Democratic constitutionalism understands constitutional law-making as an outcome of an unprecedented realisation of democratic values in self-government. The ethos of law-making as a genesis of a democratic polity to put before the sovereign for ratification of a fundamental law is the foundation for democratic legitimacy.
Richard Tuck in his work The Sleeping Sovereign laid much emphasis on the original purpose of constitution-making, which according to him was to enable the people themselves to author their fundamental law. This idea is loosely based on the concept of “modern shared-governance” which says that the capacity to legislate should not be an absolute privilege in the hands of elites. A particular reference of de facto constitutional law-making by officials and elites can be traced to constit0utional law-making in India, where the Preamble to Indian Constitution very vividly mentions the people as sovereign but paradoxically the constitution was neither ratified nor democratically reviewed by the sovereign. The philosophy of the Indian constitution makes several assumptions, the most crucial being that there is a genre called “constitutionalism” even in the post-modernist world.
A conflicting feature of contemporary American politics is that the constitution seldom appears to stand in the way of modern policy making. This ambiguous nature of the American constitutionalism was interpreted juridico-politically by Justice Scalia through American exceptionalism. The inherent tension and desire to achieve radical social and political change while preserving the essentials of the constitution was recognised by democracies during their modern constitutional development process. A radical change in the legal culture became a political demand. Unconventional problems demand uncanny solutions. The idea of giving political legitimacy in a constitutional order pioneered the debate between – prominence of originalism and reliance on transformation.
The original theory of American constitutionalism is a dilemma of U.S. Constitution no longer working for popular sovereignty. Both originalism and living constitutionalism has remained unfaithful to the roots of self-rule. A failure to reconcile constitutional authority with popular sovereignty has also led to a state where the constitution itself makes amendment practically impossible.
To understand modern constitutionalism and the juridical-politico relevance of sovereign as a touchstone in democracy, it is of prototypical that the procedural acts of the government derive their legitimacy from a constituent act of democratic sovereignty. May it be Jean Bodin’s conception of a functional difference of sovereignty (will) and Government (administrative options); Aristotle’s natural sociability; Thomas Hobbes’s monarchical absolutism; what has remained similar in their divergent ideologies is the essence of political modernity and popular consent. There are complex and multi-dimensional views which states that people are not just sleeping sovereign in the juridical ontology of modern constitutionalism, but are popular authors who can usurp the government. The Rex v. Jones doctrine led to a conflict between constitutionally unlimited sovereignty and sovereignty limited by the terms of a social contract containing substantive limitations.
A melancholic truth about the judicial process in India is that the Supreme Court has failed to adopt a scrupulous approach in identifying the real essence of constitutionalism. The revocation of Article 370 and making the temporary provisions temporary has created a furore among the constitutional experts. The process of constitutionally making it otiose will no doubt be subjected to academic review by constitutionalists. The situation has led to a constitutional paradox, where the end could be contained as constitutional, but the means still finds itself incalculable to come out of the smokescreen of legitimacy.
Democracy is a basic feature of the Constitution but the rule of the majority should be ascertained through some fair electoral process. Popular sovereignty and will of the people (present consent) are no doubt the foundational principles of a democratic constitution, but the idea of flexible constitutionalism can be easily hijacked as a legitimacy testing tool by undemocratic forces. The real essence of the constitution lies in its transformation, not in its procedural lacunae. The legitimacy and legality of modern constitutionalism is established by defending a structuralist interpretation as a justifiable model of constitutional interpretation. Indian constitution no doubt is facing the test of majoritarianism and popular authorship. It is not an impossible phenomenon where the popular will may decide to back something immoral. The paradigm of consent and popular will are tools for giving legitimacy to Government actions, popular will could also be accompanied by majoritarianism.
Using referendum and plebiscite as a method to test the will the people is an easy process to manipulate. Too much populism may lead to constitutional anarchy. Nihilism and cynicism could take over the constitutional mandate. The time has come to review the ultimate need for constitutionalism. The contemporary revolution of society towards the natural law approach should be harmoniously constructed with modern society’s needs including national security and rule of law.
Indian constitution relies upon two aspects to test constitutionalism, first being Article 13 which is an express provision to test constitutionalism and second is the implied test of basic structure doctrine. The open-ended nature of the doctrine is beginning to lead to an irrational and confusing situation. For example, a constitutional amendment introducing presidential democracy may survive basic structure review for damaging democracy so long as it ensures federalism and free and fair elections.
Interpreting the constitution by distancing itself from constitutional morality, counter-majoritarianism and progressive realisation is the real threat to democracy. As Lord Acton said, “Power tends to corrupt, and absolute power corrupts absolutely”.Transformative constitutionalism demands demos-prudence that can be achieved only through political will and neoteric ideas. Constitutional process is a precious heritage with a multi-dimensional identity. The real spirit of the constitution lies in its realisation, not in the constitution itself.
(Adithya Anil Variath is a lawyer based in Mumbai. He is presently doing his Master of Laws at Dharmashastra National Law University)