's 'Court'

Authors: Mahathi. U and Aneeta Mathew, Students, The National University of Advanced Legal Studies, Kochi, India

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Abstract

Constitutional experiences differ in terms of availability of resources and divisive hierarchies. But the central role of the State in aiding the steady development of constitutional ideals remains the same. Primarily a South African brand, transformative constitutionalism is commonly perceived to transcend traditional paradigms of constitutionalism and legal formalism. It is a legal enterprise, the definition and elements of which remain unclear. Discussions on this concept have always evoked comparisons that focus on the ideological North-South categories. The emphasis, however, must not be on whether the Global South is a counter-model to the North, and why, but rather on how the demands of transformative constitutionalism must be met by a truly independent judicial system as in India. Having adopted a pragmatic approach to this global project, the Indian regime must also focus on the broader emancipatory objective of the State in pursuing such change. Hence, in this essay, we attempt to [a.] clarify the notion of transformative constitutionalism by distinguishing it from judicial activism and we argue that [b.] the Indian constitution is a transformative document. We also argue that [c.] the judiciary plays the more significant role in the transformation and that [d.] through an anchored approach to constitutional interpretation the Indian Judiciary must remain committed to the tenets of transformation. In conclusion, [e.] we propose a few suggestions, going ahead.

Keywords: Transformative Constitutionalism, Judiciary, Constitution, Constitutional Morality

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