Transformative Constitutionalism and Implied Rights

To many, a Constitution is a living, ever-evolving, dynamic document that keeps changing alongside the moral atmosphere of its people. Yet, this was not always the case. Apartheid South Africa, Latin America, and colonised India are all witnesses to the law of the privileged; a fortress of formalism where rigid proceduralism served as a shield for state-sponsored injustice. Transformative Constitutionalism is a progressive, liberal interpretation of law, specifically of the Constitution, in order to ensure equitable justice. This paper examines the evolution of transformative constitutionalism and how India uses the concept to justify precedents where implied rights are invented by the judges. Further, the paper analyses the two conflicting opinions of jurists where one proposes the utilisation of transformative constitutionalism to ensure justice while the other proponent's critic its jurisprudence as judge made law lacks standing in a world where authority to make law is vested solely with the Legislature.