Constitutional Morality and Authoritarianism: Percolating Constitutionalism Through Judicial Interpretation

Abstract

Modern political and democratic thinking is broadly dominated by liberal constitutionalism. Precisely, in post-colonial constitutions, one witnesses the preoccupation 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 constitutionalism. 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 constitutionalism 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 legalism. 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.