Contribution in an anthology

Appeared in: Democratic Constitutionalism in India and the European Union: Comparing the Law of Democracy in Continental Polities

Editor list: Dann, Philipp; Thiruvengadam, Arun K.

Publication year: 2021

Pages: 75-103

ISBN: 978-1-78990-156-6

eISBN: 978-1-78990-157-3

DOI Link: https://doi.org/10.4337/9781789901573.00009

Abstract: 

The aim of this chapter is to reflect on the origins and pathways of Indian and European constitutionalism. Through the concept of constitutionalism, the authors reference a practical discourse involving both professional actors and laymen in respect of the legal foundations of the polities – their respective–constitutions. 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. Nevertheless, 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 reconstruct the ‘original view’ of the framers on the constitutional project as a whole, and the appropriate role of the Judiciary. The resulting constitutional experiments in both polities 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 –even as 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. 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.

Harvard Citation style: Bast, J. and Thiruvengadam, A. (2021) Origins and Pathways of Constitutionalism, in Dann, P. and Thiruvengadam, A. (eds.) Democratic Constitutionalism in India and the European Union: Comparing the Law of Democracy in Continental Polities. Cheltenham, UK: Edward Elgar Publishing, pp. 75-103. https://doi.org/10.4337/9781789901573.00009

APA Citation style: Bast, J., & Thiruvengadam, A. (2021). Origins and Pathways of Constitutionalism. In Dann, P., & Thiruvengadam, A. (Eds.), Democratic Constitutionalism in India and the European Union: Comparing the Law of Democracy in Continental Polities (pp. 75-103). Edward Elgar Publishing. https://doi.org/10.4337/9781789901573.00009