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Transformative Constitutionalism Around the World: Some Notes on the Concept
Professor Mark Tushnet
Abstract
Scholarship on transformative constitutionalism has been largely centered around a single political valence and a narrow set of constitutional contexts, limiting its reach. This essay examines the concept's general features across material, cultural, anti-colonial, and reactionary dimensions arguing that transformative constitutionalism is best understood as any constitutional project that commits a polity to dismantling a “deeply unsatisfying status quo” and not as inherently left leaning. It evaluates the spectrum of judicial enforcement available to advance transformation, finding that strong-form enforcement faces serious difficulties given the polycentric complexity of transformative goals, while collaborative and weak-form judicial approaches offer more sustainable pathways. The essay further argues that anti-colonial and reactionary variants of cultural transformative constitutionalism illustrated by Bolivia, South Africa, Hungary, and India deserve greater attention, demonstrating that the idea of transformative constitutionalism can be used to analyse constitutional developments divorced from an inherent political valence.
Keywords: Transformative Constitutionalism - Collaborative Constitutionalism - Judicial Enforcement - Anti Colonial Constitutionalism - Reactionary Constitutions
Arbitrator’s Power to Grant Interest in India A Critique
Ajar Rab
Abstract
This paper examines the evolution and theoretical foundations of the arbitrator’s power to grant interest in Indian arbitration law. Despite statutory recognition under Section 31(7) of the Arbitration and Conciliation Act, 1996, the framework suffers from conceptual incoherence stemming from inconsistent treatment of interest across different periods and failure to distinguish between the source of power (procedural) and the nature of the right (substantive).
The paper traces the development of this power over the Arbitration Act, the silence in the 1940s on interest through judicial activism that created the ‘implied term’ doctrine, and the current statutory regime. It critically analyses the Supreme Court’s decision in Gayatri Balaswamy, which permits modification of post-award interest rates under Section 34 of the Act, arguing that this transforms supervisory jurisdiction into appellate power and undermines arbitral finality.
Through a comparative analysis of international practice and a doctrinal examination, the paper establishes that, while the power to award interest is procedural, the entitlement itself flows from substantive law. It proposes legislative reform to eliminate artificial distinctions between interest periods, explicitly authorize compound interest, treat contractual bars as limitation of liability clauses subject to reasonableness review, and recognize interest as compensatory damages requiring proof of loss rather than automatic entitlement.
Keywords: Arbitral Interest; Arbitration and Conciliation Act; Gayatri Balaswamy; Procedural Law; Substantive Law
Data Exclusivity Explained Is India Introducing a Data Exclusivity Regime
Bhanu Tanwar
Abstract
This article examines whether India is transitioning toward a pharmaceutical data exclusivity regime in light of recent regulatory and trade developments. Historically, India has resisted such measures under its existing framework, which allows generic manufacturers to rely on an originator’s clinical data after a four-year period, provided they conduct bioequivalence and bioavailability studies. However, a 2025 notice from the Central Drug Standard Control Organisation (CDSCO) and government rhetoric linking intellectual property (IP) reforms to foreign investment commitments under the Trade and Economic Partnership Agreement (TEPA) suggest a possible policy shift.
The article argues that while no statutory data exclusivity currently exists, the CDSCO’s proposal to mandate repetitive clinical trials for all applicants seeking “new drug” approval could establish a de facto form of exclusivity. Such a shift would raise significant ethical concerns regarding redundant human testing, increase manufacturing costs, and potentially delay the entry of affordable generic medicines. Ultimately, the analysis concludes that India is at a policy crossroads, attempting to navigate a “middle path” that balances pharmaceutical innovation and international investment goals with its long-standing commitment to public health and medicine access.
Keywords: Data Exclusivity; Public Health; Access to Medicines; Pharmaceuticals; Intellectual Property