On Transformative Constitutionalism - A Critique

Author: LawSphereX

Category: Constitutional & Human Rights

Published: 2026-08-23T20:41:23.156943+00:00

Updated: 2026-08-26T17:10:16.87+00:00

ON TRANSFORMATIVE CONSTITUTIONALISM: A

CRITIQUE

Rinkie Bora, Law Postgraduate (NLU Delhi), Independent Researcher

ABSTRACT

The idea of transformative constitutionalism seems alluring in the twentyfirst century when countries are eager to outdo each other to meet democratic ideals. While doing so, one needs to be aware of the constitutional foundations of their nation. Every country has a unique character, and exists within a legal culture that is similar to none. Keeping that in mind, this article shall try to understand the concept of transformative constitutionalism and how it plays out in the presence of various factors like constitutional and public morality, global order, among others. Keywords: Transformative constitutionalism, Legal culture, Constitutional morality.

Introduction Constitutionalism as a concept is the anti-thesis of arbitrary rule. 1 It is the supremacy of the ideals of the constitution as opposed to ideals of any people in power. In that way, it is a concept of restrain and a tool for limitation. This limitation is imposed on two aspects – firstly, limitation to the government and secondly, limitation to interpretation of the constitution itself. Constitutions are higher laws of lands and permeates every aspect of the people’s lives. With time, the need of the people also changes due to which constitution itself undergoes some changes through the interpretive process of transformative constitutionalism. The Constitution of India has been described as a “living document” for its ability to transform society.

Transformative constitutionalism, on the other hand is the exception to that restrain or limitation that leaves room for change in the society through change in law. While talking about transformative constitutionalism, it is often assumed that a dynamic interpretation of constitutionalism goes hand in hand with constitutional morality. A triumph of a more stable constitutional morality over the ever-changing public morality is hailed and it is automatically assumed that such a change is always positive and anti-dogmatic. Former Justice Prius Langa of the Supreme Court of South Africa said that transformative constitutionalism has been referred to as a bridge between past and future that is required to heal the wounds of the past through dynamism. But he also pointed out that ‘hyper-globalization’ is devouring constitutional values.

This is further aided by phenomena like economic rationalism and hyper fundamentalism. Due to these factors, transformation (whether of constitution or society, or both) is not related to politics anymore, rather it is based on ‘identity’ and ‘difference’. Identity and difference are subjective markers which constitutes public opinion and in turn, public morality. Hence, to say that transformative constitutionalism is devoid of public morality, or that constitutional morality always part ways with public morality will not only be inappropriate but also inadequate. Such an artificial division when reiterated over period of time becomes a dominant way to interpret laws. Both judicial restraint and judicial activism upon getting entrenched on such dichotomies, end up hampering policies that can affect masses adversely. Transformative constitutionalism can be understood in many ways.

Sometimes it is understood as a pathbreaking event, for example: transitioning to self-rule from colonial rule as was the case with South Africa and India. It can also be understood as a continuous process through which changes are introduced in a society based on the need of the time and will of the

1 C H McILwain, Constitutionalism: Ancient and Modern (1940)

SA De Smith, Constitutional and Administrative Law (1977)

people. The second process sets up in motion with a goal of an ideal society in mind while adhering to principles of constitutional morality. Transformative constitutional interpretation can thus have both positive and negative consequences. While there are no established principles to judge these subjective effects, it seems more plausible and reasonable to adhere to the constitutional principles as it were envisioned while forming the constitution. Transformative Constitutionalism – The Concept In order to understand transformative constitutionalism, it is imperative that constitutionalism is discussed first.

Hunt (1997 at 22) describes the notion of constitutionalism thus: ‘in any democratic system there are certain transcendental values that which enjoy a “constitutional” status, in the sense that they embody fundamental ideas or aspirations which democracy itself presupposes and which therefore cut across the political programmes of particular governments ... the bare minimum that is required of a commitment to constitutionalism is a rejection of the instrumentalist conception of law which sees it as a mere tool to be used by governments in order to achieve their political goals. ’2 Originally, the phrase transformative constitutionalism emerged from Karl E.

Klare’s work3 on critical legal theory and legal culture in the context of post-apartheid South Africa whereby it was described as “an enterprise of inducing large-scale social changes through non-violent political process grounded in law... a transformation vast enough to be inadequately captured by the phrase 'reform,' but something short of or different from 'revolution' in any traditional sense of the word. ” Transformative constitutionalism has been referred to as a bridge between past and future that is required to heal the wounds of the past through dynamism. 4 Without this continual nature, a constitution will be reduced to a mere diplomatic and procedural document. 5 In this regard, the example of South African Constitution was given, whereby Prof. Baxi described it as a diagnostic and therapeutic constitution which gave power to popular sovereignty.

Transformative Constitutionalism refers to such a way of constitutional interpretation that seeks to bring changes in the society through the constitutional principles. It is a novel way of interpretation to accommodate the changing demands of the society. It can also be understood with the kind of end goal it tries to achieve. 2 John Adler, Constitutionalism: The Rule of Law and the Separation of Powers, Constitutional and Administrative Law 69-89 Palgrave, London (1999) 3 Karl E Klare (Professor of Law) Legal Culture and Transformative Constitutionalism, South African Journal on Human Rights, 14:1, 146-188 (1998) 4 Upendra Baxi, Preliminary Notes on Transformative Constitutionalism, in Oscar Vilhena, Upendra Baxi, Frans Viljoen, Tranformative Constitutionalism : Comparing the Apex Courts of Brazil, India and South Africa, Chapter 1, 19-48 Pretoria University Law Press (2013)

5 Ibid.

More often than not, the goal has been to create a liberal society on ideals of liberty, equality, and fraternity. To what extent it has been able to do it, no one can say for sure as the parameters will be subjective. What is pleasant to some can be unpleasant to others, and vice-versa. Let us for now, go ahead with an understanding that transformative constitutionalism is a continuous process to change society. Change in black letters of the constitutional law takes place through amendments. Article 386 of the Indian Constitution gives its Parliament the power to introduce changes in the form of addition, variation or repealment in the constitution with a majority. Constitutional amendments and judicial activism can both contribute towards a change in law. However, change in society takes place through many ways, but mainly through change in public values and opinion, the volkgeist.

Public opinion cannot be understood in isolation from the concept of public morality. Public morality can be considered as a compass of public opinion that governs people’s interaction with the social aspect of life. Over the years the compass has changed for better or worse. The concept of public morality has been mentioned in several international and regional legal instruments from Universal Declaration of Human Rights (UDHR) to the European Convention of Human Rights (ECHR) and national authorities use this as the foundation of their claim that there is no universal morality. 6 Public morality is also used to circumvent general laws, and is a popular tool at the hands of the state as nobody can practically measure how the public feels and to what extent the feeling is strong enough to govern the public life.

Constitutional Morality and Public Morality in Transformative Constitutionalism As I have already discussed about the concept of public morality in the previous section, I will now focus on constitutional morality’s relation to it. Constitutional morality simply refers to the adherence of constitutional principles rather than principles of the society in order to have system where rule of law is respected. In this regard, Dr. B. R Ambedkar again famously said that “democracy is only a top dressing on an Indian soil which is essentially undemocratic. ” He seemed to point out that Indian people actually lacked constitutional morality, so even though democracy as a system of governance has been adopted, it only works at the surface level. A bevy of judicial opinions have over a period of time tried to understand the relation

6 Nurhidayatuloh and Febrian and Akhmad Idris and Rd. Muhammad Ihksan and Helena Primadianti and

Fatimatuz Zuhro and Irawati Handayani and Kukuh Tejomurti, Is Public Morality Able to Restrict Human Rights? Proceedings of the 3rd International Conference on Globalization of Law and Local Wisdom (ICGLOW 2019), 41-44, Atlantis Press (2019)

between constitutional and public morality while interpreting the Constitution. In Navtej Singh Johar7, a significant case demonstrating transformative constitutionalism, it has been stressed that constitutional morality and public morality are different and ought to be kept separate. 8 In Sabarimala9, the dissenting opinion of Justice Indu Malhotra seems to point out why public morality has to be considered depending on the situation, in this case, essential religious practices and that not everything can be evaluated on the touchstone of Article 14. 10 In State of Bombay v. RMD Chamarbaugwala11, the petition was to recognize gambling transaction under “trade and business” of Article 19(1)(g) which the Supreme Court refused by saying that gambling is a vice in our society and cannot be legalized. 12 It gave inference of the epic Mahabharata and also the maxim of res extra commercium.

Here, public morality and legal morality overlapped. Film censorship or certification and liquor regulation are other areas where laws are made keeping in mind the greater interest of the society – public health and child safety that comes within the ambit of morality. More often than not, public morality entail a sense of majoritarianism. Alternatively, scholars like W. Sadurski13 gave a critique on majoritarian argument of morality whereby he said that the mechanical view that morality has to be harmful to minority is an overworked one. He describes how majoritarian standards of morality sometimes protects minority from itself. For example: Jehovah’s Witnesses, a Christian denomination whose religious principles prohibits blood transfusion. 14 The medical standards which are based on majoritarian ethics prescribes otherwise in situations of need.

Again, David A J Richards15 stressed on individual autonomy even in cases of public morality. He elucidated it with an example that people retain State’s prohibition in intimate relations not because they are traditional but they do it in service of ethics of self-governing moral freedom. However, there are no consistent standards to judge concepts like this. As we have seen, these two concepts have overlapped many a times. It is left to the judiciary to understand and adjudicate it on a case-by-case basis.

7 Writ Petition (Criminal) No. 76 of 2016

8 Ibid.

9 Indian Young Lawyers Association & Ors. V. State of Kerala & Ors. (2019) 11 SCC 1

10 Ibid.

11 (1957) S.C.R. 874

12 Ibid.

13 Wojciech Sadurski, Conventional Morality and Judicial Standards, Virginia Law Review Vol 73-2, 339-397 (1987)

14 Ibid.

15 David A J Richards, Religion, Public Morality, and Constitutional Morality, Nomos Vol.30, 152-178 (1988)

Karl E. Klare wrote in the context of South Africa that “the strategic pursuit of transformative projects through adjudicative practices is not inconsistent with duties of interpretive fidelity. ”16 He took up and analysed how legal culture played out in “shaping and steering adjudication” and went on to identify a 'disconnect' between the 1996 Constitution's transformative aspirations and the conservative character of South African legal culture. 17 Transnational Ideals and Domestic Manifestation Justice Prius Langa has said that factors like hyper-globalization, market forces, capitalism, etc. , can corrode constitutional values over time. These factors exert overt and covert force on the legal systems of countries all over the world, whereby some countries get more adversely affected than others.

Sometimes, it can so happen that countries alter their laws to fit the demanding circumstances. The question here is regarding adherence to the principles of the Constitution and interpreting rights from within those principles in a given legal culture. One may again say that making laws solely dependent on culture requires it to be changed over a period of time. But the problem with doing so would be to again going by the opinions of the public and not constitutional ideals. It thus becomes a cyclical argument. While the intent seems honest and egalitarian, there are no set parameters for the assimilation and juxtaposition of concepts in domestic situations. Countries can lose the autochthonous values of their Constitution, or improve for better. Even while importing beneficial values, the question arises as to whose values should be considered as a benchmark and why.

The international order is one that is reflective of the Global North, leaving little to no room for Global South narratives. As has been already said by scholars, there is a great tilt towards the values of the Global North, especially American and Western European ideals that has permeated every institution and organization, especially those that were established after the Bretton Woods18 conference of 1st July, 1944. 19 Many countries after being ravaged by colonial powers were handed over to the people with new ideals of how a country should run. But these new idealistic concepts which drew inspiration from the liberal ideology of the West had failed 16 Karl E Klare (Professor of Law) Legal Culture and Transformative Constitutionalism, South African Journal on Human Rights, 14:1, 146-188 (1998)

17 Ibid.

18 Bretton Woods Conference held on 1st July, 1944, was a meeting of world leaders for financial cooperation that laid the foundation for the establishment of the World Bank group - International Monetary Fund (IMF), International Bank for Reconstruction and Development (IBRD) 19 Goerg Sorensen. “What Kind of World Order? The International System in the New Millennium.” Cooperation and Conflict 41, no. 4: Pages 343–63. (2006).

to meet the country-specific and autochthonous aspirations of such places which were grappling with unique social problems. Conclusion Co-existing with Savigny’s volkgeist or common will is the Hegelian concept of zeitgeist or spirit of the time that has the pervasive capacity to change the Weltanschauung or world view. Dr. B. R. Ambedkar famously said “Constitution is not a mere lawyer's document; it is a vehicle of life and its spirit is always the spirit of the age”. A good subjective marker of a constitution is its adaptability to growing needs of circumstances. An ease of amendment may affect constitutional ideals over time. It can happen through transformation induced by the world order, external economic factors, everchanging public morals, and all fleeting aspects of life.

If a beneficial transformation has to be realized, it has to start with questioning of the original and underlying premises of the status quo law. 20 Constitutionalism requires us to adhere to the values and principles of the constitution which can be interpreted through originalism and not to the opinions of the public at large. It is immaterial what motive the public has attached behind it . 21 A ‘legal culture’ based on public morality has a possibility of misguided aspirations. Similarly, the state too must not be given a power so omnipotent that it dictates how transformative constitutionalism has to be followed and which changes are positively ‘transformative’ for society. Changing or interpreting a constitution in a way contrary to what was intended can happen more often than not unconsciously in the pursuit of an ideal society.

In such cases, ironically, public morality is receiving the upper hand as compared to constitutional morality. Public morality does not always mean archaic practices that are diabolically against principles of human rights. It can also mean practices that have managed to make a place as a dominant opinion of the mass or as a Weltanschauung. Hence, such a transformation has to be organic and one that truly reflects constitutional principles, and not public opinions. 20 Aninka Classens and Geoff Budlender, Transformative Constitutionalism and Customary Law, Constitutional Court Review Volume 6, 75-104 (2014) 21 White Stephen. 1993. “Burke on Politics, Aesthetics, and the Dangers of Modernity. ” Political Theory 21 (3): 507–27 in Lorenzo Rustighi, The aesthetics of Burke’s constitutionalism: A dialectical reading. Philosophy & Social Criticism, 47(1), 102-129. (2021)