Transformative constitutionalism
Also called: Constitution as a means of democratic transformation · Topic: Preamble and the Philosophy of the Constitution · NCERT: Class 11, Ch 10 "The Philosophy of the Constitution"
Meaning
Transformative constitutionalism is the idea that a constitution should do more than limit the state. It should also change an unequal society peacefully, breaking caste and gender hierarchies and giving power to deprived groups. Class 11 makes a similar point: the Constitution is a tool for democratic change. The term itself comes from Karl Klare (South Africa, 1998). Earlier, Granville Austin (1966) had called India's Constitution "first and foremost a social document". Critics warn that the idea can open the door to unlimited judicial activism, meaning judges going too far in making policy.
Example
In 2018, the Supreme Court used this idea in Navtej Singh Johar (Section 377), Joseph Shine (adultery) and the Sabarimala case.
Don't confuse with
- Constitutionalism as limited government: the classic view only restrains rulers. The transformative view also asks the Constitution to change society itself.