“Introduction”
“We
are all familiar with the phrase "constitution," which refers to the
supreme law of the land, a set of rules and regulations for governing a
country, and many more definitions.”“It is possible to have both a written and an unwritten
constitution.”“India
has a written constitution, whereas the United Kingdom has an unwritten one.”“However, the majority
of us are unfamiliar with the phrase "constitutionalism."” “Constitutionalism is a
philosophy or ideology that advocates for the rule of law.”“To put it another way,
constitutionalism is a goal, and the constitution is a tool for achieving it.”“Constitutionalism has
evolved into a critical component of any state's political life that can no
longer be overlooked.”“It
carries out its conflict prevention and resolution responsibilities.” “It is the belief that
the government's power should be limited, and that its authority is contingent
on the government's adherence to those constraints.”“The Constitution is just a legal and moral
framework that establishes or establishes these constraints.”“According to
constitutionalism, the constitution not only grants powers to the government's
various organs, such as the executive, legislative, and judicial branches, but
also seeks to limit those powers. A country may have a constitution, but that
does not mean it is constitutional.” “In other words, Constitutionalism opposes concentrating
all authority in a single organ and instead favours limiting these powers.”“As a result,
constitutionalism is also known as "Limited Government," and the
"constitution" is the source of these power restraints.”[i]
“The
emancipatory goal of transformative constitutionalism is based on the belief
that large-scale social transformation within a democratic system can be
achieved through the process and instrumentality of the law.”“Transformative
constitutionalism promotes a reading of the constitution that avoids formalism,
pure positivism, and legalism, and instead recognises and responds to the
realities of hierarchical structures and power relationships within a society.”[ii]
“Concept
of Transformative Constitutionalism”
“We
live in a rapidly evolving world that changes on a regular basis. As a result,
in order to keep up, society must undergo some modifications.”“These amendments must
be made to the country's constitution.”“The Constitution is a text that aims to bring about
societal change.”“To
put it another way, the constitution needs to change to keep up with the pace
of civilization.”
“Transformative
constitutionalism is an idea that has been around for a long time.”“It has been around
since 1998 and was initially detailed in an article by American Professor Karl
Klare titled Legal Culture and Transformative Constitutionalism.””[iii]“The study of the South
African Constitution and the freedom movement inspired the concept of
transformational constitutionalism.”“He described transformative constitutionalism as a
"long-term endeavour" that altered political and social institutions
through the Constitution's enactment, interpretation, and enforcement.”“He also stated that the
theory was futuristic in nature, implying that the goal was to develop the
existing democracy and better it in the long run.”
“Constitutionalism
encompasses the concept of adhering to the basic structure of values defined by
a system of government.”“Transformation
refers to a structured method of bringing about change, whereas
constitutionalism refers to the concept of adhering to the basic structure of
values defined by a system of government.”“The term transformational constitutionalism refers to the
combination of these two ideas.”“Transformative
constitutionalism is a subjective interpretation process.”“There isn't a single
definition or understanding of it.”“In
truth, each definition is hotly debated and as of today, there is no consistent
grasp of the notion.”
“Transformative
constitutionalism has taken on numerous meanings now, as it does with all
successful endeavours, and much more so now that it has become a notion of
comparative law.”“"If
there is a philosophy that embraces the goal of constitutions as society's new
moral and political base, this concept is transformative
constitutionalism," says one of the most well-known definitions.”“Many countries,
including Europe and the United States, have constitutions that serve to
establish a new political and moral foundation for their societies,
particularly when they emerge from the victory of a revolutionary movement, as
in the early French constitution, or when they are adopted in response to past
horrors, as in Germany and many Eastern European states.”[iv]
“Different
interpretations of Transformative Constitutionalism”
“Transformation
from a colonial rule to self-governance”
“This
is regarded as a sort of transformative constitutionalism in the sense that a
new framework for the Indian government was adopted in a systematic manner.”“When India attained
independence from British colonial rule on August 15, 1947, an example of
transformative constitutionalism was seen, according to this interpretation.”“The shift occurred not
only in terms of government, but also in terms of the entities in charge of
running the country.”“India
was converted from a country ruled by foreign colonisers to one ruled by its
own people, who were able to choose their own government and leaders.”
“Although
the Government of India Act 1935 adopted a majority of the British rulers'
framework, the change prepared the way for a new government that was formed by
the people, for the people, and by the people.”“The Constitution introduced new values,
such as dharma and justice.”“The
system's transition to support these ideals was a constitutional requirement.”“As a result,
transformative constitutionalism can be defined as the methodical acceptance of
a new framework for the Indian government and the creation of the Indian
Constitution.”
“Transformation
of society and state”
“This
interpretation is less event-specific and instead focuses on the country's
ever-changing legislative and administrative changes.”“According to interpretation, the way a
state acts in connection to the way society functions, and vice versa, is
constantly changing.”“Both
the state and society are influenced by one another, and both are evolving and
changing.”“This is
also known as transformational constitutionalism, in which the Constitution's
essential values are upheld through change, such as in the judicial system.”
“One
contemporary example is the 2018 case of Navtej Singh Johar
versus Union of India, in which a component
of Section 377 of the Indian Penal Code was decriminalised because it
prohibited consenting acts of sex between members of the LGBT community.”“After more than 70
years of independence, the demands of society evolved, prompting this
transformation.”“This
type of transformational constitutionalism can be found in a number of other
places.”
“Transformative
Constitutionalism in India”
“Transformative
constitutionalism was implemented in India as well, beginning in 1933.”“In 1933, the British
established communal prizes, which required distinct representatives in Hindu,
Muslim, and Christian languages.”
“The depressed classes were also given a number of seats, but only the
depressed classes were allowed to vote for them.” “MK. Gandhi reacted by going on a hunger
strike, which ended with the Poona Pact, a pact between M.K. Gandhi and B.R.
Ambedkar.”“Some
rules were relaxed as a result of the agreement. M.K. Gandhi saved the country
at the moment, but he had no idea what would happen in the future; the
reservation system would just become a means of increasing the vote bank.”
“Similarly,
important reforms such as the repeal of Articles 370 and 35(A) have occurred.”“These adjustments may
have imposed a financial strain on Pakistan and Kashmir, but they were
compelled by the dire situation.”“One
example of transformational constitutionalism is the legalisation of the LGBTQ
committee.”“This is
how the dynamism of a constitution contributes to the development of a country
and its people.”
“Our
constitution is 73 years old, yet it is the legal profession's or legislature's
responsibility to keep it up with the times.”“We are all aware of the annual dispute
between India and China, which also needs to be settled.” “Since 1950, the constitution has
undergone a number of modifications, but there are many more on the way.”
“In
some of the most important judgments in Indian society over the last two
decades, there are various examples of transformative constitutionalism.”“These are an attempt to
bring about good change and provide a glimpse into how the legal structure and
mechanisms may develop and improve in the future.” “One such example is the Ayodhya verdict.”
“M Siddiq (D) The Lrs
vs. Mahant Suresh Das & Orswas
a complicated case centred on a land dispute between two religious communities.”“The contested site is
located near Ramkot, Ayodhya, and Hindu devotees believe it to be the
birthplace of Lord Ram.”“The
Babri Masjid, a mosque erected under the command and authority of Mughal
Emperor Babar, was constructed on the same plot of land.” “Several Hindus felt insulted
because the Mughals had taken over the region they venerated as the birthplace
of their deity during their reign.”
“During a political protest on December 6, 1992, Hindu extremists
demolished the Babri Masjid.”“Following
this, a complaint was filed with the Allahabad High Court, which determined
that the land should be divided into three equal sections and distributed among
the aggrieved parties.” “It
went on to say that the contested property was Lord Ram's birthplace at the
time, and that the mosque was built after the demolition of a Hindu temple,
which was in violation of Islamic beliefs.” “The participation of historical facts as well as
traditional and religious beliefs was the key issue in this case.”
“When
their mosque was demolished by Hindu fundamentalists, many Muslims felt
betrayed.”“Hindus
felt betrayed because a hallowed place of worship was taken over by a foreign
Mughal Emperor for the construction of a mosque.”“Each group had its own grievances and
points of view, and the subject was exceedingly delicate.”“In 2019, the Supreme Court
heard the case for the final time after all parties appealed to it.”“The Supreme Court of
India handed down its final decision in this matter on November 9, 2019.” “The Court based its
decision on a report by the Archaeological Survey of India, which stated that
there were remains of a "non-Islamic" building beneath the demolished
structure of the Masjid, and that the disputed land should be given to a trust
set up by the Government of India for the purpose of constructing a Hindu
temple.”“The Court
also ordered those 5 acres of land be given to the Sunni Waqf Board for the
purpose of constructing a mosque, stating that the mosque's demolition was
illegal.”
“This
is one of the most recent examples of transformational constitutionalism, in
which efforts were taken to guarantee that neither religious community was
offended, and that rather than being split over religious problems, communities
were brought together.”“In
this context, transformative constitutionalism refers to a systematic journey
toward a society in which all religions can coexist without discrimination or
inequities, a process that the Constitution has advocated for from its
inception.”“This
decision has elicited a variety of reactions, but it is evident that it was
made with a futuristic mindset in mind, emphasising national unity over
religious differences.”[v]
“Conclusion”
“For
more than two decades, the phrase "transformative constitutionalism"
has been used.”“However,
it has been around for much longer as a procedure, and it will continue to
exist under the existing legal situation.”“As has been noted, several of India's most important
judgments in recent years have revolved around the concept of transformative
constitutionalism and have placed a high value on it, using the Constitution as
a tool to improve the country's existing human rights, legal rights, and other
constitutional rights.”“Although
difficult to explain or define, transformational constitutionalism is a process
and an event that has played a significant part in establishing the nature of
democracy and a constitution within it.”
This Blog is written by Aryan Mohanty, 2nd year student from Symbiosis Law School, Nagpur
[i]Arushi Negi,
CONSTITUTIONALISM AND TRANSFORMATIVE CONSTITUTIONALISM, Lexlife India, https://lexlife.in/2021/06/03/constitutionalism-and-transformative-constitutionalism/
[ii]Mayank Bhandari,
Transformative Constitutionalism, Legal Service India, https://www.legalserviceindia.com/legal/article-2275-transformative-constitutionalism.html
[iii]Sharanya Ghosh,
Transformative Constitutionalism, iPleaders, https://blog.ipleaders.in/transformative-constitutionalism/
[iv]Priya Shekhawat,
Transformative Constitutionalism,https://www.ijlmh.com/wp-content/uploads/2020/01/Transformative-Constutionalism.pdf
[v]Meera Emmanuel,
Constitution Day 2019: Transformative Constitutionalism and the Indian Supreme
Court, Bar & Bench, https://www.barandbench.com/columns/constitution-day-2019-note-on-transformative-constitutionalism#:~:text=%E2%80%9CThe%20whole%20idea%20of%20having,%E2%80%9C
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