September 22
2021
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Democratic Constitutionalism in India and the European Union

Philipp Dann and Arun K. Thiruvengadam (Eds.)

review by

Sascha Hardt and Prashant Sabharwal

At first thought, India and the European Union seem an unlikely apple and orange for a comparison of democratic constitutionalism – a post-colonial state in the global South and a supranational regional organisation in the global North. However, the editors of this edited volume do not only acknowledge and accept the challenges of this comparative endeavour but deliver a book that makes a convincing case for its benefits. These benefits are threefold:

First, the method the editors refer to as ‘slow comparison’ offers rich insights on a conceptual level, because the comparison of two very different and complex systems of democratic constitutionalism, neither of which fits into a ‘classic’ conceptual mould, requires more contextualisation, genuine bi-legalism and a deeper appreciation of historical, socio-cultural, and political backgrounds than many publications in comparative constitutional law have to offer. Therefore, both the conceptual reflections in Part I of the book (on the concept of democracy itself in both systems, their constitutional history, and the themes of equality and diversity in constitutional discourses) and the chapter addressing specific features of democratic constitutionalism (electoral systems, party politics, freedom of expression and its limits, social rights, federalism) invite the reader to challenge her own assumptions, standards and methods. At the same time, these contributions remain readable, informative, and close to the subject matter.

Second, in particular the European or more generally Western reader will indeed see Europe ‘provincialised’ – in a very positive sense – by this comparison, in which India features as the older, in many ways more established, and intellectually independent system of democratic constitutionalism vis-à-vis the EU as an ‘emergent polity’.

Third, the comparative conversations in this edited volume reveal not just differences – of which there are plenty – but also remarkable parallels in the obstacles both polities are facing in the development of their respective version of democratic constitutionalism, and in the solutions they find. There is much to learn from, for instance, the account Jürgen Bast and Arun Thiruvengadam provide of the judicial activism of the Indian Supreme Court and the Court of Justice in shaping the two systems, or the reflections on the constitutional answers both polities have found to the challenges of their respective – economic, cultural, religious – heterogeneity.

The prospect of an engaging conversation on the distinct features and similarities of the European and Indian systems is explored further in Part II of the edited volume, which charts the evolution of both continental polities from various institutional and constitutional angles. This begins with the chapter on the salience of electoral systems and questions of representation. The chapter (rightly) posits that in diverse societies, a merely formalistic approach to electoral law may fall short of realising the legitimate aspirations of significant segments of the electorate. In this context, the authors examine sharp divergences between the Indian and EU approaches: on the hand, we have India’s majoritarian electoral system (stemming from a desire for national cohesion), standing in contrast to the proportional representation mandate favoured by the EU (stemming from a desire to protect smaller Member States) – as well as interesting similarities in terms of ensuring more equitable representation in both continental democracies (a freeze on the post-census reapportionment of parliamentary constituencies in India, degressive proportionality in the EU).

This is continued in a similar vein in the other chapters on political parties (which pose regulatory challenges of a different nature in the EU and India) and social movements (central to holding the respective executive branches in both polities to account, albeit with varying degrees of success), as well as free speech (quite topical given the contentious discussions in the run-up to and the aftermath of the recent US presidential election) and federalism (which charts the different historical origins of India and the European Union, as well as the rather different views on what federalism actually means).

Democratic Constitutionalism in India and the European Union represents a long overdue contribution to the incipient debate about the world’s most populous democracy and the world’s most successful single market. What is particularly remarkable is the earnestness of the approach taken by the authors. Rather than papering over the differences between the two comparators, they embrace them and seek to distil lessons Europeans may be able to learn from Indians, and vice versa. One hopes that this book represents only the inception of many a fruitful endeavour between the two sides.

 

Sascha Hardt is an Assistant Professor of Comparative Constitutional Law at Maastricht University and a fellow of the Montesquieu Institute.

Prashant Sabharwal is a PhD Candidate and Lecturer in Comparative and European Constitutional Law at Maastricht University.

 

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