A Critical Analysis of Transformative Constitutionalism With Reference to Modern Approach of Judiciary

Abstract

A document with absolute legal authority is the constitution. It is an ultimate document of society; it lays down the fundamental principles as well as the norms of governance for theIndian society; it lays out the ambitions and aspirations of the people of India; and it lays down the rules of governance. It is possible to relate it to Kelson's 'grundnorm' or to Hart's 'rules of recognition,' and as such, it is the ultimate criteria for determining the legality of any other lawor executive action in Indian society, as well as an individual's activity. Constitutionalism refers to the belief that a society can be organised according to a certain set of principles, and that theConstitution can be used to regulate society and direct it toward its larger purpose. The Constitution has been called a "mirror" of society, and constitutionalists hold the belief that theConstitution can do all of these things. According to what the Supreme Court of India decidedin the case N. Nagaraj v. UOI (2006 SC), constitutionalism is connected to constitutional identity. Constitutionalism is also about ensuring that the constitutional identity continues to exist in the future, as the supreme constitutional identity is what makes constitutionalism so important. Checks and balances on the power of the state are a central tenet of constitutional theory, as is the concept of constitutionalists adhering to the doctrine of directed authority. Thegoal of giving the state more authority so that it can effect social change is central to the IndianConstitutionalist ideology. There is an unmistakable emphasis that we find in the constitution of our commitment to a transformation of relations, the relations between individual and State as well as between individual themselves. The constitution is transformative, and there is an unmistakable emphasis that we find in the constitution of our commitment to a transformation of relations. This revolutionary view of our constitution sheds light on how it should be interpreted and howit is implemented.The political ideology known as transformational constitutionalism has been around for quite some time. The constitutional model of South Africa is where these ideals originated, and they may be traced back to their roots there. In point of fact, the concept that lies at the heart of this ideal of transformative constitutionalism is difficult, if not impossible, to attribute to orassociate with the constitutional document of any one nation. It tries to make use of constitutional protections as well as the constitutional machinery in order to alter the society it rules into one that is more progressive – that is, to make it more inclusive in every respect andmore egalitarian in its attitude. This is sought to be accomplished in a significant part through the pursuit of what academics refer to as "substantive equality." This pursuit, which practically manifests itself through the enforcement of socio-economic rights – particularly those protecting the interests of minorities – as well as through affirmative action measures, is one of the primary means by which this objective is sought to be accomplished. The South African legal system has traditionally been characterised by a strong emphasis on transformative constitutionalism. An infusion of the ideals of liberty, equality, fraternity, and dignity into the existing social order is what is meant by the term transformative constitutionalism. This objective, which is a core pillar of transformative constitutionalism, isthe essential purpose of the constitution, which is to alter the society for the better, i.e., to makeit progressive and inclusive. Essentially, if there is a conspiracy between societal ills and the constitution, then society needs to be reformed in order to prevent further harm (change). It denotes that morality based on the Constitution takes precedence over morality based on society. The Constitution will continue to adjust itself in accordance with the changes that takeplace in society; nonetheless, the core of the Constitution will never be altered, although it maydevelop over the course of time. There are fundamental tenets of the Constitution that exemplify the revolutionary aspirations of the document, such as secularism, liberty, gender justice, and so on. Right to Privacy as a Fundamental Right (Justice K.S. Puttaswamy (ret.) and Anr. v. UOI 2017SC), entry into Sabarimala Temple by female (Indian Young Lawyers Association v. The State of Kerala and ORS., 2018 SC), stuck down the adultery as an offence (Joseph Shine and ORS. v. UOI 2018SC), Right to life with dignity, freedom to choose The Supreme Court is not required to abide by the letter of the Constitution; rather, it is required to abide bythe spirit of the document. UOI v. Secretary, Ministry of Law and Justice (decided on 06.09.2018), the Supreme Court of India recently reintroduced the concept of transformative constitutionalism to Indian law by decriminalising section 377 of the Indian Penal Code (IPC). When looking at the concept of "transformative constitutionalism," it is helpful to adopt a pragmatic perspective, asthis will assist in the process of identifying the realities that exist in the present day. The concept of transformation in its singular form is diametrically opposed to that of anything that is fixed and unmoving; rather, it connotes the capacity for change, modification, and metamorphosis. Therefore, the concept of transformative constitutionalism, which is actually applicable to all constitutions and particularly applicable to the Indian Constitution, refers to the capacity of a constitution to adapt and transform in accordance with the shifting requirements of the time. Inparticular, this refers to the Indian Constitution.Without interpretation that is fresh, alive, and grounded in reality, the Constitution risks becoming a static and irrelevant deed testament. It is necessary for the provisions of the Constitution to be interpreted and developed in such a way that its true intent and existence aremade known to all aspects of society. This is the fundamental purpose for the creation of the constitution. Realizing fundamental socio-economic rights is the most important goal oftransformation because it will help disadvantaged people become more capable of living a lifewith dignity, freedom, and equality, all of which are at the core of our constitutional democracy.This will be accomplished by ensuring that fundamental socio-economic rights are protected. In accordance with the transformative constitutionalism premise, it is the responsibility of thestate to protect and defend the constitution's position as the highest legal authority. The purpose of this thesis is to provide a comprehensive analysis of the development of the idea of transformative constitutionalism over the course of history. In addition, the purpose of this research is not simply to gain a general comprehension of transformative constitutionalism and the roles it would establish for the Legislative as well as the Judicial branches of government if it were truly inculcated in the Indian Constitution. Instead, the purpose of this research is to conduct a detailed investigation into how this ideal is being utilised right now, as well as how it might be utilised in the future.