South Asian Constitutionalism in Comparative Perspective: The Indian ‘Prototype’ and Some Recent Borrowings in the 2015 Nepalese Constitution

Abstract

In recent times, studies in Comparative Constitutional Law in Asia have followed two different general perspectives: some insist on the unstableness of Asian constitutionalism, while a number of scholars consider the achievements of constitutionalism in Asia a fact. However, if we restrict our point of view to South Asia, we come across the evidence that South Asian constitutionalism ‘has either been largely ignored or has not received the attention it deserves’. We think it is necessary to reassess the place of the Indian constitutional system in the traditional comparative law classifications; For instance, the Constitution of India could be addressed as an example of a ‘sui generis pristine Constitution’ in the Asiatic scenario. In fact, the Indian Constitution represents an interesting case of a subtle use of many instruments of western constitutionalism to build up an original and ‘autochthonous document’. In spite of its uniqueness, the Indian ‘prototype’ has often been a source of inspiration for other legal systems and constitution-making processes in South Asia. In this chapter, we will point out that a comparative study of the Constitution of India, its constitutional developments and its influences on post-conflict Nepal represents a relevant contribution to the debate on constitutionalism in South Asia.