A Comparative Study On The Role Of Judiciary In Advancing Transformative Constitutionalism: India And South Africa
- IJLLR Journal
- 13 hours ago
- 1 min read
Gautam Kumar, PHD Scholar at Central University of South Bihar (BIHAR)
ABSTRACT
Transformative constitutionalism is a theory that sees the constitution as a living instrument to redress historical wrongs and to achieve substantive equality. In India, Judiciary has been instrumental in interpreting the constitution to address institutionalised problems like caste bias, gender inequalities, and socio-economic inequities. Public Interest Litigation (PIL) have given the power in hands of marginalized communities to access to Justice. Many landmark judgments have broadened the meaning of the “fundamental rights” under Articles 14, 15 and 17, reflecting the achievement of constitutional goals of social justice. In the same way article- 39 of South African constitution of 1996 has played a significant role in eradicating racial and economic inequality in post-apartheid south Africa. The Constitutional Court has delivered some landmark judgments like in “Grootboom and Treatment Action Campaign” where it affirmed socio- economic rights to housing and healthcare. In both India and South Africa, the courts have recognized that formal equality is not enough, and that substantive equality, i.e. "disadvantaged groups are given an equal opportunity and protection" is necessary. But problems remain in both countries, such as enforcing the rulings, political backlash, and worries about judicial activism. However, the courts still hold a powerful role in making the visionary promises of their constitutions a reality, that justice, dignity, and equality continue to be the focal points of all legal and social reform.
Keywords: Transformative constitutionalism, Substantive equality, Fundamental rights, Socio-economic rights
