Author(s): Sandhiya S
Paper Details: Volume 3, Issue 1
Citation: IJLSSS 3(1) 32
Page No: 300 – 313
ABSTRACT
This paper examines how constitutionalism promotes democratic governance, human rights, and the rule of law by emphasising the legal restraint of governmental power. However, authoritarianism and sociopolitical forces that threaten checks and balances are two problems that constitutionalism faces on a global scale. Threats to India come from challenges to federalism, populist politics, executive domination, and judicial overreach. This paper examines the challenges facing constitutionalism both domestically and abroad, to be more precise the USA and Europe, evaluating how they affect democracy, and makes recommendations for legislative changes. Maintaining judicial independence, promoting political accountability, and fortifying institutions are all necessary to address these problems.
RESEARCH QUESTION
1.How are these challenges undermining the constitutional principles in India?
2. How are political, social, and economic challenges a problem to constitutionalism in countries like the USA and in Europe ?
RESEARCH SCOPE AND OBJECTIVE
The scope of the paper is limited to dealing with factors of constitutionalism and how it is very important for our Indian nation and also to analyse the same faced by global countries mainly the United states and Europe. The objective of the paper is;
1. To highlight the challenges faced by India and other global countries in the aspect of constitutionalism.
2. To analyse the ways these challenges can be tackled by India and other global countries.
INTRODUCTION
By guaranteeing government accountability and imposing legal restraints on power, constitutionalism serves as the cornerstone of democratic societies. The emergence of authoritarian governments, changes in political ideologies, and socioeconomic forces put the fundamentals of constitutionalism to the test in India. It is essential to analyse these issues in order to comprehend how they affect the resilience of constitutional governance and the integrity of democracy, similar trends are emerging on a global scale. Wider concerns regarding the viability of constitutionalism in modern governance are being raised by the growing populism, judicial politicisation, and threats to press freedom in many democratic nations, including the US and those in Europe. This paper looks at the particular difficulties India and other global countries are facing.
A. KEY CHALLENGES TO CONSTITUTIONALISM IN INDIA
Despite being intended to maintain a balance of power and safeguard democratic rights, India’s constitutional framework is currently confronted with a number of issues and challenges that affect the democracy’s viability. Executive overreach, federalist tensions, judicial independence erosion, restrictions on free speech, and electoral concerns are some of these difficulties. Each of these issues calls into question the durability of India’s democratic institutions and erodes fundamental constitutional values.
1. EXECUTIVE OVERREACH AND CONCENTRATION OF POWER
Growing Power Dominance of the Executive: Concerns regarding the dwindling roles of other institutions, such as Parliament, have been raised by the executive branch’s concentration of power, especially through the Prime Minister’s Office. Ordinances and executive orders are frequently used to circumvent legislative debate, which erodes legislative authority and parliamentary scrutiny.
Weakening of Checks and Balances: The balance of power intended to preserve constitutionalism is threatened by situations in which the executive overrides or avoids checks, such as when bureaucrats are transferred or opposition-led state governments are dismissed.
For instance, it has been argued that the use of Article 356—which gives the federal government the authority to overthrow state governments—is a political ploy that undermines federal autonomy and executive power checks[1].
2. STRAINS ON FEDERALISM AND STATE AUTONOMY
Fiscal Centralization: Financial authority was largely transferred to the federal government with the introduction of the Goods and Services Tax (GST), which now collects a sizable amount of revenue and disburses it to the states. States now have less financial autonomy and are more reliant on central allocations, which are occasionally impacted by political factors[2].
Encroachments on State Powers: Recent laws and policies have come under fire for intruding on issues that have historically been handled by states, especially those pertaining to labour, agriculture, and environmental regulations. These steps jeopardise the federal balance that the Constitution intended and run the risk of violating state governments’ autonomy.
For instance, the 2020 farm laws, which were first enacted by the federal government but circumvented state legislatures on a matter that belonged to the states, sparked intense demonstrations and were criticised for violating federal values[3].
3. CHALLENGES TO JUDICIAL INDEPENDENCE
Perceived Political Influence in Judicial Appointments:There has been concern about possible executive influence in the judge appointment process, especially in the higher judiciary level. The collegium system took the place of the defunct National Judicial Appointments Commission (NJAC), but persistent disputes underscore the necessity of an open and equitable appointments procedure[4].
Backlog and Delays in Justice Delivery: With millions of cases still pending, India’s courts have a huge backlog that compromises the efficiency of the legal system. The judiciary’s reputation as an institution that protects constitutional rights is impacted by this backlog, which jeopardises prompt justice.
For instance, the need for judicial reforms to guarantee prompt justice and preserve public confidence in the judiciary is highlighted by the delays in hearing well-known cases, particularly those involving constitutional issues or human rights.
4. CONSTRAINTS ON FREEDOM OF EXPRESSION AND PRESS FREEDOM
Press Freedom Under Pressure: In recent years, India has ranked lower on the World Press Freedom Index, a sign of tightening regulations on media outlets and journalists. Freedom of expression has been restricted by laws like the Unlawful Activities (Prevention) Act (UAPA) and sedition laws that have been applied to journalists, activists, and dissidents.
Digital Surveillance and Privacy Concerns: Concerns regarding data privacy and surveillance have arisen as a result of the lack of a comprehensive data protection law. Potential risks to digital privacy and freedom of expression are brought to light by issues like the purported use of surveillance tools like Pegasus on journalists and activists. For instance, self-censorship and media independence have come under scrutiny when journalists covering politically delicate subjects have been charged with sedition[5].
5. ELECTORAL AND DEMOCRATIC CHALLENGES
Electoral Manipulation and Misuse of Resources: Concerns regarding free and fair elections have been raised by the alleged use of government resources for election campaigning as well as voter manipulation techniques. Although the independence of the Election Commission is crucial, recent critiques have demanded that the organisation be held to higher standards of accountability and transparency.
Concerns over Electoral Bonds and Political Funding: There has been controversy surrounding the introduction of electoral bonds, which permit anonymous contributions to political parties. Critics contend that this opaque system, which favours ruling parties, could result in excessive corporate influence in elections. For instance, the electoral bond program has been contested in court due to concerns regarding its ability to enable untraceable contributions, which calls into question the fairness and transparency of political financing[6].
B.KEY CHALLENGES TO CONSTITUTIONALISM GLOBALLY
UNITED STATES:
Political polarisation, executive overreach, judicial politicisation, and threats to voting rights present unique challenges to the constitutionalism of the United States, which is frequently cited as a model for constitutional democracy. These problems have a major impact on democratic governance and public confidence in institutions, as well as the way the checks and balances system operates.
I. POLITICAL POLARISATION AND ITS IMPACT ON CONSTITUTIONAL GOVERNANCE
The degree of political polarisation in the US has increased to the point where it affects the efficiency of federal institutions, judicial independence, and legislative efficacy. Congress’s ability to effectively check executive power has been weakened by the growing ideological gap between political parties, which has resulted in legislative gridlock and made it harder to pass laws.
A. CONGRESSIONAL GRIDLOCK AND EXECUTIVE ORDERS
Recent presidents have increasingly used executive orders to enact policies, avoiding the legislative process, as Congress is frequently impassed. Executive orders are legally allowed, but using them to make significant policy changes has sparked worries about getting around Congress and undermining the separation of powers principle[7].
B. EROSION OF CHECKS AND BALANCES
Congress’s oversight of the executive branch is also impacted by polarisation, which frequently puts party loyalty ahead of critical examination. Party loyalty can affect Congressional oversight, potentially weakening Congress’s role in holding the executive accountable, as evidenced by the partisan reactions to presidential impeachments in recent years[8].
II. JUDICIAL POLITICIZATION AND THREATS TO JUDICIAL INDEPENDENCE
A fundamental component of constitutionalism is the judiciary’s function as an unbiased arbiter. However, the public’s perception of judicial neutrality has been impacted by the growing politicisation of the selection of federal judges, particularly justices of the Supreme Court. For decades, judicial appointments have been viewed as calculated attempts to ensure ideological slants within the Court, and Supreme Court nominations have been the subject of fierce partisanship.
A. LIFETIME APPOINTMENTS AND IDEOLOGICAL INFLUENCE
In the United States, federal judges are appointed for life, which allows for both stability and long-lasting ideological influence. Appointments made for political reasons, especially the Supreme Court, have resulted in ideological differences that mirror larger political disputes, casting doubt on the judiciary’s objectivity[9].
B. JUDICIAL ACTIVISM AND JUDICIAL RESTRAINT
Debates about whether the judiciary is overreaching have been sparked by judicial activism, in which judges interpret the law in ways that appear to create new policies. Courts have been criticised by a variety of ideological groups on controversial topics like environmental policy, gun control, and reproductive rights, which can erode public trust in judicial neutrality[10].
III. VOTING RIGHTS AND ACCESS TO DEMOCRATIC PARTICIPATION
Although voting rights are fundamental to American constitutional democracy, voting representation and access have faced serious obstacles in recent years. Concerns regarding equal representation are raised by issues like gerrymandering, restrictive voter ID laws, and voting barriers that disproportionately affect marginalised communities[11].
IV. CHALLENGES IN FEDERALISM: STATE VS. FEDERAL POWER
Recent problems have put the U.S. federal system’s ability to maintain a balance between the federal and state governments to the test, particularly in areas like immigration, healthcare, and pandemic response. Tensions in the balance of power are highlighted by disputes over these matters, as both federal and state authorities defend their policies on constitutional grounds.
A. STATE AUTONOMY VS. FEDERAL AUTHORITY
States’ rights discussions have gotten more heated in recent years. The degree of state autonomy under federal supervision, for example, has come under scrutiny as a result of states’ attempts to enact or limit health and reproductive rights policies, particularly in cases where state laws clash with federal protections or policies[12].
EUROPE:
Political polarisation, the rise of populism, threats to judicial independence, and restrictions on media freedom are some of the major issues facing constitutionalism in European countries. These difficulties are a reflection of larger patterns that threaten the checks and balances that are necessary for constitutional democracy.
1. RISE OF POPULISM AND EXECUTIVE OVERREACH
Political Polarisation and Populist Leaders: Populist parties have risen to prominence in a number of European nations, frequently advancing policies that put the rights of minorities second to the will of the majority. For instance, the policies put in place by the leaders of Hungary, Poland, and Italy have weakened democratic institutions and concentrated power in the executive branch[13].
Erosion of Checks and Balances: Claiming a mandate to implement rapid reforms without intervention, populist leaders occasionally undermine independent institutions, circumvent the legal system, or contest parliamentary oversight. In order to benefit ruling parties, this frequently entails changing election laws or avoiding routine legislative review, undermining the idea of balanced governance. For instance, Prime Minister Viktor Orbán of Hungary has come under fire for enacting laws that increase executive authority while restricting parliamentary and judicial oversight, especially in the wake of the COVID-19 pandemic when emergency powers were in place.
2. JUDICIAL INDEPENDENCE AND RULE OF LAW
Judicial Appointments and Political Influence: Concerns regarding political influence within the judiciary have been raised by the Law and Justice (PiS) party’s introduction of judicial reforms in Poland, which give the government more authority over judge appointments and disciplinary actions. These acts have strained relations between Poland and the European Union (EU) and jeopardise the idea of judicial independence.
Erosion of Rule of Law: Because it permits politically motivated decisions and diminishes the judiciary’s capacity to serve as a check on government power, the erosion of judicial independence jeopardises the rule of law. Concerns have been raised by the EU that these developments weaken the legal foundations of constitutionalism and democratic governance. For instance, the European Court of Justice (ECJ) has declared that certain of Poland’s judicial reforms are illegal under EU law. The continuous dispute between Poland and the EU over this matter emphasises how domestic legal reforms that are seen as politically motivated pose a threat to constitutionalism[14].
3. RESTRICTIONS ON MEDIA FREEDOM AND PRESS INDEPENDENCE
Government Influence and Media Consolidation: In nations like Hungary, where media outlets have been subject to direct censorship, consolidation under state-aligned owners, or government influence, press freedom has been under threat. Such measures jeopardise democratic discourse by reducing independent reporting, obstructing public discourse, and silencing dissenting voices.
Intimidation of Journalists and Restrictive Laws: Journalists and media organisations have experienced intimidation and legal pressure for covering opposition or government corruption in nations like Slovenia and Bulgaria. Investigative journalism has been discouraged and critics silenced through the use of targeted lawsuits known as SLAPPs (Strategic Lawsuits Against Public Participation) and restrictive defamation laws. For instance, Hungary’s ranking on international press freedom indices has significantly dropped as a result of the Fidesz government’s consolidation of almost 500 media outlets under pro-government control, undermining press independence.
4. NATIONALISM AND IMMIGRATION POLICIES
Anti-Immigrant Sentiments and Policy Changes: In nations like Italy and Austria, where populist leaders have pushed for restrictive immigration laws, rising nationalism and anti-immigrant rhetoric have impacted immigration policies. Political platforms that take advantage of national identity and paint immigrants as dangers to cultural integrity are the result of this trend.
Strains on EU Principles of Freedom and Unity: The EU’s values of equality, freedom of movement, and nondiscrimination are frequently violated by these anti-immigration policies, which strains relations within the EU and threatens the unity of its member states. Particularly in Central and Eastern Europe, the opposition to EU-mandated migrant quotas represents a shift from the principles outlined in the EU constitution. For instance, populist leaders in Italy have imposed stringent immigration regulations and painted immigration as a security risk. These policies strain Italy’s adherence to EU-wide standards of refugee and asylum rights while appealing to nationalist sentiments.
5. ELECTORAL AND DEMOCRATIC INTEGRITY
Electoral Manipulation and Gerrymandering: It has been alleged that certain European governments have manipulated election processes in order to benefit their ruling parties. This involves introducing legislation that gives incumbents an advantage over opposition parties or redrawing electoral boundaries to favor particular parties.
Influence of Foreign Interference: The integrity of democracy is at risk from outside interference in elections, such as purported Russian meddling in European elections. Cyberattacks and disinformation campaigns aimed at changing public opinion threaten electoral transparency and erode public confidence in democratic processes.
As an illustration, recent electoral reforms in Poland that raise more obstacles for opposition parties have sparked allegations of electoral tampering and prompted concerns about democratic procedures and equitable representation.
C. RECOMMENDATIONS FOR STRENGTHENING CONSTITUTIONALISM IN INDIA AND GLOBALLY
Reforms that prioritise institutional integrity, preserve judicial independence, safeguard fundamental rights, and strengthen accountability mechanisms can be implemented in India and other nations dealing with democratic backsliding and institutional erosion to address challenges to constitutionalism. The specific suggestions listed below are geared toward India and the wider world.
I. RECOMMENDATIONS FOR INDIA
1.ENHANCE JUDICIAL INDEPENDENCE AND ACCOUNTABILITY
Judicial Appointments Reform: To lessen executive influence while maintaining accountability in judicial appointments, India should think about establishing a more open and equitable judicial appointments commission with members from the judiciary and civil society.
Limits on Judicial Overreach: Clearer guidelines on the extent of judicial intervention can help delineate boundaries, preventing overreach while respecting the legislature’s authority, even though judicial activism has been crucial in defending rights[15].
2.STRENGTHEN FEDERALISM AND STATE AUTONOMY
Balanced Resource Allocation: Federalism can be maintained through reforms that guarantee fair financial distribution and greater state fiscal autonomy. This can entail changing the GST Council’s decision-making procedures to provide state representatives a stronger voice.
Clarify Federal Powers: Conflicts between states and the centre can be lessened by creating clearer constitutional interpretations of state and central authority, especially in overlapping fields like healthcare and education.
3.CURB EXECUTIVE OVERREACH AND POPULISM
Revitalising Parliamentary Oversight: Enhancing parliamentary committees and promoting inter-party cooperation can improve oversight of executive actions, particularly when it comes to policies that avoid legislative discussion.
Public Awareness and Civic Education: The appeal of populist policies that subvert constitutional norms can be diminished by raising public awareness of constitutional values. Campaigns for education can encourage vigilante opposition to undemocratic practices and informed citizen participation.
4.PROTECTING FREEDOM OF EXPRESSION AND PRESS INDEPENDENCE
Reform of Media Regulations: A liberal press can be promoted by amending media regulations to stop overzealous control or intimidation of independent journalists. Independent journalism can be supported by ensuring media self-regulation that is supported by legal safeguards.
Reinforcing Digital Rights: By striking a balance between constitutional rights and national security, clear data protection laws and citizens’ rights to privacy can safeguard freedom of expression online.
II. GLOBAL RECOMMENDATIONS
1.SAFEGUARD JUDICIAL INDEPENDENCE
International Standards and Oversight: Adhering to international judicial independence standards set forth by the International Bar Association and the United Nations could be advantageous for nations that are experiencing judicial interference. Courts can be protected from political pressure by promoting oversight procedures like independent judicial councils and adherence to international judicial standards.
Support for Civil Society Watchdogs: Local watchdogs that keep an eye on and report judicial threats should be supported by international organisations and non-governmental organisations. This makes it possible for civil society to contribute to preserving judicial independence[16].
2.PROMOTE ACCOUNTABILITY MECHANISMS FOR EXECUTIVE POWER
Legal Limits on Emergency Powers: Executive overreach during crises can be avoided by clearly defining legal restrictions on emergency declarations, such as limitations on their duration and scope. The power to examine and, if required, supersede emergency measures should remain in the hands of legislative bodies.
Strengthen International Norms on Human Rights and Democracy: To guarantee that executives are constrained by common values of democracy and the rule of law, nations could embrace and enforce standards advocated by organisations such as the European Union or the Organization of American States.
3.REFORM ELECTORAL PROCESSES AND PROTECT VOTING RIGHTS
Ensure Fair Representation through Independent Redistricting Commissions: Independent redistricting bodies that guarantee equitable representation free from partisan influence are advantageous for nations vulnerable to gerrymandering or electoral manipulation.
Expand Voter Access and Equal Representation: The right to vote can be strengthened and representative democracy improved by enacting laws that protect marginalised communities from discriminatory laws, guarantee equal access to polling stations, and streamline voter registration.
4.BOLSTER FEDERALISM AND LOCAL AUTONOMY
Decentralise Key Governance Areas: Governments can continue to be responsive to local needs by promoting reforms in local governance, especially in areas like infrastructure, health, and education. Amendments to the constitution that safeguard regional autonomy may be part of these initiatives.
Promote Fiscal Federalism:By encouraging changes in local governance, particularly in sectors like infrastructure, health, and education, governments can maintain their responsiveness to local needs. These efforts could include constitutional amendments that protect regional autonomy.
5.STRENGTHEN FREEDOM OF THE PRESS AND CIVIL SOCIETY
Global Standards for Media Freedom: Standards that safeguard press freedom, like those supported by the Committee to Protect Journalists, can be promoted by international organisations. Legal safeguards that prohibit governmental control over the media should be implemented by all nations.
Support for Civil Society and Non-Governmental Organisations (NGOs): International frameworks can support democratic advocacy and keep a check on governmental power by shielding civil society organisations from repression or Immoderate regulation.
D. CONCLUSION
These events in the US, Europe, and India point to a global trend of democratic regression that needs immediate attention. Each of these regions must prioritize reforms that strengthen democratic institutions and uphold the rule of law in order to protect constitutionalism. In India, safeguarding civil liberties, promoting judicial independence, and making sure that power is distributed fairly are all crucial first steps. European countries must protect media independence, uphold judicial integrity, and strengthen checks and balances in order to counteract the rise of populism. In order to overcome partisan differences, the US should prioritise reviving confidence in election procedures, defending the independence of the judiciary, and encouraging polite conversation.In the end, maintaining constitutionalism in these various democracies depends on a shared dedication to defending democratic norms and values. To protect constitutional values and make sure that populism, authoritarianism, or political expediency do not undermine their rights and freedoms, citizens, civil society, and political leaders must actively participate. India, Europe, and the United States can fortify their democratic underpinnings and protect the future of constitutional governance by cooperating to address these issues.
REFERENCES
1. Khosla, Madhav & Choudhry, Sujit, The Oxford Handbook of the Indian Constitution 131 (2016)( last visited Oct 31, 2024)
2. Singh, M.P. & Saxena, Rekha, Indian Politics: Constitutional Foundations and Institutional Functioning 190-92 (2021).( last visited Oct 31, 2024)
3.Sinha, Prerna, Federalism and Fiscal Autonomy in India: An Analysis of GST and its Implications on State Power, Econ. & Pol. Weekly, vol. 55, no. 6, 46-55 (2020).( last visited Oct 01, 2024)
4.Baxi, Upendra, The Crisis of the Indian Legal System 79-80 (1982)( last visited Oct 31, 2024)
5.Human Rights Watch, India: Intimidation of Journalists, Rights Activists (2021), https://www.hrw.org/news/2021/02/16/india-intimidation-journalists-rights-activists.
6.Subramanian, K.S., Political Violence and the Police in India 201 (2007).
7.See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952).(last visited Nov 01,2024)
8. Howell, William G., Power without Persuasion: The Politics of Direct Presidential Action, 2003,(last visited Nov 01,2024)
9.Balkin, Jack M., Living Originalism, (2011)(last visited Nov 01,2024)
10.Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803),(last visited Nov 01,2024)
11. Shelby County v. Holder, 570 U.S. 529 (2013),(last visited Oct 31,2024)
12.Arizona v. United States, 567 U.S. 387 (2012),(last visited Oct 31,2024)
13.Pappas, Takis S., Populism and Liberal Democracy: A Comparative Perspective, European Journal of Political Research 114, 239–254 (2020).(last visited Nov 01,2024)
14.Bugaric, Bojan, Judicial Independence in Post-Communist Europe: The Impact of Political Culture and Political Institutions, East European Politics & Societies 29, 275–292 (2015).
15.Jain, M.P., Indian Constitutional Law (8th ed. 2020),(last visited Nov 01, 2024)
16. United Nations Basic Principles on the Independence of the Judiciary, G.A. Res. 40/32, U.N. Doc. A/40/32 (1985),(last visited Nov 01, 2024)
[1] Khosla, Madhav & Choudhry, Sujit, The Oxford Handbook of the Indian Constitution 131 (2016)( last visited Oct 31, 2024)
[2] Singh, M.P. & Saxena, Rekha, Indian Politics: Constitutional Foundations and Institutional Functioning 190-92 (2021).( last visited Oct 31, 2024)
[3] Sinha, Prerna, Federalism and Fiscal Autonomy in India: An Analysis of GST and its Implications on State Power, Econ. & Pol. Weekly, vol. 55, no. 6, 46-55 (2020).( last visited Oct 01, 2024)
[4] Baxi, Upendra, The Crisis of the Indian Legal System 79-80 (1982)( last visited Oct 31, 2024)
[5] Human Rights Watch, India: Intimidation of Journalists, Rights Activists (2021), https://www.hrw.org/news/2021/02/16/india-intimidation-journalists-rights-activists.
[6] Subramanian, K.S., Political Violence and the Police in India 201 (2007).
[7] See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952).(last visited Nov 01,2024)
[8] Howell, William G., Power without Persuasion: The Politics of Direct Presidential Action, 2003,(last visited Nov 01,2024)
[9] Balkin, Jack M., Living Originalism, (2011)(last visited Nov 01,2024)
[10] Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803),(last visited Nov 01,2024)
[11] Shelby County v. Holder, 570 U.S. 529 (2013),(last visited Oct 31,2024)
[12] Arizona v. United States, 567 U.S. 387 (2012),(last visited Oct 31,2024)
[13] Pappas, Takis S., Populism and Liberal Democracy: A Comparative Perspective, European Journal of Political Research 114, 239–254 (2020).(last visited Nov 01,2024)
[14] Bugaric, Bojan, Judicial Independence in Post-Communist Europe: The Impact of Political Culture and Political Institutions, East European Politics & Societies 29, 275–292 (2015).
[15] Jain, M.P., Indian Constitutional Law (8th ed. 2020),(last visited Nov 01, 2024)
[16] United Nations Basic Principles on the Independence of the Judiciary, G.A. Res. 40/32, U.N. Doc. A/40/32 (1985),(last visited Nov 01, 2024)