Transformative Constitutionalism and Mediation as a Means of Access to Justice

Abstract

This article examines the intersection of transformative constitutionalism and mediation as complementary mechanisms for advancing access to justice in India. Through an analysis of landmark Supreme Court jurisprudence including the Hussainara Khatoon litigation, the evolution of Public Interest Litigation, and the expansive interpretation of Articles 14, 21, and 39A. The article traces the judiciary's trajectory from formalist adjudication toward a rights-responsive, transformative paradigm.

It explores the theoretical and philosophical foundations of mediation as transformative justice, emphasizing its participatory, restorative character and alignment with constitutional values of equity, dignity, and meaningful access. The article situates mediation within India's constitutional framework for alternative dispute resolution, examining how judicial encouragement of ADR mechanisms operationalizes constitutional commitments amid systemic constraints of delay, backlog, and inaccessibility.

Through critical analysis, it identifies both the promise of mediation as a vehicle for social transformation and the challenges of reconciling consensual processes with non-negotiable constitutional guarantees. The article concludes with forward-looking perspectives on integrating mediation into India's transformative constitutional project.