Origins and Pathways of Constitutionalism

Abstract

The paper is part of the forthcoming volume 'Constitutional Democracy in the European Union and India: Comparing the Law of Demcoracy in Contintental Polities' (Elgar 2021, eds. P. Dann & A. Thiruvengadam). The present chapter reflects on the origins and pathways of Indian and European constitutionalism. With the concept of constitutionalism, the authors make reference to a practical discourse involving both professional actors and laymen regarding the legal foundations of the respective polity – its constitution. Both India and Europe have developed their own brands of constitutionalism, neither of which replicates the blueprints of ‘limited government’ or ‘popular sovereignty’ drawn by the American or French revolutions. The main argument of this chapter concerns the role of judicial institutions. Undisputedly, both the Indian Supreme Court and the European Court of Justice have played a crucial role in shaping their respective constitutional orders. However, the authors contrast the conventional, court-centred narrative with a more complex view on the interplay between judicial and political actors. In this context, they make an attempt at reconstructing the ‘original view’ of the framers on the constitutional project as a whole, and the appropriate role of the Judiciary. The resulting constitutional experiments build on a unique blend of liberal and post-liberal ideas. Both foundational documents enshrine an aspirational program of social change while preserving the constitutionalist commitment to democratic self-government and the rule of law – albeit the content of these programs differs and, as a matter of fact, adopts contrasting perspectives in its assessment of the role of nationalism to achieve the respective goals. A common theme is a more interventionist, or ‘activist’, understanding of constitutionalism as compared to classic conceptions. Both constitutional orders have laid down an aspirational program of social change – of economic progress, social equality, and cultural openness – to be implemented by representative or independent institutions, as the case may be. The authors argue that in view of contemporary authoritarian threats to its foundations, the future of constitutionalism in India and Europe might depend on the renewal of these original ideas.