Transformative Constitutionalism in Practice

5.1 Concept and Origins

Transformative constitutionalism posits that a constitution is not merely a governance document but a blueprint for social transformation. It requires that courts and the state actively advance its aspirations, not just its literal text.

Three Core Requirements

1. Constitutional provisions must be interpreted to advance their transformative purpose — not just their original literal meaning
2. Courts must actively use constitutional interpretation to challenge entrenched social hierarchies
3. The state has positive obligations to achieve substantive equality, not merely formal equality

In India, this concept is most visible in the evolution of Article 21 — from a simple guarantee against arbitrary deprivation of life and liberty, to an expansive right encompassing dignity, privacy, livelihood, health, education, and clean environment.

Justice D.Y. Chandrachud's Role

Justice D.Y. Chandrachud (former Chief Justice of India, 2022–2024) is the foremost proponent of transformative constitutionalism in Indian jurisprudence. In judgments like Navtej Johar, Puttaswamy (concurrence), and Sabarimala, he articulated that the Constitution's transformative project requires dismantling structures of oppression — caste, gender, sexuality — through active judicial interpretation.

5.2 Key Dimensions

From Formal Equality to Substantive Equality

The Constitution's equality provisions (Articles 14, 15, 16) were originally understood as requiring formal, procedural equality (treat everyone the same). Transformative constitutionalism requires substantive equality — recognising structural disadvantages and actively remedying them through reservations, affirmative action, and special protective legislation.

From Negative Rights to Positive Rights

Early constitutional interpretation treated Fundamental Rights as negative rights (the state shall not...). Transformative interpretation has created positive obligations — the state must provide conditions for the exercise of rights. Examples: right to shelter, food security, and quality education as components of Article 21.

Dignity as a Transformative Anchor

The Preamble's concept of dignity has been judicially transformed from an abstract value to a constitutional command. No law may treat any class of persons as inherently inferior or unworthy of equal concern and respect.

5.3 Constitutional Morality vs. Popular Morality — The Ambedkar Dimension

Dr. Ambedkar's warning about constitutional morality has taken on new relevance. He observed (November 4, 1948):

"Constitutional morality is not a natural sentiment. It has to be cultivated. We must realise that our people have yet to learn it. Democracy in India is only a top-dressing on an Indian soil which is essentially undemocratic."

Three Dimensions of Constitutional Morality in Recent Jurisprudence

1. Procedural morality — following constitutional processes, not shortcuts (even popular ones)
2. Substantive morality — adherence to constitutional values like equality and dignity
3. Institutional morality — respect for institutional roles (judiciary, executive, Parliament each staying in its lane)

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