Transformative Constitutionalism in India: Meaning, Principles, Landmark Judgments and Challenges

Introduction: What Is Transformative Constitutionalism?

The Indian Constitution is not merely a legal document that establishes government institutions. It is also an instrument for transforming society by promoting justice, liberty, equality and human dignity.

Transformative constitutionalism refers to the process of interpreting and applying the Constitution to overcome historical inequalities and build a more just, inclusive and democratic society. It recognises that constitutional principles must respond to changing social realities while remaining grounded in constitutional text and values.

The idea originated in South African constitutional discourse, notably Karl Klare’s 1998 essay on that country’s post-apartheid Constitution, and gained greater prominence in Indian constitutional jurisprudence during the 2010s. In India, it has informed judicial decisions concerning gender equality, LGBTQ+ rights, privacy, caste discrimination and social justice.

The central idea is simple: the Constitution should protect individual freedom while helping create conditions in which every person can enjoy dignity and equality.

Constitutional Foundations of Transformative Constitutionalism

The Indian Constitution provides several foundations for social and institutional transformation.

1. The Preamble

The Preamble establishes justice, liberty, equality and fraternity as the guiding ideals of the Indian constitutional order. These values provide a framework for addressing discrimination and promoting inclusive development.

2. Fundamental Rights

Fundamental Rights protect individuals against arbitrary state action and establish the basis for equality and personal freedom.

Important provisions include:

• Article 14: Equality before the law and equal protection of the laws.
• Article 17: Abolition of untouchability.
• Article 19: Protection of specified freedoms.
• Article 21: Protection of life and personal liberty.

These provisions enable constitutional principles to be applied to changing social conditions.

3. Constitutional Remedies: Articles 32 and 226

Article 32 empowers individuals to approach the Supreme Court for the enforcement of Fundamental Rights. Article 226 empowers High Courts to issue writs for the enforcement of Fundamental Rights and for other legal purposes within their jurisdiction.

These provisions enable courts to review government action and provide remedies when constitutional rights are violated.

4. Directive Principles of State Policy

The Directive Principles guide the state towards social and economic justice. Although they are not directly enforceable by courts, they help shape public policy concerning education, health, welfare and the reduction of inequality.

Together, these constitutional provisions establish the foundation for a society based on dignity, equality and justice.

How Has the Indian Judiciary Promoted Transformative Constitutionalism?

The judiciary’s approach to constitutional interpretation has evolved over time. The emphasis has gradually expanded from interpreting constitutional provisions narrowly towards examining their broader purpose, particularly in cases involving liberty, equality and social justice.

This evolution demonstrates how constitutional interpretation can respond to social change while remaining anchored in constitutional principles.

Major Dimensions of Transformative Constitutionalism

1. Abolition of Social Hierarchies

Transformative constitutionalism seeks to dismantle social structures that deny individuals equal status and dignity.

Article 17 abolishes untouchability, while Article 14 guarantees equality before the law.

In Indian Young Lawyers Association v. State of Kerala (2018), commonly known as the Sabarimala case, the Supreme Court’s majority examined restrictions on women’s entry into the temple through the constitutional principles of equality, non-discrimination and religious freedom.

In Navtej Singh Johar v. Union of India (2018), the Supreme Court decriminalised consensual same-sex relations between adults by reading down Section 377 of the Indian Penal Code. The judgment affirmed dignity, privacy and individual identity.

2. Caste Equality and Reservation

Transformative constitutionalism recognises that formal equality alone may not overcome historical disadvantage. Constitutional measures can therefore address structural barriers faced by disadvantaged communities.

Important judgments include:

• Indra Sawhney v. Union of India (1992): Upheld reservation for Other Backward Classes in specified public employment and established the creamy-layer principle for OBC reservation.
• Jarnail Singh v. Lachhmi Narain Gupta (2018): Addressed reservation in promotions for Scheduled Castes and Scheduled Tribes, including the application of the creamy-layer principle.
• State of Punjab v. Davinder Singh (2024): Held that states may sub-classify Scheduled Castes for reservation purposes, subject to constitutional requirements and a rational basis.

These cases illustrate the continuing constitutional debate over substantive equality and the distribution of affirmative-action benefits.

3. Gender Justice

Gender justice is a central dimension of transformative constitutionalism because it challenges discriminatory laws, institutional practices and social assumptions.

Vishaka v. State of Rajasthan (1997) established guidelines to address sexual harassment of women in the workplace in the absence of dedicated legislation.

Joseph Shine v. Union of India (2018) struck down the adultery offence under Section 497 of the Indian Penal Code, rejecting a legal framework that treated women as subordinate to their husbands.

Both judgments demonstrate how constitutional principles can be used to protect dignity and promote gender equality.

4. Environmental Justice

Transformative constitutionalism also extends to environmental protection because a healthy environment is closely connected to human life and well-being.

Through a series of M.C. Mehta cases, the Supreme Court developed important environmental principles, including the polluter-pays principle, and addressed pollution affecting air and water.

Environmental jurisprudence has also connected Article 21 with the protection of life and environmental quality.

5. Economic and Labour Rights

Constitutional transformation is not limited to civil and political freedoms. It also concerns the social and economic conditions necessary for a dignified life.

• Olga Tellis v. Bombay Municipal Corporation (1985): Recognised the close relationship between the right to livelihood and the right to life under Article 21.
• Workmen v. Meenakshi Mills Ltd. (1992): Addressed labour protections and the constitutional framework governing industrial employment.
• People’s Union for Civil Liberties v. Union of India: The right-to-food proceedings helped advance food-security measures and welfare entitlements.

These developments show how constitutional interpretation can influence policies intended to reduce deprivation and protect vulnerable groups.

6. Privacy, Autonomy and Emerging Rights

Modern constitutional jurisprudence increasingly recognises that dignity includes control over personal choices, identity and private life.

In K.S. Puttaswamy v. Union of India (2017), a nine-judge bench of the Supreme Court unanimously recognised privacy as a Fundamental Right.

The judgment strengthened the constitutional basis for individual autonomy and informed later debates concerning data protection, bodily integrity and personal freedom.

Other Landmark Judgments on Transformative Constitutionalism

S.R. Bommai v. Union of India (1994)

The Supreme Court reinforced secularism as part of the Constitution’s basic structure and placed constitutional limits on the use of Article 356 to dismiss state governments.

National Legal Services Authority v. Union of India (2014)

In the NALSA judgment, the Supreme Court recognised transgender persons as a third gender and affirmed their constitutional rights to equality, dignity and legal recognition.

Association for Democratic Reforms v. Union of India (2024)

In the electoral bonds case, the Supreme Court struck down the Electoral Bond Scheme and related legal amendments. The judgment emphasised voters’ right to information and the importance of transparency in political funding.

This decision illustrates the role of constitutional principles in strengthening democratic accountability.

Impact of Transformative Constitutionalism on Governance and Society

Transformative constitutionalism has influenced several areas of public policy and institutional development.

• Education: Article 21A and the Right of Children to Free and Compulsory Education Act, 2009, provide a framework for elementary education.
• Health and welfare: Constitutional principles concerning dignity and life inform debates on healthcare access and social protection.
• Food security: Right-to-food jurisprudence has contributed to discussions and measures concerning food entitlements.
• Gender equality: Judicial decisions and legislation have strengthened protections against workplace sexual harassment and gender-based discrimination.
• Individual autonomy: Privacy and dignity jurisprudence has expanded constitutional protection for personal choices.
• Democratic accountability: Electoral transparency judgments reinforce the relationship between informed voting and representative democracy.

The extent of implementation varies across sectors, but these developments demonstrate the practical influence of constitutional values on governance.

Challenges to Transformative Constitutionalism in India

Despite its potential, transformative constitutionalism faces several challenges.

1. Majoritarianism and Minority Rights

Majority preferences may conflict with the constitutional rights of minorities. Maintaining equality, secularism and freedom of conscience requires institutions to protect constitutional guarantees even when doing so is politically difficult.

2. Weak Implementation

Judicial recognition of rights does not always lead to effective implementation. Persistent caste discrimination, manual scavenging and barriers to welfare access demonstrate the gap between constitutional commitments and social realities.

3. Patriarchal and Social Norms

Deep-rooted social attitudes can limit the impact of judicial reforms. Changes in law may face resistance when they challenge established gender roles or customary practices.

4. Judicial Overreach

Critics argue that expansive judicial interpretation may sometimes cross the boundary between interpreting the Constitution and making policy. The challenge is to protect constitutional rights while respecting institutional roles and democratic accountability.

The limits were visible in Supriyo Chakraborty v. Union of India (2023), where a five-judge bench declined to recognise same-sex marriage and left the question to Parliament.

5. Unequal Access to Justice

Legal costs, procedural delays, limited legal awareness and social inequality can prevent marginalised communities from enforcing their rights.

Transformative constitutionalism therefore requires not only progressive interpretation but also accessible institutions and effective implementation.

Way Forward

To strengthen transformative constitutionalism, India needs a combination of constitutional interpretation, institutional reform and social participation.

1. Improve access to justice: Expand legal aid, reduce procedural delays and improve awareness of constitutional remedies.
2. Strengthen implementation: Ensure that judicial directions and welfare laws are implemented effectively.
3. Promote constitutional literacy: Educate citizens about equality, liberty, dignity and their constitutional rights.
4. Protect institutional independence: Maintain the independence of courts and constitutional bodies while ensuring accountability.
5. Address structural inequalities: Improve access to education, healthcare, employment and legal protection for disadvantaged groups.
6. Maintain constitutional balance: Encourage judicial reasoning that protects rights while respecting constitutional text, precedent and the separation of powers.

Conclusion

Transformative constitutionalism views the Indian Constitution as a living framework for achieving social justice, equality and human dignity. Through the Preamble, Fundamental Rights, constitutional remedies and Directive Principles, it provides the foundation for challenging historical inequalities and protecting individual autonomy.

Landmark judgments on privacy, gender justice, caste equality, LGBTQ+ rights and electoral transparency demonstrate how constitutional principles can respond to changing social realities.

However, judicial decisions alone cannot transform society. Effective implementation, public awareness, institutional accountability and equal access to justice are equally important. The ultimate objective is to bridge the gap between constitutional ideals and people’s lived experiences, creating a more just, humane and inclusive democracy.

Frequently asked questions

What is transformative constitutionalism?

It is a way of reading the Constitution as an instrument for changing unjust social structures, not only for limiting the state. The Supreme Court used it in Navtej Singh Johar (2018), Joseph Shine (2018) and the Sabarimala case (2018).

Where did the idea of transformative constitutionalism come from?

From South Africa: Karl Klare used the term in a 1998 essay on the post-apartheid Constitution. Indian courts began using it in the 2010s.

What are the main criticisms of transformative constitutionalism?

Critics say it is vague and can lead to judicial overreach. Its limits were seen in Supriyo Chakraborty (2023), where the Court left same-sex marriage to Parliament.

More BPSC Polity notes

This note is part of our series on the 40 Polity topics for 72nd BPSC Mains GS Paper II. Related notes:

• Preamble of the Indian Constitution
• Constitution, constitutionalism and constitutional morality
• Separation of powers in India
• Fundamental Duties (Article 51A)
• President of India: veto, ordinances and pardons
• Vice President of India
• Centre–state relations and the Governor

Practise with the Bihar polity and geography previous-year questions, and see where Polity sits in the exam in the BPSC syllabus and exam pattern.