Analysis of Transformative Constitutionalism with Special Reference to Sexual Minorities in India

Abstract

The philosophy of transformative constitutionalism is not a new one. The sources of these values can be traced back to the South African constitutional model. In reality, the philosophy that underpins this ideal of Transformative Constitutionalism can hardly be ascribed to or affiliated with anyone's constitutional document. It seeks to utilise constitutional guarantees as well as the constitutional machinery to transform the society it governs into a more progressive one – to make it more inclusive in every regard, and egalitarian in its outlook. This is sought to be done largely through the pursuit of what scholar’s term as “substantive equality,” which pursuit practically manifests itself through the enforcement of socio-economic rights – especially those protecting the interests of the minorities – as well as through affirmative action measures. This paper seeks to establish a deep understanding of how the concept of Transformative Constitutionalism has evolved. Further, this paper aims at is not merely a general understanding of Transformative Constitutionalism and the roles it would set out for the Legislature as well as the Judiciary if truly inculcated in Indian Constitutionalism, but also a specific study at how this ideal is currently being used, as well as how it might be used in the future, to shape the debate on gender-identity and gender-equality issues in India especially with reference to sexual minorities in India.