Constitutionalism to Transformative Constitutionalism: The Changing Role of the Judiciary

Abstract

Constitutionalism ensures protection of rights of its citizens. The Constitutional designers provided two models to ensure the same. These two models area. Parliamentary Sovereignty- It postulates that the legislature is the legitimate forum for safeguarding citizen’s rights. b. Judicial Supremacy- It emphasizes the significance of the Court to safeguard rights of citizens. Judicial Supremacy proliferated post Second World War as a reaction to the often violation of rights of minority group. The probability of imperilment of rights of groups having inadequate representation in the Parliament was supposedly more in Parliamentary Sovereignty. Judicial Supremacy ensured better protection of rights because it had the power to review and strike down any rights-infringing legislation. In almost all the countries the Apex Court is vested with the ultimate power of interpretation of the Constitution to ensure protection of rights. Judicial Review and Constitutional Interpretation by the Judiciary has led to the introduction of ‘Transformative Constitutionalism’. Transformative Constitutionalism recognizes the changing nature of the Society and accepts the Constitution as a transformative document rather than a rigid one. In this backdrop this paper undertakes the study of the written Constitution of India and the unwritten Constitution of the United Kingdom. The object of this study is to locate any shift in the principles of Constitutionalism in the Constitutions of these two countries.