Transformative Constitutionalism – The Saga Of Social Change


It is implicitly invoked in every demand of justice, equality, dignity and assistance because all such demands can be made only in its name and it is the state responsibility to meet all these expectations.[1]

The beauty of the Indian Constitution is that it includes I, you and we. Such a magnificent monumental and social document embodies the emphatic inclusion which is nurtured by judicial sensitivity into the golden triangle of Fundamental Rights. The law was prevalent from amidst times since the origin of the society. Natural law has been recognised as the genesis of law. Thereafter the Natural law become the underlying principle for preserving justice and securing the freedom and liberties of the individuals. Thus, law and has become the instrument of social change. Law is immensely the broad concept just like an ocean which includes notions to provide justice to the masses and also assures the security to the individual living in the particular society.


Recent judgments delivered by the Supreme Court highlights the role of the judiciary being played in the recent times. Thus, judgments of the recent times involve the crucial aspects of the social life where the apex court adopted the principles of the transformative constitutionalism.


The right to privacy was one of the issue arising out from the Aadhar case, wherein the validity of mandatory imposition on the part of the government of India to have the “Aadhar Card” in order to avail the benefits of the government schemes and policies. The bench observed that right to privacy is an intrinsic and inalienable right of the citizens and therefore it was embedded under Article 21 of the Indian Constitution. It was further observed that

Privacy of the individual is an essential aspect of dignity. Privacy enables the individual to retain the autonomy of the mind and the body. The autonomy of the individual is the ability to make decision on the vital matters concerned with the life. Privacy of the body entitles an individual to the integrity of the physical aspect of personhood. The intersection between one’s mental integrity and privacy entitles the individual to the freedom of thought, freedom to believe in what is right and the freedom of self determination. When these guarantees intersect with the gender they create a private space which protects all those elements which are crucial to the gender equality. The marriage, the family, the procreation and the sexual orientation are all integral to the dignity of the individual. Above all the Privacy of the individual recognises inviolable right to determine how freedom shall be exercised. The freedom guaranteed under Article 19 of the Indian Constitution can only be fulfilled where the individual is entitled to take decision on its preference. Article 21 of the Indian Constitution secure the liberty, dignity of the individual including what and how one will eat, the one the way will dress, the faith the one will espouse and myriad other matter which autonomy and self determination requires a choice to be made within the privacy of mind”.


In this particular case the apex court declared the practice of Triple Talaq unconstitutional as it was against the rights of women and thus following the principle of Transformative Constitutionalism it was observed that “Be you ever so high, still the law is above you”. In case of triple talaq and status of Muslim women under Muslim law these words of Thomas perfectly fits. The messiah of god protected the rights of the Muslim women, who were treated as mere chattels before the most valuable words of the messenger. God created men and women equally and no practice can go beyond the creation of god. Founding fathers of the constitution left no opportunity to abide them with the rule of god and on this basis made rule of law. In the most celebrated decision of the apex court on triple talaq considered what is bad in theology once good in law is also bad in law. Supreme Court is considered as Guardian of Constitution but it would be right to refer it as guardian of rights and dignity of every individual as vote bank politics blew the candle of Right of maintenance of Muslim women Supreme Court gave its hand to the drowning rights of Muslim women.

4. SECTION 377 CASE[4]

“No one escape from their individuality, but society has now fairly gone better of individuality and the danger which threatens human nature is not the excess, but the deficiency of personal impulses and preferences.”- Arthur Schopenhauer

The misapplication of this provision denied them the fundamental right to equality guaranteed under Article 14 of the Indian Constitution. It infringed the Fundamental Right to non discrimination under Article 15 of the Indian constitution and fundamental right to live with dignity and privacy guaranteed under Article 21. Therefore a perusal of Section 377 reveals that it classifies and penalizes persons who indulge in carnal intercourse with the object to protect women and children from being subjected to carnal intercourse. This discrimination and unequal treatment meted out to the LGBT Community as a separate class of citizens is unconstitutional for being violative of Article 14 of the Indian Constitution.

4. SECTION 497 CASE[5]

Treating Adultery as an offence in a criminal law is unwarranted in law. The position which forms the basis of the legislation of Adultery as a criminal offence is based upon the concept of patriarchal view. Section 497 of the Indian Penal Code is based on the perception of righteous which disappoints to accord with conditions on which the constitution of India was established. Therefore Section 497 of the Indian Penal code is unconstitutional and adultery should not be treated as offence and it is also appropriate to declare Section 198 of Criminal Procedure Code which deals with the procedure for filing complaint in relation to the adultery is unconstitutional. When the substantive provision goes unconstitutional, the procedural has to pave the same path.


The Honourable Supreme Court observed that prohibiting women of particular age is a violation of fundamental rights and the religious texts are subordinate to the values of liberty, equality and dignity enshrined under the Indian Constitution. The irony that is nurtured is that historically women have been treated with inequality and that’s why many have fought for their rights. Susan B. Anthony known for her feminist activity succinctly puts, “Men, their rights and nothing more; women rights, nothing less. It is a universal truth that faith and religion do not countenance discrimination but religious practices are sometimes seen as perpetuating patriarchy thereby negating the basic tenets of faith and of gender equality and rights. The societal attitudes too centre and revolve around the patriarchal mindset thereby derogating the status of women in the social and religious milieu. However, certain dogmas and exclusionary practices and rituals have resulted in incongruities between the true essence of religion or faith and its practice that has come to be permeated with patriarchal prejudices. Sometimes, in the name of essential and integral facet of the faith, such practices are zealously propagated.


“Constitution is ever growing and it is perpetually continuous as it embodies the spirit of nation. It is enriched at the present by the past experiences and influences and makes the future richer than the present”. 

The Constitutional democracies around the world indicates about the brooding spirit of law and these qualities inspired the Constitution makers to infuse the brooding spirit of law in the aorta of the Indian Constitution. For the Constitutional democracies to advance it it is essential that the law governing nation may follow transformative ways to make law as instrument of social change. Therefore it is the duty of the Constitutional Courts to interpret the provisions of the Constitution in a broad manner that its real intent of justice extends to all sections of the society. It is a settled law that the Constitution has two facets

  1. One is the ability of this document to transform which confers it the status of organic document.
  2. Second is the ability to continuously shape the lives of the individual in the society.

These aspects of the Indian Constitution reflect the essence of Transformative Constitutionalism. Thus, the preamble to the Indian Constitution constitutes India to be Sovereign, Socialist, Secular, and Democratic Republic. In the words of Justice S.K Kaul

The Constitution was not drafted for a specific time period or for a certain generation it was drafted to stand firm for eternity. It sought to create a Montesquieu framework that would endeavour in both war time and in peace time and in Dr. Bhim Rao Ambedkar famous words, “if things go wrong in the new Indian Constitution, the reason will not be that we had bad constitution, What we will have to say is that man was vile.

[1] Sudipta Kaviraj, “On the Enactment of State Indian thought on the role of the State in the Narrative of Modernity”( July 30, 2019, 10:05 AM)

[2] Justice K. S. Puttawamy(Retd.) &Anr. v. Union of India &Ors., (2017) 10 S.C.C. 1

[3] ShayaraBano v. Union of India &Ors., (2017) 9 S.C.C. 1.

[4] Navtej Singh Johar&Ors. v. Union of India &Ors., (2018) 10 S.C.C 1.

[5] Joseph Shine V. Union of India (Adultery Judgement) Writ Petition (CRIMINAL) NO. 194 OF 2017.

[6] Indian Young Lawyers Association &Ors. v. The State of Kerala &Ors, W.P(C) No. 373 of 2006.

Pranav Kaushal

Pranav Kumar Kaushal, Content Writter, Law Corner, Student B.A., LLB 7th Semester, School of Law, Bahra University, Shimla, Himachal Pradesh.

Leave a Comment