Constitutional Morality and Authoritarianism: Percolating Constitutionalism Through Judicial Interpretation
| Published date | 01 September 2023 |
| DOI | http://doi.org/10.1177/00195561231178579 |
| Author | Md. Zeeshan Ahmad,Showkat Ahmad Wani |
| Date | 01 September 2023 |
| Subject Matter | Articles |
Constitutional Morality
and Authoritarianism:
Percolating
Constitutionalism
Through Judicial
Interpretation
Md. Zeeshan Ahmad1 and Showkat Ahmad Wani2
Abstract
Modern political and democratic thinking is broadly dominated by liberal consti-
tutionalism. Precisely, in post-colonial constitutions, one witnesses the preoccu-
pation with the idea of constitutionalism. However, at the same time, the extent
to which politics informs the working of a Constitution has made it difficult to
distinguish between the regular politics and the politics that guides constitution-
alism. In this list, populism also threw challenges in the path of constitutional–
democratic governance of a polity; however, lately, things have taken a sharp
shift. The emergence of legal autocrats espousing strategies to undermine consti-
tutionalism has raised questions over the liberal constitutional project and what
sovereignty means. Although Hungary and Poland are often flagged as textbook
examples of autocratic legalism, it does not mean that established democracies
have insurance from the same. The USA under Donald Trump showcased the
vulnerabilities of democracy to the autocratic pull despite having a long history
of democracy and a tradition of robust institutions. Given this backdrop, the
immediate challenge is to determine how constitutionalism could be rejuvenated
whilst safeguarding fundamental rights. In this paper, we examine India’s recent
political and legal developments and attempt to read them through autocratic legal-
ism. Given this, the judiciary has the potential to tame this autocratic march, given
its constitutional mandate. In this, we propose that the evolving jurisprudence
of constitutional morality (CM), despite its patent limitations, would not just
address the constitutional malaise but would, as a result, deepen constitutionalism.
Keywords
Constitutional morality, autocratic, legalism, democracy, constitutionalism, judic iary
Article
Indian Journal of Public
Administration
69(3) 624–637, 2023
© 2023 IIPA
Article reuse guidelines:
in.sagepub.com/journals-permissions-india
DOI: 10.1177/00195561231178579
journals.sagepub.com/home/ipa
1 Azim Premji University, Bengaluru, Karnataka, India.
2 School of Law, Narsee Monjee Institute of Management Studies, Mumbai, Maharashtra, India.
Corresponding author:
Showkat Ahmad Wani, School of Law, Narsee Monjee Institute of Management Studies, Mumbai,
Maharashtra 400056, India.
E-mail: showkatamu001@gmail.com
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