The Democratic Contours of Indian Constitutionalism

The movement of democracy in India has become historically peculiar: it has become more Indian while it has become more democratic" (Kaviraj 2010). Building on this call for the need for viable democratic theories embedded in specific contexts, this paper shows how such a theory in India needs to be inherently linked to constitutional and public law foundations of the political community alongside the empirical manifestations of the theory in judicial practice. Dominant public law discourse revolves around legal principles and rights, sometimes accentuated through eternity clauses, fundamental rights and judicial review (Loughlin 2010). Political right(s) are a particularly strong driver: arguments about the self-evident character of the right – or limits thereof – are routinely invoked to shape the role of public law within the democratic space. Recently, these discourses have become linked to the state of civil liberties, backsliding, and judicial overreach. The latter are of equal importance to democracy, and mark the bridge between constitutional studies and democratic theory. We posit that this bridge needs to be particularly strong in India, and is underscored by its constitutional jurisprudence. We focus on cases that rest upon on the protection of the golden triangle – Article 14, Article 19 and Article 21 – of the Indian Constitution. These landmark cases not only present an attempt to strengthen constitutionalism, but also have the potential to prevent overreaching statutory provisions. However, we posit that such a ‘strong constitutionalism’ (Giuffré 2023) cannot be construed without a linkage to democratic understanding by the constitutional judges. Furthering Dixon’s (2008) envisioning of such a democratic understanding manifested via methods of interpretation in this set of cases, we seek to analyze the construction of a constitutional meaning of ‘democracy’ by the Supreme Court of India: not as an imagined category, but as reiterated through the judicial benches as a consequence of interpretative urgencies. The analysis of the regime of fundamental rights protections – and the legal imports marking the appearances of references to democratic studies in the constitutional culture(s) of India – helps show the prospects and limits of fundamental rights case law as a way to imagine democracy. Such an attempt is not to validate a specific democratic theory through judicial decisions – but to analyze the path dependency of ‘democratic responsiveness’ (Dixon 2008), as a major signifier for strong constitutionalism and its eclectic sources. Ultimately, the analysis could show how democracy studies can and should be included in judicial practice, while also informed by the realities of legal interpretation in specific constitutional culture(s).