Post-Modern Constitutionalism in Asia: Perspectives from the Indian Experience
Volume 6 Issue 2 (2013)
This paper is based on comparative constitutional law, with significant emphasis on the judicial decisions and laws formulated by the legislature in India. It discusses the path-breaking developments in the Indian legal system which strike at the root of the primitive notion that traditional ethnology and democracy are integrally antithetical to each other. The fact that the Indian Constitution provides for group as well as individual rights is highlighted as a revolutionary feature of India’s democracy which according to many legal scholars defies the orthodox notion of western constitutionalism. The paper then proceeds to evaluate the developments in constitutional law in India from three perspectives. Firstly, it appreciates the pragmatic approach adopted by the Constituent Assembly during the framing of the Constitution wherein the makers anticipated the post-modern approach of the current law makers. Secondly, the judicial activism of the Supreme Court is discussed which empowers the judges to engage in comparative law and develop new and original constitutional principles such as the ‘basic structure doctrine’ so as to expand the protective umbrella of the Indian Constitution for its citizens. Lastly, the paper discusses the practice of internalising international principles and control measures into our body of national legislations and institutions, particularly in the field of environmental law.