Rise of Transformative Constitutionalism In India Through Constitutional Courts




The judiciary through the various constitutional courts have played a transformative role in shaping and sculpting the legal landscape of India. In recent years, the concept of transformative constitutionalism has gained prominence, evidenced by the discussions and debates of a permanent Constitutional Bench to be set up comprising of the judges of the Supreme Court of India. The Chief Justice of India, Dr. DY Chandrachud leading the way on dialogue on Constitutional Courts, in his recent lecture at Cambridge University discussed in detail the role of transformative constitutionalism in bolstering democratic legal atmosphere. The author through this article delves into and explores the interplay between constitutional courts, transformative constitutionalism, and legislative dialogue.

I. What are Constitutional Courts?

A Constitutional Court is often described as a special type of court that only exercises the judicial power of constitutional review. American political scientist and jurist Alec Stone Sweet defines a Constitutional Court as a constitutionally established independent organ of the state. According to Sweet, a Constitutional Court’s primary objective is to defend the normative superiority of constitutional law within the judicial order. A Constitutional Court practices judicial review and engages in dialogue.

While a separate and independent Constitutional Court is common in European countries like Germany, in India the Supreme Court and High Courts perform the role of a Constitutional Court. In India the Supreme Court is designated and performs the role of a Constitutional Court under Article 143 read with Article 145 of the Constitution of India. Additionally, the High Courts perform the role of a Constitutional Court, deriving their authority under Article 226 and 227 of the Constitution of India. The Supreme Court of India has time and again observed that the power to interpret the Constitution and to entertain judicial review are only to be exercised by the Supreme Court and the High Courts of India.

II. The Role of Constitutional Courts and Transformative Constitutionalism

Constitutional Courts are responsible for breathing life into the Constitution, aiding it to be a transformative legislation capable of keeping pace with the dynamic transformation of society. Instances of the above, can be seen and observed from cases dealing with crises of identity (Assam NRC case), transparency of funding of political parties (Electoral Bonds judgement), issues of statehood and sovereignty (abrogation of Article 370).

Transformative constitutionalism has enabled a structured change in the judicial approach with the evolution of social, political, and economic needs.

An argument often raised by advocates and academics alike is that of judicial overreach and activism performed through transformative constitutionalism. However, it is erroneous to pigeonhole the role of Constitutional Courts and judicial dialogue as an act of overreach or unwarranted activism. The primary objective of Constitutional Courts is to interpret the law, uphold principles of democracy and safeguard individual rights and liberties. Compartmentalizing Constitutional Courts into activism or restraint weighs them with a binary outlook, while completely ignoring the legislative dialogue they enable. For example, the Constitutional Bench facilitated important judicial dialogue regarding rights and representation of the LGTQIA+ community.

III. Concerns over Constitutional Court

In India with no separate Constitutional Court, a pressing critique is the concern towards the trade off between a five or more judges bench being occupied for days engaged in judicial review and dialogue whilst unable to tend to the piling number of unheard cases. However, as of late, there has been a growing trend being adopted by the judiciary in limiting the number of arguments and predetermining timelines as a strict rule to curtail unnecessary spillover.

Former Chief Justices of India have often made efforts to start the process of setting up a system of Court of Appeals, however, there has not been much development on this front. Former Chief Justice N V Ramana had urged the Union government to establish Regional Benches of the Supreme Court to hear appeals and a separate Constitutional Bench. Pertinently, there has not been any significant change in the judicial structure. A 2012 quantitative analysis study highlighted that the pending appeals in the Supreme Court, constituted over 85% of the pending cases before the Supreme Court. With no separate Court of Appeals, there is little to no time left for the Supreme Court to engage in judicial dialogue as was evidenced in the tenure of former CJI Ramana’s tenure where no Constitutional Bench case was heard.

IV. Conclusion

Grand institutions steeped in tradition often resist change. However, the tide is turning in the Indian judicial landscape. India has witnessed a turning point with the short tenure of former Chief Justice of India, U. U. Lalit who adopted an assertive approach to revive Constitutional Bench. In his short tenure, he re-established and promulgated the Supreme Court in its crucial role as that of the Constitutional Court. Taking the crucible forward, his successor and present Chief Justice of India, DY Chandrachud has up the ante and enthusiasm of promoting transformative constitutionalism and setting up Constitutional Bench.

Author: Anjali Sharma


Interns and Paralegals.


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