The Struggles of the Indian Constitution in the Face of Autocratic Legalism: Constitutionalism at Crossroads?
| Author | Shameek Sen,Shouvik K Guha |
| DOI | http://doi.org/10.1177/0067205X221107395 |
| Published date | 01 September 2022 |
| Date | 01 September 2022 |
| Subject Matter | Special Issue (Part 2): Constitutional Struggles in Asia |
Special Issue (Part 2): Constitutional Struggles in Asia
Federal Law Review
2022, Vol. 50(3) 275–291
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DOI: 10.1177/0067205X221107395
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The Struggles of the Indian
Constitution in the Face of
Autocratic Legalism:
Constitutionalism at Crossroads?
Shameek Sen* and Shouvik K Guha**
Abstract
In this article, we seek to delineate the nature of India’s ongoing constitutional struggles against a
grave crisis, considering the threat that such crisis poses to the functioning of the country’s
constitutional democracy. Using the acceptable definitive models of such a crisis, we then try to
examine the extent to which India’s constitutional struggle might have been necessary in order to
confront such a crisis. The role played by the deliberate usage of the legal and prima facie con-
stitutional routes to render the very spirit and safeguards of the constitutional system redundant, or
the concept of autocratic legalism, as a singular symptom displayed by such a crisis, is focused upon
in this context. We draw analogies from multiple jurisdictions with myriad political legacies, in-
cluding the USA, Poland, Hungary, Turkey, Russia and the Latin American nations. Increasing the
judicial burden to cripple the adjudicating machinery; appointment of judges exhibiting specific
political inclination; emergence of a charismatic political leader commanding mass support —the
potential impact of these factors on liberal constitutionalism is examined. The article delves into the
Indian narrative, citing instances from the past such as the Nehruvian legacy of superseding the
judiciary as watchdogs of constitutional values, emergency and relevant constitutional amendments,
as well as from the present, such as abrogation of special status of Indian states like Jammu and
Kashmir, introduction of national population register and modification of citizenship norms, passing
contentious legislation via the Money Bill route to avoid close scrutiny and constitutional debates,
reservation on economic grounds and introducing new tax structures impinging on the federal
relationship. We assess the role played by the Indian judiciary in each of these instances, along with
instances of judicial (pro)activism, and their impact on the overall stability of the judicial institution.
Received 5 July 2021
I Introduction
A constitutional crisis is envisaged as a potentially decisive turning point in the direction of the
constitutional order, a moment at which the order threatens to break down, just as the human body
*Associate Professor, The West Bengal National University of Juridical Sciences, Kolkata, India
**Assistant Professor of Law, The West Bengal National University of Juridical Sciences, Kolkata, India
does during a medical crisis.
1
However, this description possibly encapsulates only a fraction of the
stresses and strains faced by a country’s constitution. The systematic threats faced by a constitution,
both formally and informally, are the primary contributors to such crisis. This existential malaise
becomes furtheraccentuated when we see that the State,the custodian of the constitution,contributes
significantly to thedisintegration of the constitutionalethos. Very often, this disintegration is brought
about by carefully crafting an alternative constitutional order while remaining within the broad
contours of theconstitution. In the face of such stiflingof constitutional values by variousforces, there
can and do remaincertain actors, including thejudiciary, who considerthemselves duty-bound tostay
true to the aforementione dc onstitutional ethos under assault —these actors, therefore, seekto engage
to such end in a difficult and protracted constitutionalstruggle against the various assailants including
but not limited to the State, albeit with varying degrees of success and failure. This paper seeks to
highlightthis ever-burgeoningphenomenon of constitutionalstruggle to uphold principlessuch as rule
of law and constitutionalism in the face of a multitude of crises in the context of the Indian con-
stitutional g overnance.
India is a melting pot of several constitutional traditions. While there are obvious vestiges of a
rich common law legacy that have brought universally venerated principles like parliamentary,
sovereignty and separation of powers, the country also boasts a strong and vibrant judiciary. In
addition to the powers of judicial review over legislative and executive actions, the judiciary is
vested with other powers such as the power to do complete justice (Article 142), which can
potentially give to it the trappings of an ‘executive court’.
2
However, it has been seen that the Indian
judiciary has been generally selective in wielding the enormous powers that it enjoys. The Indian
Supreme Court has been a contributor to two of the most significant jurisprudential breakthroughs of
the 20
th
century —namely, the Basic Structure Doctrine
3
and Public Interest Litigation.
4
The first is
used to scrutinise whether the Parliament, in the exercise of its ‘absolute’power for enacting
constitutional amendments, has obliterated the core identity of the Constitution of India (‘the
Constitution’).
5
The second is a step towards ensuring Fundamental Rights of those who lack the
1. See Sanford Levinson and Jack M Balkin, ‘Constitutional Crises’(2009) 157(3) University of Pennsylvania Law Review
707, 715.
2. Gautam Bhatia, ‘“A Little Brief Authority”: Chief Justice Ranjan Gogoi and the Rise of the Executive Court’,Indian
Constitutional Law and Philosophy (Blog Post, 17 November 2019)
a-little-brief-authoritychief-justice-ranjan-gogoi-and-the-rise-of-the-executive-court/>; The Constitution of India (the
‘Constitution’) art 142. For the complete text of Article 142, see below:
Article 142: Enforcement of decrees and orders of Supreme Court and orders as to discovery, etc.
(1) The Supreme Court in the exercise of its jurisdiction may passsuch decree or make such order as is necessary for
doing complete justice in any cause or matter pending beforeit, and any decree so passed or orders so made shall
be enforceablethroughout the territory of India in such manner as may be prescribed by or under any law made by
Parliament and, until provision in that behalfis so made, in such manner as thePresident may by order prescribe.
(2) Subject to the provisions of any law made in this behalf by Parliament, the SupremeCourt shall, as respects the
whole of the territory of India, have all and every power to make any order for the purpose of securing the
attendance of any person, the discovery or productionof any documents, or the investigation or punishment of any
contempt of itself.
3. See Sudhir Krishnaswamy, Democracy and Constitutionalism in India: A Study of the Basic Structure Doctrine (Oxford
University Press, 2011).
4. See Anuj Bhuwania, Courting the People: Public Interest Litigation in Post-Emergency India (Cambridge University
Press, 2016).
5. Krishnaswamy (n 3).
276 Federal Law Review 50(3)
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