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The first section examines the transformational elements of the Indian Constitution, as well as the role of the judiciary and the legislative actions implemented by the government to defend its values. The second section digs into the Constitution's concerns in a rapidly changing world, including issues of social justice, gender equality, and environmental protection. Despite these obstacles, the Constitution continues to be a beacon of hope and progress for all Indians, providing a foundation for democratic governance and individual rights. As we continue to negotiate the intricacies of modern life, it is critical to remember and work towards the principles entrenched in our Constitution. Only then will we be able to truly claim to be a nation that upholds justice, liberty, equality, and fraternity for all of its citizens.

This research paper is based on the latest cases and is updated statutes. So a separate review of the literature is not required.

1. Transformative Constitutionalism

1.1 Definition and Principles

Transformative constitutionalism is a constitutional strategy that tries to effect social and political change by resolving past injustices and fostering substantive equality and justice. Its values include inclusion, progressive interpretation, and the empowerment of marginalised communities.[1]

1.2 Historical Context and Evolution

Transformative constitutionalism arose in post-apartheid South Africa with the goal of transitioning from an oppressive regime to a just and inclusive society. It has since acquired acceptance and application in a number of nations, including India. Transformative constitutionalism and its seeds in India may be traced back to the historic case of Kesavananda Bharti v. State of Kerela[2], in which the bench provided some striking insights into the progressive colour of our constitution. Mr. S.M. Sikri, then-Chief Justice of India, noted that “the basic structure of the Constitution is not a rigid or static concept.”[3] It is dynamic and fluid and must be understood in light of society’s changing requirements. Khanna, J. It is a living tool that “the people of India have used to fulfil their aims and aspirations.”[4]Y.V. Chandrachud. J., also observed that “The Constitution is not a mere mechanism for the governance of the country. It is a charter of social, economic and political justice.”[5]

1.3 Human Rights

Human rights encompass the fundamental rights and freedoms inherent to all individuals, regardless of their race, religion, gender, or other characteristics. They include civil, political, economic, social, and cultural rights that are protected both domestically and internationally. They are a set of standards that govern how individuals and groups are treated by states and non-state entities based on moral precepts pertaining to what society deems essential to a decent living.[6] These standards are included in national and international legal frameworks, which define the steps to be taken to hold duty-bearers accountable and offer compensation to those who may have been the victims of human rights breaches.

1.3.1 International Human Rights Standards

International human rights standards provide a framework for the protection and promotion of human rights. India is a signatory to various international conventions and treaties, such as the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights, which shape its approach to human rights.

2. Transformative Constitutionalism in India

2.1 Transformative Features of the Indian Constitution

The Indian Constitution guarantees fundamental rights to its citizens, including the right to equality, freedom of speech and expression, and the right to life and personal liberty. The Directive Principles of State Policy provide a roadmap for transformative governance by emphasizing social and economic justice.

The ruling in National Legal Service Authority’s[7] case was founded on transformative constitutionalism, which maintains that the Constitution should be construed to advance equality and social transformation.[8]

The Supreme Court ruled that all citizens, regardless of gender identification, are entitled to the Fundamental Rights enumerated in the Constitution, including the rights to equality, to life, and to freedom.[9] The Court also ruled that the State has a responsibility to defend the rights of transgender individuals and to make sure they have access to services like healthcare, employment, and education on an equitable basis.[10]

Another case known as Navtej Singh Johar v. Union of India[11]that criminalised same-sex relationships, was founded on transformative constitutionalism's tenets, which state that the Constitution should be interpreted to advance equality and social progress.[12] The Indian Penal Code's Section 377, which made same-sex sexual behaviour illegal, was declared unconstitutional by the court.

2.2 Independence of the Judiciary

Because of its autonomy and forward-thinking approach to interpreting the Constitution, the judicial system in India plays a critical role in the development of transformative constitutionalism. It serves as a watchdog on fundamental rights and guarantees that the government is adhering to the ideals outlined in the constitution.[13] The Supreme Court further in Advocates-on-Record Association, a group that represents attorneys who appear before the Supreme Court, filed the lawsuit challenging the validity of the process for choosing Supreme Court judges. The Prime Minister and the Leader of the Opposition were to have a bigger say in the nomination of judges after the government changed the Constitution to include a new process. The modified procedure, according to the Supreme Court, was unconstitutional since it contravened the judiciary's independence and the separation of powers.[14]

In a recent case of Supreme Court Advocates on Record Association v. Union of India[15] also known as the fourth judges cases, the Hon’ble Apex Court was prayed to review the The National Judicial Appointments Commission (NJAC) Act of  2014. The act abolished the old collegium system for choosing judges for the Supreme Court and the High Courts. The Chief Justice of India would recommend names of judges for appointment to the Supreme Court and the High Courts under the collegium system, after consultation with other senior judges. On the other hand, the NJAC Act established a new entity, the NJAC, which was tasked with making recommendations for judges to be appointed to the Supreme Court and the High Courts.[16]

2.3 Role of the Judiciary in Advancing Transformative Constitutionalism

2.3.1 Judicial Activism and Public Interest Litigation

In India, a substantial amount of transformative constitutionalism may be attributed, in large part, to the role that judicial activism has played, particularly through the process of public interest litigation. The judicial system has become involved in matters of public interest, frequently addressing breaches of human rights and advancing the cause of social justice.

In the case of Maneka Gandhi v. Union of India[17], the Supreme Court of India went beyond a literal interpretation of the law to defend and advance individual rights. This case is a notable example of judicial activism because it exhibits judicial activism at its finest. By taking a comprehensive and all-encompassing approach to the analysis of Article 21, the court was able to actively protect basic rights and develop the concept of substantive due process in Indian law.[18]

The court determined that the right to privacy is integral to human dignity and is necessary for realising other fundamental rights. This important decision signalled a significant shift in Indian constitutional law by recognising the flexibility of fundamental rights to adapt to shifting social norms.[19] The court also used transformative constitutionalism's tenets, which emphasise how the Constitution can be transformed to solve social injustices and advance the goals of justice, equality, and human dignity. It emphasised that any invasion of privacy must pass the necessary and proportionality standards and acknowledged the need to strike a balance between individual privacy and the legal interests of the state.[20] The Supreme Court actively shaped public policy and upheld fundamental rights in this decision, which displayed judicial activism. In order to strike a balance between the goals of the government and the rights of individuals to their privacy, the court set some limitations on the Aadhaar programme. It disallowed Aadhaar's obligatory integration with critical services, placed an emphasis on informed consent and data protection safeguards, and imposed data usage restrictions.[21]

2.3.2 Expansive Interpretation of Fundamental Rights

The judiciary has adopted an expansive interpretation of fundamental rights, going beyond their literal meanings to include the right to a clean environment, right to education, and right to privacy. This approach has contributed to the transformative nature of the Constitution.

For example in Vishaka v. State of Rajasthan[22] the Hon’ble Supreme Court taking a proactive stance in tackling this issue, called the attention to the lack of explicit legislation addressing workplace sexual harassment. The Indian Constitution's Articles 14 (right to equality) and 21 (right to life and personal liberty) both recognise gender equality as a basic right, according to the court.[23]

2.3.3 Judicial Review of Legislation

The power of judicial review enables the judiciary to assess the constitutionality of laws and policies. This process ensures that legislation aligns with constitutional principles, including human rights standards. The Hon'ble Apex Court addressed the constitutionality of the federal government's ability to impose President's Rule under Article 356 in its ruling of S.R. Bommai v.Union of India[24], the court emphasised the value of constitutional balance and federalism in a democratic system. In order to prevent President's Rule from being abused as a political instrument, it was decided that its imposition is subject to judicial review. To control the use of authority granted by Article 356 of the Constitution, the court set rules. It was decided that only in extreme cases, such as where there has been a constitutional breakdown, can the authority to overthrow a validly elected state government and impose President's Rule be used. The court further stated that verifiable evidence, not subjective judgement, must underpin the President's and the central government's satisfaction with the breakdown.[25] In the framework of transformational constitutionalism, this case is significant because it reiterates the value of federalism and the division of powers between the federal government and the states. It acknowledges that the Constitution ought to be read and applied in a way that promotes equity, justice, and the values of democratic government.[26]

Regarding the idea of judicial review of laws, the case serves as an example of the judiciary's function as the protector of the Constitution and of its authority to examine and overturn decisions made by the executive and legislative branches. The court's directives in the Bommai case ensure that the central government's exercise of its legislative authority under Article 356 is subject to review and must comply with constitutional norms.

2.4 Legislative Measures Promoting Transformative Constitutionalism

2.4.1 Social Welfare Legislation

India has enacted numerous social welfare laws to address societal inequalities and promote social justice. These laws aim to uplift marginalized communities and provide them with access to basic amenities, education, healthcare, and social security. Following are some examples of social welfare legislations which exhibit the idea of transformative constitutionalism:

i. Right to Education Act (2009)[27]: All children between the ages of 6 and 14 are entitled to free and compulsory education under the ground breaking Right to Education Act. It acknowledges education as a fundamental right and works to remove obstacles in the way of education, especially for underprivileged and marginalised groups in society. The emphasis of the Act is on quality standards, inclusive education, and the outlawing of discrimination in schools.

ii. Mahatma Gandhi National Rural Employment Guarantee Act (2005)[28]: To ensure livelihood stability and reduce poverty, this act requires rural households to have a minimum of 100 days of employment per year. By enabling access to employment opportunities, competitive pay, and social security benefits, it supports the right to work and strengthens rural communities. The act aims to reduce economic inequalities and give marginalised groups in society more authority.

iii. Protection of Women from Domestic Violence Act (2005)[29]: Women who are victims of domestic violence have legal protection and redress thanks to this law. It identifies domestic abuse as a violation of the fundamental rights of women and offers channels for reporting, seeking redress, and receiving support. The Act attempts to change social perceptions of women's rights and gender equality, empower women, and combat gender-based violence.

iv. Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act (1989)[30]: This law was passed to stop violence and prejudice against Scheduled Castes and Scheduled Tribes on the basis of caste. It makes certain actions unlawful, including atrocities, discrimination, and social boycotts, and it offers special courts and harsh penalties for offenders. The act aims to remedy past societal injustices while defending the rights and dignity of underrepresented groups.

v. Maternity Benefit Act (1961)[31]: This law ensures that women will receive certain benefits during pregnancy and after delivery, such as maternity leave, medical benefits, and nursing breaks. It strives to foster work-life balance, advance gender equality in the workplace, and safeguard the health and well-being of women and their children. The law promotes a more welcoming and friendly workplace by recognising the rights and needs of female employees.

2.4.2 Affirmative Action and Reservation Policies

Affirmative action policies, such as reservations in educational institutions and public employment, are implemented to address historical discrimination and ensure the representation and participation of marginalized groups. Following are some examples of ‘affirmative action and reservation policies’ which exhibit the idea of transformative constitutionalism:

i. Reservations for Scheduled Castes and Scheduled Tribes: The Indian Constitution guarantees reservations for Scheduled Castes (SCs) and Scheduled Tribes (STs) in government positions, political representation, and educational institutions. These historically underrepresented communities are intended to be uplifted and given opportunities for social and economic growth under the affirmative action programme.

ii. Reservations for Other Backward Classes (OBCs): In addition to SC/ST reservations, India also enacts reservations for OBCs in educational institutions and government positions. By addressing the social and educational difficulties that socially and economically underdeveloped communities experience, the OBC reservation hopes to foster their participation and upward mobility.

iii. Reservation for Women: Several Indian state governments have implemented reserves for women in panchayats (village councils) and municipalities, two examples of local government entities. By giving them a voice in decision-making processes and addressing gender imbalances in governance, this strategy seeks to increase women's political representation and engagement.

iv. In order to provide equal access to education, India has introduced reservation regulations in educational institutions, including colleges and universities. According to these policies, disadvantaged groups including SCs, STs, OBCs, and economically weaker sections (EWS) are given a fixed proportion of seats. This helps close the achievement gap and opens doors for formerly underprivileged groups in society.

v. Quota for Economically Weaker portions (EWS): In 2019, the Indian government implemented a 10% quota in educational institutions and government posts for the economically weaker portions of the general category. With the help of this strategy, people from economically disadvantaged backgrounds will have access to educational and career possibilities while also addressing the economic imbalances they currently confront.

3. Human Rights Protection in India
3.1 Constitutional Provisions for Human Rights
3.1.1 Fundamental Rights and their Expansive Interpretation

The Indian Constitution guarantees a range of fundamental rights, including equality before the law, freedom of speech and expression, and protection against discrimination. The judiciary has played a crucial role in expanding the scope of these rights to ensure their effective protection. under Article 21 of the Indian Constitution. The judiciary has also interpreted the Right to Livelihood under the Article 21 expansively.[32]

3.1.2 Right to Equality

The right to equality prohibits discrimination based on various grounds, including religion, caste, gender, and disability. The Constitution and subsequent legislation provide safeguards to protect individuals from discrimination and promote equal opportunities. Through the interpretations of Article 14, 15 and 16, have expanded the scope and understanding of equality, ensuring that it is not limited to more formal equality but encompasses substantive equality as well. The judiciary has emphasised that equality does not mean treating everyone alike, but rather ensuring equal treatment under similar circumstances and eliminating discriminatory practices.[33]

3.1.3 Right to Life and Personal Liberty

The judiciary has interpreted these rights expansively to protect individual autonomy and dignity.

3.1.4 Right to Freedom of Speech and Expression

The right to freedom of speech and expression is essential for a thriving democracy. It allows individuals to express their opinions and ideas, criticize the government, and participate in public discourse. The judiciary has upheld this right as vital for transformative constitutionalism.

3.2 Judicial Safeguards for Human Rights

3.2.1 Public Interest Litigation and Judicial Activism

Public interest litigation has been instrumental in safeguarding human rights in India. The role of the judiciary is important in upholding the rule of law, protecting fundamental rights and ensuring the impartiality and integrity of the judicial system. In S.P. Gupta v President of India &Ors[34], the court accentuated that any interference in the functioning of the judiciary should be based on valid grounds and not undermine its independence. In another case, In Re: S. Mulgaokar[35] the Supreme Court highlighted the importance of maintain public confidence in the judiciary while protecting the integrity of the judicial system.

3.2.2 Judicial Review of Legislation

Judicial review provides a mechanism for assessing the constitutionality of legislation and ensuring its compatibility with human rights standards. The judiciary's power to strike down unconstitutional laws contributes to the protection of human rights in India. The judiciary acts as the guardian of the Constitution and ensures that legislation is in accordance with its provisions. In Keshavananda Bharti[36], the court held that power of Parliament to amend the Constitution is not unlimited. In the case known as the Aadhar case,[37] the Supreme court struck down certain provisions of the Aadhar Act asunconstitutional, protecting privacy rights and imposing safeguards to prevent potential misuse of personal data.3.3 Legislative Measures Safeguarding Human Rights

3.3.1 Protection of Civil Liberties

Various laws and provisions safeguard civil liberties, such as the right to privacy, freedom of religion, and protection against arbitrary arrest and detention. These measures aim to protect individuals from state intrusion and uphold their fundamental rights.

Because it placed too many limits on free speech and discouraged online expression, the Supreme Court in the case of Shreya Singhal v. Union of India[38] declared Section 66A of the Information Technology Act[39] to be unconstitutional. The court emphasised the value of free expression in a democratic society and acknowledged the Constitution's transformative power. The ruling emphasised the necessity for a flexible and dynamic reading of the Constitution that takes into account shifting social conditions. The Constitution should not be viewed as static but rather as a tool for societal change and advancement, the court emphasised. This case is a prime example of transformative constitutionalism since it emphasises the value of defending individual rights, notably freedom of speech, and making sure that constitutional principles keep up with modern developments in technology. The court's ruling in this case helped to advance an inclusive and transformational society while also defending civil liberties in the digital era.

3.3.2 Anti-Discrimination Laws

India has enacted legislation to combat discrimination based on caste, religion, gender, and other grounds. These laws provide legal remedies and protections to marginalized communities and ensure their inclusion in society.

i. The Protection of Civil Rights Act, 1955[40]: This law was passed to combat untouchability, a pervasive type of caste-based discrimination. It makes untouchability-related practises illegal and stipulates how violators should be punished. The act also contains measures for the defence of SC and STs' and the enforcement of civil rights.

ii. The Rights of Persons with Disabilities Act, 2016[41]: The 1995 Persons with Disabilities (Equal Opportunities, Protection of Rights, and Full Participation) Act was replaced with this comprehensive piece of legislation. By ensuring that people with disabilities have equal opportunities in a variety of living sectors, such as education, employment, and accessibility, it seeks to advance their rights and inclusion. The statute emphasises people with disabilities' empowerment and engagement in society while acknowledging their different needs.

iii. The Prohibition of Child Marriage Act, 2006[42]: The purpose of this law is to stop child marriages and defend the rights of kids, especially females. It penalises individuals responsible for organising or solemnising child marriages and declares child marriage voidable. The statute aims to advance gender equality and children's welfare while acknowledging the harm that child marriages entail.

iv. The Equal Remuneration Act, 1976[43]: This law forbids gender-based discrimination in employment and pay. It fosters gender equality in the workplace and assures equal compensation for equal labour. The act forbids gender discrimination in hiring, advancement, and wage-payment practises, advancing the transformative objective of gender justice and empowerment.

v. The Transgender Persons (Protection of Rights) Act, 2019[44]: The rights and protection of transgender people in India are acknowledged by this statute. It forbids discrimination against transgender people and guarantees their right to self-determination in terms of gender, as well as access to healthcare, education, employment, and welfare programmes.

3.3.3 Rights of Marginalized and Vulnerable Communities
India has passed laws and implemented policies to protect the rights of marginalised and disadvantaged people, such as Scheduled Castes, Scheduled Tribes, and other backward classes. These initiatives seek to improve these communities and close socioeconomic gaps.
4. Challenges and Limitations
4.1 Backlog of Cases and Delays in the Judiciary
People who seek justice for social injustices and violations of human rights are disproportionately impacted by this circumstance. The pace of social change as envisioned by transformative constitutionalism is slowed down by judicial delays. Critical issues including discrimination, land disputes, environmental concerns, and abuses of human rights are frequently involved in unresolved cases. In order to resolve these problems quickly and stop further injustice, a timely response is essential.
4.2 Enforcement and Implementation Gap
Despite the existence of robust legal frameworks, there is often a gap between the enactment of laws and their effective enforcement. This poses challenges to the protection of human rights, especially for marginalized communities. To deal with this, the courts issue directions, guidelines or deadlines to concerned authorities to ensure the effective enforcement of constitutional rights and policies. As in the case of M.C. Mehta v UOI,[45] the Supreme Court took suo moto cognizance of the issue of pollution in the Ganges River and issued several directions to control and prevent pollution.
4.3 Gender Inequality and Violence Against Women
Gender inequality and violence against women remain persistent challenges in India. Despite legislative measures, social and cultural factors contribute to the violation of women's rights and hinder transformative constitutionalism. The judiciary plays a role in promoting women’s political representation and participation by addressing gender-based barriers and ensures that women have equal opportunities to participate in political processes and hold positions of power.[46]
4.4 Socio-economic Inequalities and Discrimination
Socio-economic inequalities and discrimination persist in India, limiting the effectiveness of transformative constitutionalism. Poverty, unequal access to resources, and social stratification pose obstacles to the realization of human rights. The judiciary plays a proactive role in ensuring social justice and welfare by reviewing policies and schemes that aim to address socio-economic policies and schemes that aim to address socio-economic inequalities. It monitors the implementation of welfare programs and holds the authorities accountable. The courts have also interpreted labour laws and regulations in a transformative manner in Bandhua Mukti Morcha v UOI[47] , to ensure fair treatment, dignity and economic justice for workers.
In Hussainara Khatoon v State of Bihar[48] the court directed the release of undertrial prisoners who had been detained for long periods without trial, emphasizing the transformative role of the judiciary in ensuring access to justice.
4.5 Communal and Religious Conflicts
Communal and religious conflicts pose challenges to human rights protection in India. Religious and sectarian tensions can lead to violence, discrimination, and the infringement of individual rights, hindering transformative constitutionalism. The judiciary recognised the importance of affirmative action to promote social inclusion and address historical disadvantages, advancing the transformative goals of the Constitution.[49] The judiciary aims to accommodate religious practices while ensuring that they do no infringe upon fundamental rights or perpetuate discrimination as observed in Indian Young Lawyers Association v State of Kerala[50].

1. Baxi, U. (2006). Transformative constitutionalism: Some Preliminary Remarks. International Journal of Constitutional Law, 4(1), 3-36. 2. Kapur, S. (2017). Transformative Constitutionalism in India: A Primer. Indian Law Review, 1, 1-30. 3. Khaitan, T. (2018). A Theory of Discrimination Law, Oxford University Press. 4. Madhava Menon, N. R. (2017). Public Interest Litigation in India: The Road Less Travelled. Journal of the Indian Law Institute, 59(3), 305-313. 5. Rajagopal, B. (2003). International law and the transformative constitutionalism of the South African and Indian supreme courts. The American Journal of Comparative Law, 51(2), 355-410. 6. Sen, A. (2000). Development as Freedom. Oxford University Press. 7. Shetty, S. (2016). Judicial activism in India: Origins, meaning, and philosophy. Indian Journal of Public Administration, 62(4), 827-841. 8. Shylendra, H. S. (2019). The Indian Constitution: Cornerstone of a Nation's Transformation. SAGE Publications. 9. Thiruvengadam, A. (2016). The Constitution of India: A Contextual Analysis. Bloomsbury Publishing. 10. Vora, D. (2014). Affirmative Action in India: Constitutional and Normative Perspectives. Oxford University Press.

1. See Baxi, U. (2006). Transformative constitutionalism: Some preliminary remarks. International Journal of Constitutional Law, 4(1), 3-36.
2. AIR 1973 SC 1461
3. Ibid.
4. Ibid
5. Ibid
6. Human Rights: A brief introduction by Marks, Stephens.P., available at: https://www.hsph.harvard.edu/wp-content/uploads/sites/134/2017/07/Human-Rights-A-brief-intro-2017.pdf
7. National Legal Service Authority v. Union of India, AIR 2014 SC 1863
8. Ibid
9. Ibid
10. Ibid
11. AIR 2018 SC 4321
12. Ibid
13. S.P. Gupta v. Union of India, AIR 1982 SC 149
14. Ibid
15. (2016) 5 SCC 1
16. Ibid
17. AIR 1978 SC 59.
18. Ibid.
19. K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1.
20. Ibid
21. Ibid
22. (1997) 6 SCC 241
23. Ibid
24. (1994) 2 SCR 644
25. Ibid
26. Ibid
27. Act No. 35 of 2009
28. Act No. 42 of 2005
29. Act No. 43 of 2005
30. Act No. 33 of 1989
31. Act No. 53 of 1961
32. Olga Tellis&ors v Bombay Municipal Corporation, 1986 AIR 180.
33. Indra Sawhney v UOI AIR 1993 SC 477.
34. AIR 1982 SC 149.
35. (1978) 3 SCC 339.
36. Ibid.
37. Supra note 17.
38. AIR 2015 SC 1523
39. Act No. 21 of 2000
40. Act no. 22 of 1995
41. Act no 49 of2016
42. Act No 6 of 2007
43. Act No. 25 of 1976
44. Act No. 40 of 2019
45. 1987 AIR 1086.
46. Indira Gandhi v Raj Narain Appeal (Civil) 887 of 1975.
47. 1984 AIR 802.
48. 1979 AIR 1369.
49. Supra note 19.
50. Civil No. 373 of 2006.