Democratic Constitutionalism in India and the European Union: Comparing the Law of Democracy in Continental Polities 1789901561, 9781789901566

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Democratic Constitutionalism in India and the European Union

STUDIES IN COMPARATIVE LAW AND LEGAL CULTURE In today’s shrinking world it’s important to extend our horizons and increase our knowledge of other people’s laws. This series publishes in-depth volumes covering various aspects of private and public law in diverse legal traditions. Additionally, it seeks to encourage improved techniques and methods of comparative legal research, including the use of interdisciplinary studies. Individual volumes may deal with the law and culture not merely of well-known and frequently studied countries, but also with lesser-known, mixed, religious, and plural systems of the world. The focus ranges from important aspects of legal history, culture, and institutions to local experience and evolving legal trends. Titles in the series include: Order from Transfer Comparative Constitutional Design and Legal Culture Edited by Günter Frankenberg Corruption and Conflicts of Interest A Comparative Law Approach Edited by Jean-Bernard Auby, Emmanuel Breen and Thomas Perroud Legal Innovations in Asia Judicial Lawmaking and the Influence of Comparative Law Edited by John O. Haley and Toshiko Takenaka Rights-Based Constitutional Review Constitutional Courts in a Changing Landscape Edited by John Bell and Marie-Luce Paris Constitutionalism in the Americas Edited by Colin Crawford and Daniel Bonilla Maldonado Modern Law and Otherness The Dynamics of Inclusion and Exclusion in Comparative Legal Thought Veronica Corcodel Democratic Constitutionalism in India and the European Union Comparing the Law of Democracy in Continental Polities Edited by Philipp Dann and Arun K. Thiruvengadam

Democratic Constitutionalism in India and the European Union Comparing the Law of Democracy in Continental Polities

Edited by

Philipp Dann Professor of Public and Comparative Law, Humboldt University Berlin, Germany

Arun K. Thiruvengadam Professor, Azim Premji University, Bengaluru, India

STUDIES IN COMPARATIVE LAW AND LEGAL CULTURE

Cheltenham, UK • Northampton, MA, USA

© Philipp Dann and Arun K. Thiruvengadam 2021

All rights reserved. No part of this publication may be reproduced, stored in a retrieval system or transmitted in any form or by any means, electronic, mechanical or photocopying, recording, or otherwise without the prior permission of the publisher. Published by Edward Elgar Publishing Limited The Lypiatts 15 Lansdown Road Cheltenham Glos GL50 2JA UK Edward Elgar Publishing, Inc. William Pratt House 9 Dewey Court Northampton Massachusetts 01060 USA A catalogue record for this book is available from the British Library Library of Congress Control Number: 2020950929 This book is available electronically in the Law subject collection http://dx.doi.org/10.4337/9781789901573

02

ISBN 978 1 78990 156 6 (cased) ISBN 978 1 78990 157 3 (eBook)

Contents List of contributorsvi Acknowledgementsx 1

Comparing constitutional democracy in the European Union and India: an introduction Philipp Dann and Arun K. Thiruvengadam

PART I

1

CONCEPTUAL CONTEXTS

2

Concepts of democracy Pritam Baruah and Uwe Volkmann

43

3

Origins and pathways of constitutionalism Jürgen Bast and Arun K. Thiruvengadam

75

4

Equality and diversity in constitutional discourses Sigrid Boysen and Aparna Chandra

PART II

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SELECT ISSUES

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Electoral systems and representation Aditi and Jelena von Achenbach

137

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Political parties and social movements Michaela Hailbronner and Naveen Thayyil

162

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Freedom of expression and hate speech Smarika Lulz and Michael Riegner

191

8

Social rights Gautam Bhatia and Emilios Christodoulidis

223

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Federalism and democracy Philipp Dann and Arun K. Thiruvengadam

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Index286

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Contributors Jelena von Achenbach is Junior Professor of Public Law at the University of Giessen. She completed a Ph.D. at the University of Heidelberg and an LL.M. at New York University. Her Ph.D. thesis on the legislative procedure of the European Union was awarded the Science Prize of the German Federal Parliament in 2017. Her research focuses on constitutional law, democratic theory, and military integration in Europe. Aditi is an Assistant Professor at Jindal Global Law School, Sonipat, India. She completed a B.A. LL.B. (Hons.) from National University of Juridical Sciences in Kolkata. Thereafter she pursued an LL.M. from SOAS, University of London, where she worked extensively on South Asian public laws and politics. Her research primarily focuses on constitutional law, election law, and grassroots governance. Pritam Baruah is Associate Professor of Law at Jindal Global Law School. His research and teaching interests are legal philosophy and constitutional theory. His current research examines how constitutional courts employ moral and political values in decision making, and how abstract values can be justifiably employed as justifications by authorities. Pritam has previously taught at the West Bengal National University of Juridical Sciences and held visiting posts in China and Canada. His work on human dignity, privacy and legal theory has been published in international journals and edited volumes. He was Felix Scholar at the University of Oxford (BCL), and Commonwealth Doctoral Scholar at University College London. He has an undergraduate degree in law from NALSAR University of Law, Hyderabad. Jürgen Bast is Professor of Public Law and European Law at Justus Liebig University Giessen, Germany, speaker of the interdisciplinary ‘Research Group Migration and Human Rights’ at this University, and Academic Director of the Refugee Law Clinic, a clinical education programme at Giessen law school. Earlier he was a Full Professor of International and European Law at Radboud University Nijmegen, The Netherlands, and a Senior Research Fellow at the Max Planck Institute for Comparative Public Law and International Law in Heidelberg, Germany. Bast holds a Ph.D. in law and degrees at master level in law and sociology. His main research interests are in migration law, including vi

Contributors

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refugee studies and citizenship studies, and European constitutional law, in particular the institutional law of the EU and studies of the future of economic governance and the welfare state in Europe. Gautam Bhatia is a lawyer and legal scholar, presently reading for the D. Phil at the University of Oxford. He practised law for four years in India, and is the author of Offend, Shock, or Disturb: Freedom of Speech under the Indian Constitution (OUP 2015) and The Transformative Constitution (HarperCollins India 2019). His work has been cited by the Supreme Court of India, and by various Indian High Courts. Sigrid Boysen is Professor of Public law, European and Public International Law at Helmut Schmidt University, Hamburg. Before joining Helmut Schmidt University, she was Associate Professor at Free University Berlin. Her research focuses on the theory of international law, transnational resource law and constitutional law. Her recent publications include journal articles on global public goods and various chapters on constitutional rights. She is editor-in-chief of the international law review Archiv des Völkerrechts. Aparna Chandra is an Associate Professor of Law at the National Law School of India University, Bangalore. Her teaching and research focus on constitutional law, human rights, gender and the law and judicial process reform. Aparna has previously worked at the National Law University, Delhi, the National Judicial Academy, Bhopal, the National Law School of India University, Bangalore, and as a Tutor in Law at the Yale Law School, USA. She holds a B.A. LL.B. (Hons.) degree from National Law School, Bangalore and LL.M. and J.S.D. degrees from Yale Law School. Emilios Christodoulidis holds the Chair of Jurisprudence at the School of Law of the University of Glasgow. He is also Docent of the University of Helsinki. He is author of many articles on constitutional theory, democratic theory, critical legal theory, and transitional justice, and his book Law and Reflexive Politics won the European Award for Legal Theory in 1996 and the 1998 Society of Legal Scholars (SLS) Prize for ‘Outstanding Legal Scholarship’. He is editor of the Critical Studies in Jurisprudence series (Routledge), and is one of the editors of Social & Legal Studies and of Law & Critique. His work has appeared in English, Greek, French, Japanese and Spanish. Philipp Dann holds the Chair of Public and Comparative Law at Humboldt University Berlin. He has published three monographs and several edited volumes in the areas of public international, European Union and constitutional law and its respective theory. He is the editor-in-chief of Verfassung und Recht in Übersee/World Comparative Law, a quarterly journal on comparative constitutional law and the Global South. His main research interests concern

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the global encounter between South and North as reflected in constitutional, international and transnational law and its theory. Michaela Hailbronner is a Professor of Public Law and Human Rights at the University of Giessen. She completed two German law degrees at the University of Freiburg and the Kammergericht of Berlin before doing an LL.M. and a J.S.D. (doctorate) at Yale Law School (LL.M. 2010 and J.S.D. 2013). Her analysis of German constitutionalism against a broader comparative background appeared in a paper that won the I.CON Inaugural Best Paper Award 2014 and in her first book Traditions and Transformations: The Rise of German Constitutionalism (OUP 2015). Her more recent work has been in the field of comparative constitutional law and human rights, appearing inter alia in the American Journal of Comparative Law and the University of Toronto Law Journal. She is currently working on a new book project examining judicial responses to institutional failure in a range of domestic and international legal systems. Smarika Lulz is a Doctoral Researcher at the Law Faculty of Humboldt University Berlin. Having studied in India and Germany, she holds a dual degree in law and arts from the National Law Institute University, Bhopal and an LL.M. in European and European Legal Studies from Europa-Kolleg, University of Hamburg where her studies were funded by a DAAD scholarship. In the past, she has worked with the Bangalore-based human rights collective, Alternative Law Forum on the political economy of net neutrality and of freedom of expression; and with the Centre for Internet and Society on questions of internet governance and policy. She has also concluded an independent short-term research project with The Sarai Programme, Centre for the Study of Developing Societies, New Delhi, on the politics of legal governance of social media (2015), and was a Visiting Lecturer at the Indian Institute for Journalism and New Media, Bangalore (2014–15). Michael Riegner is Postdoctoral Researcher at the Law Faculty of Humboldt University Berlin. He holds a Ph.D. in law from Humboldt University, an LL.M. from New York University School of Law and studied law in Germany and Switzerland. He has published a monograph on international institutional law, a co-edited volume on comparative constitutional law in Southeast Europe, and articles on international and comparative law in the Yale Journal of International Law, Transnational Legal Theory, International Organizations Law Review and other journals. He is the co-editor-in-chief of the quarterly journal Verfassung und Recht in Übersee/World Comparative Law and is currently co-leading a multinational research project on contestations of liberal constitutionalism.

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Naveen Thayyil is an Associate Professor of Law and STS (Science and Technology Studies) at the Department of Humanities and Social Sciences, Indian Institute of Technology, Delhi. After earning a B.A. LL.B. (Hons.) from the National Law School of India, Bangalore, he practised public law at the Supreme Court of India. He was a Felix scholar at the School of Oriental and African Studies, earned his LL.M. degree at the University of London (jointly from School of Oriental and African Studies and University College London) and his Ph.D. at the Tilburg Institute of Law, Technology and Society, Tilburg University. He is interested in how legal and technological trajectories and rationalities co-shape each other and constitute society. His publications include Law Technology and Public Contestations in Europe: Biotechnology Regulation and GMOs (Edward Elgar UK 2014) and ‘Science and Social Movements’, Oxford Bibliographies (OUP USA 2018). Arun K. Thiruvengadam is a Professor of Law at the School of Policy and Governance, Azim Premji University. He holds B.A. LL.B. (Hons.) and LL.M. degrees from the National Law School, Bangalore, and LL.M. and S.J.D. degrees from the New York University School of Law. He currently teaches and researches on comparative constitutional law, Indian constitutional and administrative law, law and development, and welfare rights in India. He holds current visiting teaching positions at the Central European University, Budapest, the University of Zurich, and the City University of Hong Kong Faculty of Law. He is the author of The Constitution of India (Hart/Bloomsbury 2017). He is the general editor of the Indian Law Review (Taylor and Francis UK) and an editor on the boards of the journals, World Comparative Law (Nomos Germany) and the Asian Journal of Comparative Law (Cambridge UK). Uwe Volkmann holds the Chair of Public Law and Legal Philosophy at the University of Frankfurt. He studied law from 1981‒87 at the University of Marburg. Following his second state examination, he practised law as an attorney for four years. In 1992, he earned his Ph.D. in law, with a thesis on public funding of political parties. From 1994‒98, he served as academic assistant in Marburg, where he also completed his habilitation thesis on solidarity as a constitutional principle. In 1999, he was appointed Professor at the University of Mainz, from where he shifted to Frankfurt in 2015. Uwe Volkmann’s main research interests focus on constitutional theory, on fundamental rights and on various topics of democracy. In the last years he published, among others, Grundzüge einer Verfassungslehre der Bundesrepublik Deutschland (‘Features of Constitutional Theory in the Federal Republic of Germany’, Mohr Siebeck Tübingen 2013), and a textbook of legal philosophy (C.H. Beck München 2018).

Acknowledgements This book emerged from an unusual process: a long-running and initially open-ended conversation between Indian and European scholars of constitutional law on democratic constitutionalism in both polities that only slowly mutated into a book project. This conversation was initiated and very generously supported by the Indian European Advanced Research Network (IEARN), a network founded and sustained by Sunil Khilnani, Joachim Nettelbeck, Christoph Möllers and Dieter Grimm. We received significant institutional support also from the Wissenschaftskolleg in Berlin (Germany), Shalini Randeria and the Institute of Human Sciences in Vienna (Austria) as well as Alain Supiot, Samuel Jubé and Matthieu Forloudou at the Centre of Advanced Studies in Nantes (France). We are profoundly grateful for their patience and support. It would seem that projects such as ours need a long gestation period and abiding trust, for which we are very grateful. We would also like to thank others who were active participants in the series of workshops, that were held across five years, but could not become contributors to this volume. Specifically, we thank Sitharamam Kakarala, Kalyani Ramnath, Usha Ramanathan, Sudhir Krishnaswamy, Jo Murkens, Steffen Augsberg, Rohit De, Menaka Guruswamy, Madhav Khosla and Sarbani Sen for their varied contributions in the form of spirited interventions and questions, and for adding value to our collective enterprise. Finally, we want to thank Nadja Baumert and Freya Schramm for the impeccable editorial support towards the closing stages of the project. At the same time, this project and book developed during a particular time. When we met for the first time in 2014 in Bangalore, India, Narendra Modi had not yet been elected Prime Minister and the Brexit referendum had not occurred. Though the impact of austerity was already palpable in Europe, the dark clouds of right-wing populism seemed far away. Now, as the book goes to print in the summer of 2020, the situation has dramatically changed. In the recent past, the COVID-19 pandemic has raised further challenges with its invocation of emergency powers and the long-term potential for undermining of democratic and constitutional values. Constitutional democracy in India and in the EU (and in many places beyond) is in danger. We discussed this changing context continuously. A meeting in Delhi in 2016 took place amid severe tensions, including violence between students and police there. Our conversations to understand these developments took x

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a large chunk of our time. At the same time, we had to grapple with the question of how to deal with these developments within our broader exchanges and research inquiries. We decided to choose a middle position between being defensive about these events or overly dramatizing them. Undoubtedly, what we are witnessing is a profound onslaught and severe attack on democratic institutions and constitutional cultures as well as on the social fabric of plural, tolerant society in India, the example of which had actually inspired our inquiry in the first place. Similar attacks are taking place in several member states of the EU (Hungary, Poland, Italy under Salvini). Together with the impact of social media on our public discourse, this is a perfect storm scenario. Then again, democratic institutions in both our polities have a long history of such challenges and also have considerable experience of handling crises. Alongside threats and decay, we see democratic resilience and the vigilance of democratic societies that is heartening. So, there is a larger context and longer history to democratic constitutionalism and its foes. What we are observing now is a re-negotiation of democratic representation, economic distribution and cultural privileges that need to be studied carefully and patiently. We hope this book contributes to a better understanding of constitutional foundations of democracy and its defence. Arun K. Thiruvengadam and Philipp Dann Bangalore/Berlin July 2020

1. Comparing constitutional democracy in the European Union and India: an introduction Philipp Dann and Arun K. Thiruvengadam 1. INTRODUCTION India and the European Union (EU) seem hard to compare at first sight, a state in the Global South here and a regional organization in the Global North there. Yet, closer scrutiny reveals that they share a core belief and a normative anchor – that democracy is possible even in vastly diverse societies of continental scale, and that a constitutional framework is best able to secure the ideals of collective autonomy and individual dignity. Both draw on the template of liberal constitutionalism to create lasting structures of democracy. But despite this similarity, they have hardly ever been compared. The present book, which this chapter introduces, aims to fill this astonishing gap in the otherwise burgeoning literature on comparative constitutional law. It is the first to compare the structures and challenges of democratic constitutionalism in India and the EU in a systematic way, pursuing three larger aims: to start a comparative conversation about Indian and European experiences of constitutionalism and open up a new field of comparative studies more generally; to showcase a different kind of comparative approach that we call ‘slow comparison’; and finally to deepen our understanding of democratic constitutionalism and the law of democracy in multinational and socio-culturally diverse polities. Why start this unusual comparative conversation? To begin with, we think that comparing the EU and India is productive from a conceptual perspective.1 1 While the EU and India have hardly been compared in their constitutional structures, the dialogue between India and Europe has a long pedigree. See e.g. Wilhelm Halbfass, India and Europe (State University of New York Press 1988); Upendra Baxi, ‘India and Europe’ in Anne Peters and Bardo Fassbender (eds), Oxford Handbook of the History of International Law (OUP 2012) 744; Kris Manjapra, Age of Entanglement (Harvard University Press 2014).

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It challenges us to seek new conceptual horizons as neither is a conventional nation-state. India has always been too large and socio-culturally too diverse to fit into the (originally 19th century Western) concept of the homogeneous nation-state; the EU is inherently a trans- or post-national project. But both have managed to establish lasting constitutional regimes.2 Political scientists have conceptualized these ‘non-nation-state-polities’ as state-nations3 or multinational democracies.4 Our book transfers these concepts into comparative constitutional studies and proposes the notion of ‘continental polities’. Comparing India and the EU also has a critical appeal as it offers South-North comparison in a different key – and in fact a concrete step to ‘provincialize Europe’:5 here, India is the older and more experienced constitutional democracy, while the EU is only an emerging polity and a ‘tentative democracy’. Traditional conceptions of how, where and in which sequence democratic constitutionalism evolves have to be reconsidered here.6 How do universal suffrage, economic development and institutional path-dependencies interact? What conceptions of equality emerge when respect for socio-cultural diversity is a constitutional imperative at the founding moment? The juxtaposition of constitutionalism in India and the EU hence allows for critical reflections on South-North comparison in constitutional studies more generally.7 But then again: constitutional structures and contexts in India and the EU are very different. In line with a critical theory of comparison, we do not intend to deny or flatten those differences.8 Rather, we aim to understand better their particularities and differences. The contributions to this book demonstrate that conceptions and dynamics of democracy and representation vary considerably and their appreciation changed over time. But we also see convergence and an inverse development. While Europe moved towards a stronger centre and

2 On the notion of constitution with respect to the EU treaties, see Armin von Bogdandy and Jürgen Bast, ‘Constitutional Approach to EU Law’ in Bogdandy and Bast (eds), Principles of European Constitutional Law (Hart 2009) 1. 3 Alfred Stepan, Juan Linz and Yogendra Yadav, Crafting State-Nations: India and Other Multi-national Democracies (Johns Hopkins University Press 2011). 4 Alain-G. Gagnon and James Tully (eds), Multinational Democracies (CUP 2001); Arend Lijphart, Patterns of Democracy (Yale University Press 1999). 5 Dipesh Chakrabarty, Provincializing Europe (Princeton University Press 2007). 6 On the importance of historical agency and sequence in global south and north studies, see Sudipta Kaviraj, ‘An Outline of a Revisionist Theory of Modernity’ (2005) 46 European Journal of Sociology 497. 7 On the importance of such steps in constitutional studies, see Daniel Bonilla Maldonado, Constitutionalism of the Global South (CUP 2013); Philipp Dann, Michael Riegner and Maxim Bönnemann (eds), The Global South and Comparative Constitutional Law (OUP 2020). 8 Günter Frankenberg, Comparative Law as Critique (Edward Elgar 2016).

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demand for more European (not national) democratic structures, India pluralized its political and federal system, extending the reach of democratic governance to more levels and more sections of society. Ultimately, constitutional democracy in India and the EU today equally has to deal with the challenges of a globalized economy and its pressures. In studying these themes, this book sketches the contours of a comparative law of democracy9 and contributes to a number of ongoing debates. Most obvious is its connection to the current discussion about the crisis of constitutional democracy, triggered by populism, majoritarianism and authoritarianism in various shapes and forms.10 India and the EU used to be examples of non-majoritarian democracies. The successive electoral triumphs of Modi’s Bharatiya Janata Party (BJP) in India but also the populist governments in Europe threaten to put this model in danger.11 This only increases the urgency to understand better the respective experiences and mechanisms of balancing interests through institutions and procedures in both polities in order to find sources of resilience and survival. Beyond the heat of the current debate, our book continues older but ongoing debates about multiculturalism, identity politics and democratic equality that hold important insights for both India and the EU.12 These should not be forgotten as scholars react to populist and majoritarian challenges. Besides, our book contributes to an emerging comparative discussion on structures of power, separation of powers and a comparative law of democracy, which has been neglected for long in comparative constitutional studies.13 While much attention in comparative constitutional studies in the past years has focused on the role of courts and their increasing dominance, the broader perspective of focusing on separation of powers and the law of democ9 The notion of a ‘law of democracy’ that was (to our knowledge) first introduced by Richard Pildes, Samuel Issacharoff and Pamela S. Karlan in Law of Democracy: Legal Structure of the Political Process (1998) (5th edn, Foundation Press 2016). We adapt it to a broader notion of democracy and a comparative angle. 10 Tom Ginsburg and Alberto Simpser, Constitutions in Authoritarian Regimes (CUP 2013); Michael Dowdle and Michael Wilkinson, Constitutionalism Beyond Liberalism (CUP 2017); Mark Graber, Sanford Levinson and Mark Tushnet (eds), Constitutional Democracy in Crisis? (OUP 2018). 11 Niraja Jayal (ed), Re-forming India (Penguin 2019); Wojciech Sadurski, Poland’s Constitutional Breakdown (OUP 2019); Tarunabh Khaitan, ‘Killing a Constitution with a Thousand Cuts: Executive Aggrandizement and Party-State Fusion in India’ (2019) Law and Ethics of Human Rights (forthcoming), available at accessed 21 October 2020. 12 Will Kymlicka, Liberalism, Community and Culture (OUP 1989); Iris Young, Justice and the Politics of Difference (Princeton University Press 1990); James Tully, Strange Multiplicity (CUP 1995); Rochana Bajpai, Debating Difference (OUP 2015). 13 David Landau, ‘Political Support and Structural Constitutional Law’ (2016) 67 Alabama L. R. 1069; Christoph Möllers, The Three Branches (OUP 2013).

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racy is equally important and discussed more closely in our book.14 Finally, the book connects to important debates on the relationship between democratic constitutionalism and the economic sphere. Since the common market and ‘development’ are key concepts in our two polities, their connection to the functioning of democracy is vital and discussed here.15 In all of these debates, our book profits from a tremendous increase in scholarship on Indian constitutionalism in recent years and provides a window into the richness of scholarship that has emerged there.16 With regard to the EU, our book is equally an exercise in taking stock of the intense debates on constitutionalism and democracy that have been conducted since the 1990s.17

14 See in particular contributions on political parties (Hailbronner and Thayyil), election law (Aditi-Achenbach) and federalism (Dann and Thiruvengadam). 15 See chapters by Boysen and Chandra, Lulz and Riegner, and Bhatia and Christodoulidis (Chapters 4, 7, and 8 in this book). On the larger discussion see Colin Crouch, Post-democracy (Polity Press 2004); Wolfgang Streeck, Buying Time: The Delayed Crisis of Democratic Capitalism (Verso 2017). 16 This comprises doctrinal legal scholarship in the demanding sense of advancing doctrine in its theoretical, historical and political contexts; such as Sujit Choudhry, Madhav Khosia and Pratap Bhanu (eds), The Oxford Handbook of the Indian Constitution (OUP 2016); Arun Thiruvengadam, The Constitution of India (Hart 2017); Gautam Bhatia, The Transformative Constitution (Harper Collins 2019). It also includes scholarship that employs anthropological or historical methods in the analysis of law; such as Anuj Bhuwania, Courting the People (CUP 2016); Rohit De, A People’s Constitution (Princeton University Press 2018); Mithi Mukherjee, India in the Shadows of Empire (OUP 2011); and scholarship that shines light on the intellectual history of constitutional thinking; such as Aishwary Kumar, Radical Equality (Stanford University Press 2015); Rochana Bajpai, Debating Difference (OUP 2015); Benjamin Zachariah, Developing India (OUP 2005); Madhav Khosla, India’s Founding Moment (Harvard University Press 2020). All of them build on the rich scholarship on political theory by an older generation; e.g. Sudipta Kaviraj, The Enchantment of Democracy and India (Permanent Black 2011); Rajeev Bhargava, The Promise of India’s Secular Democracy (OUP 2010); Sunil Khilnani, The Idea of India (Hamilton 1997); Partha Chatterjee, Lineages of the Political Society (Columbia University Press 2011). 17 Just a few references must suffice here: Dieter Grimm, The Constitution of European Democracy (OUP 2018); Jelena von Achenbach, ‘The European Parliament as a Forum of National Interest?’ (2017) 55 Journal of Common Market Studies 193; Paul Craig, ‘Accountability’ in Anthony Arnull and Damian Chalmers (eds), Oxford Handbook of European Union Law (OUP 2015) 431; Mark Dawson and Florin De Witte, ‘Constitutional Balance of the EU after Crisis’ (2015) 76 Modern Law Review 817; Jan Komarek, ‘Waiting for the Existential Revolution in Europe’ (2014) 12 ICON 190; Christoph Möllers, ‘Pouvoir Constitution – Constitution – Constitutionalisation’ in Bogdandy and Bast (eds), Principles of European Constitutional Law (2nd edn, Hart 2010) 169; Philipp Dann, ‘European Parliament and Executive Federalism’ (2003) 9 European Law Journal 549. Foundational: J.H.H. Weiler, The Constitution of Europe (CUP 1999).

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This chapter proceeds in four steps: As this book grew out of a longer collaboration between Indian and European scholars that developed a specific collaborative approach, we first outline this approach (Section 2). We then briefly sketch the two constitutional systems, as many readers might not be particularly familiar with their history and constitutional design (Section 3). Against this background, we outline six themes that are relevant in democratic constitutionalism and the law of democracy in both polities, drawing on the chapters in this book (Section 4). We conclude with a few observations on the results of this book and future questions (Section 5).

2.

EPISTEMOLOGY, METHODOLOGY AND ORGANIZATION: THE IDEA OF ‘SLOW COMPARISON’

The present book grew out of a multi-year conversation between scholars from India and Europe on theories of democracy, the law of democracy and on cultures of constitutionalism.18 In these conversations, a set of methodological and epistemological arguments emerged that became the basis for this book. We call this approach ‘slow comparison’. It is based on the assumption (and our experience) that comparison is difficult and demanding, even though its current popularity sometimes obscures this reality. Comparison requires a profound contextual understanding of one’s own constitutional order, a certain level of ‘bi-legalism’, an ability to deal with ‘comparative confusion’ and, well, patience. Many comparative studies (edited books in particular) instead remain superficial, especially when they include South-North comparisons.19 We therefore sought to pursue a different approach that has three main aspects: epistemological caution, a method of contextualized functionalism and an iterative process of collaboration. 2.A

Epistemological Caution

Slow comparison starts with epistemological caution and openness, that is, a particular awareness of the sources of knowledge. We often know little of other constitutional orders, though we might have assumptions about ‘the other’. A first imperative is therefore to read and listen to voices from both 18 Brief descriptions of these meetings in Bangalore, Berlin, Delhi and Vienna (2014‒2017) can be found at accessed 21 October 2020. 19 On the potentials (and pitfalls) of South-North comparison generally, see Dann, Riegner and Bönneman, ‘The Southern Turn in Comparative Constitutional Law’ in Dann, Riegner and Bönneman (eds) (n 7).

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orders, and not only Western ‘classics’ that may be ignorant of conceptions and experiences in the South and postcolonial world.20 Epistemological caution also requires self-reflexivity and positioning. Comparativists need not only an understanding of the other order but also an understanding of one’s own background, positioning, formation, that is, a reflection upon the conditions of one’s own ability to engage with another order. This becomes more urgent and more complex in South-North comparison, where perhaps even unconscious assumptions about ‘the other’ are more persistent, more hidden, more structural.21 A useful approach to this challenge is Frankenberg’s ‘distancing and differencing’.22 ‘Distancing’ – to step away from the own legal order, to try to grasp one’s own tradition and background from the position of the other ‒ includes a cognitive transformation, becoming aware of your assumptions, decentring your own personal point of view and adopting the other’s perspective. It asks to interrogate and reflect where our knowledge is coming from and what it is shaped by. ‘Differencing’ asks not only to seek similarities between compared orders but also to look out for differences, odd details, inexplicable constellations. This is challenging. Ruskola points out the limitations of ‘dialogue’ as a metaphor in comparative law, often presuming a certain absence of structural limitations between communicating parties.23 He convincingly calls for an ‘ethics of comparison’. For him it is imperative for comparison, especially between Southern and Northern orders, to be aware of the traps of ‘legal orientalism’, that is, the depiction of the other according to pre-fixed, mostly Western assumptions, often assuming an inherent superiority of Western models. 2.B

‘Contextualized Functionalism’

A second element of ‘slow comparison’ is a critical awareness about methodology. We see functionalist, contextual or critical approaches as distinct but not necessarily juxtaposed to each other.24 Rather, we suggest integrating 20 Bonilla Maldonaldo (n 7); Walter D. Mignolo and Madina V. Tlostanova, Learning to Unlearn (Ohio State University Press 2012). 21 Maxim Bönnemann and Laura Jung, ‘Critical Legal Studies and Comparative Constitutional Law’ in Rainer Grote, Frauke Lachenmann and Rüdiger Wolfrum (eds), Max Planck Encyclopedia of Comparative Constitutional Law (OUP 2017); Dann, Riegner and Bönnemann (eds) (n 7). 22 Günter Frankenberg, ‘Critical Comparison’ 1986 (26) Harv Intl Law Journal 413. 23 Teemu Ruskola, Legal Orientalism (Harvard University Press 2013) 30. 24 For an introduction to these approaches, Mathias Siems, Comparative Law (CUP 2014).

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them into what we call ‘contextualized functionalism’. There are good reasons, when comparing the EU and India (and beyond) to engage functional methods, even though those methods have to be handled with care.25 Comparing these two polities requires comparing two entities that are different in many respects. In this regard, it is useful to structure the comparison not along the lines of formal institutions or abstract notions that are seemingly the same, but along functional equivalents. The comparative ‘entry point’ is thus to ask how two different systems respond to a similar societal need or a certain value pursued (such as democracy). But functional methods have limits. With few exceptions, societal needs or pursued values are not universal but contingent and context specific.26 Moreover, functionalism has been forcefully criticized for focussing too much on similarities and overlooking differences. This is an important critique since any presumption of similitude may indeed lead to overly simplistic homogenization and marginalization of heterodox or subaltern practice.27 Functionalism thus may serve as an appropriate method for Indo-European comparisons, but only as long as it is supplemented by extensive and multi-facetted contextual analysis. In particular in constitutional law, both the questions of what constitutes a societal need and what role the law performs are deeply embedded in political, economic, and cultural contexts.28 Analysing those contexts of a constitution one has to rely on political science, political economy or cultural studies.

25 Cheryl Saunders, ‘Towards a Global Constitutional Gene Pool’ (2009) 4(3) National Taiwan University Law Review 1; for a reflective understanding of functionalism, see Ralf Michaels, ‘The Functional Method of Comparative Law’ in Mathias Reimann and Reinhard Zimmermann (eds), Oxford Handbook of Comparative Law (2nd edn, OUP 2019). 26 Since different vocabularies of political discourse are used in India and the EU, it might be difficult to identify a ‘problem’. How do we pick a problem for comparison? Do we judge this on the basis of ‘relevance’ to that particular polity? If different political vocabularies are used, would ‘relevance’ even be the right criterion to use? How can we help demystify differing political vocabularies? 27 Judith Schacherreiter, ‘Postcolonial Theory and Comparative Law’ (2016) 49 VRÜ/WCL 291; Bönnemann and Jung (n 21). 28 Upendra Baxi, ‘Constitutionalism as a Site of State Formative Practices’ (2000) 21 Cardozo Law Review 1183; Günter Frankenberg, ‘Comparing Constitutions: Ideas, Ideals, and Ideology – Toward a Layered Narrative’ (2006) 4(3) International Journal of Constitutional Law 439.

8

2.C

Democratic constitutionalism in India and the European Union

Organization of Iterative Collaboration

These aspects lead to a third, foundational element of our approach: organization. Organization matters – in particular in comparative legal research. Epistomological balance and contextual legal analysis require expertise and collaboration. All participants in our project and authors of this book are scholars of constitutional law, but study law in its multi-layered contexts, be it historical, theoretical, socio-economic or cultural, integrating their contextual understandings into the analysis of constitutional law. The project was dialogical and collaborative, with the same group of scholars meeting several times, working in teams to write the contributions included in this book. By meeting again and again in the same group over the course of four years, mutual understanding grew with regard to similarities as well as particularities and differences, correcting assumptions, misconceptions and fantasies.29 While books in this genre are usually the product of a single conference or meeting, these contributions are more in the nature of reflections on our collective enterprise over the last five years.30 Ultimately, ‘slow comparison’, like slow food, emphasizes the process through which comparative knowledge emerges. It is necessarily a longer, often difficult and cumbersome process, in which the ingredients need careful selection, flavours emerge slowly and taste is only acquired over time. This might be an anomaly in today’s academic system but it (hopefully) generates better and longer lasting results.

29 We are aware of only very few projects like this, for example Bruce Wilson, Siri Gloppen, Roberto Gagarella, Morten Kinander and Elin Skaar (eds), Courts and Power in Latin America and Africa (Palgrave Macmillan 2010); Armin von Bogdandy et al. (eds), Transformative Constitutionalism in Latin America (OUP 2017). 30 The term ‘collaborative’ invites some discussion. Annelise Riles pronounced the death of comparative legal studies and the emergence of a legal studies that were premised on collaboration (see Annelise Riles, ‘From Comparison to Collaboration: Experiments with a New Scholarly and Political Form’ (2015) 78 Law and Contemporary Problems 147). Collaboration was premised on the aggregation of expertise and need. In her own example, in the older comparative law model, scholars acquired knowledge of multiple jurisdictions before embarking on a (largely) functionalist analysis of sameness and difference. On the other hand, collaborative scholars assemble expertise around the table, in a bid to add ‘value’ to a particular issue or theme. While a quick survey of mainstream legal scholarship will reveal that comparative legal studies is still alive and well, this project shares some of the stated goals of a collaborative project that, in Riles’ opinion adds value and retains the ‘best’ parts of the older model: setting new political goals, but most importantly, transforming the perceptions of those engaged in the collaboration itself.

Comparing constitutional democracy in the EU and India

3.

9

DEMOCRATIC CONSTITUTIONALISM IN INDIA AND THE EU: TWO BRIEF INTRODUCTIONS

Against this background of general considerations on comparative legal studies, we now turn to our concrete case: democratic constitutionalism in India and the EU. The starting point for our inquiry was the observation of some striking empirical similarities between India and the EU in terms of their societal heterogeneity and size but also, of course, an awareness of the particularity of both political and constitutional histories. Before we can dive deeper into the concrete laws of democracy in each space (see Section 4), we briefly state these similarities and sketch the particular constitutional history of both polities, not least considering that few readers will be familiar with both. First to the empirical similarities: India and the EU are both polities of massive dimensions in terms of population (India has 1.3 billion inhabitants, the EU 450 million without the UK) and characterized by a great heterogeneity in terms of languages, religions and living cultures. Both have 24 official languages, belonging to different families of languages (Indo-Germanic, Dravidian and Tibetan in India; Roman, Indo-Germanic and Finno-Ugric in the EU) and written in different scripts. Both have one dominant religion (in India, Hinduism is the religion of some 80 per cent of the population, while 70 per cent of EU citizens follow Christian beliefs, though neither ‘Hindus’ nor ‘Christians’ are homogeneous groups but are in themselves highly plural) next to sizeable minorities that follow other beliefs (in India: Islam (12 per cent) next to Christianity, Zorastrianism, Buddhism, Sikhism and Jainism; in the EU, only around 5 per cent have other beliefs, while 25 per cent are non-religious). As to living cultures, it is difficult to pick the relevant benchmark, but if we only take cinema and cuisine, any visitor to India and to Europe can testify to the almost dizzying varieties. So how can democratic constitutionalism work in such diversity, especially considering that many think that a common identity and shared understanding are preconditions for the functioning of a democracy and constitutional regime? To provide a first understanding of how this might work (or not) in India and the EU, we briefly describe what has shaped their political and constitutional trajectories.31

31 For a more detailed account of Indian and European constitutionalism, see Bast and Thiruvengadam (Chapter 3 in this book); for a more extensive overview on constitutional framework of democracy, see Baruah and Volkmann (Chapter 2 in this book).

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Democratic constitutionalism in India and the European Union

3.A India India was one of the earliest countries in Asia and Africa to adopt a constitution and is rare in the Global South in having a near continuous tradition of constitutionalism under its independence constitution (save for a brief period between 1975‒77 when the formal Constitution was suspended during an internal emergency). Although motivated by a deep sense of ensuring a break from the past, the Indian constitutional order is fundamentally marked by several continuities both with its ancient and medieval history, and the period of colonial rule.32 These paradoxical characteristics account for many contradictions and puzzles that are a feature of the Indian constitutional order. Nevertheless, the fact remains that the post-independence constitutional order has succeeded in entrenching several founding values and has ensured that the Constitution is the cornerstone of contemporary debates in public policy and governance.33 Origins of constitutionalism in India can be traced to the period of colonial rule by the British Empire in the Indian subcontinent (1858‒1947), although important elements of this process can be traced further back to an earlier period, when the East India Company evolved from being a mere entity for commercial exploitation to one exercising high governance functions in India (1750s‒1857). This long experience of colonial rule crucially marks and frames the Indian experience with the concepts of democracy and constitutionalism.34 This is emphatically clear from a reading of the preparatory documents and text of the Constitution of India, which was adopted in January 1950. That constitution had to meld together into a nation a subcontinental polity that had, under the British, been divided into 17 Provinces that were directly under the British Empire, and nearly 600 ‘princely states’ that were indirectly under the control of the Empire. This had to be done against the backdrop of Partition, which was accompanied by massive violence and the tearing asunder of the territory to create the new nations of East and West Pakistan on two fronts of British India. When looking at the founding period, we should take note of some structural aspects of the Constitution as a whole. The Constitution of India established a modified version of the British Westminster form of parliamentary democracy in India. The legislature is bicameral at the Central level, but is unicameral 32 Granville Austin, The Indian Constitution: Cornerstone of a Nation (Clarendon Press 1966); Arvind Elangovan, Norms and Politics (OUP 2019). 33 Granville Austin, Working a Democratic Constitution (OUP 2000); S.P. Sathe, Judicial Activism in India (OUP 2002). 34 On the origin of the democratic idea in India, see Khosla, India’s Founding Moment (n 16).

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in most states. India is both a Republic and a Federal state, albeit with a stronger central authority than is the case in most federations. Important changes to the colonial order include a constitutionally entrenched bill of rights, an independent judiciary and a range of constitutionally empowered technocratic institutions (including the Election Commission, and the Comptroller and Auditor General) which are to serve as guardians of the constitutional order. The Constitution of India has been described as a ‘transformative’ document given its commitments in relation to secularism, the removal of untouchability, and gender equality.35 The framers of the Indian Constitution provided a relatively easy amending procedure, which has, predictably, resulted in more than 100 amendments to the Constitution in the seven decades during which it has been in force. What may not have been predictable is the innovation of the ‘doctrine of basic structure’ that came to be evolved by the Indian judiciary which, as we shall see, was conceived of as a body with an important but limited role, that has, however, considerably expanded its powers over time.36 On the substantive content and themes of the Constitution, Upendra Baxi has argued that the Indian Constitution can be viewed as oriented towards four goals: ‘rights, justice, development and governance’. Baxi argues that each of these goals is ‘intertwined and interconnected with the rest and in contradictory combination … with both the constitutional and social pasts and their images of the future’.37 Similarly, Uday Mehta has argued that the framers were guided by three broad objectives: (i) an overriding concern with national unity; (ii) a deep and anxious preoccupation with social issues such as poverty, illiteracy, and economic development; and (iii) an intense concern with India’s standing in the world.38 Mehta, like Baxi, suggests that national unity, social justice and economic development in particular have the potential of moving towards ends which are quite different from those of the anti-colonial struggle which emphasized ideas of freedom. Benjamin Zachariah’s tracing of the intellectual history of ideas of ‘development’ amongst the nationalist elites between 1930 and 1950 indicates that the term had an ambiguous quality and could encompass goals that were seemingly common amongst imperialists, capitalists and socialists.39 These multiple understandings of ‘development’ had a role to play

Bhatia (n 16). Sudhir Krishnaswamy, Democracy and Constitutionalism in India (OUP 2009). 37 Upendra Baxi, ‘“A known but indifferent judge”: Situation Ronald Dworkin in contemporary Indian jurisprudence’ (2003) 1(4) International Journal of Constitutional Law 557. 38 Uday Mehta, ‘Indian Constitutionalism’ in Choudhry, Khosia and Bhanu (eds) (n 16) 16. 39 Zachariah (n 16) xv‒xvii. 35 36

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in the constitutional entrenchment of the goal of ‘development’ in the text and institutional structures of the Constitution of India. India’s democratic model has been profoundly affected by the decision of the framers of its constitution to grant universal adult franchise to its vast population, much of it mired in illiteracy and deep poverty. This unprecedented decision,40 which granted women in India the right to vote before their counterparts in some European nations, has continued to have a deeply democratizing effect on the Indian polity given the importance of elections to its democratic order. Indians have always voted in elections to the State assemblies and Parliament in large numbers. The mobilization of people through political parties and policies for the purpose of securing electoral victories has had a dramatic effect on the power relations between different sections of India’s deeply segregated society. Each election in independent India’s history – from the first General Elections in 1951‒52 to the 17th held in 2019 – has been the largest electoral exercise in human history. These elections have thrown up different victors from different parties across seven decades, which in turn reflect the rise and fall of different social groupings. The nationalist Congress party – which was the most significant political party seeking independence from colonial rule – dominated India’s political landscape from 1950‒89. Over time, the hegemony of the Congress party waned, also as a result of social and economic programmes that enabled members of the most marginalized sections of Indian society – the Dalits ‒ to assert themselves politically, not least by forming their own parties.41 There has unquestionably been a deepening of Indian democracy as members of lower caste groups mobilized themselves into regional parties which were able to gain power in State assemblies, and were also part of national coalitions where they secured significant representation in the Union Cabinet. Most recently, however, India has witnessed the rise of Hindu Right nationalism with the growing electoral power and numbers of the BJP. From 1989‒2014, India had either coalition governments or governments with one party being dominant with supporting parties sharing power at the Union level. This included a five year stint between 1999‒2004 when the BJP gained power at the Centre at the head of a coalition government. Since 2014, with the rise of Narendra Modi and the resurgence of the BJP, India has experienced a trend in right wing populism, which is increasingly recognized 40 The best account of this is Ornit Shani, How India Became Democratic (CUP 2017); on the intellectual history of this see Khosla, India’s Founding Moment (n 16). 41 E. Sridaran, ‘The Party System’ in Niraja Gopal Jayal and Pratap Bhanu Metha (eds), Oxford Companion to the Indian Political System (OUP 2010) 119; see also Jogendra Yadav, ‘Representation’ in Gopal Jayal and Bhanu Metha (eds), Oxford Companion to the Indian Political System (OUP 2010) 350.

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as not just a hegemonic force, but also one that is challenging and seems set to revise the original compact agreed to under the terms of the Constitution of India of 1950. The re-election of Prime Minister Modi’s government in 2019 by a massive majority (the BJP together with its allies controls nearly two thirds of the Lower House of Parliament) represents a watershed moment for India’s model of constitutional democracy. The second successive electoral victory by the BJP is viewed as heralding a fundamental rupture with the last seven decades, including a move away from commitments made in the 1950 Constitution which may now be open to question, revision and perhaps wholescale rewriting.42 Moving away from the political landscape to the economic situation, across the nearly 75 years of its existence, India has experienced a transition from a state-led redistributive model of economic development to one that is based on policies of economic liberalization and openness to the global economy that has inevitably entailed massive changes to the regulatory framework of the Indian economy. As India’s population has undergone a three-fold increase between 1947‒2019, its state apparatus has had to grow and adapt to the needs of modern administrative realities. Across this same period, India has transitioned from a more ardently secular state under the Nehruvian model to one that is far more accommodative of the needs of the majoritarian Hindu population under Narendra Modi. The changes across political, sociological and ecological terrains have also been radical.43 In its nearly seven-decade long existence, the Indian Constitution has almost continuously made its presence felt. While it has often been violated, criticized and attacked, even its most virulent critics would concede that it has not been a paper document, and has a visible, living effect on law, politics and governance, and social and economic life in India. 44 Alexis de Tocqueville had famously noted about the U.S. constitutional experience that most political questions that were raised in the U.S. polity were changed into judicial ones. Similarly, scholars writing about the Indian Constitution extended Tocqueville’s insight in asserting that in India, ‘a vast range of political, administrative and judicial matters have become constitutional questions’ that are routinely brought before the courts and resolved by them. This has resulted

42 Sanjay Ruparelia, ‘Modi’s Saffron Democracy‘ Dissent Magazine (Spring 2019), available at accessed 21 October 2020; Angana P. Chatterji, Thomas Blom Hansen and Christophe Jaffrelot (eds), Majoritarian State: How Hindu Nationalism is Changing India (Harper Collins 2019); Jayal (n 11); K.S. Komireddy, Malevolent Republic (Context 2019). 43 Arun Thiruvengadam, The Constitution of India: A Contextual Analysis (Bloomsbury India 2018). 44 See for a social history of the Constitution, De (n 16).

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in a ‘pervasive institutionalization of legal disputation against State power’ that may have reached unparalleled levels in the Indian constitutional system.45 One area where the Constitution and its institutions have come under sharp attack is for the failure of the constitutionally ordained goals of a social justice and economic development. Seven decades on, welfarism in India is still at a very primitive level, with vast sections of its populace not having access to even basic social goods such as education, water, health and social security. During the ‘socialist’ era from 1947 to 1990, the Indian state paid a lot of lip service to welfarism, but did not succeed in delivering much. Since 1991, under the thrall of forces of neoliberalism, progress on these welfare goals has been slow despite the enactment of specific welfare laws from the mid-2000s onwards.46 Critics argue that the logic of the market dominates these welfare policies, limiting their application and efficacy. India’s continuing abysmally low HDI rates are thus a genuine source of concern.47 Till a few years ago, India’s constitutional journey was seen as a rare example in the Global South of a successful working out of a model of transformative constitutionalism. Currently, however, it is experiencing a crisis moment and what happens in the next few years may well have a decisive effect on the life and longevity of this constitutional tradition. 3.B EU To talk about ‘democratic constitutionalism in the EU’ (not in its member states, like France or Finland but the EU itself) needs explanation. The EU is not a state, for which the concepts of constitutionalism and democracy have been originally developed, but it is also not a traditional international organization. Nonetheless, those concepts are not misplaced here, given the particular development and character of the EU.48 Today’s EU is the successor of two international organizations that were founded in the aftermath of World War II under the name of European Community of Coal and Steel (1952) and European Economic Community

Choudhry et al (eds) (n 16) 6‒7. Jayna Kothari, ‘A Social Rights Model for Social Security: Learnings from India’ (2014) 47 VRÜ/WCL 1; Florian Matthey-Prakash, The Right to Education (OUP 2019). 47 Jean Dreze and Amartya Sen, India: An Uncertain Glory? (Penguin 2013); Niraja Gopal Jayal, Citizenship and its Discontents (Harvard University Press 2015). 48 On the larger discussion about scholarly perspectives on the EU and a constitutional perspective, see only Bogdandy and Bast (n 2); Möllers (n 17) 169. 45 46

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(1957).49 Like all international organizations, they were founded by international agreement between states and hence based on public international (not constitutional) law. But the two organizations, which from the beginning shared their organs, entered a slow but decisive process of constitutionalization in the 1960s. In various ground-breaking judgments of the Communities’ court (today’s Court of Justice of the EU in Luxemburg/CJEU), the CJEU turned the founding treaties into a quasi-constitutional regime.50 Central elements of this process were the decisions to give EU law supremacy over national law (including national constitutional law!) and to give direct effect to EU regulations.51 Any student of international law (or federalism) will appreciate the radical content of these decisions. They turned international law (which normally has to be implemented by states before it takes effect and is hence dependent on the states’ effectuating role) into a type of federal law that takes (supreme) effect without further action of the member states. These decisions of the court, however, did not fall from the blue sky. The founding of the EU was from the very beginning intended to be a radical break with the past and the institutionalization of an almost revolutionary idea: To overcome the bloodshed of war and nationalism in Europe by binding the former enemies together. The core idea was to build an integrated Europe not at once or with one treaty but in a slow societal process that would ultimately be driven by the (economic) self-interest of the people themselves (not only states).52 The idea was to let Europeans trade with each other, pursue their economic self-interests and see them build prosperity through economic interaction. In that sense, the EU was at its beginning a clearly limited, sectoral project. It focused on the economy, on creating a common market; its starting point was not to pool militaries, to formulate a common fundamental rights framework or to create a common system of education (though all of this was to come later). The idea was simply to use the old traditions and networks of open trade in Europe to create (in today’s parlance) a transnational community. So, the court in its decisions seemed to simply develop or accompany it in a legal way. 49 For a succinct history of the EU and the process of European integration Kiran Klaus Patel, Project Europe (CUP 2020). 50 On this much discussed process, see only: Eric Stein, ‘Lawyers, Judges and the Making of a Transnational Constitution’ (1981) 75 American Journal of International Law 1; Joseph H.H. Weiler, ‘The Transformation of Europe’ (1991) 100 Yale Law Journal 1991, 2403; Karen Alter, The European’s Court Political Power (OUP 2009). 51 Case C-26/62 Van Gend en Loos v Nederlandse Administratie der Belastingen [1963] ECR 1; Case C-6/64 Flaminio Costa v E.N.E.L. [1964] ECR 585. 52 Schuman declaration of 9 May 1950. The short text can be found at accessed 21 October 2020.

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Democratic constitutionalism in India and the European Union

A concern for democratic governance was not part of this original blueprint. The legitimacy of the organization and the process of European integration that it furthered were to be based on results, on its output, that is on the creation of stability and prosperity. The democratic legitimacy was to come, if necessary, from the member states. Their governments were part of the innovative institutional setup of the EU. The institutional heart of the EU was a European ‘high authority’ (today Commission), which was to be composed of civil servants and experts, not diplomats. They would administer the common market and generate ideas for its further development. An organ composed of the representatives of the member states was its partner, the Council. This had the final say to decide about regulations, though proposals for these regulations always (!) had and have to come from the Commission.53 Though there was also an Assembly, which called itself European Parliament from the very beginning, this institution lacked powers and was composed of delegates from the national parliaments, not directly elected. Instead of a Parliament and perhaps more important for many, the EU from the very beginning had a court. Considering that EU regulations would be binding on citizens, access to courts and judicial review seemed indispensable. The rule of law trumped democracy. This organization, entrusted in the beginning with a clearly circumscribed sectoral task (creating the common market) grew over time ‒ and was intended to do so. The basic idea of the founders was that market-integration would create a kind of spill-over effect and pull other sectors into the process of European integration to be managed by the EU. The final shape of integration – a federal state, a republic, a mere economic system – remained open.54 This transformative idea was not just in the heads of the founding politicians, but very clearly laid down in the treaties. The treaties aim to ‘create an ever closer union’.55 And growing it did. In terms of membership56 – but as importantly in terms of competencies and fields of activity.57 Since the 1970s, more and more sectors were added to the competencies of the EU. The newly emerging environmental law, non-discrimination between the nationals and many other areas

Treaty on the European Union, Art. 17. See Ulrich Haltern, ‘On Finality’ in Bogdandy and Bast (n 2) 205. 55 Treaty on the European Union, Art. 1. 56 There were four rounds of enlargement: 1972 – UK, Ireland, Denmark. 1979‒81 – Greece, Spain, Portugal. 1994 – Austria, Sweden, Finland. 2004 – Czech Republic, Slovakia, Slovenia, Poland, Hungary, Baltics, Malta. And more countries are still negotiating to get in, especially in the Balkans. 57 For more detail on this profound transformation of the EU, see Dann and Thiruvengadam (Chapter 9 in this book) and Bast and Thiruvengadam (Chapter 3 in this book) with further references. 53 54

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(including foreign policy and fundamental rights) were now regulated by the EU. As intended, the market developed an insatiable pull; almost any matter can have an economic side to it. This growth was politically intended, but was also aided by law. In particular the CJEU developed an ever more sophisticated case law to ensure the effectiveness of EU regulations – and actually orchestrated what has been called the transformation of Europe.58 At the same time, it has to be noted that the growth of competencies was mainly restricted to law-making. It did not extend to the area of administrative competencies (i.e. the power to implement the laws) and even more importantly, it was not accompanied by financial power. The EU has no authority to levy taxes and has a fairly limited budget that is based on contributions from the member states. The original decision to separate the regulatory task of creating a common market (competence of the EU) and the political task to distribute the prosperity earned through that market (competence of the member states) was not reversed. It is one of the basic features of European integration therefore that responsibility for common welfare and the social responsibility of governments rests with the member states – a feature very much criticized.59 But the growth in regulatory power had another problematic side. It raised the ever more pressing question of how to legitimize the EU. With the EU becoming an ever more important if not dominant institution of regulation, the democratic legitimacy of such power became a major concern from the 1990s onwards. The central protagonist and beacon of hope in this perspective was the European Parliament (EP). Originally only a consultative assembly, it had become a directly elected organ in 1979. In successive treaty revisions from 1986 to 2009 but also through very clever political manoeuvring, it acquired more and more rights. Today it is the co-equal legislature of the EU, together with the chamber of states, the Council.60 In general, the EU adopted a mixed constitutional and institutional system of democratic input, as is typical in federal systems. Next to the European input (mainly generated through EP elections) the second democratic basis of the EU remains the member states and the legitimacy arising from their participation in the EU system (in particular in the Council, as representation of member states).61 But increasing the competencies of the EP did not answer the questions about the democratic legitimacy of the EU. Instead, it was accompanied by an Weiler (n 50). In more detail on this structural decision and imbalance Boysen and Chandra (Chapter 4 in this book) and Bhatia and Christodoulidis (Chapter 8 in this book). 60 Bertold Rittberger, Building Europe’s Parliament (OUP 2005); Dann (n 17). 61 Philipp Dann, ‘Political Institutions’ in Bogdandy and Bast (n 2) 237; Ingolf E.A. Pernice, ‘The Treaty of Lisbon. Multilevel Constitutionalism in Action’ (2009) 15 Columbia Journal of European Law 349. 58 59

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ongoing debate about even the possibility of conceiving a democratic system in a transnational setting.62 In particular it was discussed how a common public sphere could evolve in face of the complex multi-lingualism that also translates into multiplicity of national media scenes, whether democracy is possible without a European demos, what the lack of true European political parties and civil society would mean. And the onslaught of various crises in the past years (debt crises, migration crises, populist attack) has only increased the doubts about the organization and its foundations of legitimacy.63 So today, the EU clearly is a very powerful organization that is constantly pulling new areas into its regulatory reach – with monetary policy and migration law being only the most prominent additions. Its legal order is in all but its name constitutionalized – with the treaties serving as functional constitutions that guarantee fundamental rights, create and limit public authority and that have primacy over lower-ranking EU and national law. It has an institutional system that resembles that of a federal state more than that of an international organization – with a parliament and a court which can review (and annul) all actions by EU institutions, if they violate EU law or fundamental rights. Taken together, all of these features underline that the EU’s constitutional system is an object of comparison in its own right. Besides, it cannot be doubted that the EU has developed into an increasingly autonomous political system that generates its own decisions, careers, lobby organizations (though not news-outlets) – and that is based on democratic procedures and institutions. At the same time, however, its path and character as democratic organization is still open and tentative and its future path uncertain. 3.C

Interim Conclusion: ‘Continental Polities’ with Different Centres of Political Gravity

Every narrative is unique and rejects simple conclusions. But we would like to highlight two aspects about our two polities that we can safely say: First, neither India nor the EU is a ‘normal’ nation-state. To reflect this, we refer to them as ‘polities’, that is, politically organized societies. This captures that both are political communities but not organized in the traditional forms that political and constitutional theory offers (nation-state, international organization, city, empire) but something else. Moreover, their geographical space, the size of their population and the heterogeneity of societal configurations are important. In a way, these two are rather continents than countries. We

For overviews, see Grimm (n 17); Weiler (n 17). Michaela Hailbronner, ‘Beyond Legitimacy: Europe’s Crisis of Constitutional Democracy’ in Graber, Levinson and Tushnet (n 10) 277‒94. 62 63

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therefore speak of them as ‘continental polities’, sidestepping for a moment the discussion about the nature of such entities. Besides, both polities operate politically on (at least) two levels, the Union level and the (member) state level ‒ but the political and constitutional importance of each level is significantly different in both polities, which has a profound impact on the resulting nature of constitutional democracy. In Europe, the EU is only a fairly new political system and one without a national identity. The centres of political gravity, where public discourse is shaped, careers are made and elections are effectively fought, is on the national, member state level.64 In India, the Union level is in historical dimension also a rather new creation and imagination, but a powerful one.65 It is connected to the freedom struggle, inspired by nationalistic ideology. At the same time, politics in the states does matter, as the regionalization of the party system since the 1970s has shown. In that perspective, the centres of political gravity in India are on both levels but stronger on the Union level.

4.

LAW OF DEMOCRACY: SIX THEMES AND COMPARATIVE FRAMES

Having introduced the basic frameworks of constitutional democracy in India and the EU, we now outline six basic themes that we consider to be particularly important for the law of democracy in the two compared polities: competing paradigms of legitimacy, the tension between individual equality and diverse identities, basic elements of the democratic process (elections, political parties and free speech), the institutional interplay across federal levels, juridification and the interplay of political and non-political institutions and, finally, the impact of the economic on the political parts of the Constitution. In the following section, we will outline these themes and characterize (tentatively) the Indian and the European approach to them. To do so, we draw from the contributing chapters of this book.

64 For a current empirical analysis of European identity, see Sarah Ciaglia, Clemens Fuest and Friedrich Heinemann, ‘What a Feeling?! How to Promote “European Identity”’ (2018) 2 EconPol Report 9, available at accessed 21 October 2020; for a more profound treatment, Joseph H.H. Weiler, ‘To be a European Citizen’ in Weiler (n 17) 324. 65 For the extensive literature on national idea in India, see only Jawaharlal Nehru, The Discovery of India (Meridian Books 1946); Sudipta Kaviraj, Imaginary Institution of India (Columbia University Press 2010); Khilnani (n 16); more generally for a Global South perspective, Partha Chatterjee, Nationalist Thought and the Colonial World (United Nations Press 1986).

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4.A

Democracy and Competing Paradigms of Legitimacy

It is sometimes overlooked that democracy is but one of various, competing paradigms through which the exercise of public authority can be legitimized. It is therefore helpful to distinguish different paradigms of legitimacy first – and then see which role democracy plays in this context. With Fritz Scharpf and political theory we can distinguish two basic paradigms: input and output legitimacy. Input legitimacy is (to simplify a bit) synonymous with democracy in a narrower sense. It is generated by the very process of democracy, that is, elections, deliberations and political strife, and by the mechanisms of accountability and representation. Output legitimacy is generated by the problem-solving capacity of public institutions, that is, the results they deliver, be it prosperity, stability or security.66 Next to these, one more paradigm has been described more recently that is relevant for our two polities. Distrust legitimacy is based on the idea that distrust and control are an inherent but distinct part of a political eco-system, and in fact contribute as counter-democracy to the legitimacy of a public authority.67 Citizens’ use of different mechanisms of contestation and control (by way of protests, law-suits or evaluations) is contributing to the legitimacy of a political system. It is often connected to a more agitational dimension of engagements within the public sphere.68 The constitutional systems of India and the EU combine these paradigms but they also show clear preferences and historical trajectories.69 A central element of India’s founding was the decision of its constitutional assembly to adopt a universal franchise at the time of Independence, even though the country was divided by communal hostilities and much of the populace was illiterate and poor (and many Western advisers cautioned against such a move).70 Input legitimacy and a belief in the emancipating and educational effect of the democratic process lie at the heart of India’s constitutional system. Output legitimacy in terms of achieving social justice and economic development was also envisioned but did not materialize in equal measure. It is telling that in his successful 2014 election campaign, Candidate Modi lashed at the combined output of ‘six decades of Congress rule’ that, according to him, did not lead to economic progress. Lambasting the achievements of the Congress Fritz Scharpf, Governing in Europe (OUP 1999). Pierre Rosanvallon, Counter-Democracy (CUP 2008). 68 Chatterjee (n 16); Prathama Banerjee, ‘The Abiding Binary: The Social and the Political in Modern India’ in Deana Heath and Stephen Legg (eds), South Asian Governmentalities (CUP 2018) 81. 69 Baruah and Volkmann (Chapter 2 in this book). 70 Khosla, India’s Founding Moment (n 16). 66 67

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party – which had been in power for most of postcolonial India’s existence ‒ Modi argued that a focus on the elements of input democracy had led to an exaggerated importance on ‘appeasement of minorities’, and an inordinate emphasis on secularism, which had led to a deterioration of output factors such as strong economic development. At the same time, distrust legitimacy plays an important role in India. Litigation before the Supreme Court, street protests or even fasts of political activists are central avenues to raise issues and drive the public agenda. The development in the EU was inverse in comparison; output came first. The EU was founded to avoid war and create stability by connecting Europeans and their economic interests in a common market. The results and hence output was to justify the Union – and it was successful in this regard. But output legitimacy was not enough to explain the Union’s immense growth of power. By the 1990s, democratic structures and input legitimacy were built into a second pillar of legitimation, resting on a dual basis that combines democratic input through EP elections with democratic input from the member states and the representatives of them acting in the EU. But while it was created in legal forms, it met severe scepticism, as to how and whether a European process of democracy can be accepted next to the existing national democracies. Baruah and Volkmann in this book introduce different concepts of democracy and take a critical view of the theory and practice of democracy in each of them.71 With respect to India, they conclude that the concept of democracy has been downgraded in relation to other concepts or paradigms of legitimacy, raising the foundational question ‘whether the charges of governance deficit travel through to the very idea of democracy as a system of government where people’s consent is the ultimate criterion of decision-making’. They also note that the identification of democracy in India with elections alone has had a corrosive effect on wider understandings of the concept. The conduct of democratic institutions in India in their account has been characterized by forms of corruption, criminality and capture by elite interests that go to the very foundation of their legitimacy. With respect to the EU, they note that while the EU had a good track record of ‘output legitimacy’ for a good part of its existence, in recent years, several crises have eroded that image, and there are genuine concerns about the democracy deficit in institutions of the EU. 4.B

Equality and Diverse Identities

It is a core element of democratic constitutionalism that each person is considered equal. But then again, the assumption of equality is primarily a formal one Baruah and Volkmann (Chapter 2 in this book).

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and constantly contradicted by the realities of factual difference and diverse identities. Democratic constitutionalism faces a profound challenge that arises from the tension between the promise of democratic equality and the respect for diverse identities and substantive differences. This raises the question to what extent constitutional systems can (or should) react to factual inequality and use instruments of positive discrimination (affirmative action) to enable those that are marginalized to be part of the polity – even at the expense of democratic equality. The Indian and the European systems of constitutional democracy grapple with these questions and the chapter by Boysen and Chandra in our book provides a frame to these themes. They distinguish three basic positions (they speak of ‘frames’) that played a role in mediating the conception of equality and diversity in Indian and European constitutional discourses:72 liberal universalism (or ‘civic nationalism’), pluralism and ‘cultural nationalism’. While liberal universalism and cultural nationalism favour formal equality over the recognition of difference, pluralist approaches acknowledge the importance of recognizing such diversity. Recognition of diversity however also brings with it that ‘dilemma of difference’, that is, the concern that by recognizing difference, the state may essentialize and embed such difference and further reinforce the stigma or stereotype associated with that identity. Against this background, they point to three areas, in which these positions or frames play out: equal voting rights, equal rights generally and substantive equality through re-distribution of resources – with important differences in the two polities. For India, the authors argue that law takes a proactive approach that protects and supports mainly marginalized groups (lower castes and tribes) – through quota of representation and affirmative action when it comes to access to education and jobs. But heated debates on affirmative action continue till the present with the latest salvo being affirmative action for people who may be part of the uppermost castes but are classified as economically poor. In a sense this inverts the debate about affirmative action at the time of the framing of the Constitution and shows the way in which the parameters of the debate have been transformed. For the EU, Boysen-Chandra point out that discussions are differently pitched, because of institutional features of the EU. In EU voting regulation, prevention of domination by larger states takes precedence over individual equality for EU citizens; the EU does not hold any power of taxation (i.e. has only limited financial resources) and policies of distributive justice are a reserved domain of the several member states. Instead, European law of antidiscrimination and equal protection is the central

72 See Boysen and Chandra (Chapter 4 in this book), relying on Partha Chatterjee, Politics of the Governed (Columbia University Press 2004); reference to Young (n 12).

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avenue to deal with equality but purely in economic terms as participation in the common market, which is in many ways problematic for the democratic question of European integration. In a way, the authors conclude, India and the EU have come to the question of equality from opposite ends. India set out to create a political community, but was concerned that the task of building a political community would not be possible without social and economic equality. The vision of equality remains a contested terrain. With the advent of policies of economic liberalization in the early 1990s, the market has come to play an increasingly important role in the allocation of opportunities, resources and power. The authors note that the existing Indian constitutional and legal framework contains limited scope for extending equality, non-discrimination and redistribution obligations to the market. With respect to the EU, Boysen-Chandra argue that its being based primarily on economic integration, showcases the perils of limiting the understanding of equality to non-discrimination. Without entrenching a distributive justice framework within the market, it is likely to become the source of the very inequalities that the framers of the Indian Constitution sought to avoid. 4.C

Democratic Process: Elections, Actors, Speech

Looking more closely at the input legitimacy, our book examines democratic process as the third theme of the law of democracy. Here, three elements are studied in more detail: election law and representation, political parties and social movements and finally the regulation of speech. 4.C.1 Representation and election law For democracy as a mechanism to generate input legitimacy, the electoral process is foundational. Von Achenbach and Aditi in their contribution compare the electoral systems of India and the EU, guided by the question of whether each system ensures fair, democratic representation.73 They highlight that both India and EU face the challenge ‘to what extent and how the structure of political representation at the central level reflects the multiple, layered – and conflicting – identities and socio-political affiliations of the individuals within its citizenry’. Both polities, Achenbach and Aditi argue, have opted for deviations from the strictly egalitarian idea of democracy to accommodate the particular heterogeneity of their relative social structures. While both systems are committed to substantive equality and to pluralism, they adopt very different mechanisms and not surprisingly, reach different results. Differences begin with respect to See Aditi and von Achenbach (Chapter 5 in this book).

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the allocation of competences for electoral legislation. While India has a centralized system of regulating elections at the national level, in the EU the legal regime has a multi-level character, in which member states and the EU share the regulation of the electoral process. India and the EU also differ in the basic principles that guide representation within them. In its electoral system, India follows the first-past-the-post principle, that is, majority voting, while the EU applies the proportional representation model. Furthermore, the two systems also respond differently to the question of accommodating the conflicting concerns of equality and group rights in representation in Parliament. While India’s Constitution protects the principle of voting right equality and proportional allocation of seats to each state in the national elections (delimitation), it has suspended this principle since 1976 by constitutional amendment. This has led to a significant inequality favouring states in the Indian South. At the same time, it provides constitutional quotas of representation to marginalized groups. In the EU, the principle of degressive proportionality seeks to provide smaller states with greater representation in the European Parliament and hence equally limits the principle of equal representation of individuals. In contrast to India, this national inequality in voting has led to very critical debates especially in the biggest and most disadvantaged member state (Germany). 4.C.2 Political parties and social movements While elections are one important element in the political and democratic process, there is a much broader societal process of debate and contestation that shapes democratic constitutionalism. Importantly, however, actors, venues or dynamics of this process can only partly be created by law, even though law can surely play an important role in providing frameworks and limits of this larger process. The chapter by Hailbronner and Thayyil in this book examines another central part of the law of this process, namely the regulation of political parties and social movements. Hailbronner and Thayyil compare the regulation of social movements and political parties to draw insights about the role of law in opening channels of contestation and opposition in the political processes in India and the EU. Focusing first on the regulation of political parties, they argue that the Indian legal regime is mainly geared towards the electoral process (and to a much lesser extent towards the recognition of political parties). They note that this singular focus leads to the neglect of important considerations that political parties perform in a constitutional polity. By contrast, the regulation of political parties in the EU has a very different focus. Issues of party formation and regulation are handled primarily at the level of national law. On the EU level, political parties are regulated primarily in connection with funding, which fits with the narrative of the EU as a source of primarily economic and hence monetary benefits. This is ironic, the authors note, because ‘the very means the

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European Union uses to overcome its “political” deficit are monetary’, thus reinforcing the narrative which is sought to be displaced. Common to both polities, the authors argue, is a certain failure. Legal rules in both polities seek to enforce a certain degree of ideological homogeneity – but largely fail. Regarding the second agent of integration, social movements, Hailbronner and Thayyil first note that these are subject to legal regulation in a more limited manner but outline how law nonetheless can structure their creation and behaviour in multiple ways – and how this contributes to the democratic process. They study in particular civil society participation through strategic litigation and in law-making processes. Looking at the EU, they argue that some of the initial hopes that such participation could be an important asset for enhancing the legitimacy of the EU have been belied because it has come to be recognized that participation by well-organized NGOs is not the same as genuine participation by citizens’ movements. India, they note, has a much longer tradition of social movements and the Indian model is considerably more open to social movements litigating on behalf of others. These differences ‘reflected at least for some time broader ideological differences between the ECJ and the Indian Supreme Court’. Ultimately, the underlying narratives for party and movement regulation are different (and characteristic): European party regulation works largely by offering financial incentives, thus mirroring ultimately the functionalism of European constitutionalism it was meant to help overcome. In contrast, the revolutionary character of India’s founding continues to shape the grammar of Indian politics and law, from the populism of Modi’s BJP to that of Indian courts addressing public interest litigation. 4.C.3 Regulation of hate speech and the public sphere A third aspect concerning the political process is central and that is the protection of free speech. In this book, Lulz and Riegner compare free speech law in India and the EU, focusing in particular on the regulation of ‘hate speech’ as a particularly sensitive area in such diverse, multi-ethnic and multi-lingual polities. In particular, they address two challenges to democracy that arise out of diversity: How does free speech law respond to inequality among different social groups? And how does hate speech law relate to collective identity as a basis for collective self-government? In providing a larger context, they first explain that the Indian free speech law struggles with a basic tension between racialized colonial particularity in the arena of religion-based hate speech and a liberal-democratic universalism in the sphere of casteist hate speech, and hence a colonial logic of racialized regulation of hate speech continuing into the post-colonial era. By contrast, hate speech regulation in the EU context has long been driven by the logic of the common market. In more recent times, anti-discrimination law increasingly provides the foundation of EU hate

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speech regulatory law. They go on to argue that as hate speech regulation in both polities has evolved, it has sought to address and reflect the more divisive forms of diversity that are at play in the two polities. Both polities have developed a rationale for hate speech regulation that is internal to the forms of democracy that are prevalent within them. European law ultimately privileges speech as an activity of the common market subject, and is most forceful when speech is protected as an exercise of market freedom. By contrast, in India, ‘the democratic rationale for hate speech regulation is founded on a universalism that aims primarily at countering exclusionary speech directed at marginalized groups and at ensuring equal participation in democratic deliberation’. In India, however, a careful examination shows that this ultimately does not deliver its promise to underprivileged groups like Dalits or Adivasis. Likewise, the European logic for regulating hate speech law carries tensions within itself, which threaten to undermine the foundational logic. The chapter ultimately argues for an approach that focuses on the power relations of inclusion and exclusion at play in the contested construction of a ‘unified public sphere’ through the exercise of the polity’s hate speech laws. 4.D

Political Institutions in the Multi-level Federal Balance

Laws of democracy organize the process of giving voice through institutions. The interplay of the institutions so created and empowered is the next element in the law of democracy that has to be studied. Political and constitutional theory normally conceptualizes this theme through the lens of separation of powers. Separation of powers, however, can have two dimensions – a horizontal and a vertical. In its horizontal variety, it structures the interplay of institutions of one level of governance, whereas its vertical, federal dimension organizes the interplay of governmental levels. The federal balance,74 that is, the relationship between the Union and the states, shapes democratic constitutionalism in India and the EU profoundly and as a theme cuts across all chapters in this book. In more detail, the chapter by Dann and Thiruvengadam compares experiences of federal democracy in India and the EU along two guiding questions: What effect has the federal order on constitutional democracy? And what is the ‘federal quality’ of central level decision-making, that is, how are subunits’ interests taken into account, when the centre acts? Providing first some historical context, the chapter argues that federal democracy in the two polities is organized in two starkly different systems, which developed into opposing directions. While the Indian Constitution of 1950 devised a strongly centralized federal system, the oppo On the horizontal dimension, see the next Section.

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site was true for the early EU. The European treaties gave the EU only limited sectoral and regulatory powers, but left executive and budgetary powers on the member state level. The institutional system of democracy reflected this almost opposite construction. Where for the Indian Constitution the idea of national democracy was central, the EU in its beginning rested on the idea of supranational technocracy, controlled by national governments. But over the past decades, two contrasting dynamics unfolded – in the EU a dynamic of profound centralization of competences in the EU and in India a dynamic of decentralization. But while in India decentralization was very much a story of democratization, in Europe centralization created new democratic problems. It was driven not by popular demand but functional logic and governmental agreement. Member state governments often used the multi-level structure to escape democratic control at home, hollowing out national parliaments, while the democratization on the EU level met various problems. Against this background, the chapter responds to the comparative questions. With regard to the federal quality of Union level decision-making, the authors see a clear contrast. While the European system is over-federalized in that it grants dominant power to lower level (i.e. member state) governments and compromises on the equality of voting individuals by instituting a system of degressive proportionality in European Parliament elections, the formal structures of state representation in India and hence the ‘federal voice’ of sub-union units are weak and the system is under-federalized. Only bottom-up, political demand for voice and hence electoral politics ensure a more even federal balance in Union-level decision-making. The other question about the effect of the federal structure on democracy is more difficult to answer. In India, one can well argue that federalism generally led to stronger democratic participation; federalism was democracy-enhancing – and may also be a kind of safety valve or lock to preserve democratic structures in the face of challenge. In the EU, the creation of the European level of governance and hence a federal or multi-level structure has complicated democratic governance. Post- and transnational democratic politics and constitutional democracy is still an experiment. European integration has opened a new venue for democratic governance (the EU) but the people are hesitant to use it. Instead, power has shifted to the EU without enough democratic oversight of the new power centre. A common European democratic political culture is still emerging. Democratic institutions on the national level, in contrast, are at risk of being hollowed-out as power shifts to the EU.

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4.E

Democratic constitutionalism in India and the European Union

Constitutionalization, Juridification and the Interplay of Institutions

In terms of the horizontal separation of powers, the fifth theme in the law of democracy studied here, there was a noticeable shift in the institutional interplay in the two polities (and many others) – that had a detrimental effect on the role of the legislature and the democratic process more generally. This shift has been described as ‘juridification’.75 The observation is that Supreme or Constitutional Courts have been able to use their competence to interpret the Constitution in order to set the terms of political debates and thereby curtail the role of legislatures and other political organs. This has turned courts, which according to the traditional separation of powers theory are non-political, neutral, retrospective actors, into increasingly powerful and political institutions and hence politicized their role. In that sense one speaks of the ‘politicization of the judiciary’. But in turn, it has also had a profound impact on the political arena that is described as ‘judicialization of politics’, that is, the increasing superimposition of political debates by legal arguments. With regard to India and the EU, Bast and Thiruvengadam in this book argue that both the Indian Supreme Court and the European Court of Justice surely played a crucial role in shaping their respective constitutional orders. However, the authors contrast the conventional, court-centred narrative with a more complex view on the interplay between judicial and political actors. To this end, they reconstruct the ‘original view’ of the framers on the constitutional project as a whole, and the appropriate role of the judiciary. The resulting constitutional experiments are built on a unique blend of liberal and post-liberal ideas. Both foundational documents enshrine an aspirational programme of social change while preserving the constitutionalist commitment to democratic self-government and the rule of law – albeit the content of these programmes differs and, as a matter of fact, adopts contrasting perspectives in its assessment of the role of nationalism to achieve the respective goals. A common theme is a more interventionist, or ‘activist’, understanding of constitutionalism as compared to classic conceptions. Both constitutional orders have laid down an aspirational programme of social change – of economic progress, social equality, and cultural openness – to be implemented by representative or independent institutions. Considering this more interventionist or even 75 Ran Hirshl, Towards Juristocracy: The Origins and Consequences of the New Constitutionalism (Harvard University Press 2007); see also Alexander M. Bickel, The Least Dangerous Branch (2nd edn, Yale University Press 1986); John Hart Ely, Democracy and Distrust (Harvard University Press 1980); Martin Shapiro, Courts: A Comparative and Political Analysis (University of Chicago Press 2013) in the ‘law and courts/law and politics’ field.

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transformative agenda they stress that not just the courts but also the other two branches played and continue to play a central role in India and the EU alike. 4.F

Economic Constitution and Social Democracy

Participation in common affairs and in the democratic process is not just a matter of formal rights but also of material capacity. As Bhimrao Ambedkar, one of the founding fathers of Indian constitutionalism, put it: ‘How is political democracy possible without social democracy?’ If democracy is about the organization of power, it would be short-sighted to think of it only as a matter of the power of public authorities but should include also private power. From this perspective, it is central to our understanding of democratic constitutionalism in India and the EU to analyse how their constitutions and laws deal with questions of material inequality and the economy more generally. In both polities, these are foundational themes. In Europe, the economic idea of a common market was the raison d’être for the EU to come into existence in the first place. The market was intended to be a roadblock against nationalism and war – and a pathway to integration through prosperity. For India, economic goals were no less important for the budding constitutional project. Overcoming poverty, achieving ‘development’ and creating a more just distribution of material wealth were central ambitions of the new-found state and continue to play an enormous role in the political discourse.76 The constitutional systems of India and the EU grapple with the right balance between state and market, public intervention and private freedom ‒ and this balance is shifting over time. One could start by placing India and the EU at opposite poles: The Constitution of the EU corresponds at first sight with a minimalist model of liberalism. It protects economic freedoms strongly to ensure the transnational borderless mobility of goods, services and labour and erects barriers against discrimination that are mostly outside the reach of the regular legislatures (not constitution or treaty-maker).77 And even though the EU has moved beyond being merely a common market, the market still exerts its influence in many spheres, as the contributions in this book with respect to speech regulation and non-discrimination impressively show, standing in the way of redistributive policies along collective categories.78 India’s Constitution, on the other side, lays down various ideals of social justice. These are requests for legislative and governmental activities to implement

Zachariah (n 16); Mehta (n 38). Grimm (n 17). 78 Lulz and Riegner (Chapter 7 in this book); Boysen and Chandra (Chapter 4 in this book). 76 77

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and hence envision state intervention in the market, driven primarily by the democratic institutions. The concept of the interventionist, developmental state dominated in particular the first decades of Indian independence.79 But also the last Congress government (2004‒14) pursued an agenda of redistributive legislation to increase social protection.80 But such a characterization would be too simplistic. With respect to the EU, it overlooks the fact that with regard to the distributive dimension, the European model is one of a multi-level division of labour (i.e. competences); social justice and redistribution of public funds are supposed to be obligations of the member states, which also have the only authority to raise taxes. Also, the EU has not only a liberal understanding of economic activities, but also has highly regulated markets in certain areas (agriculture).81 And in India, economic policy since 1991 shifted fundamentally to give market forces more way. Deregulation and protection of the market were the dominant themes of economic policy and legislation since 2000.82 But how do economic development and distribution concretely connect to the democratic system of the two polities? It is important to note the differences in historical sequence. In Europe, the formation of state structure and capitalist development preceded the event of mass democracy on the national level. In India, in contrast, these developments took place mostly at the same time, namely after independence.83 The effects and the explanation of the development are very much debated, since the Indian example contradicts almost all other countries; only here a stable democracy and (slow) economic

79 On the connection between the Indian state and socio-economic structures of the Indian society and economy, see Ronald Herring, ‘Embedded Particuliarism: India’s Failed Developmental State’ in Meredith Woo-Cumings (ed), The Developmental State (Cornell University Press 1999) 306; Vivek Chibber, Locked in Place: State Building and Industrialization in India (Princeton 2006). 80 Kothari (n 46). 81 Boysen and Chandra (Chapter 4 in this book); but further more: Jürgen Bast and Florian Rödl (eds), Wohlfahrtsstaatlichkeit und soziale Demokratie (EuR-Beiheft 1, Nomos 2013); for analysis of the development in and after the debt crisis, see Dawson and De Witte (n 17); Emilios Christodoulidis and Marco Goldoni, ‘The Political Economy of Social Rights’ in Stefano Civitarese Matteucci and Simon Halliday (eds), Social Rights in Europe in an Age of Austerity (Routledge 2018). 82 Navroz Dubash and Bronwen Morgan, The Rise of the Regulatory State in the Global South (OUP 2013); Vikram Raghavan, Communications Law in India (Butterworths 2007). 83 For a succinct historical analysis from the 1940s to 2000, see Sudipta Kaviraj, ‘Democracy and Development in India’ in A.K. Bagchi (ed), Democracy and Development (Palgrave 1995) 92.

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development coincided.84 With regard to the EU, research on the democratic effects of economic policy on EU politicization and democratization seems rather at the beginning. It was boosted by the democratic dilemma of austerity policies,85 the populist backlash against fast EU-driven transformation of Eastern European countries acceding the EU86 and a general realization how important the political economy of democracy and law is.87 While several chapters in our book advert to these issues, the chapter by Bhatia and Christodoulidis focuses particularly on protection of social rights and solidarity. In their comparison of what they call the decline of social rights constitutionalism in India and the EU, Bhatia and Christodoulidis locate the ‘right to work’ as critical to a discussion of social rights and democracy in the two polities. Bhatia and Christodoulidis conduct a close historical examination of the phases of the decline of labour laws in India and the EU by focusing on significant judicial rulings in each jurisdiction and note some striking similarities between the two polities (despite a very different structure of labour law and other important differences): first of all, that constitutional courts have done progressively little to protect the right to work; furthermore that this has been accompanied by an incremental subordination of social rights and the right to work; and that finally the judiciary has been a primary actor in accomplishing this transition. The authors conclude that ‘the effects that the “race to the bottom” has had on social rights have been devastating’. They underline the cause of ‘collective self-determination’ in the field of work sanctions, collective capacity for action in the forms of freedom to associate, to bargain and to strike.

84 Devesh Kapur, ‘Explaining Democratic Durability and Economic Performance’ in Devesh Kapur, Pratap Bhanu Mehta and Milan Vaishnav (eds), Rethinking Public Institutions in India (OUP 2005); Ashutosh Varshney, Battles Half Won: India’s Improbable Democracy (Penguin 2013). 85 See Monia Cappuccini, Austerity and Democracy in Athens (Palgrave 2018); Christodoulidis and Goldoni (n 81). 86 Jan Komárek, ‘Waiting for the Existential Revolution in Europe’ (2014) 12 ICON 190; James Fowkes and Michaela Hailbronner, ‘Decolonizing Eastern Europe’ (2019) 17 ICON 497; Stephen Holmes and Ivan Krastev, The Light That Failed (Penguin 2019). 87 Poul F. Kjaer (ed), The Law of Political Economy: Transformation in the Function of Law (CUP 2020); Sharun Mukand and Dani Rodrik, ‘The Political Economy of Liberal Democracy’ (2020) The Economic Journal, available at accessed 21 October 2020.

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5.

CONCLUSION: SOME TENTATIVE OBSERVATIONS LOOKING BACKWARD AND FORWARD

James Tully once observed: Instead of grand theory, constitutional knowledge appears to be a humble and practical dialogue in which interlocutors from near and far exchanged limited descriptions of actual cases, learning as they go along. Accordingly, the language and institutions of modern constitutionalism should now take their democratic place among the multiplicity of constitutional languages and institutions of the world and submit their limited claims to authority to the three conventions, just like all others.88

The book, which this chapter introduces, tries to practice exactly that ‘humble and practical dialogue’ through which our constitutional knowledge is pluralized and democratized. The project from which it emerges was an experiment, and a difficult one at that. It tried to open a conversation between scholarly communities that hardly talk to each other. European scholars are still mostly focused on their Western, North-Atlantic world. Indian scholars are in a similar bubble, though their bubble (that of the Commonwealth, including the US) appears more global on the surface. In this concluding Section, we want to synthesize some of the preceding observations and look ahead at questions for further Indo-European research and slow comparison. Before looking at the legal dimension, it is necessary to recall briefly two empirical observations that we noted at the outset of this analysis.89 There, we had stated that India and the EU can both be described as continental polities considering their size and multi-dimensional socio-cultural heterogeneity. At the same time, they have different centres of political gravity. In India, the Union (or central) level dominates the political systems, while in the EU the centre of political systems lies more in the national subunits or member states than in the EU (i.e. more in Lisbon and Paris, Warsaw and Berlin than in Brussels). And one more preliminary remark: law structures and impacts the political and democratic process in India and the EU in profound ways. But a comparative synthesis has to start with a word of caution. India and the EU are very different and it is impossible and undesirable to flatten out their differences. Slow comparison hardly leads to easy ‘take-aways’. In fact, the recognition of their distinctiveness, their respective ‘provincialization’, if you like, is

Tully (n 12) 185. See Section 3.C above.

88 89

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more appealing. In that sense, the contributions to this book lead to five main observations. 5.A

Laws of Democracy: Some General Observations

5.A.1 Consensual democracies – still Looked at from a distance, constitutional democracy in India and the EU follows the model of consensual, non-majoritarian democracy.90 This includes a federal structure, multi-party systems, bicameralism, the practice of coalition governments, and central bank independence. One can also observe that both India and the EU have a generally strong legal-constitutional culture and courts to safeguard this culture. It is true that India has always been a borderline case (given its majoritarian electoral systems, its centralized federal system or the weak position of the Upper House) – and that the BJP government of Narendra Modi appears to be unsettling this model. But then again, it would surely be far less convincing to characterize a country as institutionally complex as India as conforming to the basic Westminster Model. In any event, as one moves closer, different structures, dynamics and sensibilities of constitutional democracy emerge that make the juxtaposition of both polities more telling and fascinating. 5.A.2 Core ideas and shifting appreciation of paradigms of legitimacy The Constitutions of India and the EU emphasized considerably different core ideas, when they were created around the same time in the early 1950s. At India’s independence, there was the idea of a developmental state that sought to achieve social justice through democratic means. The Constitution of 1950 aims to create a state capable not just of securing its borders but also of transforming a hierarchical and unequal society into an egalitarian one. The central state (the Union) is invested with strong legislative, administrative and budgetary means to achieve this, while the sub-states are rather weak. Not just state capacity but also democratic politics and input legitimacy are key. In contrast, the core idea of the European treaties that created the EU in 1952/57 was to create a supranational public authority that would have the power to build a European market, effectively hindering the (national) states’ capacity and (national) democratic politics. Social justice was left to the nation-states; an ordo-liberal idea that the market had to be protected from democratic politics was more important than democracy on the European level. The EU had a limited mandate, as well as limited budgetary and administrative

Lijphart (n 4).

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powers. But it had regulatory powers, exercised by technocrats, lawyers and national executives. Output legitimacy was key. But history did not stop there. In fact, both polities experienced a major shift in their political and constitutional structures and experiences in the 1980s and 1990s. This shift triggered an inverse development and partial convergence of their models and experiences of democratic constitutionalism. In India, this shift (in extreme abbreviation) ended the dominance of the Congress party and opened its previously closed economy to the world markets in the early 1990s. While economic growth rates increased, eventually leading to the spread of neoliberal reforms and the emergence of a bigger middle class, this only partly fulfilled expectations; large sections of society did not profit from this shift, and the effects of neoliberalism on weaker sections, including labour, were devastating. In the EU, the shift consisted of the transformation from an economic community into a political union ‒ and the public realization that this transformation (and its parallel growth of EU powers) needed democratic input legitimacy. The EU was transformed from an international organization to organize a supranational market into a quasi-federal constitutional and political organization, having responsibility for the market but also for borders, migration, the environment and many other elements of its territory. As a result of these shifts, the dominant paradigms of legitimacy made an inverse development: While in India the appreciation and demand for output legitimacy and dissatisfaction with democratic process (i.e. input legitimacy) grew, in the EU the demand for input legitimacy soared.91 5.A.3 Different sensibilities and political dynamics of representation But the contributions to this book also demonstrate that organizing democracy and giving voice are still characteristically different in both polities. This reflects different legal and political sensibilities and triggers different dynamics – and results in a different role of law. In India, we observe a constitutional sensibility for and tension between (religious and caste) particularity and liberal universalism, as visible in quotas, that is, reserved seats for minorities in parliament (Art. 330), in speech regulation or affirmative action laws. At the same time, there is a surprising ignorance in the law about the federal dimension of diversity and the political process. This manifests itself in a partial disregard for individual equality in voting rights (freeze of delimitation), only minor powers for the Upper House of Parliament and hence subnational representatives, and an electoral system (based on the first past the post-election law), which is not conducive to rep-

91 On these aspects, see the contributions of Baruah and Volkmann, Bast and Thiruvengadam and Dann and Thiruvengadam (Chapters 2, 3 and 9 in this book).

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resent diversity. There is also rather little emphasis on the (anyway waning) stamina of the judiciary vis-à-vis the executive. The picture looks quite different, when looking at the EU. Here, the overriding sensibility in the law of the political process and democratic constitutionalism is federal. How a balance between individual and member state representation can be preserved is most important. The central part of democratic legitimacy comes from member states that infuse democratic legitimacy in particular through the strong representation in the EU-decision-making procedures (in particular Council/the Upper House). Original EU-level democratic legitimacy is generated through the elections to the European Parliament, but even there, the principle of degressive proportionality favouring voters from smaller states over those from larger states ensures that individual equality does not trump a certain federal balance between big and small states. The EU laws of democracy also reflect a still palpable legacy of the market logic that shaped the founding period of the EU, visible in the party regulation, anti-discrimination laws or speech regulation. It will be interesting to see how the tensions between the transnational logic governing the European market and the federal (and ultimately national) logic governing the European political union will get solved. Finally, and very much in contrast to India, EU laws of democracy are rather oblivious to socio-political or religious sensibilities.92 But there is another more political (less legal) dimension that concerns the dynamics of representation and shows another characteristic difference: in India, societal heterogeneity and political developments since the 1970s triggered an immense politicization; political (not legal!) formats evolved to organize voice and interest representation in the diverse societal environment.93 This happened mainly through the increased regionalization and diversification of the party system, and also (up to 2014) through broad governmental coalitions at the central level, which ensured the inclusion of many regional and caste-based parties in the central government. While strong political systems matured in the states, the Union was still dominant. The political culture had a strong element of agitational democracy. In all of this, the plurality of languages and religions has not stood in the way of such developments. It is generally believed that democracy in India deepened across time with the inclusion of many more sections of society into the corridors of power than was the case with the narrow male, upper class and caste elite who governed the nation in the 1950s and 1960s. At the same time, the Indian 92 On these aspects see the contributions of Boysen and Chandra, Aditi and von Achenbach, Lulz and Riegner, and Dann and Thiruvengadam (Chapters 4, 5, 7 and 9 in this book). 93 On these aspects, see Aditi and von Achenbach, Hailbronner and Thayyil, and Dann and Thiruvengadam (Chapters 5, 6 and 9 in this book).

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Supreme Court allowed for social movements to pursue strategic litigation and thus facilitated articulation of other, partly marginal interests. In the EU, such a politicization and bottom-up drive for plural interest representation has not taken place.94 There is little bottom-up, truly European democratic politics. Political parties, civil society organizations and broader public structures of media and discourse (newspapers, TV, etc.) are still very much based on national structures, even though lobbying systems have become more European. Diversity is member-state bound and dealt with through balancing member states in EU. Politicization is distinctly different in different regions of Europe – in the South, East or Centre-North of Europe. It has not helped that the European Court of Justice’s procedural rules and understanding of law are anxious of and limit social movement litigation. Ultimately, while law plays an important role in organizing the political process in both polities, it is a different role. In the EU, law is designed to create European structures of democracy and open channels of debate and contestation. The reality of the democratic process, however, shows the limits of this ‘democratization through law’ approach. In India, politics is partly overtaking the law and creates structures around it. 5.A.4 Common exposure and reaction to global trends A fourth observation is important. Both polities also react to global developments and pressures, which have effects on the process (and law) of democracy. Two become clear through the contributions to this book (economic globalization and judicial empowerment) and a third is mentioned here (authoritarianism). In both polities, the difficult relationship between democracy and economic globalization has become one of the most central constitutional and democratic questions. This is particularly apparent with regard to the pressures on social protections and rights. The market is seen in both polities as the major creator and distributor of wealth. The integration into the global market and the reconfiguration of the domestic market are overarching goals of public law and policy, mainly pursued through neoliberal policies of deregulation and austerity. This has put immense pressures on social rights and the social basis of democracy – and courts were at the forefront to restrict social rights, especially labour rights.95

94 But see for a current analysis, highlighting the regional differences for politicization in Europe, Swen Hutter and Hanspeter Krisie, ‘The Politicization of European Integration’ (2016) 54 Journal of Common Market Studies 32. 95 See Bhatia and Christodoulidis (Chapter 8 in this book).

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Judicial empowerment is a second global trend, the effects of which shaped India and the EU, even though the origins and dynamics of this trend were surely different. But in both polities, courts played an increasingly important role in setting parameters of the democratic process – in India the Supreme Court, in Europe in a dialogue between the CJEU and national constitutional courts. This shrank policy space in both polities and depoliticized – and juridified ‒ many areas. A third global trend should be mentioned here, even though the book does not address it more systematically, as it erupted too late for this complicated research and writing process that led to this book – and that is the rise of right-wing populism and authoritarianism. This is a challenge with the BJP government in India that has shed much of its reluctance after its resounding victory in 2019. But it exists equally in the EU, where the governments of Hungary and Poland, for some time also Italy, and maybe soon others have become increasingly hostile to democratic constitutionalism. It is clear by now that authoritarian challengers use legal techniques and tackle the rule of law and hence the basic framework of democratic constitutionalism.96 In fact, it would be another step in this ongoing research conversation to study all the themes in the law of democracy, as studied here, with an eye on the authoritarian challenges. At this point, perhaps only one comparative thought may be formulated here: which is that one hope in both polities can rest on the federal dimension of democratic constitutionalism. Though the challenge emerges in India and the EU on different levels (in the centre in India, in member states in the EU) the fact that there is a second constitutional and political order might be an important safety valve for democratic constitutionalism here and there.97 5.A.5 Common experience with the duality of law and politics A final observation reaches deeper into history but is equally striking for a comparative understanding of the laws of democracy. India and the EU share a historical experience with regard to the interplay of law and politics – and in particular the role of lawyers in the political arena. In both polities, lawyers and courts have played particularly important roles in public debates. Courts in fact became political arenas, not least because avenues to a direct political and democratic discourse were blocked. This happened for different reasons: in India, because political democratic discourse was restricted by the British 96 Khaitan (n 11); Armin von Bogdandy and Luke Dimitrios Spieker, ‘Countering the Judicial Silencing of Critics: Article 2 TEU Values, Reverse Solange, and the Responsibilities of National Judges’ (2019) 15 European Constitutional Law Review 391. 97 On this aspect briefly, Bast and Thiruvengadam, and Dann and Thiruvengadam (Chapters 3 and 9 in this book).

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colonial power, early resistance against the British could not be formulated in the press and at ballot box, but was placed in legal complaints and law suits. In the EU, the political role of lawyers and courts has more to do with the technocratic preferences, lack of political awareness and diplomatic sensibilities that for a long time prevented a more direct bottom-up, democratic engagement with EU matters. For the EU, Joseph Weiler famously argued that its development and history has been shaped by a distinct dualism of law and politics.98 Its institutional structure favoured either diplomacy or technocracy but did not allow for open political contestation, as there was no institutional space (such as a relevant parliament) available. Even in actually political institutions, such as the Council of Ministers, decision-making was impeded by unanimity rules and consensus culture. Instead, major steps of legal and constitutional reform were taken by the European Court of Justice, often driven by coalitions of lawyers with a clearly federal vision of the EU. This structure and dynamic were described as the ‘political deficit’ of the EU.99 A similar observation has been made about historical development in India. As Bryant Garth and Yves Dezelay note, British colonies across Asia and Africa typically saw an increasing role for lawyers and law in nationalist movements that led eventually to decolonization.100 This was in contrast to the colonies of the Dutch (Indonesia) or the French (Vietnam) where colonial policies did not favour the education and empowerment of lawyers.101 Thus, compared with other colonies, Indian lawyers did have the power and the opportunity to mobilize against the British including through articulating demands for an independence Constitution. Once Independence arrived, lawyers had to yield some of the limelight to economists, and other actors who focused on economic development in the initial few decades, often at the cost of legal principles and aspects of the rule of law. Nevertheless, law and lawyers continued to play disproportionately large roles in shaping important events in the evolution of the political and constitutional order. Upendra Baxi’s work

98 Joseph H.H. Weiler, ‘Dual Structure of European Integration’, PhD on file in European University Institute (Florence), but see also Weiler (n 50). 99 Renaud Dehousse, ‘Constitutional Reform in the European Community: Are there Alternatives to the Majoritarian Avenue?’ (1995) 18 Western European Politics 118, 124; Philipp Dann, ‘Semi-Parliamentary Democracy of the EU’ (2002) 5 Jean Monet Working Paper 38. 100 Yves Dezelay and Bryant Garth, Asian Legal Revivals (University of Chicago Press 2010). 101 Mukherjee (n 16).

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through the 1960s to the 1990s tracks how this has enabled the Supreme Court to become such a significant political actor.102 5.B

Entanglements Beyond Comparison and the Contours of a Research Agenda

Every research project has limits and the limits of this project are all too obvious. But in thinking about the limits and gaps, the contours of a larger research agenda emerge. In a few strokes we want to sketch such an agenda here. First, as one advances the comparison between India and Europe, there emerges also an increasing sense of their manifold entanglements. In fact, comparative analysis does not only juxtapose different objects but also creates a sense for their interaction and connections. Compared entities are never fixed but evolve, change, morph. They do so in exchange with others; polities and constitutional system observe, consult, copy each other, and not always towards universally agreed or desirable objectives. In comparative legal literature, the question of transfer, of migration, of translation of ideas and concepts has been prominent for some time now.103 This is a fascinating perspective also with regard to the EU and India, which share parts of their history and parts of their future. There is the colonial past that lives on in the Indian legal system and legal culture but also in its political and democratic culture.104 The struggle for freedom produced instruments of suppression that the governments of independent India continue to deploy.105 It also created a culture of civil unrest, resistance and agitation that lives on 102 Upendra Baxi, ‘The Little Done, the Vast Undone’ (1967) 9 Journal of the Indian Law Institute 323; Upendra Baxi, Indian Supreme Court and Politics (Eastern Book Company 1980); Upendra Baxi, Courage Craft and Contention (N.M. Tripathi 1985); Marc Galanter and Nicholas Robinson, ‘India’s Grand Advocates’ (2013) 20 International Journal of the Legal Profession 1 (emphasizing the power of elite lawyers within the Supreme Court bar who also shuffle between government as Cabinet ministries holding important portfolios such as Finance, Law and Defence); see also Bruce Ackerman, Revolutionary Constitutionalism (Harvard University Press 2019). 103 Sujit Choudhry (ed), The Migration of Constitutional Ideas (CUP 2009); Günter Frankenberg (ed), Order from Transfer (Edward Elgar 2013). 104 Upendra Baxi, ‘The Colonialist Heritage’ in Pierre Legrand and Roderick Munday (eds), Comparative Legal Studies (CUP 2003) 46; see also Sudipta Kaviraj, The Trajectories of the Indian State: Politics and Ideas (Permanent Black 2010); Arudra Burra, ‘Arguments from Colonial Continuity: The Constitution (First Amendment) Act, 1951’ (7 December 2008), available at accessed 21 October 2020. 105 Ujjwal Singh, The State, Democracy and Anti-Terror Laws in India (Sage 2007), Victor Ramraj and Arun K. Thiruvengadam, Emergency Powers in Asia (CUP 2010).

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in the social movements and political discourse today. The colonial legacy in the European integration (and hence the EU and its law) has hardly been researched.106 This amnesia has surely contributed to the construction of today’s Union, including some traps of misconceived self-confidence.107 Secondly, however, India and Europe are not only entangled in their past and foundational period; they are also linked in many ways today. Both polities are challenged by the forces of economic globalization and neoliberal ideology. Some claim that in an ironic (or realistic) twist the future of the Global North (i.e. of the EU) can be seen in the present of the Global South.108 In a similar vein, Ram Guha observed some time ago that ‘In India, EU is looking at its past as well as its possible future’.109 At the moment of writing, perhaps the strongest limit and desiderata lies in studying more deeply the political economy of constitutional democracy in both polities. Such a perspective would immensely enhance our understanding of law, economics, politics and culture. Through a multidisciplinary lens, the six themes of this book could be complemented with further themes (such as social media regulation, regulatory agencies, right to assemble, defences of democracy, ‘corruption’) of the law of democracy. But other fields and dynamics would also be fascinating. For India, the EU represents a model to spur economic development across a subcontinental polity. For a nation, India has very poor interconnectivity and linkages for trade and economic transactions between and across its constituent units. So, the EU represents a great model to enhance India’s connections between its various states and union territories which can be integrated for economic purposes by taking lessons from the EU experiment. For its part, the EU may want to revisit some of its foundational premises in relation to diversity and multiculturalism which are products of mid-20th century thinking, when its population was less diverse than it is today, on account of increased human migration. There may also be ways of viewing policies of affirmative action and improving social capital of local and regional minorities for which 106 On this omission, Peo Hansen and Stefan Jonsson, ‘Another Colonialism: Africa in the History of European Integration’ (2014) 27 Journal of Historical Sociology, 442; Peo Hansen and Stefan Jonsson, ‘Eurafrica Incognita: The Colonial Origins of the European Union’ (2017) 7 History of the Present 1. 107 There are also other connections and exchanges, anti-imperial and beyond the British-Indian connection. See e.g. on interactions between the German and Indian intellectuals in the early 20th century, Manjapra (n 1). 108 Jean Comaroff, ‘Theory From the South, or, How Euro-America is Evolving Toward Africa’ in John L. Comaroff (ed), Politics, Sociology (Routledge 2016); Florian Hoffmann, ‘Facing South: On the Significance of an/other Modernity in Comparative Constitutional Law’ in Dann, Riegner and Bönnemann (n 7) 41‒67. 109 Ramchandra Guha, ‘Past and Present’ The Hindu Sunday Magazine (10 April 2005).

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the Indian experience may be relevant. The concept of transformative constitutionalism might be a framework to capture a common thread in both systems. These are some of the insights that we are able to glean from our project. But we have no doubt that many more will be available for future researchers as the two polities seek to further their historical ties. Our hope is that others will take up our call for further research and build upon the foundation that we have sought to lay here.

PART I

Conceptual contexts

2. Concepts of democracy Pritam Baruah and Uwe Volkmann 1.

THEORETICAL AND PRACTICAL CHALLENGES

To compare the concept of democracy in India and Europe within a wider project of understanding the relationships between democracy and diversity involves an indeterminacy risk, and a duplication risk. The indeterminacy risk is posed by the concepts of ‘comparison’ and ‘democracy’. Comparison, as is now settled, cannot be cherry-picking, and the content of democracy, admittedly, is indeterminate given the multiple ‘conceptions’ it allows.1 Careful comparison must involve cautious selection of instances of the concept to be compared. However, if the content of the concept is indeterminate, then identifying instances is challenging, making comparison additionally risky. The duplication risk arises from the widespread application of the concept of democracy. Indeed, as the chapters of this book demonstrate, democracy shows up in several contexts: federalism, electoral laws, political parties, social movements, freedom of expression, states of emergency, judicial review, or social rights. Our identifying the several instances of democracy in India and the EU would then end up being a rough and thin summary of other chapters resulting in multiple duplications. What else then can a chapter on democracy add? We choose to take refuge in theory by focusing on two broad themes along which the content of democracy is traditionally organized: democracy as either an intrinsic or instrumental value. We apply this framework to analyse challenges arising from concerns that preoccupy thinking about democracy in contemporary India and the EU. In thinking of challenges, we adopt the lenses of input and output legitimacy. Input legitimacy captures concerns 1 Democracy has been classified as a ‘contested concept’, and also as an ‘interpretive concept’, both indicating broadly that its content is indeterminate in several ways. See W.B. Gallie, ‘Essentially Contested Concepts’ (1955) Proceedings of the Aristotelian Society 167; Ronald Dworkin, Justice in Robes (Universal Law Publishing 2007, Indian Reprint) 154‒58 and Ronald Dworkin, Justice for Hedgehogs (HUP 2011) 158 for accounts of what interpretive concepts are.

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about how democratic systems of government are constituted and practiced, while output legitimacy measures the success of governments in attaining the goals of government. Scholarly literature seems to converge on admitting that India faces more severe challenges of output-legitimacy, than concerns about input-legitimacy and the deliberative quality of its governmental institutions.2 Concerns in the EU meanwhile focus on democracy-deficit, despite a relatively efficient functioning of its governmental institutions.3 Here we argue that, institutionally, the input legitimacy concerns in India are as severe as its output legitimacy concerns. On both counts Indian democracy can inform itself from the EU, particularly on how democratic structures run hollow without merit and accountability. On the other hand, the EU may learn from the Indian example how poor results in terms of output, when experienced over longer periods of time, impair the credibility of the democratic system as such and, as we also observe in a number of other formerly democratic states right now, raise a new desire for authoritarian modes of government. We begin in Section 2 below by providing a brief historical account of democracy in India and the EU highlighting the different contexts in which democracy emerged. The purpose is to glean the concepts that embed democracy in the two political systems. Section 3 then continues to identify legal mechanisms through which democracy is established at both sites and the challenges that those mechanisms must face. Sections 4 and 5 then apply a lens of intrinsic and instrumental worth of democracy to evaluate the potential of democracy in meeting those challenges. In this, Section 4 focusses on democracy as community-building, while Section 5 is a sceptical look at the potential of democracy.

2.

INDIA AND THE EU: CONTRASTING HISTORICAL CONTEXTS

Comparing the idea of democracy in India and the European Union (EU) presents some remarkable parallels, but also some fundamental differences. The differences may result from the historical fact that independent India was crafted as a democratic polity from the outset whereas democracy in the EU came in comparatively later. Indeed, even at present, the direction towards which the Union should evolve is unclear; its finality is still an open question

2 Niraja Gopal Jayal and Pratap Bhanu Mehta, The Oxford Companion to Politics in India (OUP 2011) xii. This is not to discount the input legitimacy of India’s electoral system, federal distribution of powers, and the quality of electoral representatives. 3 Paul Craig, ‘Integration Democracy, and Legitimacy’ in Paul Craig and Gráinne de Búrca (eds), The Evolution of EU Law (2nd edn, OUP 2011) 13, at 31‒40.

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which many of the political elite prefer not to ask.4 However, underlying this basic difference are several other contrasting contexts. Even if India was established as a constitutional democracy, its history is riddled with complex legacies of what democracy means. On the one hand are persuasive explanations of Indian democracy as a continuity of colonial practices, preserving existing social hierarchies, and consistent succumbing to majoritarian views.5 On the other, lies the undeniable democratic upsurge during the struggle for independence,6 and the increasing participation of historically marginalized communities in electoral politics.7 In contrast, European history nowadays is more or less seen as a straight-line process, an ever-progressing rise and clearance of liberal and democratic principles which, to quote the preamble of the TEU, now form an as such no longer disputable part of Europe’s ‘cultural, religious and humanist inheritance’.8 And finally [above all], the predominant narratives have almost nothing in common, the revolt against colonial rule with the call for independent statehood on the Indian and the devastations after World War II with the demand for some kind of cooperation on the European side. India and the EU were founded for different reasons, they were supposed to serve different functions, the founding myths – provided we can speak of such a thing in the case of the EU – depict different stories and transport different images of community. Hence, democracy played a completely different role in the evolvement of the two systems of governance. A fleeting glance at the history of the development of democracy acutely brings out the differences.

4 cf. Ulrich Haltern, ‘On Finality’ in Armin von Bogdandy and Jürgen Bast (eds), Principles of European Constitutional Law (2nd edn, Hart/CH Beck 2011) 205. 5 Sumit Sarkar, ‘Indian Democracy: The Historical Inheritance’ in Atul Kohli (ed), The Success of India’s Democracy (CUP 2001) 23; Atul Kohli, Democracy and Development in India (OUP 2009) 4‒5, arguing that Indian Democracy’s success is explained by the twin facts of the powerful being well-served by it without a total exclusion of the weaker groups. 6 Sarkar (n 5). 7 Yogendra Yadav, ‘Understanding the Second Democratic Upsurge: Trends of Bahujan Participation in Electoral Politics in the 1990s’ in Francine R. Frankel, Zoya Hasan, Rajeev Bhargava and Balveer Arora (eds), Transforming India: Social and Political Dynamics of Democracy (OUP 2000) 120‒45; Rajeev Bhargava, ‘Democratic Vision of a New Republic: India, 1950’ in Francine R. Frankel, Zoya Hasan, Rajeev Bhargava and Balveer Arora (eds), Transforming India: Social and Political Dynamics of Democracy (OUP 2000) 26‒50. 8 This conforms to the traditional liberal western conceptualization of democracy. See Kohli (n 5).

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2.A India The history of democracy in pre-independence India is broadly classified along a pragmatic and evaluative tradition. The pragmatic tradition holds that demands for representative democracy by Indians, primarily led by the Indian National Congress (INC), were gradually acceded to by the colonial government.9 Demands for representative democracy were, however, typically characterized as a response to charges of paternalism and elitism by the colonial government against the leaders of the INC.10 On the evaluative tradition, the demand for democracy was articulated in the evaluative language of equality and self-determination by leaders of the Indian Independence Movement (‘Independence Movement’). Thinking about democracy was thus a genuine call for self-rule. The two traditions may not have been mutually exclusive until the INC declared the complete independence of India to be its objective. This watershed moment marks the shift towards the evaluative tradition with democratic rule as the declared objective of the Independence Movement. But what kind of democracy did the movement imagine? Anti-colonial movements before the declaration of complete independence provide some pointers in this direction. Unlike in the case of the EU, the demand for representative democracy preceded the formation of independent India. On an optimistic reading, this pre-independence history of democracy seamlessly culminated in the adoption of the Constitution of the Republic that now guarantees the immutability of democracy as a basic constitutional feature. On sceptical readings, the chequered nature of this history presents itself as unsettling interpretive material for the content of democracy. To view it optimistically, from 1919 onwards, India witnessed several anti-colonial social movements that led to a ‘democratic upsurge’ involving high levels of politicization of the populace.11 A landmark of this upsurge was the Swarajya Resolution (Independence Resolution) adopted by the INC in 1931, following its declaration of complete independence (purna swaraj) in the Lahore Conference in 1929. Both declarations articulate the objectives of the Independence Movement. The Resolution included lists of rights and principles to be guaranteed by the government of independent India. Both procedural democracy in the form of adult suffrage, and substantive democracy, in

9 Sumit Sarkar calls this the ‘liberal-imperialist’ historiographical framework, see Sarkar (n 5) 24. 10 ibid. 11 Sarkar (n 5) 30.

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the form of several fundamental rights, featured in the list.12 The centrality of democracy as self-rule reflected in such key articulations of the objectives of the Independence Movement led commentators to synonymize Indian nationalism and democracy.13 Historical disagreements on the nature of democracy continue to control opposing views on what democracy demands. This historical disagreement is roughly captured by the difference between M.K. Gandhi’s and Jawaharlal Nehru’s visions of a democratic India. Gandhi idealized a decentralized, bottom-up, democratic India constituted by village republics. Its defining features were greater decision-making powers at the local level, and indirect elections towards a weaker center. Gandhi’s ideal captures democracy as an inherent value given its emphasis on self-rule. In contrast, Nehru imagined a more centralized India, with direct elections, designed for rapid and planned economic development, and building a sense of nationhood. In a sense, an instrumental significance of democracy can be gleaned from Nehru’s vision. Democratic government was designed to achieve the general aims of the independent government, and thus centralization and weak bicameralism were acceptable on his view to achieve the aims of socio-economic development and building a national identity. Given the different visions of Nehru and Gandhi, constitutionalizing democracy should have proved to be a daunting task.14 Surprisingly, the Gandhian vision had few takers in the Constituent Assembly, and Nehru’s view found its way into the original design of Indian constitutional democracy. It adopted the conventional forms of western liberal democracy including bicameralism, federalism, and separation of powers. This formal constitutional design, and the preceding disagreement between Gandhi and Nehru, contrast sharply with reasons for why the EU took shape. However, the idea of economic development underlining the Nehruvian model is similar to neofunctionalist explanations of the origins of the EU.15 Though 12 The Karachi Resolution 1931, available at accessed 3 November 2020. 13 Bhargava (n 7) 26. 14 The specification of representative democracy during the independence movement turned out to be controversial in deciding upon ‘communal electorates’: the idea proposed by the colonial government that representatives to elected bodies will be elected according to communities. M.K. Gandhi and some leaders of Congress including Jawaharlal Nehru were opposed to the idea while leaders of communities including Muslims and Dalits favoured the idea. See Bipan Chandra et al, India’s Struggle for Independence (Penguin Random House India 2016) Chs 31‒33 (for a history of communalism in India). 15 Craig (n 3) 14ff.

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India chose democracy as a part of the mechanism that would deliver economic development, choices such as rejecting proportional representation for the less representative First Past The Post system, a strong central government, weak upper houses of legislature, weak local government, and retaining the colonial bureaucracy, indicate a preference for a centralized, executive-led economic development.16 What appears latent in these choices is a hope for what Paul Craig calls ‘consensus of apathy’17 towards strong community-based political demands that existed at the inception of the Republic. These demands ranged from communal electoral representation on the milder side to national self-determination at the extreme. Perhaps a hope for such apathy might be reinterpreted as transformative in the Indian case where increasing apathy towards primacy of sub-Indian communal identities was desirable for the process of nation-building.18 The Nehruvain slogan of unity in diversity cherished pluralism on the cultural front, but from an institutional perspective, it reserved primacy for unity that required increasing political apathy of citizens towards their own sub-Indian political identities. As it has unfolded, the initial design of Indian constitutional-democracy has produced low output legitimacy of state institutions in India. Growing support for privatization of public sector enterprises from the late 1970s,19 and contemporary demands for more independent, merit-based, and accountable government are indicators of this output legitimacy deficit.20 This makes for an interesting comparison to the EU, where concerns about the democratic legitimacy of the EU are ascendant despite relatively efficient 16 The executive is led by the cabinet, formed by the democratically elected political party or coalition that attains electoral majority. 17 Craig (n 3) 17. 18 We apply the term ‘sub-Indian’ to national identities at the ‘sub-state’ level with India as the state. 19 See S.K. Majumdar, ‘Public, Joint and Private Sectors in Indian Industry: Evaluating Relative Performance Differences’ (1995) 30 Economic and Political Weekly M25‒M32, arguing that public sector units are less efficient then private ones. For scepticism of India’s liberalization that favoured privatization, see Prabhat Patnaik, ‘Economic Liberalisation and the Working Poor’ (2016) 51 Economic and Political Weekly; Prabhat Patnaik, ‘On the Politcal Economy of Economic “Liberalisation”’ (1985) 13 Social Scientist 3‒17. For a review of 25 years of economic liberalization in India see contributions to 2017 (52) Economic and Political Weekly. 20 Navroz K. Dubash, ‘New Regulatory Institutions in Infrastructure: From De-politicization to Creative Politics’ in Devesh Kapur, Pratap Bhanu Mehta and Milan Vaishnav (eds), Rethinking Public Institutions in India (OUP 2017) for problems plaguing regulatory institutions. See the Introduction by Kapur, Mehta and Vaishnav in the same book for an overview of academic scepticism towards the functioning of public institutions.

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functioning of governmental institutions. India, on the other hand, presents a picture where calls for output legitimacy cohabit a space for demands for more decentralization, accountable and transparent democracy. We explore this seemingly inverse relationship between democracy and legitimacy of government in the following sections. 2.B

European Union

In the EU the development by and large took the reverse course. It was not the pressure for representative democracy that preceded the foundation of the Union but the foundation of the Union that in the long term generated the pressure for democracy. Characteristically, it was not ‘We the people’ that founded and up to now form the members of the EU but a group of sovereign states: six in the beginning, 12 in the times of the Maastricht Treaty, 28 today, in two years, after Brexit, maybe 27. Hence, the EU was not designed as a democratic project initially but as a means to achieve certain interstate goals: economic cooperation, from there economic prosperity, and finally to peaceful coexistence of former enemies. Or, in the famous words of the Schuman-Declaration, by many considered as the real founding document of European unification: ‘Europe will not be made all at once, or according to a single plan. It will be built through concrete achievements which first create a de facto solidarity’. The driving force as well as the dominant rationale of the EU therefore can be seen in the concept of ‘spillover’ where integration in one sphere generated the pressure for integration in another sphere: economic integration was supposed to trigger legal integration, and legal integration should finally lead to political integration.21 In this scheme democracy was neither a primary issue nor a concern at all; legitimacy was conceived in terms of certain outcomes – economic prosperity, political stability and, above all, enduring peace – not in terms of democratic input. With the increase of lawmaking on the European level and the expanding role of European institutions, however, it could no longer be pretended that this mode of legitimation really suffices and meets even basic democratic requirements. The more the locus of governmental power and authority shifted to the EU, the more the ‘growing disjunction between political power and electoral accountability’ became apparent, eventually leading to a continuous debate on Europe’s democratic deficit on the one hand and enhanced efforts to reduce it on the other.22 Democratization of Craig (n 3) 14. Craig (n 3) 30, with reference to Joseph H.H. Weiler, Ulrich R. Haltern and Franz C. Mayer, ‘European Democracy and its Critique’ in Jack Hayward (ed), The Crisis of Representation in Europe (Frank Cass 1995) 4; cf. Joseph H.H. Weiler, ‘European Models: Polity, People and System’ in Paul Craig and Carol Harlow (eds), Lawmaking 21 22

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the EU became a permanent issue. In many ways the first direct election of the European Parliament in 1979 can be seen as the starting as well as the turning point of the discussion: Since then democracy is widely agreed upon as one of the core values not only of the internal order of the member states but also of the Union itself, and since then the process of legal institutionalization of democratic procedures rapidly gathered speed. Finally, the Treaty of Lisbon 2009 codified the democratic principle, placed it in a row with other principles like human dignity, freedom and equality, and enhanced it with a number of complementary provisions to ensure it will work out.

3.

DEMOCRACY AS LEGAL FRAMEWORK: HOW DEMOCRATIC LEGITIMACY IS LEGALLY ESTABLISHED

Though emerging from different historical starting points and reacting to different problems, the legal situation in India and the EU by now seems quite similar, at least in an abstract viewing. In both, democracy is guaranteed as an overall constitutional principle that keeps the insulated provisions on democratic proceedings together and informs us how these should be read. In India, this is a function of constitutional provisions for bicameral parliamentary democracy, reconstruction of this principle by the Supreme Court, the status of democracy as a basic feature of the Constitution, and political sanctity of elections.23 In contrast, in the EU the democratic principle as such is explicitly guaranteed in the treaties themselves, so in substance on a constitutional level: Article 10 TEU now states that the functioning of the Union shall be founded on representative democracy, with every citizen, as is added later, having the right to participate in its ‘democratic life’. But how then is representation concretely organized and how is democratic legitimacy supposed to be secured in each system? 3.A India From a legal perspective, democratic legitimacy in India is founded in the institutionalization of four central concepts that capture the value of self-government: electoral democracy of the bi-cameral parliamentary form,24

in the European Union (Kluwer Law International 1998) 3‒5; see also Andreas Follesdal and Simon Hix, ‘Why There is a Democratic Deficit in the EU: A Response to Majone and Moravcsik’ (2006) 44 JCMS 533. 23 SR Bommai v Union of India [1994] 3 SCC 1. 24 Constitution of India 1950, Part V.

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federalism,25 decentralization,26 and the judicial entrenchment of democracy.27 The electoral process, in theory, ensures democratic accountability through periodically held elections, while federalism and decentralization carry the legitimacy of the electoral process closer to the people. Judicial entrenchment on the other hand ties democracy to federalism and secularism and articulates the idea of democracy as self-government.28 Each of these however faces serious challenges in terms of input and output legitimacy that we discuss in Sections 4 and 5 below. 3.B

European Union

Due to the complex procedures of multi-level decision making in a compound of still sovereign states, the situation in the EU, once again, is somehow more complicated. According to a traditional account, the democratic legitimacy of the EU rests on two pillars also addressed in Article 10 TEU.29 One pillar originates from the EU citizens as such which directly elect the European Parliament as ‘their’ parliamentary representation. The competences of the European Parliament, however, still lag (although they have been widened constantly over the last decades) behind common parliamentary competences as, for example, known from a traditional Westminster system: The right of initiatives rests exclusively with the European Commission, and the legislature itself is in almost equal shares divided between the Parliament and the Council of the European Union. The second pillar therefore addresses particularly the Council of the European Union and asks for the democratic accountability of that. Here, it emanates from the peoples of the member states which – using the example of parliamentary systems – elect their national parliaments which

25 The Indian constitution provides for both Federalism and Asymmetric Federalism. The 7th schedule to the Constitution divides powers between the Union and State governments; while Part XXI and the 6th Schedule are instances of asymmetric federalism. See Dann and Thiruvengadam’s chapter on ‘Federalism and democracy’ (Chapter 9 in this book). 26 Decentralization here refers to the vertical devolution of power in multi-level governance. In India Municipalities and Corporations in urban areas, and the Panchayats in rural areas are constituents of government at the local level. Relevant constitutional provisions are Parts IX and IXA of the Constitution of India 1950. 27 SR Bommai v Union of India [1994] 3 SCC 1. 28 SR Bommai v Union of India [1994] 3 SCC 1, at para 102. 29 Sec. 2: ‘Citizens are directly represented at Union level in the European Parliament.’; Sec. 3: ‘Member States are represented in the European Council by their Heads of State or Government and in the Council by their governments, themselves democratically accountable either to their national Parliaments or to their citizens.’

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then elect the national governments (a chancellor, a prime minister, the individual ministers); these then are represented and act in the Council. From a global or remote perspective this two-pillar-model seems not to differ much from the model of democratic legitimation as it is generally known from other federal entities such as India. But it poses several problems both on the theoretical and on the legal side. From the theoretical side they are reflected in highly contrasting attempts to grasp the core of the structure; conceptualizations range from a description of the EU as a ‘fragmented democracy’ where democratic legitimacy is procured in a kind of work-sharing mode between national and European institutions (involving also aspects of ‘governance “for the people” through effective government and “with the people” through consultation with organized interests’)30 to a model of ‘shared sovereignty’ where in the very end the individual citizens as such constitute the sole source of the EU’s legitimation (and not, like in the traditional account, the member states with their peoples as a whole).31 From the legal side the problems mainly pertain to the hierarchy between the two pillars and the normative rank of each. In federal states like Germany or even India legitimacy on the federal level is mostly seen as the work of the federal institutions, in particular of a national parliament or a national executive; bicameralism, on the other hand, is traditionally less conceived as an essential component of democracy than as an element of the separation of powers. Given the still limited powers of the European Parliament which has to share its role with the Council, things are not that simple or clear. Here the two pillars are at least of equal weight and more or less in abeyance; in the eyes of many the hierarchy between them is even reverse. According to the jurisdiction of the Federal Constitutional Court of Germany for example, the priority has to remain upon the national pillar: with intensified participation of the national parliaments, with a parliamentary right to control and in the very end to veto decisions of a higher significance on the EU level; above all, the court stipulated that in the foreseeable future sufficient space for the formation of the political will should be left to the member states.32 In this view, the strand of legitimacy running from the EU citizens to the European Parliament only serves as a complement, in not more than an additional function. From confident Europeans this has been heavily criticized, and it is difficult to see how, on this premise, the EU will be able to cope with its actual challenges; the financial or the migration crisis, if we only

30 Vivien A. Schmidt, Democracy in Europe: The EU and National Polities (OUP 2006) 5. 31 Jürgen Habermas, ‘The Crisis of the European Union in the Light of a Constitutionalization of International Law’ (2012) 32 EJIL 335, 342‒43. 32 See BVerfGE 123, 267 (356ff) – Lissabon.

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look at these, both exceed the solution-finding capacities of sovereign national states and obviously require more, not less integration. Be that as it may, it is interesting to note that the respective conceptions of democratic legitimacy stand for opposite ways in dealing with diversity: compared to India, the European states with their more or less Christian background seem to be much more homogeneous at least in terms of religion or culture. But the legal framework of democracy itself seems to reflect a principled reservation against the concept of unity which in India, on the contrary, is prevalent over the unfolding of diversity.

4.

DEMOCRACY AS AN INHERENT VALUE: TRYING TO MEASURE THE QUALITY OF DEMOCRATIC PROCESSES

A legal-institutional viewpoint is perhaps too narrow to understand democracy. Just as other abstract concepts such as human rights, rule of law, separation of powers, federalism, or welfarism, democracy perhaps points to an underlying idea. This interpretivist and holist method follows a general notion of the Constitution itself, as articulated by Canadian Supreme Court, where a constitution is ‘more than a written text’. Instead, it ‘embraces the entire global system of rules and principles which govern the exercise of constitutional authority’, consisting of ‘underlying principles animating the whole of the constitution’ that ‘must inform our overall appreciation of the constitutional rights and obligations’.33 It is also here where the Constitution transgresses the border from a purely legal framework and instrument of government to a concept of ‘constitution as culture’ that reflects and merges with the shared convictions of a political community.34 Perhaps, there are few – if any – other principles like the democratic principle that, in this sense, carry an imagination of political unity and collective identity and open up to a symbolic dimension they cannot be divested of.35 In this case they almost inevitably include a general idea about the deeper meaning and the telos of them. 4.A

Contending Concepts of Democracy

In political theory, however, it is highly controversial what this idea might be and theorists often work with pairs of opposites to capture the idea of democ Reference re Secession of Quebec (1998), 2 S.C.R. 217 (Can.). Günter Frankenberg, ‘Comparing Constitutions: Ideas, Ideals, and Ideology – Toward a Layered Narrative’ (2006) 4 International Journal of Constitutional Law 439, 449‒50. 35 ibid. 33 34

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racy, for example realistic/idealistic, elitist/participatory, liberal/republican, statistical/partnership, input-oriented/output-oriented, weak/strong, to name a few.36 These binaries largely capture the same intuition through different perspectives: the difference is how they conceive the relationship between the individual and the political body. On individualistic and thinner conceptions, democracy appears as a mere method of decision-making, that is as a mode of governing where political decisions are legitimized by the will of an arithmetical majority. As long as there is something like an elected government there is democracy. In contrast, a more communal and thicker conception shapes democracy as a project which actually concerns everybody and in which everybody in one way or another is supposed to take part; it establishes a kind of joint venture of citizens trying to solve collective problems by some kind of collective action. This concept, of course, is more demanding and challenging; it doesn’t take democracy as given in its actual appearance or amounting to nothing more than a set of legal institutions, instead it formulates a permanent appeal to optimize it. And from here it also offers a lens or a benchmark which sheds light on or allows us to assess the quality of democracy. It is now sometimes difficult to say which of the two is actually entrenched or present in the constitutional life of a society: there might be societies which – from constitutional practice, the conduct of political actors or the judgments of a constitutional court – can be easily assigned to one of them, and there might be others where the situation is not really clear.37 And it is also difficult to decide

36 For the first see Joseph A. Schumpeter, Capitalism, Socialism and Democracy (Routledge Classics 2010) 211ff. For elements of an elitist conception of democracy, see Max Weber’s idea of the so-called ‘Führer-Demokratie’ and parliament’s eventual implication as a place for the selection of ‘leaders’, e.g. Max Weber, ‘Die drei reinen Typen der legitimen Herrschaft’ in Johannes Winckelmann (ed), Gesammelte Aufsätze zur Wissenschaftslehre (7th edn, Mohr 1988) 475, 487‒88; ‘Der Reichspräsident’ in Johannes Winckelmann (ed), Gesammelte Politische Schriften (5th edn, Mohr 1988) 498‒501; ‘Politik als Beruf: Vortrag’ in Johannes Winckelmann (ed), Gesammelte Politische Schriften (5th edn, Mohr 1988) 505, 542‒44; for a concise overview in this regard, see Manfred G. Schmidt, Demokratietheorien: Eine Einführung (6th edn, Springer 2019) 154ff, 156ff. For the antinomy between liberal and republican democracy, Jürgen Habermas, ‘Three Normative Models of Democracy’ (1994) 1 Constellations 1. For the differentiation between statistical democracy and democracy as a partnership, see Ronald Dworkin, ‘Equality, Democracy, and Constitution: We the People in Court’ (1990) 28 Alberta Law Review 324, 337ff; Ronald Dworkin, Freedom’s Law: The Moral Reading of the American Constitution (HUP 1996) 19ff; Ronald Dworkin, ‘The Partnership Conception of Democracy’ (1998) 86 California Law Review 453. For the conception of weak and strong democracy, see Benjamin R. Barber, Strong Democracy: Participatory Politics for a New Age (UC Press 1984). 37 See e.g. the jurisdiction of the German FCC can be seen as a still viable example for the communal approach, see the early definition of democracy as an order where the

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which of them is preferable; they both have their merits and their demerits: the individualistic or formal conception fails to grasp the utopian surplus of democracy and is unable to mark undesirable developments, whereas the communal conception runs the risk of permanently overburdening the idea thus presenting an ideal which never can be achieved and only causes disillusionment and frustration. Despite facing theoretical challenges, the normative character of the communal/thicker conception makes it attractive for legal comparison, since it widens the views on the quality of democratic processes, allows the description of the relationship between norm and facts and, thereby, opens the field for the many contexts of democracy; it might also go along with a common intuition that there must be something more to democracy than just the majority principle. At least from here we may ask how democracy in India and in the EU really perform. 4.B

Freedom and Equality

All substantive concepts highlight the idea of democracy as an association of free men and equals, from here potentially radiating into other spheres of society. In this context, at least two problems may be addressed for the comparison. First, the concept of freedom is rather demanding and does not exhaust itself in the formal right – or the opportunity – to vote. Instead, it has a complex structure that combines elements of private and public autonomy (or, according to the famous distinction from Isaiah Berlin, of ‘negative’ or ‘positive liberty’) and is sensitive to the level or degree to which these are effectively implemented.38 Private autonomy constitutes a sphere where citizens are free from governmental intrusion; for a substantive account of democracy, it serves as a necessary basis for the exertion of democratic rights and can, for example, be endangered by a general atmosphere of control, a high level of regulation in

citizens themselves ‘shape their development by communal actions’, ‘every member of the community is a free co-shaper of the communal decisions’ and the destination is the ‘roughly equal promotion of the welfare of all citizens’, BVerfGE 5, 85 (197‒98) – KPD-Verbot. In the EU the case is more difficult since the ECJ usually does not delve into theoretical arguments, the style of its rulings being more or less that of a ‘judicial minimalism’, as described by Cass R. Sunstein, One Case at a Time: Judicial Minimalism on the Supreme Court (HUP 2001); for an overview, see Koen Lenaerts, ‘The Principle of Democracy in the Case Law of the European Court of Justice’ (2013) 62 ICLQ 271. 38 Isaiah Berlin, ‘Two Concepts of Liberty’ in Isaiah Berlin, Four Essays on Liberty (OUP 1982) 118, 121ff, 131ff; the distinction between ‘private’ and ‘public autonomy’ of citizens e.g. in Jürgen Habermas, Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy (William Rehg [tr], Polity Press 1996) Ch. 3.

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almost any field or a strong grip on the society as a whole. Looking at public autonomy means to look at other participatory rights apart from the right to vote, like freedom of information, freedom of opinion, speech or expression, freedom of assembly, of the press, the media etc.; the question then is, how these rights are actually guaranteed (or instead threatened, obstructed, sanctioned etc.) and whether they really work in terms of ‘voice’.39 Secondly, from the side of democratic equality, substantive accounts regard the principle of ‘one man, one vote’ not only as an integral – and as such indispensable – part of the electoral process but also as a yardstick to compare the political participation and influence of citizens; thus, access barriers to the political process due to economic disparity, social segregation and different levels of education etc. may come into view. 4.B.1 India If democracy were understood as the ability to self-determine through political processes, then India faces a severe input legitimacy problem in terms of guaranteeing freedom and equality. By input legitimacy, we refer to the deficient architecture and composition of institutions that we pointed out in Section 3 as legally establishing democracy. India’s parliamentary democracy is an exemplar of such institutional democracy-deficiency. In Indian bicameralism, both at the Union and State levels, popularly elected lower houses have real legislative powers, with the upper houses being toothless.40 Lower houses are constituted by direct elections on the basis of first past the post system (FPTP) along with the principle of ‘one person one vote’. The FPTP is perhaps the greatest hurdle in achieving democracy as self-rule in India. Settled scholarly opinion has it that none of the elected governments in India have ever won more than 49.1 per cent of the vote.41 Indeed the system is majoritarian, denies representation to political minorities, represents the population disproportionately, and encourages prioritizing the interests of political parties over that of the electorate.42 The system is also particularly susceptible to capture by pow39 In the sense of Albert O. Hirschman, Exit, Voice, and Loyalty: Responses to Decline in Firms, Organizations, and States (HUP 1970) 3ff, 15ff, 30ff, 106ff. 40 Pritam Baruah and Nicolas M. Rouleau, ‘Democracy, Representation and Self Rule in the Indian Constitution’ (2011) 44 Verfassung und Recht in Übersee 177, at 192‒94. 41 Vote share of the Indian National Congress in the 1984 General Elections to the Lok Sabha. See Election Commission of India, ‘Statistical Report on General Elections, 1984 to The Eight Lok Sabha’, vol I (National and State Abstracts and Detailed Results) at 76, available at accessed 21 October 2020. 42 See B. Narsing Rao in B. ShivaRao (ed), India’s Constitution in the Making (1st edn, Orient Longmans 1960) 289‒92; Sudama Singh, ‘Representation in Modern

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erful economic elites.43 As an instance of single member district representation, the Indian system additionally suffers from the problem of neglecting minorities. If legitimate under some concept of democracy, then India’s electoral democracy perhaps qualifies under a thin concept of democracy where democratic credibility is not assessed on the realization of substantive rights and values.44 Even this thin concept of electoral democracy sustains itself on free and fair elections overseen by the Election Commission of India, which is intended to be an independent constitutional body modelled on expertise rather than democratic legitimacy.45 The deficient input legitimacy of democratic institutions in India not only presents problems of effective representation, but perhaps explains the contrasting contexts of democratic participation in India. Though there has been an upsurge in the participation in electoral processes by traditionally backward communities, this does not easily satisfy the bar of participation as a justification for democracy.46 Participatory justifications for democracy typically fall back on values such as self-rule and liberty to articulate the value of participation.47 The quality of participation then would depend on the nature of democratic processes citizens were participating in. If the processes captured values such as self-rule and liberty, then they would count towards more democracy. On this front, Indian democracy may not fare well given the FPTP system, and the imbalances in the federal distribution of power and bicameralism. High voter turnouts, even of marginalized groups, might then reflect pathological, rather than ideal conditions for celebrating them, as the turnouts are for participation in democracy-deficient institutions and processes. A similar picture emerges in the context of participation through political parties, which are the primary instrument for conducting electoral politics. As

Democracies: Theoretical and Practical Perspectives’ (1991) IJPS 508; T.M. Joseph, ‘Mixed Proportional System as an Alternative to the Indian Electoral System’ (2008) IJPS 183, 184; Arun Kaushik and Rupayan Pal, ‘How Representative has Lok Sabha Been?’ (2012) EPW 74. 43 Devesh Kapur and Milan Vaishnav (eds), Costs of Democracy: Political Finance in India (OUP 2018) 5. 44 See Dworkin (n 1) 382‒87 and Ronald Dworkin, Sovereign Virtue: The Theory and Practice of Equality (HUP 2002) Ch. 10. 45 We discuss the strengths of a meritocratic system in Section 5 below. Our suggestion is that meritocratic feature of government capture values that count towards a more substantive conception of democracy. 46 Alfred Stepan, Juan J. Linz and Yogendra Yadav, Crafting State Nations: India and Other Multinational Democracies (JHU Press 2011) Ch. 2. 47 Carol C. Gould, Rethinking Democracy: Freedom and Social Cooperation in Politics, Economy, and Society (CUP 1988).

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much as scholarly opinion agrees on the need for reforms on this front, such as inner-party democracy and transparency in political funding, successive elected governments have failed to bring about such reforms. Indeed, electoral finance and the role of money in elections have been an albatross hanging around legitimacy of elections in India. 48 As Kapur and Vaishnav note, ‘deep distortions in electoral finance … can undermine democracy itself’.49 If the focus of measuring democracy in terms of freedom and equality shifts from a thin one directed at representative processes and institutions, towards a thick one where democracy is measured as a protection of substantive rights and values, then India perhaps fares better institutionally. However, that success may not be immediately credited to the success of democracy. Protection of rights and vindication of values is increasingly attributed to institutions capturing constitutionalism rather than democracy. Constitutional courts, constitutional rights, affirmative action and asymmetric federalism have been the focal points of such developments. Debates over Public Interest Litigation in socio-economic rights and affirmative action are perhaps the best evidence of this development.50 The institutional protagonists in these debates are constitutional courts, with legislatures primarily responding to court decisions. Normative standards involved here are constitutional rights, with legislative action responding to court decisions over constitutional rights.51 The thick-thin binary of democracy captures the meritocratic-democratic binary highlighted previously. Institutions that are not democratic, at least electorally, curiously capture virtues of a thick concept of democracy. Expertise-based institutions such as courts, the election-commission and independent regulators have gradually occupied the space that democratic institutions should ideally occupy. 4.B.2 European Union In the EU, in contrast, civil liberties and participatory rights are not only legally guaranteed but in fact widely respected, especially on the Union level itself. However, there are recently (and confined to some member states like Hungary and Poland) a number of restrictions on public opinion using, for example, extensive media legislation (prompting an immediate, though maybe not entirely satisfactory reaction from the European Commission and Kapur and Vaishnav (eds) (n 43) 14. ibid. 50 See B.N. Kirpal et al (ed), Supreme But Not Infallible: Essays in Honour of the Supreme Court of India (OUP 2000) (for accounts of judicial intervention for protection of rights). See Anuj Bhuwania, Courting the People (CUP 2017) (for criticism of the courts’ interventions through Public Interest Litigation). 51 Rights to education, food, and information are landmark examples. 48 49

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some critique from other member states). Quite another question, however, is whether the exertion of public autonomy according to the promise of Article 10 TEU and by using the channels provided really has a measurable impact on political decisions at the EU-level; we will come back to that in the next chapter.52 More important for the comparison at hand may be the fact that the principle of democratic equality is not fully realized in European politics, and not even in the formal sense of equal balloting. Representation in both the European Council and the European Parliament is instead based on a principle of disproportionate electoral weight, with binding thresholds of minimum and maximum representation for member states, which in effect both favour the citizens of the smaller countries. It is exactly this point that, above all, the German FCC has often marked as one of the Union’s supposed democratic deficiencies.53 From the Indian example, however, it may be learned that such breaches of the principle of equal representation are something federal entities typically have to deal with; the disproportions caused by the necessities of state representation on the federal level in India are much more severe than in the EU, but nobody seems to have a problem with it. From a substantive account of democracy, there is a more serious concern with regard to democratic equality, namely the privileged access of economic pressure groups to the Union’s institutions, in particular to the European Commission, which has often been deplored.54 This is one of the problems the EU still has to work on as it might also affect its democratic credibility. 4.C

Quality of the Democratic Process and Degree of Responsiveness

The basic idea in any thick conception of democracy, however, is the idea that democracy is a value in itself, essentially linked with a notion of the good life within a political community. In his landmark decision on the ban of the communist party in the 1950s the German Federal Constitutional Court accordingly described it as an order where the citizens themselves ‘shape their development by communal actions’, ‘every member of the community is a free co-shaper of the communal decisions’, and the common goal is the ‘roughly equal promotion of the welfare of all citizens’.55 Democracy then, as was added later, ‘not only means respecting formal principles of organization 52 See Art. 10 Sec. 3 TEU: ‘Every citizen shall have the right to participate in the democratic life of the Union. Decisions shall be taken as openly and as closely as possible to the citizen.’ 53 BVerfGE 123, 267 (377-80) – Lissabon. 54 See David Coen and Jeremy Richardson (eds), Lobbying the European Union: Institutions, Actors, and Issues (OUP 2009). 55 BVerfGE 5, 85 (197-98) – KPD-Verbot.

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(…) and not just a cooperative involvement of interest groups’; instead, it ‘first and foremost lives on, and in, a viable public opinion that concentrates on central acts of determination of political direction’. For a constitutional court which, at its ground, is still a court (that is, an organ which has to apply law) this is a remarkable bow to democratic theory that eventually even opens up to the various conceptions of deliberative democracy.56 These typically identify ‘public reasons’ as reasons that should count in a continuing process of deliberation of citizens. On such views, decisions would be justified if they satisfied the condition of public justification.57 Simply put, public reasons should be acceptable to most citizens as free and equal participants in deliberation. Of course, it is easy to see that this notion is highly idealistic, if not utopian; any existing democracy can only fail in trying to comply with it. But it points to the core elements in any substantive conception: First, substantive conceptions are interested in the level, the intensity, and the quality of democratic interaction between political actors (parliaments, governments, administration) and the citizens (individuals, media, public etc.). Secondly, they ask for the ‘responsiveness’ of the political body: Do the citizens see their interests, opinions and convictions mirrored in their representatives’ decisions and actions – and is there a measurable connection between the will of the citizens as it is articulated in democratic interaction, and the policies that are formed and implemented by a certain government?58 4.C.1 India Free and equal participation in reasoned deliberation is a pre-requisite to evaluate democracy in terms of deliberative quality based on public reasons.59 The performance of Indian institutions on this front would vary depending on the unit of analysis. At the Union and State levels of government, their performance would be modest at best. Lack of quality deliberation in lower houses of elected legislatures is an issue that has generated considerable debate in India.60 Instances of voting without deliberation and bypassing deliberation BVerfGE 123, 267 (358) – Lissabon. Joshua Cohen, ‘Procedure and Substance in Deliberative Democracy’ in Thomas Christiano (ed), Philosophy and Democracy: An Anthology (OUP 2003) 17. 58 For the idea of responsiveness see Hanna F. Pitkin, The Concept of Representation (UC Press 1972) 232‒35. 59 Cohen (n 57). 60 Dhruva Gandhi and Unnati Ghia, ‘The Erosion of Deliberative Democracy in India’ (2019) Socio-Legal Review, available at accessed 21 October 2020 (for recent egregious instances of legislation without deliberation). For reportage on how the Union Parliament has been unusually productive at the cost of deliberation see Prakhar Singh, ‘A closer look at the Lok Sabha’s productivity’ The Telegraph 56 57

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by promulgating Presidential Ordinances are common.61 This counts towards poor deliberative quality of democratically elected institutions as deliberation is always in the shadow of votes. Voting outcomes, rather than deliberative means appear to preoccupy political parties. The low appetite for deliberation might be explained by uncompromising political stands, or self-interested motives of political actors. However, it also betrays the meagre institutional incentives and safeguards that foster deliberative quality at the Union and State levels. A spinoff of democracy-deficient representative institutions is that they are less responsive to public concerns. For example, persistent and critical issues such as corruption and police reforms have not received legislative resolution despite decades of social movements. There are few social movements, such as the Right to Information movement, that have secured legislative action. Movements often have to be long drawn out before gaining legislative attention, without guarantee of success. For example, at present key features of the Right to Information are being watered down by legislative action amid much controversy. Another social movement that found legislative fruition is the right to education, but this too was mediated by constitutional litigation ultimately yielding legislative action. The sheer mass of issues that legislatures ignore, avoid, or keep in limbo for electoral reasons reminds one of Socrates’ charge that democracy incentivizes expertise only in vote gathering.62 His charge would hold true for much of indirect representative democracy in India, which can squarely be attributed to the democracy-deficient institutional arrangements that incentivize vote-gathering through pathological processes. (3 September 2019), available at accessed 21 October 2020. On failure of State Assemblies to meet regularly see Nidhi Tambi, ‘Data Tells Us India’s State Assemblies are Simply Not Working’ The Wire (7 March 2018), available at accessed 21 October 2020. For problems of the legislative logjams see M.R. Madhavan, ‘Monsoon Session of Parliament Cannot Stall Like Budget Session Did; legislature desperately needs reform’ Firstpost (17 July 2018), available at accessed 21 October 2020. 61 Shubhankar Dam, Presidential Legislation in India: The Law and Practice of Ordinances (CUP 2014). 62 An example is the issue of building a Ram Temple in Ayodhya that the currently ruling Bharatiya Janata Party (BJP) agitated without resolution since the 1990s despite being in power twice during the National Democratic Alliance governments. The issue was finally adjudicated by the Supreme Court of India through its decision in M Siddiq (D) Thr Lrs v Mahant Suresh Das and Ors Civil Appeal Nos 10866‒10867 of 2010, decided on 9 November 2019. A review petition against this decision is currently pending in the Supreme Court.

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One might of course object to this conclusion by invoking other similar systems such as in the UK that witnesses astounding democracy-scepticism due to Brexit and the Scottish Referendum. Indeed, what this might suggest is that democracy-deficient systems such as India and the UK perform poorly in the face of strong social, political, and moral disagreement. This has a bearing on the potential of at least such democracy-deficient institutions in promoting social harmony. We discuss this aspect in the following Section. A silver lining for democracy appears at the level of local government in India, where the pathologies of the Union and State level about deliberation and responsiveness are perhaps less. Local government takes representative democracy closer to direct democracy. For instance, Gram Sabhas are assemblies of voters held periodically in Panchayats where voters have an opportunity to deliberate matters of importance to them.63 The promise of bringing such decentralized democracy to realize self-rule at the state level rewarded the present Aam Aadmi Party (AAP) with a landslide majority in the elections in Delhi. Their promise was a shift to representative systems where stakeholders in issues were the rationale for decision-making authority.64 Elements of transparency and direct accountability of officials too were a part of their manifesto. A move towards more decentralized, transparent, accountable and rationalized decision-making can cure the democracy-deficit of India’s constitutional democracy. Whether that would deliver the goods of government is quite another matter, even though such goods are often characterized as elements of substantive democracy. 4.C.2 European Union In the EU, it is precisely the quality of the democratic process which the ongoing debate on its democratic deficit first and foremost revolves around. While many influential critics admit that the Union may have reached a, by and large, sufficient level of democratic accountability from a formal point of view, they deny that it is filled with enough democratic substance yet. Their main argument over the last two decades has been the absence of a public sphere of the political: democracy, they insist, is not only brought about by the existence of electable state organs alone but by the manifold mediatory structures like parties, associations, movements and communication media that interconnect the people with their representatives and account for the responsiveness of the political system. Largely lacking all these makes the EU 63 Mohanty, Mathew et al, Grassroots Democracy in India and China: The Right to Participate (Sage Publications 2015) Chs 7, 8, 9 and 15 (for functioning of local governments across select states in India). 64 AAP Manifesto, available at accessed 21 October 2020.

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‘fall far short not just of ideal conceptions of a model democracy but even of the already deficient situation in Member States’.65 As to that, however, even the critics may concede that the situation has greatly improved over the last years, ironically as a result of the many serious crises the EU had – and still has – to go through. The financial crisis, the euro crisis, finally the migration crisis and the turbulence surrounding Brexit: whatever damage they have caused elsewhere (particularly in terms of trust in political institutions), they have at least made European politics and the future of the European project an issue that is widely debated almost all over Europe. The downside, of course, is the fact that the fate of the Union itself is at stake in these debates; we will have to come back to that. Besides, the way these crises have been dealt with shifted power considerably away from parliaments, be it the national parliaments or the European Parliament, and toward the executive branch, primarily member state governments and, to a lesser degree, the European Commission. Thus, it added to Europe’s supposed democratic deficit from the institutional side. And the critique strikes a point in insisting on the necessity – and the actual shortcomings – of a genuine European arena of the political, that is on the necessity of genuine democratic interaction between the citizens of the EU as such and their political body. In most contexts, it is still the member states which constitute the primary locus of political discourse. The scant perception of the European Parliament by the public – despite the continuous increase of its formal competencies over the past 40 or 50 years – may serve as a pars pro toto: voter turnouts are considerably lower here than at national elections and marked by a continued decline (from 61.99 per cent in 1979, the first direct election, down to 50.55 per cent in 2019)66 and the electoral process itself is far from anything like the national event it, up to today, seems to be in India, where almost anybody takes a genuine interest in it.67 In contrast, European Citizens do not really care about their parliament’s activities; a rather large majority of them hardly knows who is present in it, what the majority situation is or what it is actually dealing with. And when Europe is present in political debates on the national scale, it is often not more than a faraway scheme that is used to mobilize nationalist sentiments as well

65 Dieter Grimm, ‘Does Europe Need a Constitution?’ (1995) 1 European Law Journal 282, 292ff. 66 With the absolute low in 2014 (42.61 per cent). The turnout by year of the European parliamentary elections is accessible via accessed 21 October 2020. Figures, of course, vary from member state to member state, being significantly higher in countries where voting is compulsory. 67 As an example of an older study, see Jean Blondel, Richard Sinnott and Palle Svensson, People and Parliament in the European Union: Participation, Democracy, and Legitimacy (Clarendon Press 1998).

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as a more or less cosmopolitan attitude and vague sympathies for very abstract ideas (peace, cooperation, solidarity etc.). The General Data Protection Regulation from 2018, for example, probably one of the most important regulatory acts of the EU in the recent past, apparently took most Europeans by surprise when it entered into force eventually; it had been negotiated for a long time between the European Parliament, the Commission and various lobby groups, but it seems as if hardly anyone had noticed it. It may well be discussed though, whether this mild disinterest for what is going on in the EU has really led to a massive problem of responsiveness or political legitimacy as such. For a long time, the majority of European citizens seemed to be quite content with the results of European politics in their day-to-day routines (whatever the results may have consisted of), and the organs of the Union are up to now very keen to meet their assumed expectations in almost any policy field, from projects of regional funding to the highly appreciated cheapening of roaming costs. But it is still an open question whether political passivity or disinterest is a reliable source for trust and democratic legitimacy in the long run, or at least a more reliable one than active political participation. 4.D

Political Integration or Community Building

Finally, in most substantive concepts – be it modern republicanism, or be it the idea of deliberative democracy – democracy is supposed to create a ‘sense of belonging’ and to contribute to the imagination of the political community.68 According to this idea, it is the specific potential of democracy not only to make citizens recognize each other as free men and equals but to involve them in some form of – though often confrontational – cooperation. Entering into democratic activities thus allows them to regard themselves as part of a collective project, no matter what their own individual interests are or which conception of the good life they pursue as private persons. The political process, then, is seen as the ‘reflective form’ of an at least basal communal life that on the other hand it is supposed to bring forth.69 This does not mean to insist on a necessary or automatic connection between democracy and communal life, in the sense that wherever there are democratic processes, there evolves the respective sense of belonging. Instead, it only asserts a claim democracy can, of course, fail to meet. Also, it should be evident that even from a substantive account democracy is not the only means of creating such a sense. Instead, the

68 See Philip Selznick, ‘The Idea of a Communitarian Morality’ (1987) 75 California Law Review 445, 454ff for the ‘sense of belonging’. 69 cf. Habermas (n 36) 1.

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idea is open for other sources of community or nation building, like preexisting ethnic, religious or cultural commonalities which, when at hand, might ease the task for democracy in return. But especially for a contextual comparison between India and the EU, it might be interesting to see whether and to what extent the idea works when these commonalities cannot be presupposed and the main task, on the contrary, is to overcome growing diversity. 4.D.1 India Indian constitution-makers adopted various strategies to keep diverse communities together at the time of independence: bicameralism, the electoral system, federalism, asymmetric federalism, minority rights, and affirmative action. Scholars argue that even the Directive Principles were instruments to appease political dissenters.70 Whether they have translated into creating a sense of belonging is an open question, and so is the question of whether all of these are instruments of democracy. At least electoral democracy cannot be understood to have created a sense of belonging in India. Interestingly, a paradox is again at different levels of government. Arguably, at the Union and State levels, democratic processes may create a sense of belonging as citizens see themselves as part of a common project. That, however, may not be the only possibility when elections are involved. The electoral arrangements mentioned in Section 4.B.1 have gradually led to a sense of alienation for some states from mainstream Indian politics.71 Continuing hate mongering by political parties for electoral gain indicates that electoral democracy incentivizes communal disharmony. Despite having electoral democracy at the Union and State levels, political parties increasingly rely on diverse identities to practice exclusionary politics for electoral gains.72 Indeed, India presents a case where representative electoral democracy has capacity for both communal harmony and disharmony.73

70 Tarunabh Khaitan, ‘Directive Principles and the Expressive Accommodation of Ideological Dissenters’ (2018) 16 International Journal of Constitutional Law 389. 71 For example, in the 2014 General Elections the AIADMK party won 37 out of 39 seats in Tamil Nadu, and the AITC party won 34 out of 42 seats in West Bengal. Both these regional parties had no say in the Union government that was formed as the ruling BJP had won an absolute majority in Parliament through seats in other states. 72 Political parties have won elections on the basis of exclusionary identity-based social movements in several states, e.g. the Assam Movement, the Hill State Movement (Khasi Hills, Meghalaya), the Bodoland Movement that gained the Bodoland Territorial Council, and the Shiv Sena’s Marathi Manoos Movement against people from select north Indian states. 73 Paul R. Brass, The Production of Hindu-Muslim Violence in Contemporary India (University of Washington Press 2003); Sriya Iyer and Anand Srivastava, ‘Religious Riots and Religious Politics in India’ (2018) 131 Journal of Development Economics

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At the level of local government however, democratic practices have arguably led to a sense of community amongst citizens.74 This might lead to two conclusions: either the democratic practices at the Union and State levels are not democratic in the true sense (what the true sense is demands examination); or electoral democracy actually leads to competition that fosters communal disharmony. If the latter is true, then participatory/deliberative democracy and electoral democracy need to be reconciled in India. Alternatively, participatory and deliberative democracy needs to replace competitive electoral democracy. To invoke the thick-thin/meritocratic-democratic binary again, key issues of moral and political disagreement in India are increasingly agitated before courts. In cases such as the Ram Janam Bhoomi-Babri Masjid dispute,75 communal hate crimes,76 temple entry,77 sexual orientation,78 right to privacy79 and personal laws,80 courts have emerged as the preferred institution to articulate common terms of coexistence when faced with disagreement. Democratically elected governments have often been on the losing side in such cases, e.g. in temple entry, right to privacy, and criminalization of homosexuality. This does present a serious case for thinking that Indian constitutionalism acts as the primary articulator of a common constitutional identity for Indians. Courts rather than democratic parliaments have been contemporary sites of generating such agreement. In the present crisis over temple entry rights of women in Kerala the Supreme Court’s decision attempts to generate agreement over women’s rights on constitutional foundations. Prominent democratically elected political parties have meanwhile appealed to religious sentiments to deny temple entry rights to women. Unless one adopted a generous theory of democracy that includes judicial entrenching of constitutionalism as democratic, democracy appears to be faring poorly in generating a sense of belonging for Indians. 4.D.2 European Union Looking at the EU from this angle, it seems evident why democracy, especially among fervent Europeans, has gained so much attention and attracted so many 104 (for data establishing causal relationship between riots and increase in vote share of the Bharatiya Janata Party). 74 Successive victories of the Aam Aadmi Party in Delhi state elections on a decentralization agenda might count towards this claim. 75 M Siddiq (D) Thr Lrs v Mahant Suresh Das and Ors (n 62). 76 Tehseen S Poonawalla v Union of India and Ors [2018] 9 SCC 501. 77 Indian Young Lawyers Association and Ors v State of Kerala and Ors (2018) SCC OnLine SC 1690. 78 Navtej Singh Johar v Union of India [2018] 10 SCC 1. 79 KS Puttaswamy v Union of India [2017] 10 SCC 1. 80 Shayara Bano v Union of India and Ors [2017] 9 SCC 1.

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hopes. Democratic participation was supposed to fill the emotional gap mere economic cooperation, a mainly administrative mode of governing and the shortcomings of a dispassionate functionalism have left. Thus, democratic institutions were guaranteed on a legal basis, the status of a European citizenship was introduced, people were given the right to vote for municipalities in other European countries, the competences of the European Parliament have been constantly widened etc. etc. In enabling people to act as European citizens, one hoped they would regard themselves as European citizens someday. In doing so, the legal institutions were somehow regarded as empty shells, which – once established – almost automatically would be filled with democratic and communal life. It is difficult to assess whether this concept has actually worked out or not. To a certain extent it may have: According to the latest ‘Eurobarometer’ statistics, a majority of close to three-quarters is not only still attached to the European project in general but feels a sense of European citizenship, including 34 per cent who say they ‘definitely’ feel like citizens of the EU. Moreover, despite the recent crises – or because of them? – figures do not seem to have gone down over the years.81 However, it remains unclear how much of that can be ascribed or is due to democratic participation in particular. When asked about the achievements of the EU, most of the respondents consequently pointed out others, like the free movement of people, goods and services (60 per cent), peace among the member states (54 per cent) or, lagging some way behind, student exchange programmes such as Erasmus (26 per cent) and, notably, the euro (24 per cent).82 Looking back at the level of intensity of democratic interaction, it seems doubtful whether democratic procedures, with citizens taking an active part in it, have significantly contributed to the identification with European institutions, let alone to the creation of a genuine European citizenry: as shown above, political discourse in Europe is largely centred around national topics on a national scale, and the European Parliament particularly suffers from the lack of interest the ordinary European citizen takes in it. At least partly this may be due to the fact that the election itself is organized as a bundle of national elections with each member state applying its own voting system. Accordingly, it is not the European political parties the voters have on their ballot (these in fact being more umbrella organizations of national parties than parties in the full sense of the word) but the well-known parties

81 European Commission, Standard Eurobarometer 91/Spring 2019, Report: European citizenship, 39; see also Standard Eurobarometer 91/Spring 2019, First results: Public opinion in the European Union, 16. 82 European Commission, Standard Eurobarometer 91/Spring 2019, Report: European citizenship, 18.

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from their own political system, and the campaigning is – or at least was in the past – more often dominated by national than by specifically European issues. Can then, one day, the rise of a European political public processing questions of real European politics at least partly make up for these constructional imbalances? Especially convinced Europeans often set all their hopes on a stronger politicization of the European institutions, trying to shift the actual mode of governance from the unpolitical mode of problem-solving to a mode that reformulates administrative problems as political questions, that is, as conflicts of interests along political cleavages.83 Creating sympathy or even a new enthusiasm for the European project can, according to this view, only be achieved by resolutely democratizing it. But whatever the hopes of politicizing the EU may have been, at the moment the dominant, if not the only, result seems to be the rise of populist movements with a distinct anti-European agenda in almost all European countries: this is the pivotal political conflict the Union is actually facing. Whether these movements, like in the latest elections in France, can be defeated in the long run remains open to doubt. Looking at the figures from the other side, it can well be considered as an alarm signal that while two thirds of the Europeans citizens regard themselves as such, almost three out of ten explicitly declare that they do not.84 Even in fragile nation states like Belgium or Spain with their internal tensions, the share is considerably lower. As to Europe, Brexit in particular has brought forward a renewed sensitivity to the vulnerability of the European project in itself, and whether it, someday, can be redeemed by democracy is still an open question. This marks a fundamental difference to the handling of similarly deep crises in India as well as in most other common nation states: these crises might threaten trust in political leadership or even democratic legitimacy, but they hardly ever threaten the existence of India as a whole or of the respective polity as such. In the EU, however, every crisis poses a potential threat to its very existence because their opponents can always present a clear alternative, namely the return to national sovereignty.85 83 See Damian Chalmers, Markus Jachtenfuchs and Christian Joerges (eds), The End of the Eurocrats’ Dream: Adjusting to European Diversity (CUP 2016). For a theoretical background see Chantal Mouffe, On the Political (Routledge 2005). 84 See the figures from Standard Eurobarometer, Spring 88/2016, Report European Citizenship, 14, to European Commission, Standard Eurobarometer 91/Spring 2019, Report: European citizenship, 39, and Standard Eurobarometer 91/Spring 2019, First Results: Public opinion in the European Union, 16. It is noteworthy, on the other hand, that the sense of European citizenship has gradually increased over the years, reaching its highest level in 2019 with 73 per cent of the respondents, Standard Eurobarometer 91/Spring 2019, Report: European citizenship, 39. 85 I take up a thought of Michaela Hailbronner, ‘Beyond Legitimacy: Europe’s Crisis of Constitutional Democracy’ in Mark A. Graber, Sanford Levinson and Mark Tushnet (eds), Constitutional Democracy in Crisis? (OUP 2018) 277, 292.

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DEMOCRACY AS AN INSTRUMENTAL VALUE: HOW DEMOCRACY CONTRIBUTES TO EFFECTIVE GOVERNING AND OTHER POLITICAL GOALS

As indicated earlier, all thicker conceptions of democracy face the charge of overburdening the concept and being a gloss over other more specific values. A thinner conception may provide an alternative, where democratic legitimacy is only one component of the legitimacy of government. On such conceptions, democratic states can be compared on their performance in terms of output legitimacy. Democracy, then, is not only seen as an inherent but also as an instrumental value where the evaluation of democratic institutions includes the outcomes they produce.86 Instrumentalist concepts of democracy can stipulate input legitimacy conditions too, for example by recommending expertise and integrity as superior justifications than consent for institutional membership.87 Here we restrict our comparison to outcomes alone. The idea itself traces back to Abraham Lincoln’s famous definition of the American political system as ‘government of the people, by the people, for the people’,88 ‘for the people’ standing in this list primarily for governing effectiveness.89 From here, namely German political theorist Fritz Scharpf inferred that democracy can gain its legitimacy not only from the ‘input’ side (consisting of the citizens’ demands and their participation in the political process) but from its ‘output’ as well (relating to the ability of the democratic institutions to solve actual problems).90 Applying this concept to the EU in later publications, Scharpf in fact went one step further and argued that its legitimacy can almost exclusively be grasped in terms of output legitimacy as structures of input legitimacy, as he saw it, are up to today either lacking or at least highly deficient.91 As effective governing, however, may also be provided by a benevolent authoritarian or even a dictatorial government, there is still reason to doubt 86 See the contributions of Richard J. Arneson, Ronald Dworkin and Jon Elster in Thomas Christiano (ed), Philosophy and Democracy: An Anthology (OUP 2003) for key arguments for instrumental theories of democracy. 87 Richard J. Arneson, ‘Democratic Rights at the National Level’ in Thomas Christiano (ed), Philosophy and Democracy: An Anthology (OUP 2003) 95. 88 Abraham Lincoln, Address at Gettysburg, Pennsylvania (19 November 1863) in Ted Widmer (ed), American Speeches: Political Oratory from the Revolution to the Civil War (Library of America 2006) 732. 89 Vivien A. Schmidt, ‘Democracy and Legitimacy in the European Union Revisited: Input, Output and “Throughput”’ (2013) 61 Political Studies 2, 4. 90 Fritz W. Scharpf, Demokratietheorie zwischen Utopie und Anpassung (Scriptor 1970). 91 Fritz W. Scharpf, Governing in Europe: Effective and Democratic? (OUP 1999).

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whether there the idea of democracy can be linked to any notion of output legitimacy at all. Many influential political theorists deny that.92 On the other hand, it should be clear that failures or malfunctions in this respect at least can harm the reputation and credibility – and thus the legitimacy – of democratic institutions: A democracy that does not ‘deliver’ will soon lose its acceptance among the people. This makes, among others, output legitimacy a useful tool for analysing and comparing the quality of democracies. 5.A India Contemporary India, in this respect, presents a picture of a crisis of state institutions including those that embody democracy.93 The meritocratic-democratic binary employed earlier in this chapter captures the increasing scepticism about the ability of democratically elected governments to efficiently deliver outcomes. It is however intriguing that such scepticism is not mirrored in electoral participation.94 In that sense a conventional idea of post-democracy does not clearly emerge in India. Apart from poor legislative outcomes discussed earlier, India’s executive institutions controlled by democratically elected politicians also exemplify deficient output legitimacy. For example, despite official reports recognizing undue control of the police by the executive for political interests,95 pressing police reforms have not been prioritized by successive governments. At present, premier investigative agencies like the Central Bureau of Intelligence have been mired with controversies of political interference by democratically elected government. The Indian Civil Services claimed to be the bastion of merit within the Indian government suffer from longstanding accusations of political control and unnecessary bureaucratization. The lack of specialization of its cadre has been a talking point but has never received attention from elected governments. Even unelected judicial

92 More or less all the proponents of a participatory or ‘strong’ democracy, see e.g. Habermas (n 38) Ch. 3; Barber (n 36), who do not even mention it. 93 Devesh Kapur, Pratap Bhanu Mehta and Milan Vaishnav (eds), Rethinking Public Institutions in India (OUP 2017). 94 Stepan, Linz and Yadav (n 46) (for data on electoral participation in India); Pierre Rossanvallon, Counter-Democracy: Politics in an Age of Distrust (CUP 2008) (for the contrasting claim that such scepticism affects electoral participation). 95 Department of Administrative Reforms and Public Grievances, Second Administrative Reforms Commission, 5th Report: Public Order, 2007, available at accessed 21 October 2020; see R.K. Raghavan‚ ‘The India Police: expectations of a democratic polity’ in Francine R. Frankel, Zoya Hasan, Rajeev Bhargava and Balveer Arora (eds), Transforming India: Social and Political Dynamics of Democracy (OUP 2000) 288 for an overview of issues facing the Indian police.

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institutions face crises including pendency of cases, lack of judicial infrastructure, and allegations of corruption and nepotism in judicial appointments. The government’s response has been a typically unthoughtful one shifting the spotlight to judicial independence from executive control rather than the issues plaguing the judiciary.96 Apart from the crisis of intuitions, it is widely recognized that India has fared poorly in delivering so-called ‘substantive democracy’. As Zoya Hassan puts it, India faces a contradiction where ‘an inclusive polity has so far not made for an equal and democratic society’.97 Widening inequality, poor HDI indicators, child malnutrition, a dilapidated public health system, farmers’ suicides, the plight of undertrials, encounter killings, poor standards of education, and domestic deployment of armed forces are part of a long list that convinces academic opinion that India fares poorly in securing substantive democracy.98 The overwhelming evidence of democratically elected governments being paradoxically illegitimate on outcome-based evaluations demands an account of legitimacy of governments that is not monopolized by electoral democracy. It is in this respect that Indian and EU democracy perhaps have an inverse relation. 5.B

European Union

Indeed, the EU at least in the past did not particularly suffer from a crisis of output-legitimacy – quite on the contrary, its history in this respect has been for a long time recounted as a success story only. Laying the ground for a long-lasting period of peace to a continent formerly ridden by two World Wars, establishing a new platform for close political cooperation between otherwise rivalling nation states, setting the framework for a level of prosperity that it is still envied for in many other parts of the world, abolishing frontiers and bringing together people from different countries: all this, and a lot more of this kind, provided the Union with a general acceptance it could, by its nature and its historical development, hardly have gained by democratic participation of its citizens. And as to day-to-day politics and practical questions, even the critics should admit that its organs are doing a comparatively good

96 Supreme Court Advocate-on-Record Association and another v Union of India [2016] 5 SCC 1, where the supreme court invalidated the Parliament’s attempt at establishing a National Judicial Appointments Commission. 97 Zoya Hasan, ‘Representation and Redistribution: the new lower caste politics of north India’ in Francine R. Frankel, Zoya Hasan, Rajeev Bhargava and Balveer Arora (eds), Transforming India: Social and Political Dynamics of Democracy (OUP 2000) 146. 98 Jayal and Mehta (n 2).

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job: serious, dedicated and problem oriented. The abovementioned General Data Protection Regulation, for example, may have its many downsides and demerits, but it is still a remarkable step in the Sisyphus-like struggle for some remaining spheres of privacy in a digitalized and globalized world. So it may not be by accident that the concept of output-legitimacy was first shaped in an EU context and is up until today a standard argument not only for the general, but also for the democratic justification of the EU itself: it seems as if tailored to it, and it could also make up for the many admitted deficiencies on the input side. However, over the last years, with the euro and the migration crisis still pressing, the picture even here has apparently darkened. Despite a far-reaching restructuring of the institutional architecture and the, legally at least, questionable extensive bond-buying programmes of the European Central Bank, the euro crisis is still not solved and has created a new divide between North and South, between the richer and more powerful member states and the smaller and poorer ones.99 The migration crisis, on the other hand, has revealed a fundamental lack of solidarity among the member states and is still waiting for an adequate European response. In addition, bureaucracy and over-bureaucratization have become a permanent issue and a standard of anti-European propaganda. This is not the place to decide whether and to what extent all this really affects the overall output-record of the EU; for an adequate account, one would have to balance the various deficiencies and cases of dysfunction against the many fields where the European institutions still operate rather effectively and, at least largely, satisfy the needs of ordinary European citizens. But even if we admit that the EU has not done too well in the last years, especially in coping with its recent crises, even its fervent critics should admit that it is at best questionable whether its members would really have been better off if the upcoming issues had been addressed on a national level. For the vast majority of those (migration, global warming, digitalization, financial market regulation etc.), this is highly unlikely, leaving ‘normal’ international cooperation below the level of EU-like supranationality as the only seriously debatable alternative. But this undoubtedly has a democratic deficit, and a much larger one than the EU: with often opaque decision-making structures, a strong influence of powerful economic actors, the dominance of experts and limited room for political contestation.100

99 See Mark Dawson and Floris de Witte, ‘Constitutional Balance in the EU after the Euro-Crisis’ (2013) 76 The Modern Law Review 817, 836ff. 100 See Hailbronner (n 85) 292.

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6. CONCLUSION Having come so far, it may well be that the comparison between India and the EU under the aspect of democracy tells us less (or at least just as much) about the functioning of the respective political system than about the principle of democracy itself: how we look at or assess the quality and the outcome of the democratic process also affects and perhaps even shapes the principle and our image of it. This might explain for example why the idea of output-legitimacy has been conceived as an integral part of democracy in the European context while it is precisely this idea that leads to a general scepticism toward democratic procedures in India. The input and output legitimacy deficits in India do not easily allow thick concepts of democracy to thrive. Rights and values implied by democracy increasingly found independent constitutional authorities to be their protectors. Demands for independent and accountable watchdogs and regulators on the one hand, and vote-seeking populism and identity politics on the other, perhaps reflect the need to reconceptualize the legitimacy of governments on multiple axes including democratic accountability. Arguably, the output-legitimacy failures in India are not attributable to the concept of democracy, but to the pathological design and functioning of democratic institutions. However, it is worth considering that precisely electoral democracy has counted towards successful democracy in India. If electoral democracy is now the target of democracy-deficit, then even thin democracy fares poorly. India’s experience therefore begs reflection on whether governance-deficit travels through to the very idea of democracy as a system of government where consent is the unit of political legitimacy. Perhaps democracy is only one of several virtues of governments. Independence, expertise, accountability and transparency deserve valuing on their own terms, without burdening democracy as their justification. However, even for the EU it may be discussed whether more demanding accounts or theoretical conceptions of democracy really fit for it and its very unique – and highly complex – way of policy-making: is not the mere formal, maybe reductionist view of democracy the only adequate way to grasp its specific nature and to do justice to it? And is it really sensible to formulate requirements on the political process in Europe that are so high or so idealistic that they can hardly ever be met? On the other hand, it is exactly the emphatic content of the concept that might provide us with a vision, not only for the ‘ever closer’ union as it is addressed in the preamble of the TEU, but for a better union than today: a union that is not only tacitly accepted but actually carried by its citizens, a union that regards these citizens not only as passive clients or service recipients but as autonomous participants in a common project.

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Anyway, this is, as in our critical review of India, exactly the point where the discussion of so-called democratic deficits may bounce back on the perception and the very concept of democracy itself.

3. Origins and pathways of constitutionalism Jürgen Bast and Arun K. Thiruvengadam 1. INTRODUCTION The aim of this chapter is to reflect on the origins and pathways of Indian and European constitutionalism. The introduction to this book addresses the overall methodological challenges in comparing polities as disparate as the Republic of India and the EU, with a view to observing differences and similarities alike while doing justice to the social contexts of the law.1 Some remarks on the terminology seem appropriate nevertheless. With the concept of constitutionalism, we make reference to a practical discourse involving both professional actors and laymen regarding the legal foundations of the respective polity – its constitution. While the relevant legal document is fairly obvious in the Indian case (the Constitution of India adopted by the Constituent Assembly on 26 November 1949, as modified by various subsequent amendments), the point of reference is less clear in the European context. It is not self-evident that the Treaties on which the EU is founded – today mainly the Treaty on European Union (TEU) and the Treaty on the Functioning of the European Union (TFEU) – form a constitution properly so-called. Such a claim, although widely accepted, is clearly not exempt from criticism. It is the result of a discourse that has gradually emerged since the establishment of the European Communities in the 1950s, a process which we will address in the body of the chapter. And as we shall see, both India and Europe have developed their own brands of constitutionalism, neither of which replicates the blueprints of ‘limited government’ or ‘popular sovereignty’ drawn by the American or French revolutions. While focusing on constitutionalism – a vast topic that encompasses many institutions – we will approach the constitutional order from the angle of one particular institution: that of the Judiciary. By the end of the 20th century, 1 Dann and Thiruvengadam, ‘Comparing constitutional democracy in the European Union and India: an introduction’, Chapter 1 in this book.

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courts had become established as one of the most important guardians of constitutions and the concept of constitutionalism. The courts in the two polities that are our focus are acknowledged to have played pivotal roles in building and maintaining the legitimacy and credibility of the overall order. We will review this narrative from the literature (Section 2) before advancing our own analysis (Section 3), asserting how a comparative assessment helps in appreciating the nuances of the role of the judiciary in each polity, which are sharpened by the sideways glance at developments in the other. The chapter concludes with an outlook on contemporary challenges to each specific version of constitutionalism (Section 4).

2.

TWO STORIES OF A JUDICIARY-LED CONSTITUTIONAL ORDER

It seems natural that a meaningful comparison of Indian and European constitutionalism should focus on the role of their apex courts, the Court of Justice of the EU (CJEU) and the Supreme Court of India. According to conventional wisdom, both courts have been, and are, key for the dynamics of constitutionalism in each respective polity. Institutionally speaking, the two courts display some striking similarities. Both constitutional systems have opted for having a ‘US-style’ supreme court that exercises constitutional functions, including judicial review of legislation and judicial enforcement of basic individual rights, rather than following the Austrian or German model of establishing a separate court exclusively for constitutional adjudication. Of course, a myriad of differences exist between the two judicial institutions, most notably concerning the relationship with the lower courts and in respect of access to the court by private litigants. The Indian Constitution has created a unitary judiciary with three levels of courts, all of which work under the aegis of a powerful Supreme Court that acts as the final court of appeal. In contrast, the European judiciary is of a composite nature: an EU Court which consists of two judicial bodies and has jurisdiction in matters of EU law, on the one hand, and the judiciary of the member states which is organized according to the respective state constitution and whose decisions are final in all matters not involving EU law, on the other. In EU law, there is no appeal procedure against judgments of national courts. However, the preliminary reference procedure, in which the referring national court can seek a binding ruling on the uniform interpretation of EU law (see Article 267 TFEU), serves as a functional equivalent and provides direct links between the two levels of the composite European judiciary. The difference in terms of standing before the respective courts is even more pronounced. Having relaxed the locus standi requirements of private applicants and public interest litigants alike, especially from the 1970s onwards, the

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Indian Supreme Court is one of the most accessible apex courts in the world. It is also the final court of appeal in the nation for many non-constitutional matters. As a result, the total number of cases before the Supreme Court as of 1 March 2020 stands at 60,469.2 In contrast, EU procedural law allows for standing of private litigants only exceptionally in actions involving acts of the EU administration (e.g., in competition law). Very few instances of public interest litigation exist at all (mainly in the field of environmental law). In all other cases, including judicial review of EU legislative acts, private citizens can engage the Court only indirectly, through abovementioned preliminary references. Of the 1,739 cases settled by the EU Courts in 2019 (with 2,500 cases pending as of 31 December 2019), 601 arose from that type of procedure.3 Unlike the Indian Supreme Court, which was able to project itself as a citizens’ court, the EU Court has always remained somewhat detached from European citizens. That has not prevented both institutions from establishing themselves as pivotal actors on the stage of constitutional democracy. The EU’s court dependence on the national judiciary may even constitute a strength rather than a weakness: unlike many international courts, the CJEU usually has no difficulties in enforcing its judgments because it can rely on the national courts deciding the dispute in the main proceeding. Having provided this brief overview of the structure and procedures of the two supreme courts, we turn to their role in their respective constitutional contexts. 2.A

How the Indian Supreme Court has Shaped the Indian Constitution

There is a conventional narrative about the Indian judiciary – and in particular, its Supreme Court – which is fairly well documented and known, both within India and in the comparative literature on India.4 According to this narrative, the Indian Supreme Court, despite its vast textual resources, started in a timorous fashion and was both formalistic and deferential to the initial post-independence governments led by India’s first and longest serving Prime

2 Information obtained from the official website of the Supreme Court of India, available at accessed 22 October 2020. 3 CJEU, Annual Report 2019: Judicial Activity (Luxembourg 2020). 4 See e.g. Burt Neuborne, ‘The Supreme Court of India’ (2003) 1(3) International Journal of Constitutional Law 476‒510; Daniel Bonilla Maldondo (ed), Constitutionalism of the Global South. The Activist Tribunals of India, South Africa, and Colombia (CUP 2013); Varun Gauri and Daniel M. Brinks (eds), Courting Social Justice. Judicial Enforcement of Social and Economic Rights in the Developing World (CUP 2008).

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Minister, Jawaharlal Nehru, between 1950 and 1964. Even in this early phase, however, the Court did make some bold decisions, especially in the realm of free speech and the right to property, demonstrating that it was not a sham court.5 After the passing of Nehru in 1964, and in response to the actions of Prime Minister Indira Gandhi’s government, the Supreme Court began to flex its muscles and asserted itself also by adopting expansive interpretive methods. This trend saw the Supreme Court gradually exercising greater powers through the mid-1960s to the early 1970s, a period where the executive was weak also due to a smaller parliamentary majority enjoyed by the Congress government. This trend led, eventually and famously, to the innovation by the Indian Supreme Court of the ‘basic structure’ doctrine in 1973 where it sought to put limits on Parliament’s power to amend the Constitution, even though there were no textual limits on such a power.6 As that narrative explains, this expansion of powers was resented by the Indira Gandhi government, and led to reprisals in the form of supersessions of judges who wrote the judgments that the government disfavoured. The supersessions were effected twice, in 1973 and in 1977, which had an immediate effect on the judiciary, and it became subservient, especially during the period of the internal emergency declared by Prime Minister Gandhi between 1975 and 1977. As one politician put it, the judges were asked to bend and they chose to crawl. After 1977, as Upendra Baxi has argued, the Supreme Court chose to regain legitimacy and atone for its Emergency sins by adopting a pro-poor stance, and came up with what is now known as Public Interest Litigation (PIL).7 The Indian Supreme Court used its PIL jurisdiction to override the textual prohibition of judges being involved in implementing socio-economic rights by adopting interpretive strategies that led them to argue that those rights could be read within the rights guaranteed by the judicially enforceable Fundamental Rights guaranteed in Part III of the Constitution. Through the powerful tool of PIL, the Supreme Court sought to become a major actor in the policy space and intervened in almost every important policy question in Indian governance 5 Some of these early decisions have been recently analysed by Gautam Bhatia, The Transformative Constitution (HarperCollins 2019) and Rohit De, A People’s Constitution (PUP 2018) to build a narrative of a ‘transformative’ Constitution fueled by a ‘People’s Court’. Critics of such accounts would note that these advances were often balanced by very regressive decisions in cases relating to emergency powers and preventive detention. 6 Sudhir Krishnaswamy, Democracy and Constitutionalism: A Study of the Basic Structure Doctrine (OUP 2009). 7 Upendra Baxi, The Indian Supreme Court and Politics (Eastern Book 1980), and Upendra Baxi, ‘Taking Suffering Seriously: Social Action Litigation in the Supreme Court of India’ (1985) 4 Third World Legal Studies 107–32.

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through the late 1980s right up till 2014. The Court was able to do so also because this was a phase when India had coalition governments that lacked the Parliamentary strength to reverse the Court’s decisions, as was done frequently by the Nehru and Gandhi governments. The conventional narrative focuses on the Indian Supreme Court’s actions in this phase and emphasizes a series of cases decided in the 1980s and 1990s where the Court was viewed as seeking to ameliorate the conditions of India’s weakest and most marginalized populations. Over time, the Court expanded its powers and authority to supervise basic governance issues across India, leading to it being described as the ‘Good Governance’8 court as well as ‘The World’s Most Powerful Court’.9 During this phase, the Court issued several landmark decisions which seemed to considerably enrich the constitutional rights of Indians. By creatively interpreting these rights, the Supreme Court seemed to be acting in the interest of ordinary Indians even beyond the vision of its legendary framers, and won plaudits from progressive academics, within India and beyond. The actions of the Supreme Court during this phase have dominated the image and perception of the Indian legal system both during and since this period. This was reflected also in the works of academics like S.P. Sathe, who narrated the story of the Indian constitutional order by placing the Supreme Court at the centre.10 Such works were cited and relied upon extensively by other scholars and social scientists within and beyond India, leading to the cementing of the conventional narrative and the court-centred nature of constitutional law scholarship in India more generally. 2.B

How the EU Court of Justice has Shaped the European Constitution

A similar perception dominates the narrative provided by European scholars as to how the European Constitution has become what it is today. According to this view, the Court has almost single-handedly transformed the intergovernmental agreements establishing the European Communities of the 1950s into fully-fledged Constitutional Treaties in all but name, empowering and constraining the institutions of a federal polity just like a state constitution.

8 Nick Robinson, ‘Expanding Judiciaries: India and the Rise of the Good Governance Court’ (2009) 8 Washington University Global Studies Law Review 1. 9 Rajeev Dhavan, Justice on Trial: The Supreme Court Today (AH Wheeler and Co. 1980); Madhav Godbole, The Judiciary and Governance in India (Rupa 2009). 10 See generally, S.P. Sathe, Judical Activism in India: Transgressing Borders and Enforcing Limits (2nd edn, OUP 2002).

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The heroic phase of the European Court of Justice started somewhat earlier than that of its Indian counterpart, with the foundational judgments van Gend & Loos and Costa/ENEL of 1963 and 1964.11 The first scholar who conceptualized the Courts’ jurisprudence as a judge-made ‘constitutionalization’ of the Treaties was Eric Stein in his landmark article published in 1981 in the American Journal of International Law (reportedly, the AJIL stopped publishing pieces on European law thereafter, since Stein had convinced his colleagues that it was not part of international law anymore).12 There is ample evidence supporting that view. The building blocks of the jurisprudence established in that period are the Court’s claim that EU law (at the time: Community law) has direct effect in national courts on its own terms, and that it takes precedence over any conflicting national laws.13 In the ensuing rulings Internationale Handelsgesellschaft (1970) and Simmenthal II (1978) the Court confirmed that the primacy of Community law also applies to national constitutional law.14 The textual basis for these claims was weak at best. The Court rather relied on the ‘spirit’ of the Treaties and the axiomatic assumption that they constitute a new, autonomous legal order which is independent both of international and national law: Europe’s declaration of independence, as it were.15 In the absence of any serious resistance to its jurisprudence, the Court continued working in that direction in the 1970s and 1980s. It recognized the direct effect of an ever-growing list of Treaty provisions, most notably the market freedoms, thus stepping in for an immobile and overburdened European legislature. In doing so, the CJEU has produced a huge body of case law on socio-economic rights. The cornerstones of the judge-made economic constitution are the principle of equal treatment and the freedom of movement within Europe, which until today form the core contents of Union citizenship.16

11 Case 26/62 (van Gend en Loos), ECLI:​EU:​C:​1963:​1; Case 6/64 (Costa v ENEL), ECLI:​EU:​C:​1964:​66. 12 Eric Stein, ‘Lawyers, Judges and the Making of a Transnational Constitution for Europe’ (1981) 75 American Journal of International Law 1–27. 13 Franz C. Mayer, ‘Van Gend en Loos: The Foundation of a Community of Law’ in Miguel Poiares Maduro and Loïc Azoulai (eds), The Past and Future of EU Law. The Classics of EU Law Revisited on the 50th Anniversary of the Rome Treaty (Hart 2010) 16–25. 14 Case 11/70 (Internationale Handelsgesellschaft), ECLI:​EU:​C:​1970:​114; Case 106/77 (Simmenthal II), ECLI:​EU:​C:​1978:​49. 15 cf. Nic N. Shuibhne, ‘What is the Autonomy of EU Law, and Why Does That Matter?’ (2019) 88 Nordic Journal of International Law, Special Issue: An Anatomy of Autonomy, ed. by Jan Klabbers and Panos Koutrakos, 9–40. 16 cf. Directive 2004/38/EC of the European Parliament and of the Council on the right of citizens of the Union and their family members to move and reside

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The invention of new remedies in national courts to enforce EU law further constrained the states’ option of selective non-compliance with obligations imposed by the Treaties or the European legislature, an option that is usually available in regimes governed by international law.17 At the same time the Court widened the potential scope of EU powers, in adopting doctrines typical of federal constitutional law such as the recognition of implied federal powers and the pre-emption of member states’ legislative and treaty-making powers in ever more policy fields.18 Finally, in the 1970s the Court started developing a fundamental rights jurisprudence, despite the absence of any textual basis in the Treaties. This case law was only later codified in the EU Charter of Fundamental Rights drafted in 2000, which took effect in 2009. Hence, when the Les Verts judgment of 1986 for the first time expressly called the EEC Treaty ‘the basic constitutional charter’ of the Community,19 the Court was only stating the obvious. The process of gradually ‘constitutionalizing’ the founding Treaties through judge-made law has brought about fundamental change in the European legal space – a ‘Transformation of Europe’, as Joseph Weiler’s most influential article, published in 1991, has christened it.20 That Europe has a constitution made by the judges in Luxembourg – and passively accepted by the democratically elected governments as long as they held firm control over the substance of the policies which the Court helped in enforcing – became the common narrative about European constitutionalism.21 2.C

Surprising Parallels

Summarizing, Europe has a judge-made constitution that has gradually transformed the international treaties on which the EU is founded into a federal-type

freely within the territory of the Member States, [2004] OJ L 158, 77. See Christoph Schönberger, ‘European Citizenship as Federal Citizenship. Some Citizenship Lessons of Comparative Federalism’ (2007) 19 European Review of Public Law 61–81. 17 Jürgen Bast, ‘Legal Instruments and Judicial Protection’ in Armin von Bogdandy and Jürgen Bast (eds), Principles of European Constitutional Law (2nd rev. edn, Hart 2010) 345–97, at 355 et seq. 18 Robert Schütze, ‘Supremacy Without Pre-emption? The Very Slowly Emergent Doctrine of Community Pre-emption’ (2006) 43 Common Market Law Review 1023–48. 19 Case 294/83 (Parti écologiste ‘Les Verts’ v European Parliament), ECLI:​EU:​C:​ 1986:​166, para 23. 20 Joseph H.H. Weiler, ‘The Transformation of Europe’ (1991) 100 Yale Law Journal 2403–83; rev. version repr. in The Constitution of Europe: ‘Do the New Clothes Have an Emperor?’ And Other Essays on European Integration (CUP 1999) 10–101. 21 See e.g. Miguel Poiares Maduro and Marlene Wind (eds), The Transformation of Europe: Twenty-Five Years On (CUP 2017).

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constitution. One could speak of constitutionalism without a constitutional moment.22 This is a striking contrast to India, where constitutional discourse until today is focused on the foundational document enacted in 1950 as an expression of the will of the Indian people to mark a visible rupture with the colonial past. Despite these radically different starting points, in the course of the working of the respective constitutions, intriguing parallels appear. The two supreme courts established by the founders have taken centre stage and shaped the respective constitutional orders to an extent that was not – and perhaps could not have been – anticipated. An essential technique which both courts have used extensively was creating individual rights and developing the doctrinal tools to enforce them. In effect, they simultaneously empowered the citizens and mobilized them to foster the goals of the foundational documents: the programme of a developmental state in the case of India, transnational market integration in the case of Europe (for a more nuanced view of the framers’ agenda, see Section 3 below). In India, both civil/political rights and socio-economic rights have formed core areas of Supreme Court intervention, while the economic field was the primary area in which the CJEU has advanced the process of constitutionalization, with ‘classical’ liberal rights catching up only more recently. However, in both jurisdictions the role of the Court gives rise to concern with respect to democratic legitimacy. The phenomenon of judicial self-empowerment is a common theme in the narratives presented above, showing remarkable similarities between the European and the Indian stories. As noted earlier, the framers of the Indian Constitution meant the judiciary to have strong powers, but they did not envisage a primary role for it. Similar questions are raised in Europe in view of the shrinking space of democratic self-government at the level of the EU member states.

3.

TWO MORE COMPLEX STORIES OF CONSTITUTIONAL CHANGE IN INDIA AND THE EU

We argue that the above story – set out in Section 2 – is overly simplified and tends to glorify the role of the respective supreme courts. A more complex story of how democratic constitutionalism in India and the EU has emerged and evolved over time would highlight three key observations which put into

22 Christoph Möllers, ‘Pouvoir Constituant – Constitution – Constitutionalisation’ in von Bogdandy and Bast (eds) (n 17) 169–204, at 202.

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perspective the above court-centred narratives. Again, each of them reveals surprising parallels between the two (sub-)continents. First, the constitutional jurisprudence developed by the two Courts did not emerge out of nothing, as mere acts of judicial self-empowerment. Rather, this phenomenon has a firm basis in the foundational documents of the 1950s, which in turn reflect key lessons learned by the constitutionalist movements during the inter-war period. Both foundational documents enshrine an aspirational programme of social change while preserving the constitutionalist commitment to democratic self-government and the rule of law – albeit the content of these programmes differs and, as a matter of fact, adopts contrasting perspectives in its assessment of the role of nationalism to achieve the respective goals. Secondly, implementing the programme of transformative constitutionalism was never meant to be, nor actually was, within the exclusive realm of the judicial branch, neither in Europe nor in India. Both constitutional set-ups foresaw a leading role for political institutions to implement that programme. What was actually happening can be described as a complex interplay between political and judicial bodies, in which the courts felt the need to step in where the political machinery failed to deliver on the promises of social change, and vice versa. In both jurisdictions, however, the commitment to democratic constitutionalism could not survive solely through the deeds of judges, had it not been renewed at critical junctures by political forces expressing the majority will of the people. Thirdly, the actual record of the respective apex courts in implementing the programme of social change is less clear than one would expect, in particular in the context of the neo-liberal policies that were implemented by governments since the 1990s. Both the Indian Supreme Court and the European Court of Justice face criticism that their jurisprudence failed to withstand the reversal of the promise of social progress, or may even have actively contributed to the reversal. In the following, we will discuss the main lines of these respective developments. 3.A

Democratic Constitutionalism and the Indian Supreme Court

The conventional narrative, in emphasizing the role of the Indian Supreme Court as a protector of rights of Indian citizens, runs the risk of ignoring the remarkable character of the foundational constitution of the Indian republic. More recent scholarly work – by scholars such as Gautam Bhatia and Madhav Khosla – has refocused emphasis on the colonial period and the era of constitution-making to demonstrate how the choices made by the framers of the Indian Constitution still have a lasting impact on Indian constitutionalism. This

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section therefore begins with a focus on the process of constitution-making in India and some of its unusual features that still determine its variant of constitutionalism in significant ways. 3.A.1

The Indian Constitution – a unique blend of liberal and non-liberal ideas While it is difficult to discern a single clear line of motivation with respect to the making of the Indian Constitution – given the multiplicity of actors and agendas involved – some broad claims can be made. Many of the framers of the Indian Constitution were keen to lay down the foundational framework for a modern nation state in India. This is evident in their deep desire to foster national unity in a region which had not conceived of itself as a single nation state before the advent of the British. The ideal of a modern nation state is also evident in the government’s zeal to improve the socio-economic condition of the people of India and with the determined focus on securing ‘development’ for the masses. At the same time, however, the longstanding mobilization of the Indian people against the brutalities of the colonial period had given rise to a genuine commitment to freedom and rights among the framers and the people of India. These new citizens (who had only been ‘subjects’ during the colonial era) were wary of a totalitarian state, and made clear their preference for a culture of rights that could not be dismissed easily in the pursuit of a ‘social revolution’. Many of the framers were committed to both ‘development’ and ‘freedom’ that they sought to pursue simultaneously. So, any attempt to advance ‘development’ before ‘democracy’ – as happened in many parts of South East Asia for instance – would not have succeeded in India. Indeed, scholars have argued that the ‘developmental state’ model was doomed from India’s inception precisely because of the constitutional commitment to a federal state, to bills of rights, and to a strong and independent judiciary which would often frustrate the ideologies and actions of legislators and technocrats in the bureaucracy.23 The tension between these competing goals led to many institutional struggles across post-independent India’s history and continue to mark its current legal and political discourse. The framers of India’s Constitution did, therefore, intend to inject elements of liberal, indeed progressive, constitutional democracy and, according to many commentators,24 succeeded in part in entrenching some of those ele23 Ronald J. Herring, ‘India’s Failed Developmental State’ in Meredith Woo Cummings (ed), The Developmental State (Cornell University Press 1999) 306–34. 24 The most famous of these accounts is still Granville Austin, The Indian Constitution: Cornerstone of a Nation (OUP 1966). A recent work which emphasizes the liberal heritage of the Indian Constitution is Madhav Khosla, India’s Founding Moment (HUP 2020).

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ments into Indian constitutional culture. Many of the framing generation had studied examples of the evolution of the nation state in Europe, but at least in India, the dominant voices in the Constituent Assembly sought to avoid the homogenizing effects of nation-building, in part because of their understanding that the multiple pluralities of the Indian subcontinent would not be amenable to the historical experiences of nation states in Europe, and also because of the devastating effects of such attempts that resulted in Partition in their immediate lifetimes. Thus, the resulting constitutional compact has many elements of liberalism, but it is a peculiar combination of liberal and non-liberal ideas and amalgamations. India’s Constitution departs from standard liberal theoretical models in insisting that democracy can be embedded in a populace marked by widespread poverty and illiteracy. A significant departure from liberal theory is the choice of enabling a system of personal laws that codify customary and religious systems of law within a broader legal system that promises equality to all. A further deviation was the promise of group rights to cultural and religious minorities as well as other forms of pluralism that sit uneasily with conventional liberal thought. At the same time, it entrenches many elements of liberal theory and ideas drawn from the template of liberalism. The attempt of the Supreme Court of India to bring about a rights revolution in the 1980s and 1990s would not have been possible without the foundation laid by the framers of the Indian Constitution in the Bill of Rights that was included in the 1950 Constitution. A textual analysis indicates that these provisions, where they were not created to respond to indigenous concerns, were inspired by the Bills of Rights in the US and French Constitutions, and by the Universal Declaration of Human Rights. In their terms, however, many of the Indian rights provisions tend to be more elaborate than those that inspired them. In this, they anticipated the later trend of providing elaborate descriptions of rights provisions and the conditions under which restrictions can be legitimately imposed upon them by constitutional authorities. It is not possible to provide a comprehensive summary of the evolution of each of these provisions here. However, to illustrate how both internal and external forces affected the decision to incorporate specific rights, we focus here on the inclusion of group rights within the fundamental rights chapter. Rochana Bajpai identifies three different phases of the evolution of group rights and privileges across the colonial period.25 In the first stage, lasting till the 1920s, the colonial government’s effort was to grant recognition of an entitlement to representation to communities such as Muslims who were seen

25 Rochana Bajpai, Debating Difference: Group Rights and Liberal Democracy in India (OUP 2011) 37–43.

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as an important and distinct element of Indian society. Initially, Congress was not the mass party it became later, and was not unduly concerned about the recognition extended to Muslims and the Depressed Classes. By the 1920s, things had changed. The Congress-led national movement, under the charismatic leadership of Gandhi, had expanded greatly in scope and its self-understanding. The colonial government now began to dispense group representation and recognition as a way to ‘safeguard’ minorities against Congress and Hindu numerical dominance. By doing so, the colonial authorities also sought to legitimize colonial rule by offering protection to various minority groups. The Congress in turn became wary of minority safeguards, viewing them as a colonial device to perpetuate British rule by dividing the Indians. The groups which benefited the most from group rights and understandably championed them were the Muslims and the Depressed Classes/Scheduled Castes. In the months preceding Independence and the negotiations over a new Constitution, Congress was forced to be open to a range of options in relation to minority groups. As Bajpai explains, there were two broad types of provisions that were to be negotiated. The first consisted of ‘political’ safeguards which sought to ensure representation for minority groups in legislatures, executives and government employment positions. These were essentially a continuation of the colonial policies which ensured separate electorates, reserved and nominated seats in legislatures, quotas for minorities in cabinets, government posts and services. The second category consisted of ‘cultural rights and privileges’ that sought to secure religious, cultural and educational rights for minority groups. This second category was an innovation as they had not been introduced by colonial policies given the British antipathy to rights discourse in general. These rights and privileges did have precursors in the draft constitutions prepared by the nationalist movement since 1895. According to Bajpai, the convening of the Constituent Assembly in December 1946 marked the third and decisive phase. The Congress party was, at least initially, quite open to both categories of minority provisions, eager as it was to ensure that its actions did not give the Muslim League a reason to boycott the Constituent Assembly. However, things changed drastically within a few months. Jinnah’s decision to boycott the Assembly and the fast-paced events that led to the violence of Partition completely altered the relative balance of power between the contestants for constitutional power. Following Partition, the main political parties which had advocated strong group rights for religious minorities – the Muslim League and the Sikh Panthic Party – disintegrated. In general, the supporters of political safeguards for religious minorities were considerably weakened overall. This did not apply to the other minority groups such as the backward classes, whose leader, Dr BR Ambedkar, continued to wield power within the Constituent Assembly and

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was able to secure political safeguards for the Scheduled Castes and Scheduled Tribes. What this meant was that the political safeguards that had applied during the colonial period to both religious minorities and backward classes were scaled back completely for the former. In the final Constitution, political safeguards applied only to Scheduled Castes and Scheduled Tribes. Religious minorities no longer had any political safeguards in the form of separate electorates, reserved or nominated seats in the legislature. Nor were quotas in the executive or in government posts made available to them. Such political safeguards were extended only to Scheduled Castes, Scheduled Tribes and to Anglo-Indians. Religious minorities were instead extended the second category of group rights, that were designed to advance general rights to freedom of religion and cultural and educational rights in tandem. Even here, the final provisions were attenuated when compared to what was originally demanded. The standard explanation for these limitations is the aftermath of Partition, and how conditions became unfavourable for demands such as political safeguards for religious minorities to be pursued. Bajpai’s novel insight is that the liberal nationalist vision of the nationalist movement in general and the Congress party in particular is an independent explanatory factor that accounts for this change. Through a detailed and careful examination of the preparatory documents and the debates in the Assembly, Bajpai argues that nationalist discourse ‘comprised a set of inter-related concepts’ including ‘secularism, democracy, social justice, national unity and development’ all of which were invoked by the nationalists within the Assembly to resist special provisions for groups. In this liberal, nationalist vision, group preference was generally deeply problematic to the vision of nationalism being advanced. However, this nationalist vision was more accommodating to the interests of Scheduled Castes and Tribes since they could be justified as rectifying social disadvantage. Congress and the nationalists generally considered group-differentiated rights legitimate as a temporary measure only for lower castes and tribes, but not for religious minorities. This liberal, nationalist vision was more open to broad liberal guarantees of the right to freedom of religion, and to cultural and educational rights that would enable minority religions to flourish. This explains the commitment to the rights to freedom of religion guaranteed under Articles 25–28 and the rights to cultural and educational rights guaranteed under Articles 29–30. Bajpai’s view – and her generally positive account of the nationalist movement – has its critics, particularly among Dalit scholars who have noted that the Congress’ motives were not always so high minded.26

26 See e.g. Anand Teltumbde, The Republic of Caste (Navayana 2015) for a searing critique of the Congress’ overall position. See also, the analysis of Sigrid Boysen and

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Nevertheless, these foundational choices continue to be relevant in contemporary India, seven decades on. 3.A.2 On the projected role of the judiciary While the Supreme Court made strides towards translating the vision of a ‘transformative constitution’ into actual rights and policies in the 1980s, 1990s and 2000s, it is important to emphasize that the framers of the Indian Constitution had meant this to be a project that would be applicable to and undertaken by all wings of government and all sections of society. The idea of a caste-less society, exemplified by Article 17 which abolishes the practice of Untouchability, for instance, was that it applied horizontally, and individual citizens would strive to eradicate the practice. The framers very much intended that the Constitution would serve to attain developmental goals over time. It is clear that they intended the judiciary to have a role in this process, but only a supplemental or complementary role. The framers invoked multiple strategies to ensure that the judges of the superior courts would be independent. However, in light of the expansive role undertaken by the judiciary in later years, to which we referred to in the preceding paragraphs of this section, it is important to emphasize what kind of role the framers had in mind for the judiciary. One of the great champions of judicial autonomy and independence in the Assembly was Alladi Krishnaswamy Aiyar. On this question, he had a precise explanation: While there can be no two opinions on the need for the maintenance of judicial independence, both for the safeguarding of individual liberty and the proper working of the Constitution, it is also necessary to keep in view one important principle. The doctrine of independence is not to be raised to the level of a dogma so as to enable the judiciary to function as a kind of super-Legislature or super-Executive. The Judiciary is there to interpret the Constitution or adjudicate upon the rights between the parties concerned. … the Judiciary as much as the [Legislature] and the Executive, is depending for its proper functioning upon the cooperation of the other two.27

It is important to place this statement in context. While the framers of the Constitution were keen to have an independent judicial institution that would safeguard rights and be an important check on the abuse of power, they were equally clear that the main engine of activity in the constitutional scheme was the executive government acting with the support of an active and vigilant Parliament. It appears that their vision sought to combine in hybrid form the Aparna Chandra, Chapter 4 in this book, who describe the transition in the Constituent Assembly as moving ‘from consociational forms of association to multiculturalism’. 27 CAD XI, 9, 837.

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Parliamentary sovereignty of the British type with judicial review of the US type. In such a vision, the judiciary was to have strong powers and a defined role but was nevertheless only to play a subordinate role to Parliament and the government of the day which enjoyed a majority in Parliament. This is certainly how the role of the judiciary was envisaged by Prime Minister Nehru who was an ardent champion of judicial review and independence, but also believed that it was Parliament and the government of the day which would have the final say on policy decisions. Interestingly enough, this was also the position of the early judges of the Supreme Court, all of whom had been members of its predecessor, the Federal Court, and had been steeped in the values of the British judiciary which did not have any powers to strike down Parliamentary laws and viewed the law in ‘technocratic’ rather than ‘political’ terms.28 Although in later years, as is well known, the Judiciary in India, and the Supreme Court in particular, became a far more pivotal and central institution in Indian governance and politics, it is important to bear in mind the ‘original’ view of the framers on this question. 3.A.3 The shifting politics of Public Interest Litigation One area where the Constitution and its institutions have come under sharp attack is for the failure of the constitutionally ordained goals of social justice and economic development. Seven decades on, welfarism in India is still at a very primitive level, with vast sections of its populace not having access to even basic social goods such as education, water, health and social security. During the ‘socialist’ era from 1947 to 1990, the Indian state paid lip service to welfarism, but did not succeed in delivering much. Since 1991, under the thrall of forces of neoliberalism, progress on these welfare goals has been slow despite the enactment of specific welfare laws from the mid-2000s onwards.29 Critics argue that the logic of the market dominates these welfare policies, limiting their application and efficacy. India’s continuing abysmally low HDI rates are thus a genuine source of concern.30 This backdrop is important to bear in mind in assessing the turn of the Indian Judiciary to PIL as a mode of bringing about social change. For the reasons set out above, when PIL was first innovated in the 1970s, it had broad support among academics and civil society groups in India, who had become frustrated with the Indian state’s inability to improve the living conditions of India’s vast masses that continued to live in great poverty. Many of the advocates of PIL 28 The phrase, technocratic, is used by Sathe to describe the worldview and self-perception of the early Supreme Court: Sathe (n 10) 40. 29 Niraja Jayal, Citizenship and its Discontents (HUP 2013). 30 Jean Dreze and Amartya Sen, India: An Uncertain Glory and Its Contradictions (Penguin 2014); Jayal (n 29).

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argued that Indian judges were justified in making these textually unsupported expansions, because they were motivated by the spirit and original goals of the Constitution. In the initial years of PIL, the Indian Supreme Court stuck to this transformative vision by seeking to address problems of the poor, the marginalized in society and other vulnerable groups. However, it is generally accepted that the focus and content of PIL – and the Court as a whole – began to shift gradually but dramatically across the 1990s and 2000s. By the late 1980s, PIL was transformed into a ‘middle class vehicle’ and from the 1990s onwards, the focus of PIL began to shift to concerns of the middle and upper classes. It is to be noted that India too was shifting and changing. The early 1990s witnessed a shift in economic policy circles; the socialism that characterized India’s broad outlook from the 1950s to the 1990s was replaced by policies of ‘liberalization’ which opened India up to market forces. As it had done in earlier phases, the Court also responded to these new policies, and began to demonstrate its ability to shift its own stance. As policies of liberalization were challenged before the Courts, the judges responded by accepting the shifts in thinking that the government was demonstrating and changed its earlier course accordingly. This led some critics to allege that PIL’s concerns had been ‘structurally adjusted’31 alluding to the policies of Structural Adjustment of the Indian economy that were being advanced by the IMF and the World Bank as a part of the conditionalities imposed on loans undertaken by the Indian government. 3.B

Democratic Constitutionalism and the European Court of Justice

3.B.1

The promise of supranationalism and its interplay with social constitutionalism The conventional narrative of a judge-made European Constitution implies a rather elitist origin: its creation by stealth through acts of non-elected judges who for long have benefited from benign neglect by the public at large, or from a silent consensus at best.32 However, we argue that the approach of the EU Court had (and has) a strong mandate enshrined in the founding documents

31 Upendra Baxi, ‘The Structural Adjustment of Judicial Activism’ in Jagga Kapur (ed), Supreme Court on Public Interest Litigation (LIPS Publications 1999); Anuj Bhuwania, Courting the People: Public Interest Litigation in Post-Emergency India (OUP 2017). 32 cf. Giandomenico Majone, Dilemmas of European Integration. The Ambiguities and Pitfalls of Integration by Stealth (OUP 2005).

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establishing the European Communities or Union. The EU Treaties arguably provide a firm democratic basis for ‘constitutionalizing’ those very treaties. We present a mild version of an ‘originalist’ argument here, recognizing the fact that identifying ‘original ideas’ – like all forms of collective memory – is an active process, that is, a social practice conducted in the present that constructs more or less plausible versions of the past.33 Still, we argue that the Rome Treaties of 1957 had already laid down a radical programme of social change, which the Court helped in carrying out. The transformative potential of the Rome Treaties remained much less visible than one usually witnesses in (post‑)revolutionary constitutions heralding the demise of the ancien régime.34 The ‘process of creating an ever closer union among the peoples of Europe’ which the founders pledged to continue in the Preamble of the EEC Treaty (today prominently placed in Article 1 of the EU Treaty) roughly depicts that programme but remains deliberately opaque as to its contents. To understand the founders’ hesitation to speak out more openly about the transformative nature of the supranational project they set in motion, one has to recall the specific context against which the Treaties of Rome were negotiated. More ambitious, straightforward attempts to form a Political Union had only recently been shipwrecked with the failure of the draft European Defence Community in the French Parliamentary Assembly. To ensure their ratification, the draft Treaties of Rome spoke the modest language of a regional economic integration project, with centres around the goal of creating a Common Market. The catchphrase of ‘an ever-closer union’ serves a reminder that this immediate goal was instrumental to the pursuit of a more aspirational programme, nonetheless. The project of transformation was built on the combination of two pillars: establishing supranationalism at the European level and social constitutionalism at the level of the nation states. Both ideas have their roots in the interwar period, although the pan-European movement was a rather marginal social force at the time, compared to the movements advocating a social version of democratic republicanism. Key to understanding the origins of the EU is that both ideas joined forces in the post-war period.35

Paul Connerton, How Societies Remember (CUP 2010). cf. Bruce Ackerman, Revolutionary Constitutions. Charismatic Leadership and the Rule of Law (HUP 2019). 35 From a German perspective, see Ulrich Everling, ‘The European Union as a Federal Association of States and Citizens’ in von Bogdandy and Bast (eds) (n 17) 701–34, at 703 et seq. 33 34

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It is a typical feature of transformative constitutionalism that it responds to a deeply felt experience of injustice of the past that lingers on in the present.36 In the context of European constitutionalism, the immediate past that moved the founders was the experience of total war among European nations and the rise of authoritarian rule which had almost wiped out democracy on the entire continent. Accordingly, European integration firstly was a peace project: German-French reconciliation was meant to be the starting point of a new European order in which the ever-fragile balance of rivalling Great Powers is being replaced by international cooperation through common institutions. Yet, the founders were convinced that the chances for lasting peace and the survival of democratic constitutionalism in the non-Communist parts of Western Europe would be slim if the new international order was not complemented by a more fundamental transformation of the societies involved. The rescue of the European nation-state, as it were, could be achieved only if a new type of statehood was developed: the supranationally embedded, constitutional state.37 In the 1950s and the decades that followed, this conception came to fruition mainly because of the joint efforts of two broad political movements, which even in today’s European Parliament are the largest groups: the (moderately conservative) Christian-Democrats and the (moderately left-wing) Socialists. Referring to the universalism of political Catholicism and the internationalism of the reformist labour movement, respectively, leaders from both party families came to realize that in the European context, nationalism and authoritarian solutions to class-conflict are mutually reinforcing, destructive forces. Hence, the vision for a lasting post-war order built on the two aforementioned pillars: supranationalism and social constitutionalism. Both elements are designed to enable gradual but substantial change to be implemented by the respective institutions. On the state level, a credible promise of social progress for broad sectors of the population was to be made by constitutionalizing class-compromise and mandating redistributive welfare policies. This gave rise to a brand of constitutionalism quite different from the old conception of ‘limited government’ which envisions a much less active role for the state.38 Drawing from ideas of ‘planning’ circulated inter alia in the

36 Bhatia (n 5) xxiv (on India); Armin von Bogdandy, ‘Ius Constitutionale Comune en América Latina: Observations on Transformative Constitutionalism’ in Armin von Bogdandy et al. (eds), Transformative Constitutionalism in Latin America. The Emergence of a New Ius Comune (OUP 2017) 27–48, at 47 (on Latin America). 37 Alan S. Milward, The European Rescue of the Nation-State (University of California Press 1992); Chris J. Bickerton, European Integration. Nation-State to Member State (OUP 2012). 38 On activist constitutionalism, see Michaela Hailbronner, Traditions and Transformations. The Rise of German Constitutionalism (OUP 2015) 11–26.

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early Weimar Republic in Germany and during the Popular Front in France, or actually implemented in the Scandinavian model of social democracy, the democratic welfare state became the European way of life.39 While this part of the story is well known, it often goes unnoticed that the second pillar is equally essential to the gradualist agenda of democratic constitutionalism in Europe. The Europeanization of the economy, which is the duty of strong supranational institutions, functions as a lever to Europeanize compartmentalized national societies, cultures and institutions. It is true that the transnational ‘solidarity in production’ mentioned in the Schuman Declaration of 1950 was meant to make any war between European nations ‘materially impossible’.40 Yet, creating interwoven economies was ultimately a matter of overcoming a nationalist mind-set far beyond the economic field.41 This transformative dimension of supranationalism is not fully grasped by neo-functionalist integration theory, which highlights the ‘spill-over effects’ of economic integration. From its very beginning European integration was a deeply political project, intrinsically linked to the idea of lasting constitutionalism on the European continent.42 This is the democratic mandate which the EU Court tacitly invoked when it used its powers to remind the member states of their commitment to supranational law. 3.B.2

The emergence of supranational democratic politics and the second phase of constitutionalization The constitutionalization of the EU itself is poorly depicted as a purely court-driven process. A closer inspection reveals a more complex interplay between judicial and political forces. It gave rise to a model of supranational decision-making in which bi-cameral legislation takes centre stage. Moreover, at some point political choices laid down in successive Treaty amendments have become a much more significant source of constitutional innovation than the judgments of the Court. The conventional narrative highlights the fact that the Court ‘took over’ when the European legislature failed to implement the programme of creating

39 Tony Judt, Postwar. A History of Europe Since 1945 (Penguin Press 2005) 72–77 and 777 et seq. 40 The full text of the Declaration is available at accessed 22 October 2020. 41 cf. Carl F. Ophüls, ‘Juristische Grundgedanken des Schumanplans’ (1951) Neue Juristische Wochenschrift 289; Walter Hallstein, Der unvollendete Bundesstaat. Europäische Erfahrungen und Erkenntnisse (Econ 1969). 42 For a critical account, see Bo Stråth and Hagen Schulz-Forberg, The Political History of European Integration. The Hypocrisy of Democracy-Through-Market (Routledge 2010).

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a Common Market. The prime piece of evidence is the doctrine of direct effect of the ‘market freedoms’ which originally were meant to function as a guideline for the legislative activity of the Commission and the Council rather than as judicially enforceable constraints for the member states. However, it had turned out that the European legislative machinery was not able to cope with that task, not least because powerful member states insisted on preserving their veto powers in the Council (the famous ‘Luxembourg Compromise’ of 1966). As Weiler has explained to us, the political intergovernmentalism thus established, that is, the governments’ political control over the process of law-making, was a necessary precondition for them to accept the unfolding judicial supranationalism.43 However, Weiler’s seminal paper on the Transformation of Europe leaves the scene at the eve of the 1990s with an open question: How can the fragile balance between states’ (reinforced) ‘voice’ and (essentially closed) ‘exit’ accommodate the turn to majority voting envisioned in the Single European Act of 1986 that laid down an ambitious legislative agenda to complete the Internal Market (the renamed Common Market) by 1992? Weiler cannot be held responsible for the fact that he did not fully anticipate the answer which the process of European constitutionalism has produced: the parliamentarization of the EU.44 In a somewhat paradoxical effect, the constitutional development triggered by the Court has empowered the political branches of EU government rather than sidelining them. Even more, the main actors that used their authority to put the EU on the path to a second phase of constitutionalization were the member states, acting jointly as the treaty amending authority of the EU. The Court, for its part, was happy to support the process in its adjudication on the revised Treaty framework but was not in the driver’s seat anymore. Ever since the European Parliament began to be directly elected by European citizens (for the first time in 1979), it has demanded the status of a co-equal branch in the EU/EC’s institutional set-up. The Treaty of Maastricht, concluded in 1992, eventually recognized this demand by creating the so-called co-decision procedure. In essential fields of EU policy, including the Internal Market, draft EU legislation is being negotiated between European Parliament and Council; the resulting compromise is to be adopted by majority voting in both institutions. This mode of decision-making follows the examples of

Weiler (n 20) 34–39. Philipp Dann, ‘European Parliament and Executive Federalism: Approaching a Parliament in a Semi‐Parliamentary Democracy’ (2003) 9 European Law Journal 549–74; Jürgen Bast, ‘New Categories of Acts after the Lisbon Reform: Dynamics of Parliamentarization in EU Law’ (2012) 49 Common Market Law Review 885–928. 43 44

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bi-cameral legislation in federal polities such as the US or Germany.45 It builds on the assumption that the EU and its laws depend on two distinct chains of democratic legitimacy, one provided by the European citizenry as a whole and one by the college of democratically elected governments. In the framework of the co-decision procedure, a feature of European integration emerged which was hardly anticipated by the founders: the pursuit of democratic politics also at the supranational level, although until today the political culture in the EU remains more consensus-oriented and the language more technocratic than in the member states. The co-decision procedure (or ‘ordinary legislative procedure’, as it is called today) was soon regarded as an essential element of the so-called ‘Community method’, that is, the standard model of how the EU works and how its laws are implemented. The belated parliamentarization of the EU and its transformation into a state-like federal polity took full effect in a further series of Treaty amendments within a decade of reforms, which is marked by the entry-into-force of the Treaties of Amsterdam and Lisbon (1999–2009). In a process of reflexive constitutionalization,46 the supranational ‘Community method’ was expanded from its original core (the Internal Market) to ever more fields, including those in which an intergovernmental mode of European cooperation previously was regarded more appropriate, such as criminal law or police cooperation. Arguably, the dynamic of reflexive constitutionalism is still effective, exerting political and legal pressure to justify any deviation from the standard case in the remaining sectors of intergovernmental cooperation, such as European defence policy. In summary, reforming the EU constitution by way of Treaty amendments became the main driver of EU constitutionalism.47 In some cases the amending authority confirmed doctrinal innovations developed by the Court and gave it the blessing of politics. In most instances, however, reforming the foundational treaties was a source of true constitutional innovation, moving the EU forward to resemble other constitutional polities of a federal type. Given that amending the Treaties is a highly visible way of political decision-making, involving all political institutions at EU level and qualified ratification procedures in national parliaments or national referenda, it can hardly be maintained that ‘integration by stealth’ still characterizes constitutional politics in the EU.

45 See Aditi and von Achenbach, ‘Electoral systems and representation’, Chapter 5 in this book. 46 Jürgen Bast, ‘The Constitutional Treaty as a Reflexive Constitution’ (2005) 6 German Law Journal 1433–52, at 1448 et seq. 47 A similar argument is made in Dann and Thiruvengadam, ‘Federalism and democracy’, Chapter 9 in this book.

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3.B.3

The redistributive effects of economic integration – have partners of yesteryear become enemies? The record of the EU Court in actually implementing the programme of social change promised in the foundational documents at state and EU levels is subject to critical questions. As the overall conditions of policymaking have changed over time, in particular in the context of the neo-liberal policies executed since the 1990s, the relationship between supranational integration and social constitutionalism turned out to be less harmonious than originally expected. There have always been instances of resistance to, and setbacks for, European constitutionalism. Examples include not only contestations to doctrinal innovations tabled by the Court but also to ambitious projects of Treaty amendment. Oftentimes, resistance was driven by protectionist special interests and has been overcome by using the day-to-day tactics of supranationalism: depoliticizing the conflict, finding awkward compromise formulae delaying its solution, mobilizing the national courts, and ultimately, through patient insistence. Such tactics are more difficult to apply when resistance is formulated in the language of ‘state sovereignty’ or when issues of ‘national identity’ are at stake. Still, opposition to change is inherent in any project of transformative constitutionalism since it challenges structures which are deeply embedded in the respective societies.48 It is not surprising that, in the case of the EU, the long-term project of Europeanizing nationally compartmentalized societies mobilizes political counter-forces defending that very national container. However, a critical issue arises when the two pillars of European constitutionalism – supranational integration and welfare-state constitutionalism – are juxtaposed as contradictory, that is, where partners of yesteryear become enemies. Indeed, beginning in the 1990s we witness an increasing number of cases where the EU’s demand to comply with its policies (judicial or legislative) is contested in the name of preserving the integrity of the national constitutional framework, sometimes specifically in view of its promise of social progress. One important set of issues concerns the redistributive effects of the Internal Market. According to the assumption of the founders, which was supported by economic theory of the time, regional economic integration would be neutral towards industrial relations and welfare distribution at the national level.49 At best, the welfare gains from creating a larger market were meant to increase

Bhatia (n 5) xxxii. Florian Rödl, ‘The Labour Constitution’ in von Bogdandy and Bast (eds) (n 17) 623–58, at 629 et seq. 48 49

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the size of the cake that could be redistributed. However, as the single market more and more became a reality, that assumption was challenged by a different school of thought. This view holds that the EU institutions, most notably its Court, are responsible for weakening organized labour and for increasing social inequality. According to Fritz Scharpf, a principal proponent, a structural imbalance between positive and negative integration is embedded in the EU Treaties. Legal obligations to open up markets, imposed by judicial decisions (the Court giving direct effect to the market freedoms) or by executive decisions (the Commission’s powers in competition law), cannot effectively be balanced by legislative re-regulation at the European level, either for structural reasons (such as the limited federal powers to tax and spend) or due to veto players in the legislative bodies.50 This view gained wider support after a series of judgments in 2007 which constrained the bargaining power of trade unions.51 In some quarters, the Court came to be seen as an actor pursuing a neo-liberal political agenda,52 although other commentators challenged this view, highlighting the contributions of EU law in developing a sustainable model of Social Europe.53 Still, citizens increasingly gained the impression that supranationalism and social constitutionalism contradict each other – incidentally, a popular belief both in Western and Eastern Europe, albeit frequently for incompatible reasons.54 An escalation of the conflict took place in the wake of the financial crisis of 2008, which seriously hit various countries of the euro zone whose public debt became unsustainable. They had to ask for bail-out packages from the EU (or proxy institutions) and in turn had to accept conditionalities committing them to take harsh austerity measures. In parallel, the EU reinforced its supervisory role over all members of the European currency zone, implying long-term con-

50 Fritz W. Scharpf, ‘The Joint Decision Trap: Lessons from German Federalism and European Integration’ (1998) 66 Public Administration 239–78; Fritz W. Scharpf, Governing in Europe: Effective and Democratic? (OUP 1999) 50–83. 51 Case C-438/05 (Viking), ECLI:​EU:​C:​2007:​772; Case C-341/05 (Laval), ECLI:​EU:​C:​2007:​809. For a critical discussion of these cases, see also Bhatia and Christodoulidis, ‘Social rights’, Chapter 8 in this book. 52 See e.g. Christian Joerges, ‘A New Alliance of De-legalisation and Legal Formalism? Reflections on Responses to the Social Deficit of the European Integration Project’ (2003) 19 Law and Critique 235–53. 53 See, e.g., Philipp Dann, ‘Parlamentarische Legitimation der Binnenmarkt- und Wettbewerbspolitik der EU’ (2013) Europarecht Suppl. No. 1 (Wohlfahrtsstaatlichkeit und soziale Demokratie in der Europäischen Union, ed. by Jürgen  Bast and Florian Rödl). 54 cf. Jan Komárek, ‘Waiting for the Existential Revolution in Europe’ (2014) 12 International Journal of Constitutional Law (I-CON) 190–212.

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straints on their fiscal and budgetary policies.55 Both found the legal backing of the EU Court,56 while various national courts raised serious concerns.57 Ten years on, the wounds have not yet healed. Again, there is no uniform view in Northern and Southern Europe on who owes whom what, and which role the EU plays (or should play) in this type of transnational solidarity conflicts.58 A common denominator of these developments is that the political space to redeem the promise of social progress through redistributive national policies is shrinking – seemingly due to membership in the supranational club. Enforcement of supranational legal obligations and creditors’ conditionalities seem to undermine the very foundation on which the Union builds. The inequalities caused by the redistributive effects of the single market and an incomplete monetary union, and the respective contributions of the EU Court, have not yet been fully accounted for.

4.

CONTEMPORARY FOUNDATIONAL CHALLENGES

This chapter concludes with a brief outlook on contemporary challenges to democratic constitutionalism in India and the EU. Is the promise of enabling social change while preserving the commitment to democratic self-government and the rule of law still alive? It turns out that, according to a widespread view, both India and Europe are in a period of uncertainty and crisis that might threaten the very essence of constitutionalism, in particular in view of populist authoritarianism. 4.A

India at the Eve of Destruction of a Secular Constitution?

Both polities marked important anniversaries in 2020: India marked 70 years of having become a Republic, while the EU commemorated the moment when the first supranational organization, the European Economic and Steel Community, was conceived in the Schuman Declaration of 1950. Nevertheless, both polities are confronting profound challenges which call into question some of their founding beliefs. In the case of India, the Bharatiya

55 Michael Ioannidis, ‘Europe’s New Transformations: How the EU Economic Constitution Changed During the Eurozone Crisis’ (2016) 53 Common Market Law Review 1237–1316. 56 Case C‑370/12 (Pringle), ECLI:​EU:​C:​2012:​756. 57 See e.g. Teresa Violante, ‘The Eurozone Crisis and the Rise of the Portuguese Constitutional Court’ (2019) Quaderni costituzionali 208–11. 58 See Anuscheh Farahat and Xabier Arzoz (eds), Contesting Austerity: A Socio-legal Inquiry into Resistance to Austerity (Hart forthcoming).

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Janata Party (BJP)-led government of Prime Minister Narendra Modi that has been in power since 2014 but was re-elected with a larger mandate in 2019 is enacting policies that successively but rapidly call into question the fundamental constitutional values of secularism, and equal treatment to all citizens amidst a respect for pluralism, and the ideas of openness and transparency in governance. Since May 2019, India has witnessed a series of measures – the lockdown of the only Muslim-majority state of Kashmir and the downgrading of its federal status; the resolution of a long-standing religious dispute in favour of the Hindu majority by questionable judicial means; and the introduction of a new citizenship regime that seeks to alter the demographic balance of India’s new citizens by excluding Muslims. The electoral victories of the BJP in 2014 and 2019 suggest that India is witnessing a new form of nationalism, quite different in form from the one that drove the anti-colonial nationalist movement in the first half of the 20th century and was the dominant thinking within the Constituent Assembly which drafted the independence Constitution adopted in 1950. That model was driven, as we have noted, by a vision of democratic constitutionalism which had several liberal strands. It sought to guarantee both individual and group rights to Indians, while creating a modern, secular nation which would strive to eradicate poverty and bring economic and social development to all citizens. While driven by anti-colonialism to secure freedoms, it was equally driven by the desire of many of the framers to eradicate many social ills that existed in precolonial Indian society such as the schisms caused due to patriarchy, the caste system and forms of communal ordering of society. In that sense, the 1950 Constitution sought to bring about many transformations in Indian society encompassing social, economic and political reform. If the logic of the BJP is correct – and it is still in political ascendancy now – then that model of nationalism has become redundant and needs to be replaced by a new model of Hindutva-led nationalism. The transformative changes that the BJP would like to see include a recognition that Hindus are not only the dominant population group within India, but that Hinduism’s cultural and religious base should more overtly determine the values that dictate governance and everyday life in India. To provide a comparative reference, many ideologues within the BJP and RSS have openly stated that their vision for India is similar to that of the State of Israel which is a modern nation that practices forms of secularism but is unquestionably a Jewish State. They would similarly like to see India become a Hindu State. Whether that state would conform to the nation of constitutionalism we have explored above is a moot question.

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The changes witnessed in India are not isolated and are a part of a widely observed ‘crisis of constitutionalism’.59 Scholars of comparative constitutional law have identified this as a challenge induced by the rise of populist, authoritarian regimes in several countries of the world. While there are indigenous reasons that lead to differences, it is also true that they conform to some broad tenets, leading some to describe this as the emergence of ‘populist constitutionalism’.60 The Modi regime has commonalities with these trends and is regularly cited as an example of the ‘populist constitutionalist’ model.61 In keeping with the global trend, India’s Supreme Court has, since 2014, been reduced to a shell of its older self, and is particularly muted and restrained in the face of repeated constitutional challenges to the Modi regime’s profound policy shifts. As in earlier periods of authoritarianism, it is the High Courts which are stepping up and trying to uphold the Constitution even as the Supreme Court capitulates and loses credibility.62 What provides hope is that even as constitutional institutions are weakening, the Constitution itself is gaining greater prominence. This was evident most recently in the protests that have been held across the nation since November 2019. These protests were initially launched against the Modi government’s egregious amendment to India’s citizenship law. At these protests, young Indians brandished the Constitution and read the full text of its Preamble aloud in street corners across the nation. Whatever be the future path that governance in India takes, its Constitution in its current or amended form will continue to be a guiding force. That system is nevertheless an improvement upon the endless sequence of monarchical and feudal systems that governed India across much of its pre-colonial history. The choices made by Indian leaders in the framing of its Constitution in the mid-20th century still play a significant role in shaping the future of the country.

59 Mark Graber, Sanford Levinson and Mark Tushnet (eds), Constitutional Democracy in Crisis? (OUP 2018). 60 Paul Blokker, ‘Populism as a Constitutional Project’ (2019) 17 International Journal of Constitutional Law 535‒53; Gábor Halmai, ‘Populism, Authoritarianism and Constitutionalism’ (2019) 20 German Law Journal Special Issue 3: Populist Constitutionalism. Varieties, Complexities and Contradictions, 296–313. 61 Graber, Levinson and Tushnet (n 59) 665‒90. 62 Mihir Desai, ‘Covid-19 and the Indian Supreme Court’ (Sabrang India, 26 May 2020), available online at accessed 22 October 2020.

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The EU’s Surprising Resilience to Europe’s Polycrisis

In the case of the EU, the challenges arise similarly from the rise of right-wing populist parties that reject the foundational values of the EU. There is also growing scepticism about the efficacy and viability of the multi-layered constitutionalism model that lies at the heart of the EU.63 In addition, various external shocks such as the global financial crisis and the surge of refugee influx in 2015/16 have occurred which contributed to the perception that Europe is in a state of permanent crises, a continent in ‘polycrisis’, as it were.64 While the EU still struggles to find adequate policy responses to the above events, the most significant challenge to its constitutional foundation arguably was the result of the Brexit referendum in 2016, which ultimately led to the departure of the UK on 31 January 2020. For the first time a member state has chosen to quit, not only terminating its (and its citizens’) rights and obligations deriving from EU law but precisely revoking its commitment to the transformative project of ‘creating an ever-closer union’.65 Yet, it is perhaps surprising that Brexit did not trigger a wave of further secessions or any serious attempts from remaining states to alter the constitutional nature of the EU. On the contrary, all (!) other member states reaffirmed their commitment to membership and formed a unified position during the negotiations of the Withdrawal Agreement with the UK. Note that key right-wing parties in France, Italy and Germany quickly watered down their anti-EU rhetoric, now that their populist cry for regaining sovereignty may one day become real. The 2019 elections to the European Parliament saw a victory of pro-EU parties and moderate EU-critics, which – after the usual inter-institutional struggles – led to the appointment of a functioning new Commission. Against all odds, Brexit has not triggered a constitutional crisis of the EU. Brexit may even have taught a lesson for how potential secessions from a federal polity can be dealt with in a ‘Canadian’ style: avowing violence and suppression, accepting a right to leave of a component state, and embracing a constitutional setting in which membership is voluntary but comes with

63 András Sajó and Renáta Uitz, ‘Multi-layered Constitutionalism, Globalization and the Revival of the Nation State’ in András Sajó and Renáta Uitz (eds), The Constitution of Freedom (OUP 2017) 446‒71. 64 This term was coined by European Commission President Jean-Claude Juncker (2016). 65 It is surely not coincidental that CJEU referred to this clause in its ‘Brexit judgment’ of 10 December 2018 in Case C-621/18 (Wightman), ECLI:​EU:​C:​2018:​999, paras 61 and 67. For a forceful statement by the outgoing Advocate General Sharpston, see her Opinion in Joined Cases C-715/17, C-718/17 and C-719/17 (European Commission v Republic of Poland and Others), ECLI:​EU:​C:​2019:​917, paras 246–55.

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strong expectations to comply with federal law as long as membership is in place. For the time being, the EU level of European constitutionalism is surprisingly resilient to Europe’s polycrisis. At the national level, however, the constitutionalist commitment has proven to be more vulnerable, at least in some member states. This, however, does not primarily apply to the social dimension of democratic constitutionalism but rather its liberal layer of protecting individual freedoms and minority rights, on which the former naturally builds. The ‘Rule of Law Crisis’, as it is often called, mainly concerns developments in Central and Eastern European states. Chief among them are Hungary and Poland, whose right-wing governments pursue illiberal policies that transform the constitutional foundations of their states. While they proudly refer to the majority will of the people (relying on an ethno-nationalist conception of democracy) and rhetorically maintain the promise of social progress (happily using EU funds for that purpose), they actively undermine liberal constitutional guarantees, including but not limited to dismantling the independence of the judiciary.66 While there is a broad consensus that such policies contradict the foundational values of the EU (stipulated in Article 2 TEU as a precondition of EU membership), the EU Treaties lay down a largely dysfunctional system of federal intervention by the EU’s political institutions.67 At some point, the EU Court has stepped in, stressing that the independence of the national judiciary is a necessary element of supranationalism and hence a legal obligation under EU law.68 It is difficult to predict in which direction the Rule of Law Crisis in the EU will develop; a short-term solution is not in sight. As of now, it has not caused an institutional crisis at the EU level but it demonstrates the extent to which the supranational project relies on constitutional preconditions at the national level which the EU itself, let alone its Court, cannot ensure.

66 See e.g. Paul Blokker, Bojan Bugaric and Gábor Halmai (eds), ‘Populist Constitutionalism: Varieties, Complexities and Contradictions’ (2019) 20 German Law Journal Special Issue 3. 67 Armin von Bogdandy and Michael Ioannidis, ‘Systemic Deficiency in the Rule of Law: What it is, What Has to Be Done, What Can Be Done’ (2019) 51 Common Market Law Review 59–96. 68 Case C‑216/18 PPU (Minister for Justice and Equality [Deficiencies in the system of justice]), ECLI: EU:​C:​2018:​586); Case C‑619/18 (European Commission v Republic of Poland [Independence of the Supreme Court]), ECLI:​EU:​C:​2019:​531.

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5. CONCLUSIONS The main argument of this comparative review of Indian and European constitutionalism concerns the role of judicial institutions. Indisputably, both the Indian Supreme Court and the European Court of Justice have played a crucial role in shaping their respective constitutional orders. However, we have contrasted the conventional, court-centred narrative with a more complex view on the interplay between judicial and political actors. In this context, we have made an attempt at reconstructing the ‘original view’ of the framers on the constitutional project as a whole, and the appropriate role of the judiciary. Both polities originated in the same historical period in the 1940s and 1950s, which witnessed a fundamental redrawing of the political and intellectual map of the world as a whole. Perhaps the most striking difference between India and Europe is the articulation of nationalism and constitutionalism, reflecting the different historical experience of injustice that preceded the foundation. While in India nationalist and constitutionalist movements had all but merged during the struggle for Independence, the murderous excesses of the European nation-state in the first half of the 20th century had tainted the concept in the eyes of the European founders and triggered the search for a new, supranational order for the continent. Even here, a closer inspection reveals a more nuanced picture. As explained above, the majority in the Constitutional Assembly of India rejected an ethno-cultural foundation of the new Republic and embraced the liberal strand of constitutionalism as part of its own legacy. In the process of European integration, as well, the nation-state was not meant to be dissolved but rather ‘tamed’ and reconstructed as an indispensable component of a layered system of social constitutionalism. In both polities, the resulting constitutional experiment builds on a unique blend of liberal and post-liberal ideas. A common theme is a more interventionist, or ‘activist’, understanding of constitutionalism as compared to classic conceptions, especially those that emerged in the Anglo-American tradition, with a focus on limiting the powers of those in government. By contrast, both in India and in Europe constitutionalism aims at simultaneously constraining and empowering the state in its attempts at advancing the negative and positive freedoms of its citizenry. To this end, both constitutional orders have laid down an aspirational programme of social change – of economic progress, social equality, and cultural openness – to be implemented by representative or independent institutions, as the case may be. In view of authoritarian threats to its foundations, the future of constitutionalism in India and Europe might depend on the renewal of these original ideas.

4. Equality and diversity in constitutional discourses Sigrid Boysen and Aparna Chandra 1. INTRODUCTION The constitutional principle of equality has no stable meaning as there is no such thing as equality per se.1 Rather, equality can only be conceived as the normative relation between people with regard to other rights or benefits. The meaning of equality therefore deeply depends upon the social, political and economic contours of specific constitutional systems. However, a common and fundamental challenge democratic constitutions face today arises from the tension between the promise of democratic equality and the respect for diverse identities. The meaning and function of equality in a democratic but heterogenous polity is shaped by at least three distinct registers of political discourse. According to Partha Chatterjee the ‘opposition between the universal ideal of civic nationalism, based on individual freedoms and equal rights irrespective of distinctions of religion, race, language, or culture, and the particular demands of cultural identity, which call for the differential treatment of particular groups on grounds of vulnerability or backwardness or historical injustice, or indeed for numerous other reasons’ is a conflict ‘that lies at the heart of modern politics in most of the world’.2 Thus, while holding on to the assumption of formal equality as one of its core elements, democratic constitutionalism faces the reality of diverse identities and of factual difference and has to come to terms with the question of how to mitigate this tension. The first frame ‒ what Chatterjee calls the ideal of civic nationalism ‒ can be termed liberal universalism. Liberal universalism captures the notion that the citizen in her relation to the state should be dealt with in the exact same manner 1 Peter Weston, ‘The Empty Idea of Equality’ (1982) 95(3) Harvard Law Review 537. 2 Partha Chatterjee, Politics of the Governed: Reflections on Popular Politics in Most of the World (Columbia University Press 2004) 4.

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as any other citizen, without acknowledging any associational or other characteristics related to her social situation, and without any distinctions on the basis of her religion, caste, language, culture, race, gender, etc. Liberal universalism therefore conceives of equality in its formal sense, and opposes politics and policies based on ascriptive identities such as those of caste, religion, gender or ethnicity. True equality and recognition of equal human worth is achieved only when the state views and deals with an individual as an ‘unencumbered citizen’ who carries, at least in her relationship to the state, no markers of her socio-economic particularity.3 This picture of abstract formal equality privileges sameness over difference, and in doing so tends to devalue the subjective experiences of inequality or difference of subordinated or minority groups.4 In not recognizing social inequality or diversity, formal equality tends to preserve status quo of oppression since the lived reality of subordination structures people’s abilities to access and participate in state processes and benefits.5 These concerns have given rise to alternative conceptions of equality that recognize the diversity of the human condition. A model of pluralism takes difference seriously and aims to achieve substantive equality that takes different identities into account. Pluralism rejects the idea of the unencumbered citizen, and recognizes that specific needs/ burdens based on religion, caste, language, culture etc., shape the interaction of the citizen with the state and structure the possibilities of equality. Pluralist approaches recognize that various ascriptive and associational identities give meaning to people’s lives and mediate their social and state interactions.6 At the same time, subordination based on such identities impact people’s socio-economic circumstances, their concrete life chances, and hence their ability to participate in the public sphere as equal citizens.7 Taking seriously the two types of differences based on identity ‒ the importance of certain associational identities and the subordination based on such identities, pluralist approaches advocate substantive equality based on policies of recognition 3 See Susan Berns, Women Going Backwards: Law and Change in a Family Unfriendly Society (Ashgate 2002) 43 (conceptualizing this notion of the ‘unencumbered citizen’). 4 Iris Marion Young, Justice and the Politics of Difference (Princeton University Press 1990) 3. 5 Anne Phillips, The Politics of Presence: The Political Representation of Gender, Ethnicity and Race (OUP 2003) 5. 6 Gurpreet Mahajan, ‘Can Intra-Group Equality Co-exist with Cultural Diversity? Re-examining the Multicultural Frameworks of Accommodation’ in Avigail Eisenberg and Jeff Spinner-Halev (eds), Minorities within Minorities: Equality, Rights, and Diversity (CUP 2005) 90, 98; Will Kymlicka, Multicultural Citizenship: A Liberal Theory of Minority Rights (OUP 1995). 7 Young (n 4).

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and redistribution.8 However, recognition of diversity also brings with it the ‘dilemma of difference’, that is, the concern that by recognizing difference, the state may essentialize and embed such difference and further reinforce the stigma or stereotype associated with that identity. A third discourse, lying between the politics of universalism and pluralism, is the homogenizing pressure of what can be called ‒ at least in the Indian context ‒ cultural nationalism, that seeks to erase internal difference in the name of national and cultural unity. Much like liberal universalism it rejects the recognition of difference and privileges formal equality. Cultural nationalism emphasizes the need for social unity and cohesion, to be achieved through a homogenous identity, and the erasure of difference. In this view, difference and diversity are existential threats to the nation state, and need to be opposed rather than accommodated. As such, cultural nationalism privileges formal equality over recognition of difference. However, the sub-text of the call for a common national identity is the conflation of such identity with the norms of the dominant group.9 In this, cultural nationalism is as parochial as the non-dominant ascriptive identities it seeks to reject. Given the absence of a European nation, the term cultural nationalism seems inappropriate with respect to the EU. However, there are discourses in the EU especially on the member state level that very much resemble this notion. Stressing the need for a European democracy based mostly on the respective nations as a ‘Europe of Fatherlands’ falls in this category as does, to give another example, playing claims for diversity (particularly those based on feminist or queer theory) off against the democratic principle or the positioning of a Christian Europe vis-à-vis other groups. A common denominator of these narratives both in India and the EU is the growing legitimization of Islamophobia that is now blatantly visible in the public sphere and is no longer subtly projected. We argue in this chapter that all three registers of political discourses around equality and diversity ‒ liberal universalism, pluralism and cultural nationalism ‒ have played a role in mediating the conception and instantiation

8 Nancy Fraser, Social Justice in the Age of Identity Politics: Redistribution, Recognition, and Participation (Tanner Lecture on Human Values 1996) 3. 9 Young (n 4) 97. See specifically, Christophe Jaffrelot, ‘Introduction: The Invention of an Ethnic Nationalism’ in Christophe Jaffrelot (ed), Hindu Nationalism: A Reader (Princeton University Press 2007) 17‒18 (describing the process in the Indian context as follows: ‘Indian culture was to be defined as Hindu culture, and the minorities were to be assimilated by their paying allegiance to the symbols and mainstays of the majority as those of the nation …. [Minorities were exhorted to] “Indianize” ‒ meaning they should adopt Hindu cultural features and assimilate into a “Hindian” nation’).

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of notions of equality and diversity in Indian and European constitutional developments. In what follows, we examine the constitutional choices made (or rejected) in India (Section 2) and the EU (Section 3) in accommodating heterogeneity within a democratic system based on equality. We explore the underlying rationale for these choices – based on notions of liberal universalism, pluralism, or cultural nationalism and the implications of these choices for constitutional discourses within the polity, the democratic possibilities within these heterogenous societies, and the specific rights and entitlements of diverse groups. Equality in a constitutional sense generally comprises of provisions guaranteeing: equal political participation (Section 2/3.A.1), equal rights and freedoms (Section 2/3.A.2), and the (re-)distribution of economic wealth and burdens through taxation and social welfare policies (Section 2/3.A.3).10 These categories are not mutually exclusive. Redistribution of resources, for example, may be key to ensuring the equal ability to participate in the political process, and vice versa. That said, this categorization does serve as a heuristic for the purpose of delineating the types of rights generally recognized in liberal democracies, and we follow this categorization in describing constitutional provisions and developments relating to equality in the two polities. There are of course important differences in how equality discourses have played out in India and the EU respectively. For example, India and the EU come at the question of equality from opposite ends. India set out to create a political community, and was concerned that this would not be possible without social and economic equality. On the other hand, the first equality norms of the EU focused on accomplishing the common market. It is therefore not surprising that both polities focus on specific aspects of equality in their constitutional dimensions. In the conclusion (Section 4), we discuss this and other comparative lessons that emerge from the juxtaposition of the Indian and EU legal frameworks.

2. INDIA 2.A

Constitutional Provisions

The framers of the Indian Constitution sought to accommodate the demands of a heterogenous population with the vision of a common citizenship. Through

10 Thomas Humphrey Marshall, ‘Citizenship and Social Class’ in Thomas Humphrey Marshall, Citizenship and Social Class and Other Essays (CUP 1950) 30f.

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a combination of rights, structures, and institutions, the Constitution recognizes the often-competing claims of equality and diversity. 2.A.1 Equal political participation The foundation of citizens’ equal participation in government is their equal right to vote, which thus provides a universal basic standard of democratic legitimacy. The Indian Constitution recognizes the principle of universal adult franchise as the basis of common citizenship, limited however by certain exceptions. While the colonial state had extended limited franchise to Indians, based on property, tax and educational status,11 the framers of the Indian Constitution made a conscious choice to make universal adult franchise the foundation of the democratic state.12 The Constitution provides for universal adult suffrage and prohibits discrimination on the basis of religion, race, caste, or sex in relation to voting.13 However, it also permits disenfranchisement on grounds of young age, mental incapacity, and criminal conduct.14 Incarcerated persons, regardless of whether they have already been convicted or are awaiting/undergoing trial, are barred from voting.15 Another aspect of equality in political participation is the equal right to stand for political office. India prohibits prisoners, including undertrial prisoners, from contesting in elections.16 Persons convicted of certain offences are barred from contesting in elections for up to six years post release from prison.17 Restrictions on contesting in local body elections on the basis of educational qualifications, number of children, indebtedness, and so on, have also been upheld by the Indian Supreme Court as valid restrictions on political participation, despite the Court acknowledging that some of these restrictions disproportionately disenfranchise women, and members of Scheduled Castes and Scheduled Tribes.18 At the same time, however, the Indian Constitution seeks to secure political representation of these very groups through reservations in the House of the People and in state legislative assemblies for Scheduled

Sixth Schedule, Government of India Act 1935. See generally Ornit Shani, How India Became Democratic: Citizenship and the Making of the Universal Franchise (CUP 2017). 13 Constitution of India, Art. 325. 14 Constitution of India, Art. 326. 15 See Representation of the People Act 1951, s. 62(5) upheld in Ankul Chandra Pradhan v Union of India [1997] AIR 1997 SC 2814. 16 Chief Election Commissioner v Jan Chaukidar [2013] 7 SCC 507. 17 Representation of the People Act 1951, s. 8. See also Lily Thomas v Union of India [2013] 7 SCC 653. 18 See Javed v State of Haryana [2003] 8 SCC 369; Rajbala v State of Haryana [2016] 1 SCC 463. 11 12

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Castes and Scheduled Tribes,19 and additionally for women in institutions of local self-government.20 2.A.2 Rights to equality and non-discrimination The Indian Constitution prohibits the state from denying, to any person, equality before the law and equal protection of the law.21 Indian courts have interpreted the guarantee as one of equal treatment which requires the state to treat likes alike and unlikes differently.22 Therefore, the guarantee of equality implies, first and foremost, that ‘all persons similarly circumstanced shall be treated alike both in privileges conferred and liabilities imposed’.23 As such, the guarantee of equality permits reasonable classifications, but prohibits differential treatment of those that are similarly situated in relation to the concerned state action.24 The guarantee of equality is breached not only when the state engages in hostile discrimination, but also where the impact of the law is discriminatory.25 The Constitution also specifically bars the state from discriminating against any citizen on the basis of her religion, race, caste, sex, or place of birth.26 Similarly, the Constitution guarantees equality of opportunity in matters of public employment27 and specifically bars discrimination on the grounds of religion, race, caste, sex, descent, place of birth, or residence in public employment.28 Further, no citizen can be denied admission into an educational institution that is maintained or aided by the state on the basis of her religion, race, caste, or language.29 The guarantee of equality has also been understood by Indian Courts to prohibit arbitrary state action that is done ‘capriciously, irrationally and/or without adequate determining principle’.30 The Court has reasoned that such arbitrary action is a negation of republicanism since it is based, not on the rule of law, but on the ‘whim and caprice of an absolute monarch’.31

Constitution of India, Arts 330 and 332. Constitution of India, Art. 243D. 21 Constitution of India, Art. 14. 22 See e.g. Gauri Shanker v Union of India [1995] AIR 1995 SC 55. 23 In Re: The Special Courts Bill, AIR 1979 SC 478. 24 See e.g. Ram Krishna Dalmia v Justice S. R. Tendolkar [1958] AIR 1958 SC 538. 25 State of West Bengal v Anwar Ali Sarkar [1952] AIR 1952 SC 75. 26 Constitution of India, Art. 15. 27 Constitution of India, Art. 16(1). 28 Constitution of India, Art. 16(2). 29 Constitution of India, Art. 29(2). 30 Shayara Bano v Union of India [2017] 9 SCC 1. See also, E.P. Royappa v State of Tamil Nadu [1974] 4 SCC 3; Sharma Transport v Government of A.P. [2002] 2 SCC 188. 31 E.P. Royappa, ibid. 19 20

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The Constitution framers recognized that inequality results not only from discrimination by the state, but also from societal exclusion and discrimination. In particular, the experiences of caste discrimination which served to exclude, deprive and marginalize large segments of the population, buttressed the need for placing non-discrimination obligations upon persons and entities other than the state. The Constitution therefore prohibits the imposition of any ‘disability, liability, restriction or condition’ on grounds of religion, race, caste, sex, or place of birth, in relation to access to certain public spaces.32 The Constitution also specifically outlaws the practice of ‘untouchability’ in any form.33 The Indian Constitution recognizes the protection of certain forms of diversity of social life as integral to the guarantee of equality. As a secular state,34 the Constitution not only prohibits the state from discriminating against citizens on grounds of religion, it also provides that ‘all persons are equally entitled to freedom of conscience and the right freely to profess, practice and propagate religion’.35 This is a qualified right however, and is subject to public order, morality, health and other fundamental rights,36 to the power of the state to engage in social welfare and reform, and to regulate secular activities associated with religious practice.37 In addition to the general freedom of religion, the Constitution specially guarantees to religious denominations the right to establish and administer religious and charitable institutions, and to manage religious affairs.38 The Indian Constitution guarantees specific cultural and linguistic rights to religious and linguistic groups, including the right to conserve language, script and culture,39 and, specifically to minorities, the right to establish and administer educational institutions of their choice.40 The state is prohibited from discriminating against such institutions in granting aid.41 Linguistic diversity is protected through other means as well. It is built into the very architecture of Indian federalism since soon after Independence, Indian states

Constitution of India, Art. 15(2). Constitution of India, Art. 17. 34 Constitution of India, Preamble. On the distinctive meaning of secularism in the Indian context see Rajeev Bhargava, ‘The Distinctiveness of India Secularism’ in T.N. Srinivasan (ed), The Future of Secularism (OUP 2006) 20‒53. 35 Constitution of India, Art. 25(1). 36 Constitution of India, Art. 25(1). 37 Constitution of India, Art. 25(2). 38 Constitution of India, Art. 26. 39 This right is not limited to minorities but extends to all citizens that have a distinct language, script or culture. Constitution of India, Art. 29(1). 40 Constitution of India, Art. 30(1). 41 Constitution of India, Art. 30(2). 32 33

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were reorganized, primarily on linguistic lines.42 At the national level, while Hindi and English are the official languages of the Union,43 each state is free to decide upon its own official language.44 Twenty-two languages have been given official status in the Constitution.45 The state is obligated to promote and develop these languages, and a candidate for public service is entitled to appear for examination in any of these languages.46 In addition, the state is obligated to provide adequate facilities for instruction in the mother-tongue at the primary education stage for children belonging to linguistic minority communities.47 A Special Officer for Linguistic Minorities has been tasked under the Constitution for overseeing the implementation of the safeguards provided to linguistic minorities.48 2.A.3 Equality and distributive justice Equal democratic participation and the constitutional guarantee of non-discrimination do not necessarily result in social and economic equality. Neither of these principles determines the standard of fair distribution of resources and burdens. Democratic societies routinely and vociferously argue over how such distribution should take place – the domain of distributive justice. Distributive justice is grounded in the understanding that social and economic difference shapes the ability to exercise rights and to access resources. Equality can therefore only be achieved through redressing the disadvantages associated with group or economic difference, by engaging in group differentiated redistribution of resources, benefits, and burdens. A distributive justice approach to equality requires eschewing formal equality and non-discrimination in favour of substantive equality and positive discrimination towards disadvantaged communities.49 The Indian Constitution envisages a substantive equality approach.50 Recognizing, for example, that caste and gender play an important role in shaping a person’s ability to access opportunities, and the special vulnerabilities associated with such identities, the Constitution specifically permits

See State Reorganization Commission Report 1955. Constitution of India, Art. 343. 44 Constitution of India, Art. 345. 45 Schedule VIII, Constitution of India. 46 Official Language Resolution 1968 (passed by both Houses of Parliament). 47 Constitution of India, Art. 350A. 48 Constitution of India, Art. 350B. 49 Sandra Fredman, ‘Substantive Equality Revisited’ (2016) 14(3) International Journal of Constitutional Law 712. 50 Joseph Shine v Union of India [2019] 3 SCC 39, 151‒52 (Chandrachud J.). 42 43

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the state, as a facet of equality,51 to make ‘special provisions’ for women and children,52 for certain ‘backward classes of citizens’, and for Scheduled Castes and Tribes.53 Apart from authorizing reservations in public employment in general, the Constitution also requires the state to take into account the claims of members of Scheduled Castes and Tribes ‘consistently with the maintenance of efficiency of administration’ in appointments to state posts.54 The Constitution creates Commissions tasked with monitoring the safeguards provided for Scheduled Castes, Scheduled Tribes and Backward Classes.55 The Constitution also provides additional protections for indigenous communities, including through guaranteeing them decision-making autonomy in certain areas.56 The Constitution envisages an interventionist state, one that will take active measures to ensure socio-economic equality through re-distributive and welfare measures. While socio-economic obligations are not judicially enforceable, they are ‘nevertheless fundamental in the governance of the country and it shall be the duty of the State to apply these principles in making laws’.57 These principles, called the Directive Principles of State Policy (DPSP), exhort the state to secure a social order based on social, economic and political justice. More concretely, the state is directed to work towards minimizing inequalities in income, status, facilities and opportunities, and to secure equitable distribution of resources.58 DPSPs place a range of obligations upon the state to ensure the welfare of citizens, and require particular attention to be paid to educational and economic interests of the ‘weaker sections of the people’, including Scheduled Castes and the Scheduled Tribes.59 The state is to protect them from social injustice and all forms of exploitation.60 The tension between formal equality and individual freedom on the one hand, and redistributive justice based on notions of substantive equality, became fraught areas of constitutional contestation from the very beginning.

51 See Indra Sawhney v Union of India [1993] AIR 1993 SC 477 (specifically recognizing that such special provisions are an extension of the principle of equality and not an exception to it). 52 Constitution of India, Art. 15(3). 53 Constitution of India, Art. 15(4). Constitution of India, Art. 16(4) provides that the state can make reservations in public employment for ‘any backward class of citizens’ who are not adequately represented in the services under the state. 54 Constitution of India, Art. 335. 55 Constitution of India, Arts 338, 338A and 340 respectively. 56 See Constitution of India, Pt. X. See also Art. 371A. 57 Constitution of India, Art. 37. 58 Constitution of India, Arts 38(2), 39. 59 Constitution of India, Art. 46. 60 ibid.

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In some of its earliest decisions, the judiciary struck down caste-based affirmative action for violating the principle of non-discrimination along caste lines,61 and economic re-distribution policies for violating the fundamental right to property.62 These competing visions of formal equality and citizenship on the one hand, and distributive justice on the other, were partially settled through constitutional amendments that gave the state the specific power to engage in affirmative action63 and that consistently whittled down the scope of the right to property and ultimately removed it as a fundamental right, entirely.64 However, disputations about the extent of validity of such redistributive policies continues, and the issue of whether a redistributive policy unfairly interferes with the right against non-discrimination and with other individual rights persists in constitutional adjudication.65 Taken together, the Indian constitutional framework provides a range of rights and institutions for ensuring non-discrimination, equality in political representation, recognition and protection of certain forms of diversity, and obligations of equitable redistribution of power, resources and opportunities. 2.B

Mediating Equality and Diversity

Tensions between equality, the supposed imperatives of a homogenous national identity (unity), and claims of diversity show up as often in Indian political discourse as in constitutional claims regarding the scope and extent of the rights and safeguards guaranteed under the Constitution. Such claims tend to invoke the frames of liberal universalism, pluralism, and cultural nationalism in seeking to mediate between the claims of equality and diversity. How these discourses impact constitutional claim-making is of course a function of the social and political nature of India’s society as well as its constitutional foundations. The Chairperson of the Drafting Committee, Dr. BR Ambedkar, was certainly alive to the importance of recognizing social differences in constructing a democracy based on equality. As he warned the nation on the eve

State of Madras v Champakam Dorairajan [1951] AIR 1951 SC 226. Kamehswar Singh v State of Bihar [1951] AIR 1951 Pat 246; State of West Bengal v Bela Bannerjee [1954] AIR 1954 SC 170. 63 Constitution First Amendment Act 1951 (introducing Art. 15(4)). 64 Constitution Forty Fourth Amendment 1978 (repealing Art. 19(1)(f)). 65 See e.g. Jarnail Singh v Lachhmi Narain Gupta [2018] SCC OnLine SC 1641 (on SC/ST reservation in promotions and the creamy layer exception); Pramati Educational Trust v Union of India [2014] 8 SCC 1 (on the relationship between reservations in private educational institutions and the right to occupation under Art. 19(1) (g)). 61 62

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of adoption of the Indian Constitution, the Constitution provides for political equality through the principle of one person, one vote. However, this political equality exists alongside deep social and economic inequality. For him, this ‘life of contradictions’ was unsustainable and would end up destroying political democracy. The new constitutional order therefore had to work towards upending the extant and unequal socio-economic order, if political equality and democracy were to endure.66 To this end, apart from recognizing individual equality and placing requirements on the state for non-discrimination, the Constitution also provides for representation, recognition, and redistribution, as vehicles for ensuring equality without erasing difference. Note that not all differences are treated the same within the Constitution. While caste and gender-based differences are dealt with through strategies of redistribution and political representation, religious and cultural differences have only been provided recognition and protection.67 This is not to imply that pluralism is the constitutional approach to equality in India. Each of the three registers of liberal universalism, pluralism, and cultural nationalism, have shaped constitutional discourses on equality. For example, in the debates around the scope of protection to religious freedom, many framers invoked the idea that the religious identity of citizens should be subjugated to their identity as Indians, so that ‘nationalism, not religion, is the basis of modern life’.68 These approaches did not seek to invalidate religious diversity, but to ensure that the relationship between the state and citizen was not mediated by religious identity. As such, they invoked notions of liberal universalism, and opposed what was seen as ‘the unwholesome, and to some extent, degrading habit of thinking always in terms of communities and never in terms of citizens’.69 Contrast this with the discursive terrain of cultural nationalism. Proponents of this frame emphasized the erasure of difference and the creation of homogenous identity in order to achieve social unity and cohesion, which were themselves seen as essential for the future survival of the polity.70 For

B.R. Ambedkar, Constituent Assembly Debates (25 November 1949) Vol. 11. Gurpreet Mahajan and D.L. Seth (eds), Minority Identities and Nation-State (OUP 1998) 3. 68 S. Radhakrishnan, Constituent Assembly Debates (1 December 1946) Vol. 1. 69 See e.g. G.B. Pant, ‘Statement to Advisory Committee of the Constituent Assembly’ in B. Shiva Rao, The Framing of India’s Constitution: Select Documents – Volume II (Government of India Press 1968) 62‒63. 70 See e.g. Shankarrao Deo, Constituent Assembly Debates (13 September 1949) Vol. 9 (crystallizing the views of those who demanded that Hindi be made the official language of the union both inside and outside the Constituent Assembly). 66 67

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them, distinctions on the basis of group identity were seen as ‘invidious’71 and detrimental to the creation of a common national identity. Within this paradigm, claims based on group identity were seen as ‘special privileges’72 and acceding to such claims is prejudicially termed the ‘policy of appeasement’.73 The Hindu nationalist movement embodies this trend as can be seen right from V.D. Savarkar’s conflation of national and Hindu religious identity and calls for construction of a national identity around ‘Hindi, Hindu, Hindustan’; through M.S. Golwalkar’s call for assimilation of religious minorities into the ‘common national stream of this soil’74 (read: dominant Hindu fold); right up to the currently ruling Bharatiya Janata Party’s (BJP) explicit invocation of the term ‘cultural nationalism’ which conflates Indianness with Hindutva or Hinduness, and which the BJP believes ‘overrides differences of caste, region, religion and language’.75 Within the Constituent Assembly, those subscribing to cultural nationalist views similarly sought the assimilation of diverse groups into one single (Hindi-Hindu) identity. This is perhaps best exemplified by Seth Govind Das, who denounced the fact that we have accepted our country to be a secular state; but we never thought that that acceptance implied the acceptance of the continued existence of heterogenous cultures.76 Two sites which display a continuing tension between equality and recognition of difference are those relating to accommodating religious difference and to caste based affirmative action policies. These are discussed in detail below. 2.B.1 Accommodating religious difference Prior to independence, the British followed a consociationalist model of power sharing between different religious groups. Through a system of separate electorates, each major religious community chose its own representatives to the legislative assemblies. This practice was followed up to 1945 and was the basis of the elections that resulted in the formation of the Constituent Assembly.77 In the Constituent Assembly, while the policy of separate electorates was never seriously entertained, early drafts provided for joint electorates with reserved seats for religious minorities; assurances as to their representation in the Cabinet (through an Instrument of Instructions); provisions requiring the

71 V.D. Savarkar, Presidential Address at the 19th Akhil Bharatiya Hindu Mahasabha (1937). 72 ibid. 73 M.S. Golwalkar, Bunch of Thoughts (Vikrama Prakashan 1966). 74 ibid, 47‒48. 75 Bharaitya Janata Party, Election Manifesto: An Idea Whose Time has Come: India as a Developed Nation and a Great Power (2004) 14. 76 Constituent Assembly Debates (12 September 1949) Vol. 9. 77 Cabinet Mission headed by Lord Wavell, Cabinet Mission Plan (16 May 1946).

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state to consider the claims of religious minorities in making appointments to administrative posts (subject to efficiency); the establishment of a national commission for minorities; and fundamental rights to non-discrimination on the basis of religion, freedom of religion and protection of the cultural and educational rights of religious minorities.78 In subsequent drafts however, the representational and redistributive elements of these proposals were dropped to the extent that they pertained to religious minorities, though they were retained for caste minorities. For religious minorities, the Constitution retained only a guarantee as to the recognition and protection of multiculturalism.79 This shift from consociational models of association to multiculturalism was driven by concerns from both a liberal universalism perspective as well as a cultural nationalism one. On the first view, demarcations based on religion would be detrimental to the secular fabric of the country, and would intensify religious differences at the cost of a common citizenship. At the same time, these provisions were opposed due to fears that religious differences would further weaken the nation, which had just witnessed Partition along religious lines. Religious difference, more than any other form of diversity, was seen as capable of blowing apart the national project. This concern propelled calls for religious minorities to shed differences and assimilate into the mainstream for the greater cause of the nation.80 Debates around the appropriate ambit of recognition for religious difference continue. A recent case decided by the Supreme Court highlights ongoing contestations around this issue. In Abhiram Singh v CD Commachen,81 the Court had to decide whether a candidate for election can appeal to a voter’s religion for seeking votes. The Court held, per majority, that religion has no place in elections, that the secular nature of the Indian Constitution requires that there be no appeals to religion, and that therefore an expansive reading of the prohibition was required.82 As against this formal equality approach, the dissent argued that religious diversity requires mobilization around religion, in order to address questions of subordination on the basis of religious identity. A prohibition on appeals based on the religion of voters can suppress the ability of 78 See e.g. debates in the Constituent Assembly on 14 October 1949, Constituent Assembly Debates Vol. 10. 79 See generally, Mahajan and Seth (eds) (n 67) 3. 80 Aditya Nigam, ‘Text Without Author: Locating the Constituent Assembly as Event’ (2004) Economic and Political Weekly 2107; Rochana Bajpai, ‘Minority Representation and the Making of the Indian Constitution’ in Rajeev Bhargava (eds), Politics and Ethics of the Indian Constitution (2009) 340; Shefali Jha, ‘Secularism and the Constituent Assembly Debates 1946‒1950’ (2002) Economic and Political Weekly 3175. 81 Civil Appeal No(s). 37/1992, 2 January 2017. 82 See also, ibid, Thakur J. concurring.

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candidates to raise such questions in the political arena, and as such can have a disempowering effect on the needs of religious minorities.83 The views of the majority and dissenting judges thus highlight the tensions between liberal universalism grounded in formal equality and common citizenship, and pluralism that accounts for the diversity of social life in understanding the relationship between equality and difference.84 The interplay between equality and diversity is perhaps most severely contested around the issue of the Uniform Civil Code (UCC). In India, family laws including laws relating to marriage, divorce, succession and inheritance, etc., are primarily based on the religious laws of the parties. At the same time, a Directive Principle in the Constitution requires the state to endeavour to secure a ‘uniform civil code’ in India to replace personal laws. Whether or not India should legislate a UCC or continue the system of personal laws, has been one of the most politically sensitive and salient controversies in independent India. Proponents of the UCC argue from positions of liberal universalism as well as cultural nationalism. Defenders of the status quo generally rely on pluralist conceptions to make the case against the UCC. From the perspective of liberal universalism, the proponents of UCC argue that the differential treatment of persons on the basis of their religion violates both the injunction to not discriminate on the grounds of religion, as well as the larger secular nature of the Indian polity.85 Other supporters of the UCC however link it to the ‘cause of the national unity and integration’86 and view the UCC as a much-needed step towards ‘national integration by removing disparate loyalties to laws which have conflicting ideologies’.87 Those who oppose the UCC rely generally on pluralist conceptions of equality, and argue that personal laws are themselves a source of legal pluralism, a cultural artefact, as well as grounded in religious belief and practice. The protection of secularism and diversity therefore requires the state to not intervene in the realm of personal laws for purposes of creating uniformity.88 Within this view, change if any, should be

ibid, Chandrachud J. dissenting. See also, Gautam Bhatia, ‘Two Takes on Democracy’ (The Hindu, 4 January 2017). 85 See claims to this effect in State of Bombay v Narasu Appa Mali [1952] AIR 1952 Bom 84. 86 Sarla Mudgal v Union of India [1995] AIR 1995 SC 1531. 87 Mohd. Ahmed Khan v Shah Bano Begum [1985] AIR 1985 SC 945. 88 See e.g. Flavia Agnes, ‘The Supreme Court, the Media, and the Uniform Civil Code Debate in India’ in Anuradha Needham et al (eds), The Crisis of Secularism in India (Duke University Press 2007) 294. 83 84

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organic and driven by internal dialogue within religious communities, rather than being imposed from the top.89 The debates around the UCC highlight another element in the tension between equality and diversity: that of intra-group heterogeneity and the pressures it puts on minority groups that are seeking to preserve and consolidate their identity.90 In the context of the UCC, those who support the move often point to the gender unjust nature of personal laws to argue that a Uniform Civil Code is required in the interests of women’s equality.91 This question of religious diversity versus intra group (in)equality has most recently surfaced in two cases decided by the Supreme Court. In Shayara Bano v Union of India,92 the Supreme Court invalidated the practice of instantaneous, unilateral divorce (Triple Talaq) by Muslim men. In doing so, the arguments before the Court revolved around the tension between recognizing and preserving religious diversity against claims of gender equality.93 While doctrinally, both the majority and minority opinions diffused the clash by deciding that the claims of religious freedom and equality, respectively, were not valid in the present context, the entire discourse around Triple Talaq was framed in the backdrop of this contestation.94 More recently, another constitutional claim raised a similar tension. Indian Young Lawyers Association v State of Kerala (Sabarimala)95 involved the question of entry of women of menstruating age into the Sabarimala temple where they were prohibited from entering according to religious customs. The petitioners claimed that this prohibition violates women’s right to equality and non-discrimination, and was not protected by the religious freedom rights of those who denied them entry. The majority and minority opinions again split along lines of mediating the competing interests of religious diversity and gender equality.96 While the majority emphasized the importance of gender equality over claims of religious freedom,97 the dissent laid emphasis on reli-

89 See e.g. ‘Bebaak Collective Speak Out Against Triple Talaq and UCC’ (The Wire, 3 November 2016), available at accessed 22 October 2020. 90 See Agnes (n 88); Nivedita Menon, ‘It Isn’t About Women’ (The Hindu, 15 July 2016) (on conflation of UCC with reform of Muslim Personal Law). 91 See e.g. Surjit S Bhalla, ‘No proof required: When liberals are not liberal’ (The Indian Express, 24 October 2016); Ramachandra Guha, ‘Liberals Must Support a Common Civil Code’ (Hindustan Time, 21 November 2016). 92 (2017) 9 SCC 1. 93 See example, ibid, para. 48 (Kehar J.). 94 ibid. 95 (2018) SCC OnLine SC 1690. 96 See e.g. ibid, para 182 (Chandrachud J.). 97 ibid, para 189 (Chandrachud J.).

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gious autonomy as a core feature of the Indian constitutional scheme.98 These debates thus highlight that religious groups are themselves not homogenous, and the rights of minorities within minorities is therefore an additional element of the tension between equality and diversity.99 Another arena where questions of intra-group heterogeneity have increasingly become politically salient is at the intersection between caste and religion. The Constitution did not provide for redistributive measures along religious lines. Affirmative action measures were also not extended to subordinated caste groups within Islam and Christianity, ostensibly on the consideration that these are egalitarian religions which eschew caste practice. However, India is witnessing growing mobilization amongst subordinated caste groups in minority religions, as for example amongst Pasmanda Muslims.100 This mobilization is bolstered by recognition by state constituted commissions that caste structures exist within minority groups,101 as well as the socio-economic disparity, discrimination and disadvantage faced by Muslims.102 Though the question of the constitutionality of extending reservations along religious lines is still pending in the Supreme Court,103 the very possibility of such provisions has become a source of contestation. On the one hand is the concern that extending reservations along religious lines will be detrimental to secularism. On the other is intra-group contestation on whether the benefits of reservations should go to all members of the group, or only to those sub-groups that are socio-economically marginalized.104 2.B.2 Caste and affirmative action The tension between equality and difference is also visible in the debates around caste-centred affirmative action. During the framing of the Constitution, all three registers of concern played out in the debates around affirmative action policies, particularly in public employment. Some voiced the concern that caste-centred affirmative action policies would deepen caste divides and ‘give rise to casteism and favouritism which should have nothing to do in a secular ibid, para 307.8 (Malhotra J. dissenting). Mahajan (n 6) 90, 98. 100 Zoya Hasan, ‘Social Inequalities, Secularism and Minorities’ in Mushirul Hasan (ed), Will Secular India Survive? (OUP 2003). 101 Mandal Commission, Report of the Backward Classes Commission (1980) (recognizing OBCs amongst Muslims). 102 Report of the High-Level Committee on Social, Economic and Educational Status of the Muslim Community of India (Sachar Committee Report) (2006). 103 State of A.P. v T. Muralidhar Rao [2010] C.A. No. 2628-2637/2010. See also Sanjeet Shukla v State of Maharashtra [2014] SCC OnLine Bom 1672. 104 Harish Wankhade, Secularism and Social Justice: Religious Minorities and Pursuit of Equality 291‒92 (unpublished thesis). 98 99

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State’.105 Public employment should therefore be made on ‘merit and qualification, and no concession whatever should be allowed to any class on the plea that the same happens to be backward’.106 Arguing against this proposition, Ambedkar defended affirmative action policies on the ground that the demand for unfettered equality of opportunity has to be reconciled with ‘the demand made by certain communities that the administration which has now ‒ for historical reasons ‒ been controlled by one community or a few communities, that situation should disappear and that the others also must have an opportunity of getting into the public services’.107 Affirmative action in education was challenged immediately after the Constitution came into force, on the ground that caste-based affirmative action violated the prohibition on discrimination on grounds of caste. The court upheld this claim, and struck down the affirmative action measure.108 This prompted Parliament to amend the Constitution and specifically provide for affirmative action, notwithstanding the clause on non-discrimination.109 Subsequently, the Court has grappled time and again with the scope of affirmative action policies. In the initial years, it tended to see affirmative action as an exception to the norm of formal equality. As such, these policies were interpreted restrictively, and their scope was circumscribed to prevent ‘reverse discrimination’.110 It was only in the 1970s that the court recognized affirmative action policies as integral to the conception of equality, and not abhorrent to it.111 The Court has come to recognize affirmative action as a matter of ‘parity, and not charity’ and as a ‘democratic principle to provide representation to the castes hitherto remained unrepresented in the governance of the country’.112 Thus, for liberal universalists, caste-centred affirmative action is problematic since it privileges group membership over supposedly neutral ‘merit’ and therefore denies formal equality of opportunity to all. Proponents of such views are not necessarily against affirmative action per se. They may advocate for affirmative action policies that are based not on ascriptive identities but

Damodar Swarup Seth, Constituent Assembly Debates (30 November 1948) Vol.

105

7.

ibid. B.R. Ambedkar, Constituent Assembly Debates (30 November 1948) Vol. 7. 108 State of Madras v Champakam Dorairajan [1951] AIR 1951 SC 226. 109 Constitution of India, Art. 15(4). 110 See e.g. Balaji v State of Mysore [1963] AIR 1963 SC 649 (treating Art. 15(4) as an exception to 15(1)). 111 State of Kerala v N.M. Thomas [1976] AIR 1976 SC 490; Indra Sawhney v Union of India [1993] AIR 1993 SC 477; M. Nagaraj v Union of India [2007] AIR 2007 SC 71. 112 K.C. Vasanth Kumar & Another v State of Karnataka [1985] AIR 1985 SC 1495. 106 107

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on supposedly neutral criteria like economic ability.113 On the other hand, the proponents of caste-centred affirmative action reject any formal conception of equality of opportunity. They point to the historical and continuing patterns of social inequality and disempowerment which shape and structure the ability of members of subordinated caste groups to access, in any meaningfully equal way, the opportunities available in the public space.114 For them, the purpose of affirmative action is to redistribute power and opportunities to those previously excluded from such spaces so as to break the extant patterns of exclusion and exploitation, and to restructure state power and priorities so that the state meaningfully takes into account the experiences, needs and interests of marginalized groups.115 In this way, affirmative action not only accounts for the diversity and incommensurability of social experience, but is also fundamental to the democratic project itself. Importantly, in this view, the rationale for affirmative action is broad-basing power and opportunities. As such, affirmative action has to be based on ascriptive identities. Affirmative action based on economic criteria does not suffice to address these concerns. Cultural nationalists oppose caste centered affirmative action on the ground that such measures divide up society along caste lines, by making caste identities visible and salient. Thus, such affirmative action is seen as a divisive force in the quest for cultural homogeneity.116 India made the constitutional choice to recognize caste difference and to ensure representation of Scheduled Castes and Tribes in electoral processes as well as in those activities that were seen as directly tied to socio-economic power and opportunities: education and public employment. Other Backward Classes (OBCs) have also been assured certain forms of reservations. ‘Backwardness’ is not measured on the basis of caste alone, though given the prevalence of caste in mediating such forms of ‘backwardness’ it remains the predominant factor.117 The economically well off amongst the OBCs, called the ‘creamy layer’, are excluded from the scope of reservations.118 This exclusion is based on the concern that intra-group heterogeneity will mean that the benefits of 113 See e.g. Indra Sawhney v Union of India [1993] AIR 1993 SC 477; Dayaram Verma v State of Gujarat [2016] SCC OnLine Guj 1821. 114 See Lyndon B. Johnson, ‘To Fulfill these Rights’ speech delivered on 4 June 1965 (Howard University). 115 Gail Omvedt, ‘The Purpose of Reservation – I’ (The Hindu, 24 March 2000), available at accessed 22 October 2020. 116 Perhaps the most prominent example of viewing caste-based protective differentiation as such a threat is Gandhi’s fast unto death in response to the proposal to separate electorates for marginalized castes, resulting in the Poona Pact. 117 Indra Sawhney v Union of India [1993] AIR 1993 SC 477. 118 ibid.

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affirmative action policies will be restricted to the economically well-off amongst the subordinated groups.119 On the other hand, those who oppose such ‘creamy layer’ exclusion point out that affirmative action is a mechanism for sharing power with groups that have hitherto been excluded from the mainstream, and to give them a voice in the governance of the country.120 For this reason, exclusion of the creamy layer hampers the ability of a group to participate and assert itself in national life. Recently, however, the Supreme Court has extended the concept of ‘creamy layer’ exclusion to Scheduled Castes and Scheduled Tribes, too, on the reasoning that not taking into account the heterogeneity within these communities would result in treating unequal equally, which is a denial of the principle of equality.121 Affirmative action, particularly in political representation, has changed the fundamentals of the Indian political landscape. Political mobilization around caste has led to greater assertion by subordinated caste groups, and has increased the responsiveness of the state to their demands.122 At the same time, two pressures are likely to re-shape the future of affirmative action policies centered around caste. One, with the opening up of the Indian economy, and the increasing privatization of education and employment, restricting such policies to public sector institutions, is leading to the exclusion of subordinated caste groups from market activities. There has been great resistance to the extension of affirmative action obligations on private employers and institutions. The Supreme Court initially rejected such extension,123 but after an explicit constitutional amendment to this effect,124 has now accepted that placing affirmative action obligations on private educational institutions is constitutional.125 Affirmative action in private employment, at least in the form of reservations, has not been attempted so far, and faces strong resistance politically. Two, politically powerful and mobilized groups that otherwise do not meet the criteria for ‘other backward classes’ have been agitating for their inclusion into the list of OBCs, so as to reap the ‘benefits’ of reservation. Groups like the Patidars, the Marathas, and the Jats have mobilized around the country, State of Kerala v N.M. Thomas [1976] AIR 1976 SC 490. B.R. Ambedkar, Constituent Assembly Debate (30 November 1948) Vol. 7; K.C. Vasanth Kumar & Another v State of Karnataka [1985] AIR 1985 SC 1495 (both stating that reservations are a method of giving excluded communities voice in the governance of the country). 121 Jarnail Singh v Lachhmi Narain Gupta [2018] SCC OnLine SC 1641. 122 Christophe Jaffrelot, India’s Silent Revolution: The Rise of Lower Castes in North India (Columbia University Press 2003). 123 TMA Pai Foundation v State of Karnataka [2003] AIR 2003 SC 355. 124 Constitution of India, Art. 15(5). 125 Pramati Educational Trust v Union of India [2014] 8 SCC 1. 119 120

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often expressing their demands through violent means, to claim inclusion as OBCs. This form of political mobilization does not rely on social inequality and difference as a criterion for seeking recognition, but on brute political and physical force. These cases have translated into constitutional claims before courts, and in recent years the judiciary has had to grapple with the scope, extent and beneficiaries of affirmative action policies. The judiciary has so far struck down affirmative action policies designed to extend benefits to such groups, but has articulated its decision, not on substantive considerations, but on the lack of adequate data presented by the state to support the claim that such groups are indeed backward.126 Claims for inclusion into the OBC list come from various quarters, including, recently, from religious minority groups. Expanding the list of OBCs will put pressure on the scarce resources available for OBCs in the first place. But such claims also highlight inherent tensions between the expansive recognition of difference on the one hand, and the resultant intra-group heterogeneity, which reduces the ability of the more subordinated within the larger group from effective group representation and access. Overall then, the contestations and disputations regarding the framing and scope of constitutional provisions relating to equality have tended to take place within the three frames of liberal universalism, pluralism, and cultural nationalism. Both liberal universalism and cultural nationalism favour formal equality and push towards assimilation of diverse identities into a homogenous/ universal citizenship; whereas pluralist models aspire towards accommodation of differences through policies of recognition and re-distribution (as appropriate) rather than their erasure from the legal imagination.

3.

EUROPEAN UNION

The tension between liberal universalism and pluralism also can be used to describe a structural transformation in the constitutional protection of equality that has deeply affected the equality paradigm in the constitutional law both of the EU and its member states. We will trace the development of this paradigm change in two steps and put particular emphasis on how it relates to different notions of democracy. Finally, we will also show that – while the concept of cultural nationalism does not seem to fit the EU as a supranational entity – 126 Ram Singh v Union of India [2015] 4 SCC 697 (striking down notification which included Jats within the central list of backward classes for certain states); Sanjeet Shukla v State of Maharashtra [2014] SCC OnLine Bom 1672 (striking down Ordinance extending reservations to Marathas); Dayaram Verma v State of Gujarat [2016] SCC OnLine Guj 1821 (striking down extension of affirmative action policies to economic weaker sections in wake of the Patidar agitation).

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there are discourses especially on the member state level that affect the EU as a whole and therefore clearly relate to this concept. 3.A

Constitutional Provisions

The three pillars of a liberal model of democratic equality – equal political participation, equality and non-discrimination, and distributive justice – do not describe the function of the equality paradigm in European constitutional law. How and why things are different when it comes to the EU is explored below. 3.A.1 Equal political participation Though the equal right to vote is considered the main legal element of citizenship, exclusions from the vote have a long and storied history in Europe. The exclusion of the poor, of prisoners, and of course women from popular vote, for instance, was a widely shared rule in 19th century Europe. The English constitutional theorist Albert Venn Dicey at the beginning of the 20th century still defended the idea that nobody who lives on social benefits could be entitled to actively participate in democratic politics.127 Many of these limitations have been overthrown during the last 150 years. The exclusion of prisoners (felony disenfranchisement) has survived much longer and is still in effect in Great Britain in spite of the ECHR’s ruling in Hirst v United Kingdom (No 2), which declared a general disenfranchisement of prisoners in Great Britain a violation of Article 3 of the First Protocol,128 which stipulates free elections ‘under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature’. At the EU level, the EU does not know an equal right to vote for all its citizens. Rather, the European Parliament is elected on the basis of national election laws country by country with only some minor restrictions established by the Act concerning the election of the representatives of the European Parliament by direct universal suffrage (1976). The right of EU citizens to participate in elections in other member states is restricted to the local level.129 Initiatives to secure equal access to political offices for women have led to electoral gender quotas in eight member states.130 At the EU level, such con127 Albert Venn Dicey, ‘Lectures on the Relation between Law and Public Opinion in England during the Nineteenth Century’ (1917). 128 [2005] ECHR 681, (2006) 42 EHRR 41. 129 Christoph Grabenwarter, ‘National Constitutional Law Relating to the European Union’ in Armin von Bogdandy and Jürgen Bast (eds), Principles of European Constitutional Law (2nd edn, Hart 2010). 130 A prominent example is France: Loi constitutionnel No. 99–569 du 8 juillet 1999 relative à l’égalité entre les femmes et les hommes, [9.7.1999] Journal officiel 157, 10175.

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cerns have not been translated into binding measures, but made the subject of various soft law mechanisms such as action programmes.131 3.A.2 Rights to equality and non-discrimination Beyond the scope of universal suffrage, constitutional rights to equality and non-discrimination do not define citizenship but the broader civil status of every member of a democratic society. In this respect, too, the notion of equality has changed considerably over time. European national democracies of the 19th and 20th centuries were mainly concerned with the political and legal equality of the members of the democratic people and hence explicitly allowed for the discrimination against non-members in terms of social benefits or taxation. Democratic equality in the European nation state, for the most part, necessarily included the legitimacy of exclusions based on citizenship. And still, the idea of equality as non-discrimination which spread widely in constitutional law since World War II and forbids distinctions on the basis of race, gender, religion, does not cover discriminations on the basis of citizenship. This point marks the key difference in the anti-discrimination paradigm and its notion of equality embraced by EU law. In its founding years and up until 1999 the European Economic Community focused on preventing discrimination on the grounds of nationality and sex which were part of the Treaty of Rome in 1957. Firmly rooted in the law of the single market, EC equality and anti-discrimination law were initially restricted to prohibiting ‘any discrimination on grounds of nationality’ (Article 6 TEC) and discrimination on the grounds of sex in the employment context (Article 157 TFEU, ex Article 141 TEC). The instrumental nature of equal treatment in this context became apparent in the restraint of EU law when faced with reverse discrimination (for example ‘purely internal’ activities without a connecting factor to EU law, where member states discriminated against their own nationals).132 A more direct commitment to the political agenda of equality and anti-discrimination was only made in 1999, when the Commission introduced a ‘package’ of four instruments that comprised first a communication on

131 On 14 July 2013 the European Parliament adopted the report ‘Improving the practical arrangements for the holding of the European elections in 2014’ drafted by (AFCO). The report calls upon MS and political parties to support female candidates, but does not require quotas or other mandatory means to secure this. See, generally, Johanna Kantola, Gender and the European Union (Palgrave Macmillan 2010) 61 et seq. 132 For a detailed analysis of the concept and the ECJ’s handling of reverse discrimination see Johanna Croon-Gestefeld, Reconceptualising European Equality Law (Hart 2017) 119 ff.

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certain Community measures to combat discrimination (COM[1999]564 final); secondly a Directive to establish a general framework for equal treatment in employment and occupation (the ‘horizontal’ labour market Directive 2000/78/EC); thirdly a Directive to implement the principle of equal treatment between persons irrespective of racial or ethnic origin (Directive 2000/43/EC) and finally a decision to establish an action plan to combat discrimination (Council Decision 2000/750). From here, it has successively developed to include a general protection against all forms of discrimination that is applicable whenever EU law is applied. Now, the anti-discrimination law of the EU as laid down in Article 21(1) of the Charter of Fundamental Rights of the European Union (CFR) prohibits ‘any discrimination based on any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation’. In a nutshell, these programmes entailed not only an EU-specific approach to the regulation of equality in the fields within reach of EU powers, but more generally the vision of a constitutional equality paradigm for that pluralistic post-national democratic polity the single market was supposed to bring about: Based on social groups rather than on exclusive citizenship, explicit equality politics rather than a formal status of equal freedom. Against this backdrop, the Commission’s anti-discrimination policy of the early 2000s was maybe the most ambitious part of its effort to build a European democratic identity. This paradigm change can also be traced in primary law. Over time and several Treaty revisions, the concept of equal treatment has gradually emancipated from its economic and therefore instrumental origins and the principle of equal treatment has become entrenched within the Treaties. Article 2 of the Treaty on European Union (TEU) sets out the values on which the EU is founded and names ‘equality’ and ‘the rights of persons belonging to minorities’ as two of them. Article 3(3) TEU includes combatting discrimination, equality between women and men, and respecting cultural and linguistic diversity as objectives of the European Union. The Charter of Fundamental Rights contains a specific chapter on equality that is composed of a general principle of equal treatment (‘Everyone is equal before the law.’, Article 20 CFR), a broad principle of non-discrimination prohibiting any discrimination based on grounds such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation (Article 21[1] CFR) and several provisions that address specific forms of discriminations and inequality. More specifically, the objective to realize gender equality is expressed throughout the Treaties. In addition to Article 3(3) TEU (objectives) and Article 157(1) TFEU (principle of equal pay for men and women), Article 8 of the Treaty on the Functioning of the European Union

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(TFEU) stipulates that ‘[i]n all its activities, the Union shall aim to eliminate inequalities, and to promote equality, between men and women’. Finally, Article 23 CFR (and with slightly different wording Article 157[4] TFEU) explicitly refers to ‘measures providing for specific advantages in favour of the under-represented sex’. 3.A.3 Equality and distributive justice Distributive justice, too, is addressed differently by EU law. The charter of fundamental rights, in effect since the Treaty of Lisbon, has introduced a set of social rights to EU constitutional law133 such as a recognition of the entitlement to social security benefits and social services (Article 35 CFR). Yet, as the EU does not hold any power of taxation or any other substantial power on the field of social welfare, those guarantees cannot stipulate much political action on the European level. The politics of distributive justice, hence, is, by principle, a reserved domain of the several member states. As Mark Dawson and Florin de Witte have put it: ‘At the start of the integration project, indeed, it was thought that this idea of substantive balance, which was indispensable to ensure acceptance of the economic integration project on the national level, could be achieved by simply leaving distributive policies to the nation states, where robust political systems could ensure the generation, accommodation and mediation of different voices and interests. In other words, economic growth would be achieved on the transnational level by the creation of a single market, while the distribution of resources would remain within the domain of national political discourse.’134 Finally, an analysis of the case law on the enjoyment of social benefits in host member states reveals that the European Court of Justice assumes rather strict limits to equal treatment of EU citizens. In a first phase of its adjudication the Court laid heavy burdens on the exclusion of foreign EU nationals from member states’ welfare benefits and seemed inclined to prohibit any form of ‘democratic welfare nationalism’.135 However, it later on changed its course and held that the member states were entitled to reserve certain assistance

133 In general, see, Mark Tushnet, Weak Courts, Strong Rights: Judicial Review and Social Welfare Rights Comparative Constitutional Law (Princeton University Press 2008). 134 Mark Dawson and Floris de Witte, ‘Constitutional Balance in the EU after the Euro-Crisis’ (2015) The Modern Law Review 76, 817, 823; Armin Hatje, ‘The Economic Constitution Within the Internal Market’ in Bogdandy and Bast (eds) (n 129) 609‒11. 135 Case C-184/99 Grzelczyk [2001] ECR I-6193; Case C-456/02 Trojani [2004] ECR I-7573; Case C-209/03 Bidar [2005] ECR I-2119.

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measures for their own nationals.136 While the member states welcomed the decisions as acknowledgement of their sovereignty, some commentators criticized them for undermining the solidarity and inclusive dimension of Union citizenship.137 3.B

From Economic Integration to Political Community

The departure of the EU from the liberal model of democratic equality stems from the absence of the institutional features of democratic representation the first and third pillars of the liberal model presuppose. Unable to rely on equal representation and redistributive policies, the political construction of the status of European citizenship therefore mainly depends on the second pillar: equality and non-discrimination. Seen this way, the European law of anti-discrimination and equal protection is all but purely economic and deeply connected to the democratic question of European integration. Due to its origins in the European Economic Community, EU equality policy has developed in an economic context to further European integration by protecting foreign companies and migrant workers that used their fundamental (economic) freedoms within the internal market. The Treaty establishing the European Community (TEC) of 1957 sought to establish equal treatment between the means of production within the internal market: labour, capital, and goods. The constitutional function of the principle of equal treatment in this context was clearly instrumental: individual rights were conceived as a technique to construct a transnational market. Issues of political freedom and equality were beyond the scope of EU law as were matters of welfare and social justice. The construction of a European democratic identity only started to trouble European policy makers in the aftermath of the Treaty of Maastricht (1992).138 Over time, however, the concept of equal treatment in EU law underwent a process of constitutionalization. An alternative, non-instrumental and distinctly political concept of equal treatment emerged which, by the time when the Treaty of Lisbon came into force, was an essential part of the protection of EU citizens. The European Court of Justice has recognized equal treatment as one of its general principles of law and held as early as 1978 that

136 Case C-333/13 Dano [2014] ECLI:​EU:​C:​2014:​2358; Case C-67/14 Alimanovic [2015] ECLI:​EU:​C:​2015:​597; Case C-299/14 Garcia Nieto [2016] ECLI:​EU:​C:​2016:​ 114. For a detailed overview on the relevant case law see Croon-Gestefeld (n 132) 91‒100. 137 Niamh Nic Shuibhne, ‘Limits Rising, Duties Ascending: The Changing Legal Shape of Union Citizenship’ (2015) CML Rev 52, 889‒930 ff. 138 Joseph H.H. Weiler, ‘Fin-De-Siècle Europe: Do the New Clothes Have an Emperor?’ in Joseph H.H. Weiler, The Constitution of Europe (CUP 1999) 238‒63.

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non-discrimination on the ground of sex forms a part of the ‘fundamental human rights’ that are protected by the Court.139 The widening scope of constitutional anti-discrimination thus reflects the Union’s transformation from a regional economic integration project to a fragmented political community. With the development of EU citizenship as well as the rise of transnational solidarity conflicts in the course of the financial and economic crisis as well as the current refugee crisis, issues of equality and solidarity are becoming more and more important for the political process and the finality of European integration. Thus, the EU’s so-called social policy is in large part equality policy. As we have stated above, public discourse and the case law of the European Court of Justice are characterized by conceptual tensions that relate to the frames of liberal universalism and pluralism. These tensions can be described as: (1) an individualistic vs. collective, and (2) a formal vs. substantive concept of equality. A case in point of how these tensions play out in practice is the European Court of Justice’s case law on affirmative action for women.140 As has already been demonstrated above, the intention to realize equality between women and men is expressed throughout EU primary and secondary law.141 In its decisions, the European Court of Justice tried to balance the competing demands of the different concepts of equality. According to this case law, affirmative action for women is in accordance with EU law, if the respective measure is based on an objective, individual assessment and grants preference only to those women, who possess equivalent merit as their male co-applicants.142 In taking this stance, the Court tries to find middle ground and to mitigate the tensions by both putting forward a reading of equality as an individual right and stressing the concept of ‘equal opportunity’, whilst also allowing for a collective dimension and refraining from any further elaboration on (or application of) the concept of equal opportunity.143 Another example of how the Court of Justice of the EU tries to balance the competing paradigms of liberal universalism versus pluralism in a suprana Case C-149/77 Defrenne v Sabena [1978] ECR I-1365, 26, 27. Case C-450/93 Kalanke [1995] ECR I-3051; Case C-409/95 Marschall [1997] ECR I-6363; Case C-158/97 Badeck [2000] ECR I-1875; Case C-407/98 Abrahamsson [2000] ECR I-5539; Case C-366/99 Griesmar [2001] ECR I-9383; Case C-319/03 Briheche [2004] ECR I-8807. For a detailed account of the relevant case law see Croon-Gestefeld (n 132) 171‒83. 141 Directive 2002/73/EC of the European Parliament and of the Council of 23 September 2002 amending Council Directive 76/207/EEC of 9 February 1976 on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions [2002] OJ L 269/15. 142 Croon-Gestefeld (n 132) 183. 143 For a detailed analysis see Croon-Gestefeld (n 132) 183 f. 139 140

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tional setting that is highly influenced by instances of cultural nationalism, is the Court’s adjudication on Islamic headscarves. The wearing of religious apparel in public is a highly contentious issue in the EU. The member states’ positions on this topic differ significantly since the status of the different religious communities towards the state is very different between the respective national traditions reaching from extreme secularism (France) to full religious freedom under an established church (England). Hence, equal recognition regardless of religion means very different things, each within the scope of the EU non-discrimination principle. In 2017, the European Court of Justice handed down two landmark judgments on workplace headscarf bans and basically held that such a ban can be legal, if it is based on internal company rules requiring all employees to ‘dress neutrally’.144 As for the justification of ‘a genuine and determining occupational requirement’ that Article 4(1) of the Employment Equality Directive sets up for different treatment that is directly based on religion, the Court held that the mere willingness of an employer to take account of a customer’s wish not to be served by a worker wearing an Islamic headscarf, cannot be classified as an occupational requirement in the sense of the Directive.145 3.C

The Limits of Equality

The catalogue of personal attributes which EU law finds to make any discrimination unlawful, is more comprehensive than any constitutional non-discrimination provision of the national level. However, the European law of equality is all but comprehensive itself. 3.C.1 Implementation by member states and courts The most significant characteristic of EU anti-discrimination law is the fact that it lacks a robust definition of both the protected groups and possible justifications for necessary inequalities, giving member states’ legislatures and courts discretion and the CJEU a determinative role in shaping the concrete meaning of concepts like race, ethnicity and religion. This implies a basic division of labour between equality in the EU and in the member states: The member states remain important places to deal with certain issues of equality. 144 Case C‑157/15 Achbita [2017] ECLI:​EU:​C:​2017:​203, paras 29–32; Case C-188/15 Bougnaoui [2017] ECLI:​EU:​C:​2017:​204, paras 31‒32, 34. 145 Case C-188/15 Bougnaoui [2017] ECLI:​EU:​C:​2017:​204, para 40 f. For details, see Elke Cloots, ‘The CJEU’s headscarf decisions: Melloni behind the veil?’ (VerfBlog, 17 March 2017), available at , DOI: accessed 22 October 2020.

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We just mentioned the example that EU member states differ markedly in their relationship with religion. Secondly, EU law typically only tackles these aspects of equality where the issue at stake also affects other aspects of market integration. For example, the CJEU has very recently held in a highly disputed ruling that an employer’s prohibition on wearing an Islamic headscarf does not necessarily constitute direct discrimination based on religion or belief, if it applies regardless of any particular religion and if it is objectively justified by a legitimate aim, such as the pursuit by the employer of a policy of political, philosophical and religious neutrality in its relations with its customers.146 3.C.2 Equality and anti-discrimination law and the politics of welfare The cited case demonstrates very clearly that the economic origins of EU anti-discrimination law still lurk beneath the new surface of EU equality policy. In the jurisprudence of the CJEU only a few discrimination cases extend beyond economic goods, most of them in fact appear in the context of housing and employment. In this context, the EU perspective certainly is a very specific one that must be read and seen against the background of its supranational character and its origins as a project of regional economic integration. It is widely agreed that European constitutionalization has introduced a strong ideological bias into human rights law on the fields of economic freedoms and the ‘economic constitution’ in a broader sense. In a situation which since the 1980s and with recent minor counter movements until today is characterized by the retreat of the state from welfare functions, transnational constitutional law thus has opened room for corporate interests and political elitism.147 It is no question that by implementing the primacy of the market, this transnationalization significantly restricts policy choice, thereby narrowing the scope for legitimate, democratic politics. The result that has particularly been ascribed to the European Union is a process of constitutionalization that seeks to separate economic policy from political accountability and makes governments more responsive to market forces than to the democratic process: Hence, it has repeatedly been bemoaned that supranational decision-making does not replace national democratic deliberation with transnational or supranational democratic deliberation. To overcome the boundaries of the nation state, not just the European transnational market but also European transnational democracy needs strong

Case C‑157/15 Achbita [2017] ECLI:​EU:​C:​2017:​203. See Howard Glennerster, ‘The Sustainability of Western Welfare States’ in Stephan Leibfried et al (eds), The Oxford Handbook of the Welfare State (OUP 2010) 698. 146 147

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anti-discrimination policies. Within any democratic polity, discriminations based upon the belonging to major social groups as well as sub-entities of that polity forcibly have to be banned by constitutional law. The goal of full ‘democratic’ equality therefore needs a powerful endorsement through provisions on ‘social’ equality. In this respect, anti-discrimination law seems perfectly suitable to tame national chauvinism and to reconcile competition with solidarity. First of all, anti-discrimination law is normatively (and morally) very appealing. It protects people who bear certain characteristics from disadvantage in the context of the provision of goods and opportunities, notably both from private actors and the state. The promotion of EU anti-discrimination law is not surprising, bearing in mind that it is a part of social policy and the significance of the ‘politics of welfare’148 for the project of European integration. It prevents the member states from using their remaining broad powers in the fields of economic policies, social benefits and welfare infrastructure as a means of exclusion. Lacking major substantive powers in this field, the EU itself is unable to exercise similar policies on the supranational level. 3.C.3

Anti-discrimination law and policy as ‘negative’ constitutionalization? There is, however, one remaining large democratic shortcoming of European equality constitutionalism when it comes to social welfare policies. At the present state of European integration, it remains a prerequisite of the European and hence transnational polity that anti-discrimination basically consists in the legal ban (and the moral scandalization) of all affiliations except to the supranational polity. In this context, it has been shown that – due to its origins in the law of the Common Market – the anti-discrimination paradigm first of all leads to the prohibition of all non-economic distinctions. With other words: anti-discrimination law itself systematically discriminates against those who – for example for reasons of commitment to tradition or simply of character – cannot or fail to adapt to the logic of the market. Essentially tied to normative universalism, European transnational democracy is based in no small part on the logic of anti-discrimination law and, hence, by nature cannot recognize privileges of especially national or religious groups except under the affirmative action scheme. The spread of anti-discrimination law can therefore be described in some respect as a complementary process under the transnational implementation of state-run market liberalism, maybe opposing its moral intentions. The scandalization of all non-economic distinctions makes wealth (or economic differences) the only legitimate category of distinction. Equality is no longer Chatterjee (n 2).

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merely a formal status of citizenship but a function of individuals engaged in regulated economic competition. It is this other side of anti-discrimination that cannot be neglected in the analysis of the European transnational democracy: democracy on the EU level is also a democracy which has hitherto failed to make any sense of the normative distinction between the political and the economic side of social existence and which, hence, has rightly been called a ‘neo-feudal’ constitutional architecture. It gives a strong explanation for the political endorsement of the ‘neoliberal’ human rights discourse and its case for fundamental human rights prevailing over majoritarian politics, allowing, for example, for a highly contestable conception of property rights to prevail over democratic legislation. EU democracy with an anti-discriminatory basis in this sense is the constitutional reflection of borderless economies: a democracy based on ‘abstract’ market style individualism rather than the self-determination of social groups. The analysis of the anti-discrimination paradigm’s constitutional ambiguities sketched so far does not however necessarily end up in resignation over the political (in a substantial sense) chances for transnational European democracy. Rather, the analysis shows the normative sub-text of the fundamental hiatus brought up by the present transition: Whereas the responsible political institutions remain essentially national, their regulatory scope on the fields of welfare and social politics is increasingly entrenched by the transnational ‘constitutional protection of capitalism’.149 We can describe the setting as a form of ‘negative’ constitutionalization.150

4. CONCLUSIONS The conceptions of equality – why, of whom, with respect to what, and guaranteed to what extent – are based on the nature of political discourses on the relationship between the polity and the individual. We have argued that three registers of discourses – liberal universalism, pluralism, and cultural nationalism – understand this relationship in three distinct senses and thereby shape the overall understanding of equality and its relationship to diversity in a democratic society. India and the EU come at the question of equality from opposite ends. While the EU’s concept of equality evolved from a market-serving function to a constitutional right of a political community, India set out to create a political community, but was concerned that political community would not be possible without social and economic equality. Thus, the Indian Constitution recog-

Danny Nicol, The Constitutional Protection of Capitalism (Hart 2010). Fritz Scharpf, Governing in Europe: Effective and Democratic? (OUP 1999).

149 150

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nizes and accommodates social difference, both through protecting certain markers of diversity, and through mandating re-distribution to ameliorate the effects of invidious markers of difference. However, the pressure to shift from accommodation of diversity to its assimilation and erasure is continually being exerted, both from liberal universalist and cultural nationalist perspectives. In the EU, the European Court of Justice has tried to mitigate the competing demands of different concepts of equality (individual/collective, formal/substantive) in its case law and has shied away from making a clear commitment to affirmative action or a concept of substantive equality. At the same time, discourses at the member state level that are clearly based on cultural national tropes, put pressure on a supranational concept of equality and non-discrimination. Putting forward the notion of a ‘Europe of Fatherlands’ or calls for restrictions on the free movement of workers within the EU put core elements of the common market and the corresponding equality rights under pressure of what we have called cultural nationalism. Thus, the vision of equality remains a contested terrain in both polities, but equality itself can be seen on all three registers as being integral to the respective projects. An aspect that deserves special attention is the close relationship between the different dimensions of constitutional equality and the market. More recently, with the liberalization and privatization of the Indian economy, the market has come to play an increasingly important role in the allocation of opportunities, resources and power. The existing Indian constitutional and legal framework contains limited scope for extending equality, non-discrimination and redistribution obligations to the market. The experience of the EU, based primarily on economic integration, showcases the perils of limiting the understanding of equality to non-discrimination within a market setting. Without entrenching a distributive justice framework within the market, it is likely to become the source of the very inequalities that the framers of the Indian constitution sought to avoid and that the EU surely does not want to be associated with. Chatterjee’s observation that highlights the antagonism between political unity and a formal concept of equality (liberal universalism) on the one hand and the demands of cultural diversity (pluralism) on the other proves to be a very accurate description not just of Indian, but also of the current challenges of European democracy. Here, anti-discrimination law seeks to ban all regulatory measures based on any affiliation except to the supranational polity, thereby – paradoxically – making those affiliations legally explicit in the first place. At the same time the emergence of the EU as a political community raises a plethora of issues of cultural identity and differential treatment, whereas because of its genealogy and inherent logic its equality

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paradigm cannot embrace the collective notion of equality.151 Due to its origins as a project of regional economic integration, these issues do not include culturally contested areas like religious diversity or cultural diversity, which are dealt with on the level of the member states. Thus, the relationship between anti-discrimination law and democracy proves to be more than ambiguous since democratic choices are closely linked to cultural identity.

151 See Susanne Baer, ‘Equality’ in Michael Rosenfeld and András Sajó (eds), The Oxford Handbook of Comparative Constitutional Law (OUP 2012) 982, 983.

PART II

Select issues

5. Electoral systems and representation Aditi and Jelena von Achenbach 1.

INTRODUCTION: ISSUES OF ELECTIONS AND ELECTORAL LAWS IN A COMPARATIVE PERSPECTIVE

The laws governing the election of lawmakers are at the core of ‘the law of democracy’:1 the electoral system draws the lines of political inclusion and exclusion. It defines whose, which and how political preferences are represented in decision-making processes. Thus, the laws governing elections shape political empowerment and political outcomes. Against this backdrop, choice of electoral systems often is regarded as a strategic decision rather than a technical one, with the preference eventually having considerable effect on the socio-political linkages formed, and the nature of governing structures so constructed. As such, social context, and objectives sought to be achieved from the chosen system, play a pivotal role in making the choice. The said objectives may evolve gradually however, warranting a change in the systemic preferences. However, in most cases the experience with electoral systems has been of a static nature, with minimal scope for reform or modification. Problems and deficits of fair representation can arise if the legal structures of elections and political representation are frozen into place, or are bound to articulate the self-interest of the political actors in power. Thus, the issue of politicization relates to a central question of constitutional democracy, namely, how to institute (a legal structure of) fair, democratic representation. At the most abstract level, democratic government requires that its subjects be empowered as political equals. Yet, this does not determine in any detail how a democratic electoral system is to be construed. Beyond the most basic notion of political equality, namely, one person, one vote, the notion of democratic representation is indeterminate and highly relative. Its meaning depends

1 See Samuel Issacharoff, Pamela Karlan, Richard H. Pildes and Nathan Persily, The Law of Democracy: Legal Structure of the Political Process (5th edn, Foundation Press 2016).

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on the normative theory of democratic representation, on the social, political context, and on the assumptions and self-perception of the society.2 One crucial question in this regard is whether and how to accommodate the conflicting concerns of unity, integration and stability of a polity, and effectiveness and efficiency of the political system, on the one hand, and the rationale of representing the diversity of identities and preferences within the political subject, on the other hand. This is a very practical and highly sensitive issue for structuring election laws, and thus, representation. For these concerns constitute conflicting rationales and compete for realization. There is inevitably a tension between them, as unity and effectiveness call for limiting the expression of diversity and disagreement. Allowing for pluralist representation can lead to public manifestation of heterogeneity, disagreement and conflict within the political subject and may undermine an assumed ideal of unity. Also, it makes decision-making much more cumbersome. This conflict of normative concerns can also be framed as a tension between input and output legitimacy.3 The question of competing rationales of electoral laws connects to and reflects a longstanding debate in democratic theory, where one influential strand argues that politics, and thus, political representation, is necessarily based on and refers to some substantive unity and homogeneity of the political subject.4 Thus, most importantly, the unity of the nation is understood to be the object of political representation. Yet, a more liberal understanding holds that in contemporary, complex societies, political representation is to articulate the heterogeneity of the individuals forming the political subject(s). From this point of view, the expression of differences and disagreements present in society are what the political system and, most importantly, electoral laws need to enable.5 From this perspective, comparing the electoral systems of India and the EU can be particularly enlightening for an understanding of democratic constitutionalism. The representation and accommodation of diversity and disagreement is a crucial issue of democratic representation that both polities seem to have in common because of their federal structure and cultural and social

2 For an overview of normative understandings of representation see Hanna F. Pitkin, The Concept of Representation (University of California Press (UC Press) 1967); also see the introduction of this book. 3 For an overview of the competing models of legitimacy, including input and output legitimacy see Dann and Thiruvengadam, ‘Comparing constitutional Democracy in the European Union and India: an introduction’ in this book, at Chapter 1, Section 4.A. 4 Carl Schmitt is one prominent proponent of this perspective; also see Introduction on ideal types of democracy and on diversity, equality and legitimacy. 5 See Jeremy Waldron, Law and Disagreement (OUP 1999).

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heterogeneity of their respective citizenries.6 Thus, both polities face the same challenge: to what extent and how does the structure of political representation at the national level reflect the multiple, layered – and conflicting – identities and socio-political affiliations of the individuals within its citizenry? To what extent and which kind of heterogeneity and disagreement within society get to be represented within the political system, and how? A question closely connected to this is whether there are certain aspects of difference within the society that justify or even require special guarantees of representation.7 How, then, is it justifiable or even normatively due that certain groups be empowered within the political system by preferential mechanisms? Group-specific guarantees of representation may establish departures from equality. It is therefore of particular interest in this chapter if, in both polities, any guarantees of special representation exist and how they are justified in that case. In turn, the question is whether there are gaps in political representation from which pathologies of the democratic representation and the political system as a whole could follow. Populist movements may be reconstructed as an example of this. The present chapter focuses on these issues of representation. There are more and other questions that are of interest when analysing electoral systems: For example, money in elections (campaign finance, party finance, prevention of or measures against corruption), and policies on transparency, most importantly, the information of the electorate on candidates. These go beyond the focus of this chapter and have to be left for future comparative analysis. The chapter proceeds as follows: As a first step, it outlines the respective legal regimes of elections at the federal (central) level for both polities, while also reflecting the political, historical, and social context (Section 2). Section 3 then goes on to discuss particular issues of fair representation, namely, preferential mechanisms within the representative structure that compromise formal equality for the sake of substantive representation of certain groups. The conclusion (Section 4) provides for a normative discussion of the comparative insights.

6 Also see Dann and Thiruvengadam, ‘Comparing constitutional democracy in the European Union and India: an introduction’ in this book, Chapter 1, Section 3. 7 This can be seen as an aspect of affirmative action; for this notion also see Dann and Thiruvengadam, ‘Comparing constitutional democracy in the European Union and India: an introduction’ in this book, Chapter 1, Section 4.B and Chapter 4 by Boysen and Chandra, ‘Equality and diversity in constitutional discourses’.

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2.

PRINCIPLES AND STRUCTURE OF ELECTION LAW IN THE EU AND INDIA

This section gives an overview of the central principles and normative structures of election laws in the EU and in India. For both of the two political systems, it discusses the main representative organs, the legal sources and the general principles of elections. As a basis for comparing the two systems, it points out how each system is balancing the competing concerns of unity, effectiveness and pluralism. 2.A

European Union

The EU’s constitutional concept of democracy is a dual structure of democratic legitimacy that combines parliamentary and governmental representation (European Parliament and Council, see Article 10 TEU) and is based on a duality of political membership of European citizens (citizen of a member state, and Union citizen).8 The EU is, thus, based on two collective political subjects: the peoples of the member states, and the European citizenry. According to Article 10 TEU, the Council, which consists of representatives of the national governments, represents the peoples of the member states. The European Parliament (EP), on the other hand, represents the European, transnational strand of the EU’s democratic legitimacy.9 The representative structure and status of the EP has to be understood as the result of a long history of institutional change. The EP was created as a parliamentary assembly of delegates of the national parliaments and became a directly elected Parliament only in 1979. There are still separate elections in each member state and citizens vote on candidates for a national contingent of seats in the EP. Yet, the electorate in each member state encompasses not only its citizens, but all Union citizens residing therein (Article 20 TFEU), reflecting the freedom of movement across the member states that Union citizens enjoy. The representative function of the EP has been and is still the subject of intense academic, political and juridical discussion. One of the many issues is whether the Union citizenry can be the subject of democratic representation at all, given that the EU is not a state and that the status of Union citizenship is derivative of national citizenship (Article 20 TEU). The German Federal

8 Also see Dann and Thiruvengadam, ‘Comparing constitutional democracy in the European Union and India: an introduction’ in this book, Chapter 1, Section 4. 9 For the bicameral structure of the EU legislature see Dann and Thiruvengadam, ‘Federalism and democracy’, Chapter 9 in this book.

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Constitutional Court maintains the opinion that the EP is not a true parliament and that the democratic legitimacy of EU legislation is still mainly derived from the Council; it rejects the notion that the EP democratically represents the Union citizenry. The Court argues that there cannot be a European democratic subject as long as there is no European (federal) state.10 A transnational, European party system does not (yet) exist. Against this backdrop, it has for a long time been argued that the political identification of EP voters as citizens of a particular member state dominates their political choices and hinders that the EP elections articulate the preferences of a transnational, European political subject (so-called second order theory). According to some scholars, the lack of a transnational European political identity of European citizens is held to undermine altogether that the EP represents the Union citizenry. Yet, empirical studies indicate that EP elections articulate the choice of a pan-European electorate that is – if not legally – politically integrated in that it is, across borders, sensitive to the same issues rather than focused on nation-specific themes.11 This creates a supranational political space in which voters’ choices articulate non-territorial, European-wide functional alignments. Thus, it can be argued that EP elections predominantly express political ideologies, not national identities.12 Further issues are the low turnout in EU elections, and, more recently, right wing, anti-EU populism in the EP. It is not a centralized regime of comprehensive EU law, but a complex, multi-level legal construction that governs elections to the EP and shapes the representative structure of the EP. This is the result of the hesitancy of the member states to defer to all-encompassing uniform European standards that would minimize national leeway when it comes to shaping political representation in the lower chamber of the EU legislature. Therefore, a lot of aspects of elections – such as minimum percentages for winning seats (minimum thresholds), the delimitation of constituencies, the nomination process – are governed by member state legislation and regulations, and national courts’ case 10 See the Lisbon Judgment of the German Federal Constitutional Court, available at accessed 22 October 2020. 11 Daniele Caramani, The Europeanization of Politics: The Formation of a European Electorate and Party System in Historical Perspective (CUP 2015) 284. 12 Valeria Camia and Daniele Caramani, ‘Family Meetings: Ideological Convergence Within Party Families Across Europe, 1945–2009’ (2011) 10(1) Comparative European Politics 48, 75: ‘It remains that the similarity within party families and national electorates close to equivalent parties across borders suggests that ideological differences (between party families) are more important than territorial differences (between countries). The ideological identity of parties and voters is much stronger than the geographical identity. Genealogy trumps nationality’.

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law. Members of the EP are elected by nationally delimited electorates, and from national lists of candidates. However, EU law structurally harmonizes the national electoral systems and procedures for EP elections. At the normative top of the legal regime of EU elections, there are constitutional provisions within the EU Treaties: the principle that the EP is the representation of the EU citizenry (Article 10 TEU) and the electoral principles of universal suffrage and a free and secret ballot (Article 14(3) TEU). More operational Treaty provisions, EU legislation, and national laws concretize these principles. The central element of this is a Council decision providing that in each member state Members of the European Parliament (MEPs) shall be elected on the basis of proportional representation.13 The national provisions governing the electoral procedure have to adhere to the proportional nature of the voting system.14 Therefore, the decentralized regulation and administration of EP elections is merely an application of the decentralized approach that generally characterizes the EU executive function. The prescription of proportional representation rejects a majoritarian approach (‘winner takes all’). This is central to the legal construction of the EP’s representative function, as it is a decision for the comprehensive, inclusive representation of the political cleavages and preferences within the EP electorate(s). It also embodies the idea of minority representation and directly reflects the value of pluralism that Article 2 TEU declares to be fundamental for the EU. The allocation of seats to the member states is governed by EU law as well. Article 14(2) TEU establishes a maximum number of MEPs (752) and states that the seats are allocated to national contingents on the basis of degressive proportionality. This means that any member state is overrepresented as compared to member states that comprise a larger population. It establishes a relative advantage of representation for smaller member states. The national contingents are further defined by the provision of a minimum (six) and a maximum number (96) of seats per member state. The precise number of MEPs for each member state is then specified by a European Council decision, for which unanimity and the consent of the EP are required (see Article 14(2) TEU). The principle of degressive proportionality and the provision of a maximum of seats for the largest member state (Germany) have a common purpose: They both serve a non-domination, anti-hegemony rationale. The aim is to prevent the few large and very large member states from capturing the 13 Council Decision 2002/772/EC, Euratom of 25 June and 23 September 2002 amending the Act concerning the election of the representatives of the European Parliament by direct universal suffrage, annexed to Decision 76/787/ECSC, ECC, Euratom [2002] OJ L283/1, Art. 1. 14 ibid, Art. 7.

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parliamentary decision-making by means of concerted action, thereby effectively silencing and marginalizing the small(er) member states. Altogether, the complex legal regime of EU election expresses concerns of diversity and pluralism, but also of unity. The minimum number of seats enables pluralist representation of the constituencies even in the very small member states. The maximum number of seats serves the diversity/pluralism rationale as well. It prevents capture of parliamentary deliberations by the largest member states acting together. Simultaneously, degressive proportionality, allowing for the representation of partisan cleavages in all member states, including the smallest ones, serves an integrative purpose: It allows political groups of ‘like-minded’ parliamentarians to be formed, which transcends the national affiliation of MEPs. As a result, decision-making in the EP is not based on national coalitions but on transnational political agency: It is the political groups that are the decisive factor of majority-building in the EP. Proportional, pluralist representation thus allows for the expression of the transnational unity of a pan-European political subject, namely, the Union citizenry. 2.B India Indian constitutional democracy, though loosely based on the colonial systems inherited by the British, represents a hybrid of a quasi-federal government framework of its own in many instances. Electoral system in India has a Westminster model of the Parliamentary System. The Parliament is divided into two houses: the Lok Sabha, or the House of the People, which consists of directly elected representatives, and the Rajya Sabha, or the Council of States, where the members are indirectly elected by the legislative assemblies of the states through proportional representation by single transferable vote. However, despite deriving its roots from the British models, India also illustrates characters of a federation, with substantial legislative and executive powers being given to the states under Part XI of the Constitution.15 It can be fairly argued that the dual system in India, much like the EU, seeks to provide for a dual political membership of the electorate, ensuring the representation of their geographic identity through the Council of States. The historical evidence of gradual integration of India from various princely states and former European colonies would justify this objective. However, the political identities in India present a much more diverse and hence complicated challenge for the substantive representative doctrines. Heterogeneity in India

15 Anthony Heath, Siana Glouharova and Oliver Heath, ‘India: Two-Party Contests within a Multiparty System’ in Michael Gallagher and Paul Mitchell (eds), The Politics of Electoral Systems (OUP 2005).

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often transcends state lines and geographical concerns to aggregate on social, ethnic, economic or religious criteria. Voters are often mobilized on the central stimuli of caste, religion, ethnicity, region, class, and lately even more liberal categories of gender. As such, while the national electorate in the Lok Sabha elections presents an integrated group of Indian voters, the internal layers of identities within this broad demographic is a crucial factor which affects the party structures, the election agendas, and the electorate’s response to the system as a whole.16 Indian electoral laws derive their content majorly from Part XV of the Constitution, as well as from the Representation of the People’s Acts 1950 and 1951 (RPA 1950 and RPA 1951). These pieces of legislation were supplemented by the Registration of Electors Rules 1960 and the Conduct of Election Rules 1961. A Model Code of Conduct (henceforth, the Code) was also drafted with the purpose of restraining political parties from transgressing electoral laws. It does not have legal backing, but over the years has assumed the role of a restraining force on party competition. The Code does not possess legal authority. It is designed for ‘voluntary adherence’. Though not a legal document, the Code helps supplement the formal rules of electoral conduct. Details as to its regulatory mechanisms with respect to political parties have been discussed in the chapter concerning political parties and social movements in this book. Chapter XV of the Constitution also provides for establishing an Election Commission in India as a non-partisan regulatory body for conducting elections. Though the election commission does not have any specific enforcement mechanisms, it has moved to a phase where its regulatory role has acquired a decisive voice. Within normative institutional theory, this would be seen as an institution reacting to changes in its environment to ‘redefine the logic of appropriateness for what has become in essence a new set of institutional challenges’.17 India follows the plurality system of election, also known as the first past the post system. It is a classic Westminster model which focuses on ‘manufacturing majority’. Under first-past-the-post candidates usually do not need to pass a minimum threshold of votes (two), nor do they require an absolute majority to be elected, instead all they need is a simple plurality, that is, one more vote than their closest rivals. Hence in seats where the vote splits almost 16 Bidyut Chakrabarty, Forging Power: Coalition Politics in India (OUP 2005) 138. 17 B. Guy Peters and Jon Pierre, ‘Institutions and Time: Problems of Conceptualization and Explanation’ (1988) 8(4) Journal of Public Administration Research and Theory 565‒83, available at accessed 22 October 2020.

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equally three ways, the winning candidate may have only 35 per cent of the vote, while the other contestants get 34 per cent and 32 per cent respectively. Although two-thirds of voters supported other candidates, the plurality of votes is decisive. It is a ‘winner takes all’, where the leading party boosts its legislative base, while the trailing parties get meager rewards. The focus is placed on effective governance rather than representation of all minority views. The basic system of simple plurality voting in parliamentary general elections is widely familiar: The national electorate is divided into territorial single-member constituencies; voters within each constituency cast a single ballot for one candidate; the candidate with the largest share of the vote in each seat is returned to office; and in turn the party with an overall majority of seats forms the government.18 Historically, this system is often seen as a colonial legacy from the British rule. However, its focus on a centralized system of effective governance also connects well to the aspirations of the political structures prevalent at the time of its adoption in the constitution. At the time of independence, India was constituted by many fragmented entities in the form of diverse provinces and princely states. As such, ensuring cohesive governance of the newly formulated nation state of India amidst the chaotic diversity and calls for cessation in the wake of Partition gained priority as the primary objective of the democratic process. As such, a plurality-based system emerged as a better choice than a proportionality system which, though ensuring the representation of diversity inherent in the Indian populace, would not have ensured enough consolidation of power to result in a stable political system for the initial years of constructing the nation state as a united entity. The concept of one person one vote was considered crucial to this system. As such, the importance of the delimitation process to proportionally apportion seats to each state was well recognized by the framers of the Constitution.19 This is inherent in the institutional framework provided by the Constitution in this regard. The Constitution of India provides for a periodic exercise of delimitation under Articles 81 and 82 after every census, that is, after every 10 years. Article 327 confers upon the Parliament the power to make laws in relation to delimitation. In pursuance of this the Delimitation Commission Act 1952 was passed to constitute an independent body to conduct this exercise periodically without political influence.

18 Pippa Norris, ‘Choosing Electoral Systems: Proportional, Majoritarian and Mixed Systems’ (1997) 18(3) International Political Science Review 297. 19 Election Commission of India, ‘Debate in Constituent Assembly on Part XIII – Article 289’ (15 June 1949) available at accessed 22 October 2020.

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Comparative Analysis

The comparison shows that India and the EU differ not only in substantive construction of democratic representation, but also with regard to the allocation of competences for electoral legislation: While India entertains a thoroughly centralized legal regime and administration of elections at the national level, in the EU, the legal regime is of a multi-level character: elections are governed in many details by member states’ regulation, and they are administered by the states. Yet, at a second glance, we see structural harmonization in the EU case in that the general principles of representation are set out by EU law and bind member state implementation. There remains, however, some leeway for the states in shaping representation by the EU. There is a sense of respecting federal diversity here. No scope for expressing regional or other peculiarities in influencing the shape of objective representation underlines the electoral system for the states in India. As will be discussed in the forthcoming parts of this chapter, attempts have been made to put forth an argument in this regard to justify the delimitation freeze. However, the foundational nature of the electoral system does not conceive a federal variable in the structure of the direct elections, instead identifying a unified national electorate. In India, the unity rationale is dominant if we look at the distribution of competences, whereas in the EU, federalism – to a certain extent – also applies to the electoral system, in that legal governance and administration of elections are not thoroughly centralized. The principle of representation differs between the two polities, as well. While India follows the first-past-the-post system of plurality representation, the EU applies the proportionality principle. Interestingly, proportionality voting in the EU serves both the rationale of unity/integration and of pluralism: By enabling all (nationally delimited) constituencies to send to the EP a politically diverse group of representatives, it enables the formation of transnational political groups that transcend national affiliation and represent the overarching political cleavages of the Union citizenry as a European-wide political subject. In general, with regard to the expression of diversity, there is a strong argument in favour of proportionality, since it enables the representation of the complete electoral landscape, including parties that have not gained a relative majority of the vote. The representation of political minorities is stronger under this principle. Plurality voting – as in India – instead favours effective governance over the representation of pluralism.

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QUESTION OF FAIR REPRESENTATION

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Issue of Fair Representation

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The differences in foundational structures in the EU and India are mirrored in the understanding of representation in the two systems. Both systems articulate different responses to the central query of accommodating the conflicting concerns of equality, unity, effectiveness and pluralism. The minimum standard of fair representation is the right to vote and equal availability to the voters to exercise their power. The ability to register and vote does not in itself secure meaningful political participation because the power of that vote may be unfairly diluted by malapportionment and gerrymandering. As such, the idea of political equality, with the foundation of proportional apportionment of seats, giving each vote the same weight, is generally considered indispensable for democracy, and an objective foundation to support democratic objectives.20 The question that needs to be asked further, however, is whether one person, one vote is enough as a threshold to ensure political equality in a democracy. Is it sufficient to ensure fair representation in a layered, fractured, multi-national, highly differentiated and stratified society? Liberal democratic theories base their legitimacy on individuals acting as rational entities to advance their interests.21 While in the abstract sense it illustrates the democratic principle, it fails to capture the social context therein. This can be contrasted with the communitarian approach in which citizens are firmly situated by membership in a meaningful political community that partly constitutes their values and desires. In case of India, and increasingly in case of the EU as well, these political communities are growing in number, with their memberships and interests intersecting each other. As such, the seemingly objective concept of mathematical equality of votes gains a new variable of identities and begs new questions of representation of federal sub-structures, socio-political heterogeneity and ethnic pluralism. The issue that arises then is, if the concerns and viewpoints of different identities display a sense of plurality, how do we ensure it to be reflected in the resulting representation? Is the equal opportunity of voting enough to ensure this measure of substantive equality? Thus, the comparative research agenda here 20 Grant M. Hayden, ‘The False Promise of One Person, One Vote’ (2003) 10(2) Michigan Law Review 10(2) 213. 21 See e.g. Benjamin R. Barber, Strong Democracy: Participatory Politics for a New Age (first published 1984, 20th edn, UC Press 2003); Michael J. Sandel, Democracy’s Discontent: America in Search of a Public Philosophy (Harvard University Press (HUP) 1998), Chs 4‒7.

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seeks to question the concept of representation with a view to changing demographic and social structures of the target politic. Also, it seeks to understand the legitimacy of departures from the mathematical objective of one person, one vote for the sake of substantive equality of representation. A connected point of interest regards the openness of the electoral regime for reform. As social circumstances change, the adequacy and appropriateness of given electoral structures can become questionable. An obvious example of this is seat apportionment in case of population growth or shrinkage in certain constituencies, so as to maintain one person, one vote. But more generally, the question is if the electoral system is open to reform and change. Of course, it can itself be debatable whether a certain societal development normatively warrants or even requires a specific adaptation of the political system. But if the political actors in power block any change to maintain their advantages (‘capture’), the legitimacy of the given system can suffer. The case studies of India and the EU, illustrating a complex and diverse demographic, help highlight the crucial issues in this regard and provide interesting insights to the question. 3.B India Indian electoral politics reflects the layers of identities that exist in the Indian society. As such, equality in voting becomes a vital issue, especially with the intersection of mathematical equality of votes and substantive equality of representation. The Indian political and legal framework saw developments in both areas since its inception post-independence. However, the status quo with respect to these issues brings forth mixed results in establishing equality of representation and citizenship. 3.B.1 Delimitation: the number game The prime purpose of an election is to select a set of representatives whose composition reflects the main trends of opinion within the electorate or in Edmund Burke’s phrase ‘the express image of the feelings of the nation’.22 Given the highly diverse society of India, creating an image of the feelings of the nation as a whole can be quite a challenge. However, the enormity of the challenge is what makes the exercise of delimitation, that is, proportional allocation of seats to each state, all the more significant. Identifying this, the 22 Edmund Burke, Select Works of Edmund Burke, Vol. 1 (Thoughts on the Cause of the Present Discontents; Two Speeches on America, 1770), quoted in Peter J. Taylor, ‘Some Implications of the Spatial Organization of Elections’ (1973) 60 Transactions of the Institute of British Geographers 121‒36, available at accessed 22 October 2020.

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first independent delimitation commission in India was set up as early as in 1952 to ensure allocation of proportional seats to the states in accordance with their population, so that each vote has equal say and effect in the election process.23 The most recent delimitation commission was set up in 2002 with Justice Kuldeep Singh as its chairperson. Besides him, the Chief Election Commissioner and State election commissioners are its ex officio members. It plays a key role in drawing up constituencies for the Assembly elections. But the delimitation powers of apportioning seats for the central elections suffered a setback after 1972. After the first delimitation commission, two successive commissions were set up at regular intervals in 1962 and 1972 for readjustment of the number of seats in accordance with the latest census. It was after the 1972 delimitation that a freeze on further readjustment until 2001 was imposed by the 42nd amendment to the Constitution in 1976 under the Indira Gandhi regime. The justification forwarded for imposing the freeze was that it unfairly punished those states that had successfully implemented the family planning initiatives.24 Consequently, the aberrations to the proportional allocation of seats have been rising gradually, with the gap increasing with every census. As per the 2011 census data, while states like Tamil Nadu and Kerala are overrepresented to a great extent, having seven and five seats more than their proposed proportionate allocation, northern states like Uttar Pradesh, Bihar and Rajasthan are underrepresented by as high as nine seats. 21 states out of 35, that is, 60 per cent of states exhibit a certain degree of deviation in representation in comparison to their populations. Thus, there exists a stark inequality in voting strength across various states.25 The justifications of the government based on population control and federal imbalance have been analysed and debunked by many.26 For understanding the argument here, it is necessary to understand that the northern and southern states of India do display a stark difference in demographics, languages and culture. As such, the northern and southern states are used here as two separate blocks that need equal, or at least balanced, representation. Lower population rates in the Southern states may lead to reduction in the number of seats appor-

23 Alistair McMillan, ‘Delimitation, Democracy, and End of Constitutional Freeze’ (2000) 35(15) Economic and Political Weekly 1271. See also, the official Delimitation Commission Webpage by the Election Commission of India, available at accessed 22 October 2020. 24 A.K. Verma, ‘Issues and Problems in India’s Delimitation Exercise’ (2002) 63(4) Indian Journal of Political Science 371. 25 Aditi, ‘Politics of Electoral Reform: Delimitation Deadlock in India’ (2015) 2(2) School of Oriental and African Studies Law Journal 2(2) 46. 26 ibid.

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tioned to them. The federal imbalance argument states this as a way to impose hegemony of the northern states in central decision-making processes. Analysis of these arguments however does point to many gaps. As the following discussion brings out, the ‘rational relation’ between population control and delimitation freeze does not seem proximate enough to warrant legitimacy for malapportionment because of the lack of a direct and sole relation between the two components.27 As for the balance of states argument, the Rajya Sabha (Council of States) should be responsible for ensuring representation of federal units, rather than the House of the People which does not embody ‘federal balance’ as its principle of composition. Proponents of the freeze cite the concerns of representation of the southern states, and the resultant allocation of funds which are prejudiced against the south despite a better implementation record of population control policies.28 This argument, however, can be countered by noting that the northern states, owing to their poor socio-economic development and high population growth rates, legitimately warrant a higher allocation of funds. Their poor efficiency in implementation can be attributed to a variety of socio-political factors and no doubt needs to be resolved.29 However, a state cannot be penalized for its representation in the Parliament as a consequence of it. Denying representation for poor governance would only worsen the implementation gaps, as the existing representatives would have a larger constituency to manage,30 with comparatively fewer resources in proportion to their beneficiaries. The political motivations leading up to the decision of the delimitation freeze seem more illuminating in this regard. The greater political influence of Congress in the southern areas made subsequent delimitation reducing the seats in the south much less attractive. This was coupled with a strong opposition sentiment in the northern states owing to the casualties of the forced implementation of the National Population Policy Statement in 1976, thus making the freeze a means for Congress to maximize its seat share. This assertion can be supported by the performance of Congress in the 1977 elections, especially in the southern states.

ibid. Rakesh Kalshian, ‘Fertility is Power: Mother of All Paradoxes’ (Outlook India, 8 March 1999), available at accessed 22 October 2020. 29 Navi Radjou, ‘India’s Biggest Economic Challenge’ (Harvard Business Review, 2 June 2009), available at accessed 22 October 2020. 30 Sanjay Kumar, ‘Delimitation of Constituencies’ (The Hindu, 17 September 2001), available at accessed 22 October 2020. 27 28

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In 2001, when the freeze was set to expire, the political context had changed, with a BJP led NDA government. Resuming delimitation would have been politically favourable to the BJP at this point, as it would have had the effect of increasing seats in the northern Hindi speaking states, where the BJP held a strong ground. However, instead of rectifying the aberration, the freeze was further extended till the year 2026. The justifications given were similar, advocating a federal balance between the northern and southern states, pointing out that the south might be neglected with a weaker say in the Parliament if the seats are reduced. However, considering the composition of the National Democratic Alliance, the real political motivations can be argued to be the pressures exerted by the southern regional parties which were a part of the coalition and crucial for its survival. Ideally, balance could have been struck by the judiciary by stepping in to review this stance of the government. However, the Indian judiciary suffers an express constitutional bar on interfering with any law regarding delimitation under Article 329 of the Constitution. Sticking to this position, the Indian Supreme Court has reiterated its position, which is quite similar to the initial stance of the US Supreme Court.31 It has passively dealt with the issue in cases like RC Poudyal and others v Union of India and others,32 while using the argument of implausible mathematical equality to justify deviations. According to the courts, the rationale behind the delimitation freeze fall within the threshold of ‘legitimate considerations incident to the effectuation of a rational state policy’ and hence are valid. Interestingly, this instance of political bargaining process to reach the anti-delimitation stance can also be identified as another counterpoint to the federal balance argument. Considering the prominence of coalition governments in the centre, and the increasingly important role of state parties in this process, an argument for another platform for mediating bargaining power of the state representatives can be made. The regional parties often project the interests of their states, when required, in the central debate through their pivotal positions in establishing the government. An example can be the NDA’s stance on delimitation itself in their last government, as was discussed above.

Colegrove v Green [1946] 328 US 549. AIR [1993] SC 1804.

31 32

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3.B.2 Substantive equality: reservations and representation The idea of reservation of seats can be considered as both an exception as well as a corollary to equal representation.33 It hardly finds a place in the liberal idea of democratic process. This was reflected in the position taken by the Indian National Congress at the time of independence, which understood political representation to be above social identities. It understood democracy to be about articulation of collective interests, with the state being the ultimate agent of collective welfare. Reservation on the other hand reflects what is now referred to as ‘politics of presence’. In this understanding, the political actor claims to act on behalf of his or her own kind – caste, religion or linguistic group.34 The pioneer for this concept in the Indian electoral framework was Dr. BR Ambedkar, who argued that representation of opinions and preferences alone is not an adequate measure for democracy; it requires personal representation as well.35 The case in point there was the social category of untouchables, which constitutes the outcasts, the lowermost stratification of the Hindu social doctrines of varna. The conditions of these groups were abysmal, with poor work and living conditions and restrictions on their inclusion in the social sphere. Ambedkar, himself coming from the same strata, identified the problem of access that the untouchables (Dalits) and tribal communities faced, being at the lowermost strata of the society, and argued that their specific interests can be represented by representatives of their own community itself. As such, reservation brings forth and addresses the layers in the Indian social structure by making room for descriptive representation. As such, the chapter on Fundamental Rights in the Constitution also provides for an enabling provision for creating special provisions for these groups.36 The reservations in the House of the People in the Parliament of India for these groups, classified as the Scheduled Castes and Scheduled Tribes, is provided for under Article 330 of the Constitution.37 33 For the notion of affirmative action and the tension between the promise of democratic equality and the respect for diverse identities also see Dann and Thiruvengadam, ‘Comparing constitutional democracy in the European Union and India: an introduction’ in this book, Chapter 1, Section 4.B. 34 Sunil Khilnani, ‘The Indian Constitution and Democracy’ in Zoya Hasan, E. Sridharan and R. Sudarshan (eds), India’s Living Constitution: Ideas, Practices, Controversies (Permanent Black 2002). 35 Valerian Rodrigues, ‘Ambedkar on preferential treatment’ (2005) 549/May Seminar. 36 Constitution of India, Arts 14‒16. 37 The terms Scheduled Castes and Scheduled Tribes derives from their introduction in the Government of India Act 1935, and their further usage in the Constitutional Orders of the same names passed in 1950.

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However, this departure from the theoretical fundamentals of representative politics has not come without its fair share of questions and concerns. The first and foremost question to be addressed here is whether this departure from objective equality of representation can be legitimized under the objective of substantive equality. The answer has been advanced persistently through constitutional guarantees of special protection for special groups. It brings forth the basic idea of like groups being treated equally and justifies special provisions for the disadvantaged groups based on their historical, social and economic narratives. As the Dalit castes and tribes, categorized as ‘Scheduled Castes and Scheduled Tribes’ in the Constitution, have a historical narrative of discrimination and exploitation, the classification can be validly made and justified. Thus, the effect of reservations is said to enhance equality in the socio-political framework, rather than compromise it. The specifics of such classifications, if viewed in a dynamic fashion, however, are not that simple to construct. It is difficult to maintain a singular formula of determining the ‘backwardness’ of a group and the resultant entitlement of rights resulting from it. The very layers of the society reservations seek to address multiply in complexity on close consideration, and the objective of drawing balancing lines on a singular formula of identities, whether based on class, caste, region or community becomes incredibly challenging.38 It further raises the question of privileging one set of identities over others. Most debates over reservations often see caste and class identities challenging each other as a sole criterion of classification. Further, upcoming movements on gender, among other categories, have been making their presence felt, and challenging the ‘traditional’ ideas of identities and stratification. The inequalities of gender, class consistently get discounted, as do the disadvantages of belonging to a particular religious minority when they are incompatible with the concept of caste. 39 Perhaps the most pronounced case where the inequality in the process of substantive equality has been felt is in case of Muslim and other religious minorities. The case of Muslim reservations brings up questions about the status of other groups in Indian society, and the extent to which social backwardness is only about Hindu society, which automatically excludes the consideration of other axes of social stratification. The issue is straightforward: should backwardness be defined in terms of ritual and social exclusion or in terms of their 38 See Nadia Urbinati and Mark E. Warren, ‘The Concept of Representation in Contemporary Democratic Theory’ (2008) 11(1) Annual Review of Political Science 387, 397. 39 Zoya Hasan, ‘Constitutional Equality and Political Representation in India’ (2006) 53(4) Diogenes 54–68.

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social and economic backwardness? In the Indian case, preference so far has been given to the former.40 However, the application of even that standard has been reserved to the social framework of the Hindus. Further, the very question of causality and effect also poses itself in this case. It has been argued that special representation to certain categories of the society might not be as instrumental in benefitting the whole community. On the contrary, it may just result in creation of elites among the disadvantaged groups, which may foreground group claims and plurality of representation and opinion in favour of personal empowerment and integration into the upper social strata. However, affirming the pro reservation position of the courts on this matter, the idea of reservations is still heavily favoured, with many quoting problems with its implementation and inclusiveness rather than the concept itself.41 And while the positive impact of reservations has outweighed the costs according to many, the question of expanding the substantive equality measures to other categories to meet the final objective still remains. Quotas may not provide the answer every time, given the political vote bank manoeuvres it underlies, or the recent evidence of aggressive social cohesions it may encourage to demand special status from the government.42 However, innovations to bring forth the layers of the society rather than cementing them in an imposed homogeneity are still a larger objective to strive for, especially in the post truth era of growing counter cultures and conflict. 3.C

European Union

The EU electoral system, as well, is shaped in a very specific way by issues of fair representation. Equality is understood to have two different dimensions here – not only citizen equality, but also equality of member states (‘state equality’, the principle structuring political/collective decision-making in International Law). The EU electoral structure is designed to balance both concerns, resulting in the aforementioned principle of degressive proportionality, which implies that more populated nation states will be under-represented to safeguard the interests of the smaller, less populated states. This principle means that there is a departure from strict rule of one person, one vote in

ibid. Professor Mahendra P. Singh, ‘Ashoka Thakur v. Union of India: A Divided Verdict on an Undivided Social Justice Measure’ (2008) 1(2) National University of Juridical Sciences Law Review 194. 42 Jat agitation in February 2016, similar gujjar and meena agitations in Rajasthan to demand reservation. 40 41

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order to co-articulate the principles of citizen and state equality.43 Generally, this serves the purpose of guaranteeing the smaller member states, and their peoples, a substantive voice and influence in decision-making processes. Especially when looking at the minimum number of seats, one can speak of a reservation for smaller states. Beyond this, the justification of this departure from formal equality can be analysed from dual perspectives. One derives from the concept of the EU’s combination of the parliamentary representation of Union citizens and the governmental representation of the European peoples and holds degressive proportionality valid to ensure substantive equality of representation for the smaller member states to further their national interest. The other justification sees the EU Parliament as a transnational project and considers degressive proportionality as a means to allow for the heterogeneity of the Union citizenry, which remains – for the time being – divided in national constituencies, to be articulated politically.44 The expression of heterogeneity is, however, limited to choosing between the different political platforms represented by the political parties. Questions of other forms of political representation of substantive aspects of heterogeneity within the population remain to be asked in the European case as well. While there is indeed religious diversity, and, mainly as a result of migration, growing ethnic and socio-cultural diversity, so far, there are no guarantees of representation for particular social groups. There is, one could say, an identity void in the electoral system of the EU. This speaks to a liberal conception of democracy at the EU level. At the same time, there is a form of disconnect between the general public and the EU institutions, including the EP, as illustrated by low turnout in EP elections and a weak salience of the EP, in general. This, however, does not seem to be the result of actual electoral structures, but of the perceived technocratic nature of the EU in general, its politicization being weak for most parts of the integration process. One might argue that the rise of populist, anti-EU movements that have even made it into the EP, is the expression of this disconnect in that some parts of the population do not find the EU to be representative of their voices, preferences, or identities. This ‘representation slack’ might especially be perceived by parts of the citizenry that do not profit from market integration, job mobility and the other aspects of transnational economic development that the EU provides. However, the plurality of political ideologies within the European citizenry is, in fact, represented in the EP. Although voters elect nationally nominated 43 Jürgen Habermas, ‘Citizen and State Equality in a Supranational Political Community: Degressive Proportionality and the Pouvoir Constituant Mixte’ (2017) 55(2) Journal of Common Market Studies 171. 44 Jelena von Achenbach, ‘The European Parliament as a Forum of National Interest?’ (2017) 55(2) Journal of Common Market Studies 193.

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candidates and constituencies are delimited nationally, parliamentary deliberations do not articulate uniform national political preferences (such as the representatives of member states’ governments do in the Council), but transnational political cleavages. These reach from the left to the right of the political spectrum. This is best illustrated by the formation of transnational political groups that embody the common party families and political ideologies known across Europe. Empirical studies, indeed, indicate that EP elections articulate the choice of a pan-European electorate that is – if not legally – politically integrated in that it is, across borders, sensitive to the same issues rather than focused on nation-specific themes. This facilitates electoral integration that is based on the structural likeness of political cleavages and alignments between the national electorates and party systems: Parties are ideologically Europeanized by their ideological cohesiveness at both elite and electorate level. This creates a supranational political space in which voters’ choices articulate non-territorial, European-wide functional alignments. Thus, EP elections predominantly express political ideologies, not national identities.45 What about the openness of the EU’s electoral system for change? Incremental development through repeated reform of the EU Treaties has been a defining feature of European integration in general. This includes the reform of the EP’s representative structure, which has developed from an assembly of representatives of the national parliaments to a directly elected parliament; and from predominantly political bargaining of seat apportionment to the more principled approach of degressive proportionality. Reform of the electoral system, however, requires consensus of the member states, which thus keep a solid grip on shaping representation, be it through the unanimous Council decision that distributes the seats of the EP to national contingents, or through national implementing legislation and regulation.

4.

COMPARATIVE ANALYSIS

Comparing the EU’s and India’s electoral systems, our starting point is that they share the challenge of dealing with societal heterogeneity and pluralism on a continental scale. Against this background, our interest is how they each reflect and accommodate the different rationales along which an electoral system can be structured: political equality of citizens is the foundational idea of democracy, but in constructing democratic representation through electoral laws, a number of other values and ideals play a normative role as well, competing for realization: unity, integration and stability of a polity, and effectiveness and efficiency of the political system, on the one hand, and Camia and Caramani (n 12).

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pluralism as diversity of identities and preferences within the political subject, on the other hand. The plurality of possible rationales according to which an electoral system can be structured grounds our comparative questions: Which of these ideals do the respective electoral systems emphasize? Which ideals are compromised for the sake of others? To what extent is equality realized on that basis? And how can the respective configurations be explained? The second comparative angle is the politicization of the electoral system, and its openness to change and reform. 4.A

Unity, Integration of the Polity, Effectiveness and Stability

For the EU, the idea of political unity transcending the national affiliation of its individual legal subjects is embodied by Union citizenship. The EP serves as the representation of the Union-wide citizenry, albeit on the basis of nationally delimited constituencies. Based on the election of MEPs by national electorates, the complex legal structure governing representation by the EP facilitates the formation of transnational political groups that integrate the electorate across the borders of the member states. Yet, the political unity of the Union citizenry, as represented by the EP, is still firmly based on the federal structure of the EU – the principle of degressive proportionality and the minimum number of seats per member state mean that citizen equality is compromised for the sake of state equality concerns, leading to an over-representation of the citizens voting in the smaller member states. The rationale of this is that the few very big states, most importantly, Germany, are to be prevented from capturing and dominating EU legislative decision-making processes. Stability and effectiveness of the political system, understood as its ability to maintain the capacity to generate and execute rules, is a concern that both India and the EU evidently share. For the EU, the limitation of the absolute number of MEPs clearly reflects the concern to maintain the EP’s capacity to make decisions. 4.B

Pluralism, Diversity and Equality

The strong emphasis in India on effective governance results in a certain underrepresentation of pluralism within the political landscape, as for each constituency, minority political preferences will not be represented. In the EU, the principle of proportional representation, degressive proportionality and the guarantee of a minimum number of seats per member state enable the voters even in the smallest member states to elect a group of representatives that encompasses the main political cleavages within the electorate. This enables the transnational formation of political groups in the EP, which represent a European-wide political space that is not defined by national

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borders, but rather, by overarching, shared political ideologies at the level of the electorate and the elected representatives alike. Altogether, diversity and heterogeneity within the electorate are thought to be represented through political platforms. There is no form of substantive, identity-based representation. This can be attributed to a liberal understanding of democracy, which does not consider the individual as defined through membership of social groups and makes the political parties the main forum of translating social contexts and societal differentiation into political agency. Of course, the party system may itself be deficient in channeling some of the aspects of diversity and heterogeneity within society into the political system, especially since no European parties do exist. Both India and the EU do make way for some departures from absolute political equality. In case of delimitation and apportionment of seats, the departure in the Indian case, while seemingly analogous to the EU in its argument of maintenance of federal balance, does not align well with the foundational idea of a uniform national electorate. As such, the politically motivated decision of freezing the delimitation exercise has an effect of distorting the democratic framework. On the other hand, in case of the EU, owing to its electoral structure and transnational nature, an argument can be made that the doctrine of degressive proportionality does serve an important purpose of ensuring pluralistic discourse. It allows for the heterogeneity and diversity within the Union citizenry to be articulated politically, given that the EP constituencies are of a national character (even if Union citizens have the right to actively and passively participate in EP elections held in any member state where they legally reside).46 The follow up question to that, though, would be whether the national borders are the constituents of heterogeneity in the social structure. The answer to that in case of India would be an easy no, given the constitutional recognition of affirmative action for certain communities, and the political undertones it creates for the politics of elections. With that, however, an evaluation of growing layers of identities in the social structure needs to be acknowledged to inject a sense of dynamism in the process of attaining substantive equality, so as to ensure an apt reflection of plurality of social structures in the electoral framework. In contrast, the EU negates social group identities as a factor to be represented in politics, unless they are formulated along the ideological streams represented by the parties within the EP. And while this ‘identity void’ reflects the liberal ideology of western democratic framework, one question remains: How to politically reflect and accommodate the ongoing transformation of the von Achenbach (n 44) 193.

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populace towards a substantively heterogeneous structure of varied religions, ethnicities and socio-cultural preferences? India presents an illustration in this regard, along with certain cautionary lessons as well, to innovate in this direction. What EU imbibes out of the Indian experience, however, largely would depend on its political context. Formally empowering social groups with political agency at the electoral level may go against the liberal idea of European democracy. Yet, ignorance against arising claims to recognition and inclusion may create a disconnect between the EU institutions and parts of the population, which can foster withdrawal from and rejection of the political system. Thus, the issue of how to reflect this dimension of heterogeneity in the decision-making processes is still open. As such, the systems of India and the EU face the eventual objective of ensuring equal representation and citizenship for all epistemologies to interact with each other in a plural debate.47 The idea of representation, as such, needs a broader interpretation to ensure political equality not just under the formal dimensions but also in the epistemological sense of plurality of opinions and social context. 4.C Conclusion Equality, unity, stability, effectiveness and pluralism form competing normative ideals of structuring political representation. Accordingly, the central analytical question for our comparison of India’s and the EU’s electoral systems was how these normative ideals are balanced and accommodated in both polities, respectively. We asked to what extent the legal structures governing and constructing representation allow for cultural, religious, ethnic, or other forms of diversity present within a society – and the resulting political conflicts and disharmonies – to be articulated and represented within public decision-making processes. Is, at some point, priority given to the ideal of unity and effective governance? To what extent does the electoral system articulate the idea of an assumed common identity, most importantly, a national identity, that is supposed to make for a uniform political will and hold the polity together? In a more abstract perspective, this is about the balance that both systems strike between the input and the output aspects of legitimacy, with the input aspect –

47 Shiv Vishvanathan, ‘Re-inventing democracy’ (Maastricht, 12 May 2017) STS Symposium with Shiv Vishvanathan, Maastricht University, available at accessed 22 October 2020.

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representation based on political empowerment of citizens as equals – forming the core of the idea of democratic constitutionalism.48 In their electoral systems, both India and the EU to a certain extent deviate from the strictly majoritarian idea of democracy to accommodate particular aspects of the social structure. There is, however, a main point of difference between the compared continental polities concerning the very dimensions of heterogeneity and pluralism that get to be represented: While India recognizes certain social group identities and empowers them politically, the EU does not have equivalent structures – it exclusively channels the expression of diversity and heterogeneity through the political party system and its ideological cleavages. Maintaining the integrity of a polity and effective governance are legitimate aims. Concerns of upholding cohesion and effectiveness are not merely theoretical. For example, the EU recently experienced the break-away of the UK. Anti-EU movements are on the rise even within the EP. Also, the EU legislative process is quite cumbersome, since the Council (and therein, coalitions of member states) and the EP both hold veto powers. Safeguarding integrity and effectiveness may seem to call for keeping down political disagreement resulting from diverging and conflicting identities among citizens, and consequently, for limiting the expression of diversity and societal conflicts in politics. Our analysis shows how safeguarding unity and effectiveness is an issue and an important rationale of the electoral system in both India and the EU. In a more generalized way one can say that both systems do put some emphasis, if in different ways, on unity, cohesion/integration and effective governance. In India, the principle of first past post disadvantages political minority positions and strongly empowers the majority. EU democracy is firmly based on a liberal ideal, in which social, cultural, ethnic and religious identities are not themselves the subject of representation. This liberal concept aims at maintaining societal integration and cohesion as well as effective governance by keeping these aspects of heterogeneity and the resulting disagreements out of the political processes, or at least, transcending them through the party system and political, partisan ideologies and platforms. The emphasis on unity and effectiveness limits the pluralist character of democratic representation. Banning the articulation of diverging social identities and disagreements among citizens can lead to structural disempowerment and marginalization. It can reinforce discriminatory practices. Also, a (perceived) lack of political responsiveness to particular needs may lead to citizens withdrawing from the public, rejecting politics and shifting towards some kind

48 See Dann and Thiruvengadam, ‘Comparing constitutional democracy in the European Union and India: an introduction’ in this book, Chapter 1, Section 4.A.

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of anti-democratic sentiment that denies the legitimacy of the political system altogether. Populist, anti-establishment movements may be a case in point. All this draws attention to the question whether the Indian and the European electoral systems are open to reform, so that problems and deficits of democratic representation can be remedied. Our analysis shows that the compared systems differ substantially regarding politicization and openness to change: As compared to India, the EU constitutional system, including electoral rules, seems more open to and subject to institutional change, even if the member states are not likely to let go of their decisive role in EU constitutional processes. The EU has a history of substantial, structural reforms and development, also making further reform of the EP’s representative structure much more likely. The idea of substantive equality and representation, however, seems to be rather unlikely to be taken up at the EU level. There are very few instances in which European political systems specifically empower particular social groups and identity-based representation on the EU level is not even discussed. India has effectively frozen into place the apportionment of seats, which results in stark departures from one person, one vote. A similar issue of want of dynamic categories plagues the reservation systems as well. Further, the tendency to prolong, politicize and block much needed fundamental electoral reforms is illustrated in other instances as well, which may have an effect of reworking the political equations. On a generalized level, for continental policies, openness to reform and development to overcome deficits of political equality seems to be a crucial aspect of establishing and maintaining (a legal structure of) fair, democratic representation.

6. Political parties and social movements Michaela Hailbronner and Naveen Thayyil 1. INTRODUCTION Why compare the European Union and India? A cynic might suggest that what brings both regions together is failure: the EU’s failure to become a state and India’s to properly function as a state, both of them alienating large parts of their populations in course. And yet, both India and the EU still exist and survive – even though observers have long wondered just how they do it. Law is only a very small part of the answer to that question. This has long been recognized for the EU whose success is typically understood as a result of legal integration, with the European Court of Justice driving this process. In India, treating law as a means of integration represents a more challenging and doubtful proposition. Standard accounts of Indian legal history tend to focus on public interest litigation (PIL) and other formal routes through which citizens challenge the state using law, but not primarily on the role of law in creating order. However, at a second glance the narratives in India and Europe are more complicated: law serves as a tool to establish order and challenge it at the same time both in India and the EU. At the same time, it opens up channels for contestation and opposition, even as it provides foundations for government, political organization and political representation. We focus in this contribution on this second angle, contestation, as a prism to look at European and Indian developments. In the following, we provide a first and inevitably cursory overview of some key mechanisms in which law structures two important sites of contestation, organization and political representation in India and in the EU, social movements and political parties. We describe the key legal principles, statutory frameworks, and everyday practices that structure political organization and contestation through social movements and political parties in both systems. Because this represents only one of several comparative chapters in this book, we confine ourselves to looking at the more direct and explicit forms of how law enables, regulates and constrains opposition and contestation in both systems, leaving to one side how many of the ways in which law affects how political parties and social 162

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movements come to exist, behave, campaign, litigate and sometimes dissolve again that are more indirect, albeit not less powerful.

2.

POLITICAL PARTIES

2.A India Much of the legal attention to political parties in India is through the prism of elections. This is discernible in prominent statutory provisions and case law, identified later in this section, including the provisions in the Representation of Peoples Act 1951, the institution of the Election Commission through the Constitution of 1950, the attendant conventions and rules that the Commission has subsequently formalized, and case law around the provisions in these instruments. While the emphasis on the electoral space is understandable at one level, this section brings to focus the regulatory limitations on solely focusing on elections as a way to structure activities of political parties. It is palpable that some political organizations are not interested in competing in elections, even as they are geared towards effectuating socio-political change and acquiring state power. In such a scenario, why it is that the law does not envisage a political party that is not interested in elections may be a salient matter and is discussed later in this section. We deal with election laws in detail elsewhere in this book; here, we focus on three important questions, namely: In what ways is Indian law regulating: (1) the formation and recognition of political parties, (2) their functioning, and (3) their role and conduct in elections. While the Indian Constitution is explicit in the recognition of the fundamental right to form associations,1 when an association can be called a political party is a little ambiguous and appears to be tied to the association’s commitment to participate in periodic elections. Political parties have not found any mention in the original Constitution, though its Tenth Schedule added in 1985 pertains to relationship and voting of the existing members of Houses of Parliament, within the floor of the legislature, thus limiting its influence on political parties. The substantive codes that political parties are expected to follow and the uniform law that governs the procedures to form a political party appear to be tied singularly to their role in elections. Parties are essentially imagined as associations who have to get registered and recognized by the Election Commission, and legal injunctions govern issues such as the conduct (hate speech) and expenditure during elections. Broadly, the spectrum of parliamentary political parties in India includes the various versions of the

1

Indian Constitution, Art. 19(1)(c).

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Congress party, the Hindu nationalist BJP (and its predecessor Jan Sangh), the various constituents of the ‘third force’ ‒ the communist Left (CPI, CPI (M), RSP, Forward block) and the various factions of the socialist Janata Dal including the RJD, JD(U), SP, the Ambedkarite parties like BSP and RPI, smaller regional parties like the Assam Gana Parishad, Akali Dal in Punjab, Shiv Sena in Maharashtra, and the more recent the Aam Aadmi Party. There are also a number of radical left parties outside of parliamentary politics like CPI (Red Star) and the MCC which aims to establish radical democracy through non-parliamentary means, including armed revolution. The regulation of the conduct of political parties during the electoral cycle is mostly organized through the Election Commission, an independent constitutional authority who is responsible for the superintendence, direction and control of the preparation of the electoral roll, and the conduct of all elections (to Houses of Parliament and state legislatures).2 The Commission is viewed as having successfully contributed to the maintenance of the legitimacy of the democratic process, including the integrity of the electoral process, to a large extent. Notwithstanding the occasional overstretch of its competencies and occasional quiescence to the dominant political party of the day, the Commission is seen as having maintained ‘neutrality and independence, while providing a democratic structure that is run for, but not by, the political parties’.3 Further, the Parliament has stipulated various substantive norms that the political parties are required to adhere to during elections, through the Representation of People’s Act 1951, in exercise of the power conferred by the Constitution to make law regarding all matters relating to elections to the Parliament and state legislatures.4 One can quickly surmise here that the substantive principles which channel potential contestations through political parties are all tied to the election process. They circumscribe actions to criminalize hate speech during elections (section 153 Indian Penal Code of 1860 and section 8 RPA 1951), disqualify candidates from standing in elections/being member of a legislature ‒ if they are convicted of a host of criminal offences under other laws (section 8 RPA 1951), corrupt practices (sections 8A, 99 RPA 1951) disloyalty to the state (section 9 RPA 1951) and election expenditure (Part VIII RPA 1951). It is salient that while the violation of these restrictions can result in the disqualification of a party candidate, it does not formally affect the standing of a political party itself.

Indian Constitution, Art. 324. Alistair McMillan, ‘The Election Commission’ in Niraja Jayal and Pratap Mehta (eds), The Oxford Companion to Politics in India (OUP 2010) 98. 4 Indian Constitution, Art. 327. 2 3

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The functioning of political parties is more directly regulated through provisions for registration, recognition and allotment of election symbols, as well as recognition of mergers and splits ‒ again all centrally tied, in one way or the other, to the electoral cycle. Parties apply for registration even though it is not mandatory as they can avail certain benefits crucial to elections (allotment of exclusive symbols, free supply of electoral rolls, certain broadcasting rights during election etc.: section 29A RPA 1951). Specific requirements for a successful registration include a minimum number of members, furnishing of specific particulars of the party, periodic conduct of organizational elections within the party with the (scarcely successful) aim of fostering inner party democracy, and guidelines to ensure that persons belonging to any community, caste, gender or religion can become a party member. Importantly, all parties are also required to submit a memorandum to the Election Commission as part of the registration process, including a specific declaration to ‘bear true faith and allegiance to the Constitution … and to the principles of socialism, secularism and democracy, and would uphold the sovereignty, unity and integrity of India’. The possible clash between these values recognized as fundamental in the Constitution, and the ideology of the party is brought into sharp focus here. While all parties in the electoral arena have ratified such memorandums (which is also akin to a similar declaration by all candidates before all elections), how would one view arguments that specific parties systematically work against specific constitutional values? There have been two such instances where other actors attempted to cancel the registration of a political party. In the first, political activists sought to deregister the BJP and Shiv Sena for a violation of secularism as a constitutional value in early 1992 for its active role in the Ramjanmabhoomi movement that resulted in the destruction of Babri Masjid, a 16th century mosque. A group of political activists, including members of the Indian National Congress, approached the Election Commission in a petition to deregister and de-recognize the BJP and Shiv Sena, as petitioners felt that these parties had indulged in religious activities opposed to the principles of secularism, and thus in contravention to their commitment under Memorandum during their registration. The Election Commission, however, observed that it could not be a judge of the ideologies, policies and programmes of political parties and thus did not act on the request.5 In the second instance, the High Court of Kerala was approached by an NGO, asking it to order the Election Commission to de-register two major political parties, the Indian National Congress and the Communist Party of

5 Order dated 19 February 1992 of the EC in Re Bharatiya Janata Party and Shiv Sena. See further, V.S. Ramadevi and S.K. Mendiratta, How India Votes: Election Laws, Practice and Procedure (4th edn, LexisNexis 2017) 611‒12.

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India (Marxist), on account of their actions to enforce calls for hartal (strike) through threats and coercion. This petition was in the context of the same Court holding such hartals unconstitutional, and an earlier Supreme Court judgment rendering the implementation of the call for bandhs (general strike) unconstitutional.6 The High Court of Kerala in its judgment, curiously, had no hesitation in directing the Election Commission to initiate appropriate action ‘for cancelling the registration or for de-recognition’.7 The Supreme Court on appeal, however, held that de-registration of a political party was a serious matter and the Election Commission has no power to entertain such petitions, apart from exceptional cases like commission of fraud to obtain the initial registration or a change of nomenclature of association by the party with the effect of refusing ‘allegiance to the Constitution of India or principles of socialism, secularism and democracy’.8 Another significant exception to the power to deregister has been added by the Election Commission itself, with respect to political parties which have not competed in elections for a significant amount of time.9 In 2016, the Commission removed about 200 parties from its register that were found to be inactive in elections, without palpable challenge from any quarters. This only gives further weight to the initial insight that law of political parties, including recognition and registration, is solely geared towards the electoral process. The logic of recognition of political parties by the Election Commission (which is different from and subsequent to the registration process discussed above) follows the general emphasis on electoral activity. Registered parties are categorized as recognized national parties, recognized state parties or unrecognized parties, through a matrix of indicators including their performance in national or state elections in terms of the percentage of votes polled in the state(/s) in question, the number of its members elected to the legislature, and continuity in electoral activity. Such recognition confers certain privileges like exclusive use of the party symbol during all elections, their position from the top in the ballot paper etc. The Election Commission had insisted in the initial decades that the power to withdraw recognition should be exclusively tied to a party’s performance at national or state elections. However, this position has slowly changed since the 1990s with the introduction of the Model Code of Conduct during elections for political parties by the Election Commission. There is a gradual assertion that failure or refusal to comply Communist party of India (Marxist) v Bharat Kumar AIR 1998 SC 184. Institute of Social Welfare, Kochi v State of Kerala and Others, etc., OP NO. 20641 of 1998. 8 Indian National Congress v Institute of Social Welfare, Kochi and Others AIR 2002 SC 2158, para 40. 9 See further Ramadevi and Mendiratta (n 5) 613‒14. 6 7

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with the code of conduct or related directions from the Commission towards conducting ‘free, fair and peaceful elections or safeguarding the interests of the general public and the electorate’, can be a ground for suspension or withdrawal of recognition. Thus, actions to withdraw recognition of parties were initiated on the ground of failure to submit account of election expenses,10 and failure to organize internal party elections.11 It is also notable that in another instance the High Court of Himachal Pradesh observed that obstructing the implementation of Court orders by party workers can be a ground for withdrawal of the recognition of a political party: The Court shall not hesitate to issue directions to the Election Commission of India to derecognise the political party(ies), if its workers do not respect the orders passed by this court. The political parties and State functionaries should be on the right side of the law and there should not be any attempt to negate the ‘Rule of law’. Negation of ‘Rule of law’ results into anarchy.12

We can see that in some aspects registration and recognition can be tied to indicators other than electoral performance such as a possible clash with constitutional values (like socialism, secularism and rule of law) or for contempt of court. However, the logic of registration and recognition itself is tied to benefits and privileges in the electoral arena, and does not necessarily constrain an organization’s ability to describe itself as a political party. This raises the question what if the concept of a political party makes sense, even as it refuses to think of itself as a potential player in the electoral arena? A number of Indian political parties like the CPI (Red Star, Maoist) the MCC (Maoist Communist Centre of India) or the PWG (People’s War Group) have openly announced to seek political change through means outside the electoral arena in their party constitutions. While some of these parties have been banned by the executive at various points in the last three decades, they do understand and organize themselves as political parties without entering the electoral arena, demonstrating the limitation that comes with regulating political parties only in the electoral space. While these might be extreme cases at one end of the political spectrum, there are also examples of organizations on the other end of the political spectrum like the RSS who seek to achieve a Hindu nation state while eschewing political or electoral activity in their constitution. While the RSS describes itself as a cultural organization (and explicitly not a political 10 Re Nagaland People’s Party Election Commission Orders dated 12 June 2015 and 1 July 2015. 11 Re All Party Hill Leader’s Conference (Armison Marak Group) Election Commission Orders dated 30 September 1997 and dated 21 September 1998. 12 Yoginder Singh v State Cr.MP (M) No. 1299/2008 before Himachal Pradesh High Court decided on 27 February 2016.

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party), their conception of culture is a wide one which explicitly encompasses the political. Thus, framing the Election Commission and the electoral process as the central sites of regulation of political parties has certain important limitations, pointing towards the need for a larger frame for the regulation of political parties. Another trend which is not captured in this frame of regulation of political parties is the fragmentation of the party system and the emergence and evolution of electoral alliances through the last three decades.13 Though regional parties have long had a considerable share of votes in India,14 initially the dominance of Congress meant that space for regional politics was limited, in particular on the federal level. As Congress’ initial dominance crumbled, the 1990s brought about a federalization of the Indian party systems with regional parties not merely dominating state politics but increasingly playing important roles as coalition-partner on the national level.15 As a result, there has been an increasing emphasis on electoral alliances between political parties, especially but not limited to the Union elections, including the UPA (United Progressive Alliance), NDA (National Democratic Alliance), National Front (1989‒1990) and United Front (1996‒1998), as also a number of coalitions in the State level – like the SAD (Shiromani Akali Dal)-BJP alliances in Punjab, LDF (Left Democratic Front) and UDF (United Democratic Front) in Kerala, Shiv Sena-BJP alliance in Maharashtra that preceded the NDA at the national level, the LDF in WB, and more recently the Mahagathbandhan of INC, JDU and RJD in Bihar in 2015, and the not so successful SP-Congress alliance in UP in 2017. Yet notwithstanding the centrality of party alliances (like the UPA and NDA) for government formation and opposition, there are yet no formal rules that seek to regulate and institutionalize adherence to common minimum programmes between alliance partners or regarding the process through which alliances are made/broken subsequent to elections, beyond the political discourse of ‘coalition dharma’. In the recent state elections for Maharashtra, the Shiv Sena and BJP contested the elections together in an alliance under a common program, and yet after considerable political theatre subsequent to the declaration of results, the former came together with two opposing parties (the NCP and the Congress) to form the government. The difficult interplay between legal and political norms is in sharp focus here, pointing to the ephem13 See further E. Sridharan, ‘The Party System’ in Jayal and Mehta (eds), The Oxford Companion to Politics in India (OUP 2010) 117. 14 Adam Ziegfeld, ‘Why Regional Parties?: Clientelism, Elites, and the Indian Party System’ (CUP 2016). 15 Balveer Arora and K.K. Kailash, ‘The New Party System: Federalised and Binodal’ in Ajay K. Mehra (ed), Party System in India: Emerging Trajectories (Lancer 2013) 235.

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eral nature of pre- and post-political alliances between parties, and the inability of law to intervene to structure and order formation of governments. The future is uncertain. Notwithstanding the absolute majority gained by the BJP in 2014 and 2019 bucking the trend of no single political party gaining an absolute majority in the Parliament, party alliances have long been central to Indian politics. It is unclear, however, if this will remain the case. Some political scientists have recently suggested that the BJP’s dominance and emphasis on Indian nationalism puts the strength and survival of regional parties at risk in the longer run.16 At the same time, the emergence of the BJP as the primary party in the national political scenario, since May 2014, has heightened the need for alliances of opposition parties as a site for political representation. Ultimately, the relationship between regional and national parties and national governance is contested. While some have seen the rise of regional parties with their frequent clientelism and caste and regional focus as a threat to Indian integration and the construction of effective governments, others have suggested that regional parties are necessary as a counterweight to top-down centralization and allow issues and voices to be represented at the national levels which might otherwise be shut out, with negative consequences for all.17 As it stands, the Indian regulatory framework is silent on these issues. This silence and the relatively uncomplicated nature of registration speaks to the path dependencies in that system rooted in the initial dominance of Congress which did not envisage the federalization of the Indian party system. The result of this framing is that at least to some degree the Indian system prizes openness and encourages opposition over stability and order. 2.B

The European Union

2.B.1 Introduction From the outset, the regulation of political parties in the EU is very different to India. To start with, there are no ‘original’ European political parties. National parties form alliances in the European Parliament (EP) according to political ideology where they vote accordingly in blocs; such alliances now typically band together as European political parties who may also cooperate outside of the EP in multiple ways. For a long time there was very little genuine European law on European political parties. The answer to at least two previous questions we asked about India above, namely how European law

16 K.K. Kailash, ‘The decline and fall of regional parties’ (livemint, 9 June 2019), available at accessed 22 October 2020. 17 See for an overview Adam Ziegfeld, Why Regional Parties? (CUP 2016).

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regulates the formation and recognition of political parties and how it regulates their role and conduct in elections, would hence have been that it does not. More recently, the latter has begun to change. The organization of elections including European elections to the EP nevertheless remains largely a matter of national arrangements. European law only provides some basic rules such as the rights of Union citizens to vote for and stand in elections in the member state they are residing in (Article 22(2) TFEU) or that elections must be based on proportional representation (Article 1 of Council Decision 2002/772/EC) etc. But it is national legislators who determine who may or may not stand in elections or determine minimum thresholds for representation and other key electoral issues. A recent proposal to introduce transnational lists as a means of strengthening the politicization of European politics, favoured among others by France’s Emmanuel Macron and Jean-Claude Juncker,18 has been rejected in the EP, at least for the time being.19 Elections to the EP still broadly follow the second order model that shows statistically significant percentages of voters turning away from large national parties and parties in government in their member state in order to voice disagreement with national politics.20 Studies have, however, shown some signs that broader European political trends may be emerging insofar as we can increasingly observe pan-European swerves to one side of the political spectrum.21 National party membership is nevertheless still the best predictor of voting behaviour within the EP.22 All of this has long been a cause for regret to advocates for stronger European integration and democratization; together with the lack of a common public sphere

18 See Emmanuel Macron, ‘Initiative pour l‘Europe ‒ Discours d‘Emmanuel Macron pour une Europe souveraine, unie, démocratique’ (Speech at Sorbonne University, 26 September 2017), available at accessed 22 October 2020; Jean-Claude Juncker, ‘State of the Union Address’ (13 September 2017), available at accessed 22 October 2020. 19 See e.g. the news report from Catherine Hardy, ‘EU parliament rejects transnational lists’ (euronews, 7 February 2018), available at accessed 22 October 2020. 20 Simon Hix and Michael Marsh, ‘Second-Order Effects Plus Pan-European Political Swings: An Analysis of European Parliament Elections Across Time’ (2011) 30(1) Electoral Studies 4. 21 ibid. 22 Simon Hix, ‘Parliamentary Behavior with Two Principals: Preferences, Parties, and Voting in the European Parliament’ (2002) 46(3) American Journal of Political Science 688.

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of discourse, the lack of strong genuinely European parties remains a classic obstacle to the formation of a European people according to many theorists.23 The EP also remains the key forum for European political parties’ activities, having gained an increasing array of competences over the last decades and functioning today as a true European co-legislator together with the Council of the European members (the gathering of the respective member state ministers). Outside of the EP, European political parties play only a limited role. The European Council (the assembly of member states’ heads of government) as well as the Council is mainly composed of national politicians and thus draw their legitimacy from national political processes. The European Commission’s President is now appointed by the European Council ‘[T]aking into account the elections to the European Parliament’ (Article 17(7) TEU). Though it remains a subject of debate whether the European Council is under a legal duty to propose the top candidate of the victorious European party/ alliance (the existence of such candidates, too, is a novelty),24 the Council did indeed appoint Juncker as Commission President in 2014 who had also been the ‘Spitzenkandidat’ of the conservative European People’s Party (EPP). In anticipation of the 2019 EP elections, the EP had again announced it would only approve one of its Spitzenkandidaten as head of the Commission.25 However, things did not work out that way. Lacking an absolute majority, the EPP did not attract sufficient cross-party support for its Spitzenkandidat, the German Manfred Weber whom several Council Members had long viewed with suspicion. After some back-and-forth in Brussels, the Council ultimately proposed German defence minister Ursula von der Leyen, thus abandoning Weber and the Spitzenkandidaten-approach. In spite of some initial resistance, von der Leyen was ultimately elected by the EP, but had to secure support from a range of far-right wing parties in order to get elected. All this signals that European political parties remain weak actors as compared to their national members represented by their national members of government in the Council.

23 For example, Dieter Grimm, ‘Does Europe Need a Constitution?’ (1995) 1(3) European Law Journal 282, 294 f.; Jürgen Habermas, ‘Remarks on Dieter Grimm’s “Does Europe Need a Constitution?”’ (1995) 1(3) European Law Journal 303, 306. 24 Sara B. Hobolt, ‘A Vote for the President? The Role of Spitzenkandidaten in the 2014 European Parliament Elections’ (2014) 21(10) Journal of European Public Policy 1528; on the broader implications (with a somewhat sceptical note) Thomas Christiansen, ‘After the Spitzenkandidaten: Fundamental Change in the EU’s Political System?’ (2016) 39(5) West European Politics 992. 25 See EP resolution of 7 February 2018, available at accessed 22 October 2020.

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2.B.2 Legal framework The European Treaties themselves do not set out substantive requirements for political parties in the EU. Article 10 TEU merely stipulates that ‘Political parties at European level contribute to forming European political awareness and to expressing the will of citizens of the Union’. As a matter of practice, political parties represented in the EP channeled for a long time some of their parliamentary funds back to their alliances and parties outside of Parliament, leading to the ECJ’s landmark decision in Les Verts which annulled that funding scheme for its lack of a basis in European law.26 The Nice Treaty finally introduced a competence for the Union with regard to the funding of political parties in Article 224 TFEU, enabling the EP and the Council to ‘lay down the regulations governing political parties at European level referred to in Article 10(4) of the Treaty on European Union and in particular the rules regarding their funding’.27 This scarcity of detail with regard to an institution as important to a democracy as political parties is surprising only at a first glance; at a second it mirrors many other older national constitutions such as the Indian Constitution (see above) which are similarly restrained on the matter. European secondary legislation with regard to political parties has been evolving slowly but constantly.28 Regulation (EC) No 2004/2003 provided the first regulatory framework on the European level, setting out key criteria for the recognition of European political parties and providing some access to European funding. Legal challenges against these early attempts at regulation on the basis of a claim that the rules in place discriminated against small parties were unsuccessful because plaintiffs could not establish standing.29 Funding, or so some hope at least, may help existing political alliances to finance common projects across frontiers and thereby contribute to strengthening the European identities of the national parties making up the alliances (see for example the Preamble to Regulation No 1141/2014). For some time, funding was granted fairly indiscriminately to European political parties, including right-wing Eurosceptic parties – a fact that attracted considerable criticism

26 Case C-294/83 Parti écologiste ‘Les Verts’ v European Parliament EU:​C:​1986:​ 166, [1986] ECR 01339. 27 Michaela Maier, Jesper Strömbäck, and Lynda Lee Kaid (eds), Political Communication in European Parliamentary Elections (Ashgate Publishing 2011) 28 ff. 28 For an overview and assessment of the mechanism in terms of combatting populism in Europe see John Morijn, ‘Responding to “Populist” Politics at EU level: Regulation 1141/2014 and Beyond’ (2019) 17(2) International Journal of Constitutional Law 617. 29 Case T-40/04, Emma Bonino and Others v European Parliament and Council of the European Union EU:​T:​2005:​279, [2005] ECR II-02685.

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both within the EP30 and in the broader public. Reportedly, the far-right Alliance for Peace and Freedom (APF) had received significant funds of nearly 600 000 Euro from the EU which it subsequently used to finance a Neo-Nazi assembly in Stockholm.31 In other, less dramatic instances, parties were found to have misspent part of their funding and had to return funds to the EU.32 Though regulators have since sought to remedy these problems, they have had limited success.33 Regulation No 1141/2014 finally repealed and replaced Regulation (EC) No 2004/2003, and established an ‘Authority’ for European Political Parties and European Political Foundations (the ‘Authority’) for ‘registering, controlling and imposing sanctions on European Political Parties’ (EU No 1141/2014, Preamble Nr. 8). Regulation 2018/673 brought further amendments, mainly changing some requirements for registration. The Authority has only taken up work, as of 1 January 2017. So far, it has deregistered two parties, the Alliance of European National Movements (AEMN) and Alliance for Peace and Freedom (APF), which fell foul of the newly amended representation requirements and the political foundation affiliated with the APF (Europa Terra Nostra).34 It has also refused registration to one political foundation associated with the extreme right-wing party Alliance Européene des Mouvements Nationaux (AEMN).35 Since only registered parties can apply for funding with the EP, the financial 30 Report A7-0062/2011 of 18 March 2011 on the application of Regulation (EC) No 2004/2003 on the regulations governing political parties at European level and the rules regarding their funding, available at accessed 22 October 2020. 31 Daniel Mützel, ‘European Parliament funding of neo-Nazi conference rings alarm bells’ (euractiv, 27 April 2016), available at accessed 22 October 2020; and other news outlets. 32 For example, in the case of the ADDE, Press Release from the European Parliament, ‘ADEE political party misspent € 500 000 and will need to reimburse’ (12 December 2016), available at accessed 22 October 2020. 33 For a good recent overview see Wouter Wolfs, EU Party Funding: A Pro-European Instrument to Support Euroscepticism? (OECD Global Anti-Corruption & Integrity Forum, 30 and 31 March 2017). 34 European Authority, Press Release, ‘Implementation of Regulation 2018/673 amending Regulation No 1141/2014’ (27 September 2018), available at accessed 22 October 2020. 35 See homepage of the Authority, available at accessed 22 October 2020.

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incentives of the previous system remain in place, but are now supported by a somewhat more robust registration and sanctions mechanism. Functionally, the Authority takes over some of the tasks the Indian Election Commission assumes with regard to the monitoring of political parties, but it does so within the regulatory framework of funding rather than electoral competition. Indeed, as the Preamble to Regulation No 1141/2014 explicitly declares (paragraph 18), the registration of an association as a European political party with the Authority does not entitle such parties to participate in national elections or indeed in European elections whose organization and legal regulation remains in the domestic purview of individual member states. In order to register as a European party and thus gain European legal personality and access to funding, political alliances must fulfil a number of requirements. It or its member parties (but not its individual members, as per the amended regulation) must have a certain minimum presence in several member states, being represented in at least a quarter of national parliaments or having received at least 3 per cent of votes cast in a quarter of the EU’s member states in the most recent EP elections (Article 3(1)b) in order to register. EC 2018/673 also makes clear that membership in a European party is exclusive, that is, that member parties may not be members of another European party.36 European political parties must ‘observe, in particular in its programme and in its activities, the values on which the Union is founded, as expressed in Article 2 TEU, namely respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities’. Finally, they are required to provide supporting documentation to prove that they observe the requirements including a formal declaration to that effect and party statutes (Article 8(1)) and their internal organization must fulfil certain requirements (Article 4). Once completed, registration as a European Political Party is no guarantee of access to funding for the future. The Authority is tasked to monitor compliance with the conditions for registration as well as the use of funds received on an ongoing basis and can draw on additional sources of information if necessary to fulfil its controlling function (Article 10) and the EP, on its own or ‘following a reasoned request from a group of citizens’, the Council and the Commission can lodge a request with the Authority to verify compliance (EC 2018/673 Article 1(5)). If facts suggest that a party may no longer fulfil the conditions for registration, the concerned party must be heard and a committee of six independent ‘eminent persons’ whose members are nominated

36 Art. 1(4)(b) Regulation (EU, Euratom) 2018/673 of the European Parliament and of the Council of 3 May 2018 amending Regulation (EU, Euratom) No 1141/2014 on the statute and funding of European political parties and European political foundations.

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by the Council, the Commission and the EP (Article 11) will give an advisory opinion. Ultimately, the Authority takes the final decision to deregister a party or not, supported by reasons. Rights and values such as the freedom of association and pluralism of political parties in Europe are moreover relevant to that decision (Article 6(2)). Finally, once parties are successfully registered, they may apply for funding from the EU with the EP. The use of European funds had already been circumscribed in a number of ways, providing for example that funds may not be used to finance referendum campaigns. This ban of financing referenda had in the past been hotly debated as some suggested that pro-European referenda campaigns (such as those regarding the European Constitutional Treaty) were underfinanced and could have benefitted considerably from outside funding, with a potential to sway results. The proposed new rules now additionally aim to make it easier to retrieve misused funds, another reaction to past events where in particular Eurosceptic parties had been found to misspend received moneys.37 2.C Comparison Though monitored by different institutions and within different regulatory frameworks, the substantive requirements regarding the registration of political parties in the EU and India resonate with each other. Those rules are of course not unique to these two systems; they fit into broader global trends towards constitutionalization and the limitation of political power by law. Constitutionalism so understood increasingly includes the monitoring of democratic institutions and parties, as opposed to placing trust in the self-regulation of these institutions in response to elections, though the degree of success of the different monitoring mechanisms may vary. Like party prohibitions more generally, the Indian and European regulatory mechanisms can be tied to ideas of militant democracy as the attempt of democratic systems to protect themselves against radical transformation from within.38 37 ibid, see changes in Art. 27 and Art. 30(2). For examples see Harry Cooper, ‘Scandal over misuse of EU funds worsens for Danish People’s Party’ (Politico, 24 October 2016), available at accessed 22 October 2020; Jennifer Rankin, ‘Tougher rules threaten to choke off Ukip’s EU funding’ (The Guardian, 9 December 2016), available at accessed 22 October 2020. 38 See first and groundbreaking Karl Loewenstein, ‘Militant Democracy and Fundamental Rights, I.’ (1937) 31(3) American Political Science Review 417; Karl Loewenstein, ‘Militant Democracy and Fundamental Rights, II.’ (1937) 31(4) American Political Science Review 638.

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From the perspective of enabling more radical opposition and political contestation, such rules are of course problematic. While certain requirements such as rules for internal democracy seek to make parties more open and responsive, the broader monitoring of parties’ substantive agendas undeniably also restricts citizens’ ability to challenge the existing governmental system in more fundamental ways. Though the constitutional values to which both the European and the Indian frameworks seek to bind political parties are on their face hard to object to, we also know that the real question is often who exercises interpretive authority over them. In this context, it seems useful to remember that in those European systems where party prohibition exists as part of militant democracy, both parties on the left (for example Communists) and the right have previously been prohibited.39 Unsurprisingly, the regulation of funding for political parties (including refusals to fund) always raises difficult questions. In India, the predominant concerns appear to be to check money power dominating electoral results and political representation, especially moneys which are not declared or are falling within the tax net. And yet, there are no provisions to facilitate state funding of parties in India. In Europe, the concern is less with the dominance of financial interests but rather with safeguarding the objective of European integration as the registration as a European political party requires a presence in a quarter of all member states, thus excluding parties with a purely national agenda and benefitting those that represent interests common to other member states. At the same time, it seems that much of the debate both in India and Europe is predominantly symbolical – and in the European case perhaps additionally a tool to control the spending of public funds which often seems a more sensitive issue for the EU than national governments in the face of accusations of a corrupt Brussels elite. Given that even party prohibitions are often far from effective,40 one may wonder all the more about the Indian and European rules, in particular as European parties are traditionally alliances of regional parties which often have access to national funds that constitute their main budget. Indeed, the current rise of anti-European right-wing parties across Europe, from Hungary and Poland over Germany and Austria to the Netherlands, France and of course Britain suggests that existing frameworks do leave considerable space for contestation and radical challenge. Something similar seems to hold for India, from the rise of the anti-corruption movement and its political front in the Aam Admi Party to the rise of the BJP as the political hegemon which 39 See e.g. Germany whose constitutional court has in the 1950s declared both the national-socialist SRP (BVerfGE 2, 1) and the German Communist party (BVerfGE 5, 85) unconstitutional. 40 See e.g. the examples discussed in David Landau, ‘Abusive Constitutionalism’ (2013) 47(1) UCDL Rev. 189.

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has an ambiguous relationship with secularism as a key principle of Indian government, given its commitment to Hindutva and its objective to turn India into a Hindu state. If the hope was to restrain illiberal ideological strands from gaining traction through legal regulation of electoral practices, it has not met its purpose. Law may frame these shifts in particular ways, but it certainly has not been able to block them. Ultimately, it seems important to keep in mind that in order to get a more comprehensive understanding of how law frames the behaviour of political parties, it will be necessary to look not merely at the explicit regulation of parties in both systems, but also those legal rules that set up and order the institutions that make parties visible in the public, including in parliaments. In addition, electoral laws affect parties’ ability to govern as well as their ability to speak up in opposition and potentially draw public and media attention to contentious questions more than details of the rules for their registration. As others explore these questions elsewhere in the book, we do not engage with them here.

3.

SOCIAL MOVEMENTS

Traditionally, we think of political parties primarily as vehicles for organizing government (or governmental coalitions) in democratic states. Social movements in contrast are more often understood as platforms for resistance and opposition to influence the existing order without themselves running for government. Yet, already at a second glance, things are more difficult. Social movements appear in very different forms.41 Some movements seek to achieve change through public protest, others focus on lobbying and still others engage heavily in strategic litigation. Many do all or some of these things. Some social movements are deeply regional, responding to very particular problems in specific local contexts, others organize and act globally. And though movements do not typically compete in elections under their own banner, many movements such as the environmental movement have strong ties to specific political parties, such as Green Parties or Pirate Parties in Europe. Some movements even make formal steps to form political parties – for instance, the anti-corruption movement under the banner of India Against Corruption (IAC) took a conscious move to form the Aam Admi Party (AAP) in India earlier this decade; though the ties between IAC and AAP have been tenuous 41 For a good introduction to social movements in the Indian context see Amita Baviskar, ‘Social Movements’ in Niraja Gopal Jayal and Pratap Bhanu Mehra (eds), The Oxford Companion to Politics in India (OUP 2011) 382‒83; for Europe see e.g. Donatella della Porta and Manuela Caiani, Social Movements and Europeanization (OUP 2009) 382‒83.

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subsequently. Political parties sometimes emerge out of strong social movements and some remain connected with such movements later on. In many postcolonial regimes, political parties that dominate national politics for a long time such as the Indian National Congress or South Africa’s ANC have their roots in popular movements, and their leaders consequently enjoy credence and charisma that comes with this origin. Sometimes, the original movements may still exist alongside their later party political offspring even when they are in power, but typically they either lose steam as their representatives are now seen to participate in politics-as-ordinary (for example in India and South Africa) and/or their relationship with their political parties becomes more complicated and sometimes fraught with tensions (for example pacifist movement in Germany part of which has joined the Green Party).42 There are also extraordinary situations where movements continue to control political parties that they set up, like the relationship of the Hindu nationalist organization RSS with the BJP, and its predecessor the Jan Sangh.43 In established democracies social movements – unlike political parties – often understand themselves as platforms for more specific political demands that are not (sufficiently) taken up by existing political parties. Also, some movements are platforms for specific issues that attract allegiance from a broader political spectrum reaching across existing party lines. When social movements move beyond that, they tend to morph into political parties and institutionalize accordingly. This is not always the case, however. How the RSS, an organization with a fundamental aim of transforming the constitutional secular democracy of India into a Hindu nation state, has preserved at least a conceptual separation between the party and the movement would require keener attention. Sometimes political parties that emerge out of social movements appear to keep a strong ‘movement-character’ by positioning themselves as outsiders, whereby the emphasis is on radical contestation rather than being competitors within the existing political system. This seem to be a classical trajectory of populist parties/movements in their claim to act as representatives of the true people against a corrupt governing elite.44 Competing on ideologically equal terms with other political parties is therefore not always a route taken here since it is important to populists’ self-understanding as representatives of the true people that they are not seen like other political parties which have betrayed the people; and they consequently tend to emphasize their movement character. 42 See e.g. Elim Papadakis, ‘Social Movements, Self-limiting Radicalism and the Green Party in West Germany’ (1988) 22(3) Sociology 433. 43 See e.g. Abdul Gafoor Abdul Majeed Noorani, The RSS and the BJP: A Division of Labour (3rd vol., LeftWord Books 2000). 44 Jan-Werner Müller, What is Populism? (Penguin UK 2017).

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Social movements are diverse in their goals, institutional forms and strategies in their political engagements in comparison to political parties that are generally seen as election centric. Thus, while political parties generally act in heavily legally regulated contexts, social movements are subject to legal regulation in a more limited manner. Nevertheless, law structures the creation and behaviour of social movements in multiple ways: Constitutional rights such as the freedom of assembly or free speech set out the broad lines along which citizens may organize as associations like social movements. While it is unusual for statutes to prescribe particular forms and structures for such associations to institutionalize as social movements, legal rules often regulate the funding of social movements, by providing tax deductions for donors or granting lower or tax-free status to charitable enterprises while requiring transparency. Social movements may refuse to adopt formal or legal institutional forms. Sometimes, they allow governments themselves to fund civil society initiatives or support them in other ways – which can impact the work and success of movements.45 Finally, law often structures access to government, including its representatives, courts, policy-makers and regulators. A significant formal route of access is through laying down rules for access to court by setting out standing rules which determine whether social movements may themselves bring cases to engage in strategic litigation. While an individual citizen can easily be distinguished from a social movement, it is still ambiguous if and when a civil society organization can be understood as a social movement. The term ‘social movement’, thus, requires further definitional clarity for a more comprehensive analysis. However, we desist from such an endeavour here due to economies of space and restrict ourselves to analysing those rules which directly regulate how social movements and associated organizations, rather than individual citizens, are able to pursue social change, that is, such provisions that structure their interaction with state institutions such as legislatures, governments and courts. 3.A India Social movements have used multiple routes to access and shape the state in their pursuit of social change. One prominent route has been the use of PIL in the higher judiciary, discussed below. PILs and judicial activism coincided with ‘an upsurge of “non-party political movements” ‒ grassroots social campaigns and non-governmental organizations ‒ that emerged in the wake of the

45 Charles R. Epp, The Rights Revolution: Lawyers, Activists, and Supreme Courts in Comparative Perspective (University of Chicago Press 1998) 98.

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Emergency’, often reinforcing each other.46 There have also been less formal routes through which social movements have influenced legislative activity, occasionally working closely with politicians with allied social agendas. In a series of prominent instances in the 2000s, social movements successfully pushed through legislation on socio-economic rights such as the rights to education and to information, the Forest Rights Act of 2006 and the National Employment Guarantee. These attempts were partly facilitated by the creation of, and nudges through, the National Advisory Council, a non-statutory body comprising of rights activists, bureaucrats, a number of progressive academics, and headed by the president of the then ruling Congress party. The policies and functioning of the current central government seem to be heavily influenced by the RSS. Much has been written in the last two decades about the Indian experience and experiments with judicial activism and PIL, and we don’t intend to rehearse those accounts here.47 The Habeas Corpus case (Assistant District Magistrate, Jabalpur v Shivakant Shukla (1976) 2 SCC 521) is usually described as a certain karmic starting point in the judiciary’s activist strand. According to the standard narrative, the Indian judiciary which had previously lost its public credibility by condoning the tyranny and authoritarianism of Indira Gandhi’s emergency regime was therapeutically healed by atoning for its sins and recapturing legitimacy through judicial activism.48 In doing so, it drew primarily on two techniques: first a liberal interpretation of the fundamental rights chapter of the Constitution purportedly to maximize the rights of the marginalized and disadvantaged sections of the society (Maneka Gandhi v Union of India, AIR 1978 SC 597). Secondly, courts relaxed the technical rules of access and standing in the late 1970s through mid-1980s, postulating the principle that ‘any member of the public having sufficient interest may move the Court for judicial redress for public injury arising from breach of public duty or from violation of some provision of the Constitution or the law and seek enforcement of such public duty etc’. Non-party political movements, including rights groups and NGOs, used the space opened up by these innovations to engage, influence and challenge law and policy on a myriad set of

46 S. Ruparelia, ‘India’s New Rights Agenda: Genesis, Promises, Risk’ (2013) 86(3) Pacific Affairs 568, 574. 47 Perhaps the most comprehensive work on the Indian PIL process is S.P. Sathe, Judical Activism in India: Transgressing Borders and Enforcing Limits (2nd edn, OUP 2002); Upendra Baxi, The Indian Supreme Court and Politics (Eastern Book 1980), and Upendra Baxi, ‘Taking Suffering Seriously: Social Action Litigation in the Supreme Court of India’ (1985) 4 Third World Legal Studies 107–32. 48 Sathe (n 47) 173.

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popular issues including access to food, education, privacy, shelter, livelihood, clean water, air and forests, right to a safe environment. The Supreme Court had also started pushing the traditional limits of the writ jurisdiction and developed the instrument of continuous mandamus. Mandamus, a writ traditionally used to compel a public authority to do its legal duty, or not do what it was statutorily/legally forbidden to do, was widened to ensure effective investigation against high political functionaries in the celebrated Jain Hawala diaries case.49 As a consequence of this expansion of mandamus, orders were granted in realms that are traditionally viewed as outside the purview of the courts’ powers. These innovations have been primarily justified by insisting that only such drastic measures can facilitate a social revolution ‘to provide a decent standard of living to working people, and protect the interests of the weaker sections of the society’. PILs in general and continuous mandamus in particular created a space where public deliberation on various issues, which was otherwise scarce, could thrive; whether PILs generally aided social movements in their quest for social justice and transformation is however a moot point. Another important space where social movements could engage with the government was through public hearings in Environmental Impact Assessments, currently the central arena of public decision-making in granting environmental clearances in India, introduced through various executive notifications under the Environment Protection Act 1986 (EPA). The public consultation process provides a formal platform for members of the affected community to voice their concerns about a proposed developmental project.50 Public consultations are supposed to proceed in two stages, by holding public hearing, and accepting written submissions, with the hearings serving to elicit concerns and responses of the ‘local affected persons’, while ‘written responses’ can be forwarded by ‘other concerned persons having a plausible stake in environmental aspects of the project or activity’ to the appropriate regulatory agency.51 However, this distinction between two classes of persons, ‘local affected persons’ and ‘other concerned persons’ and their different channels of participation has been papered over by the Delhi High Court through its observation: ‘From the terms of the Notification dated 14 September 2006 it seems, prima facie, that so far as a public hearing is concerned, its scope is limited and confined to those locally affected persons residing in the close proximity of the project site. However, in our opinion, the Notification does Vineet Narrain v Union of India (1996) 2 SCC 199. Ministry of Environment and Forests, Notification S.O. 1533 from 14 September 2006 (EIA Notification, 2006), available at accessed 22 October 2020. 51 Sections 7(i)(III)(ii)(a) and 7(i)(III)(ii)(b) of 2006 notification (n 50). 49 50

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not preclude or prohibit persons not living in the close proximity of the project site from participating in the public hearing ‒ they too are permitted to participate and express their views for or against the project’.52 The conduct of the hearing is further regulated in detail in the notification, demanding for example an upload of the summary of the draft EIA report and of the original application on the project proponent’s website, requiring the proponents to specifically seek responses from concerned persons on their website, and also to provide notice through other necessary means of wide publicity.53 Public access to the draft EIA reports and other relevant documents are also sought to be ensured by the insistence that the project proponent should forward the draft report and the summary report to the MoEF and other ‘designated offices’. These offices are also responsible widely publicizing the draft EIA report in their respective jurisdictions, and requesting people to send their comments to the appropriate agency during the publication of such notices.54 Various activities of ‘movement-building’ have occurred using the ‘public hearing’ space provided for opposition and contestations of the dominant developmental vision and to articulate ecological rationalities of different hues. However, in spite of these legal requirements, there is little willingness on the ground to actually take alternative views seriously and incorporate them into the final decisions on environment clearances,55 thus subverting the purpose of public hearings in the two decades of EIA notifications (Thayyil, 2014). 3.B

The European Union

3.B.1 Participation in the EU law-making process The idea of civil society participation in EU affairs has become increasingly important since the early 2000s and first appeared explicitly in its primary law in the Constitutional Treaty.56 Previous policy documents had, however, Samarth Trust v Union of India & Ors. (2010) 117 DRJ 113 (Del). Appendix IV 2.3, s. 7 (i)(III)(vi) of 2006 notification (n 50). 54 The offices of the District Magistrate/District Collector/Deputy Commissioner, the Zila Parishad or the Municipal Corporation or the Panchayat Union, the District Industries Office, urban local bodies, PRIs, development authorities and the concerned regional office of the MoEF. 55 Leo Saldanha, Abhyay Raj Naik et al, Green Tapism: A Review of the Environmental Impact Assessment Notification ‒ 2006 (Environment Support Group 2007); K. Khokli and M. Menon, Eleven Years of the Environment Impact Assessment Notification, 1994: How Effective Has it Been? (Kalpavriksh 2005); and M. Menon and K. Kohli, ‘From Impact Assessment to Clearance Manufacture’ (2009) 44(28) EPW 20. 56 Beate Kohler-Koch and Christine Quittkat, De-Mystification of Participatory Democracy: EU-Governance and Civil Society (OUP 2013). 52 53

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already marked out civil society participation as an important future asset for enhancing legitimacy in the EU, in particular the Commission’s 2001 White Paper on European Governance.57 As a matter of primary law, Article 11 represents the central provision. It requires EU institutions to engage with citizens and civil society organizations through hearings, dialogue and consultations, and introduced a European citizens’ initiative which forces the Commission to address any issue put forward by a minimum of one million citizens who are nationals of one quarter of member states. These rules are supplemented by other provisions in the Treaty on the Functioning of the European Union (TFEU), most importantly by its Article 15 which sets out that EU institutions should aim for openness in their work, requires the EP and Council to meet in public and provides an individual right of access to EU documents subject to further regulation. Even though civil society participation has long been considered desirable, it is for the most part not a legal requirement for new legislation in the EU. Nevertheless, European institutions and in particular the European Commission de facto have opened up avenues for public participation. The Commission routinely invites public comments on proposed legislation online.58 Civil society organizations are also represented in the EU’s Economic and Social Committee (Article 300(2) TFEU), one of the Union’s most important advisory bodies. Finally, EU secondary law occasionally provides for different forms of public participation of civil society organizations, most expansively perhaps in the environmental sector, for example in its directive 2003/35/EC implementing the Aarhus Convention. Often, concerns over the EU’s democracy deficit are driving efforts at developing a more participatory approach intended to open up discourses with civil society – akin to similar trends in other international institutions. The initial hopes associated with this trend have today increasingly given way to a more sceptical view of such participatory mechanisms, and a rising sense of disconnect between civil society groups and the population at large.59 There are multiple reasons for this disenchantment. Partly, it has become clear that

57 European Commission White Paper, COM(2001) 428, 25 July 2001, available at accessed 22 October 2020. 58 See the respective website of the Commission at accessed 22 October 2020. 59 For an early sceptical assessment see Michael Edwards, NGO Rights and Responsibilities: A New Deal for Global Governance (The Foreign Policy Centre/ NCVO 2000). For a more recent assessment of the debate on NGOs see for example Kim D. Reimann, ‘Up to No Good? Recent Critics and Critiques of NGOs’ (2005) Political Science Faculty Publications 5, available at accessed 22 October 2020.

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many of those participating actively in EU processes are well-organized NGOs rather than citizens’ grassroots movements which typically do not have the kind of established expert structures that enable them to participate effectively in EU policy-making.60 Not infrequently, the benefit of increased participation seems to be understood in terms of improving output rather than providing fora for contesting important EU initiatives and policies. Recent events and scholarship present a nuanced picture. Some scholars argue that opportunities for civil society input in Europe have generally shrunk in recent years, largely as a result of the shift of competences towards a new set of less accountable and approachable institutions in the wake of the financial crisis which emphasize more intergovernmental modes of decision-making.61 Together with the increasing disillusionment of many civil society actors with regard to Europe, this research suggests, this has prompted a reorientation of social movement action back towards the national level. This is not to say that social movements cannot wage successful campaigns against EU policy, but merely that such campaigns ultimately often depend on and target national actors. The successful resistance against international agreements such as the Anti-Counterfeiting Trade Agreement (ACTA) that ultimately convinced several member state governments to oppose the agreement is a case in point.62 At the same time, there have been European-wide protest movements such as the campaign against CETA targeting both EU institutions and member state governments with Belgium ultimately halting the ratification while asking the ECJ for an advisory opinion on the matter. And though it is too early to comprehensively evaluate tools such as the European Citizen’s Initiative, there are some more recent signs that after a disappointing start the Initiative may yet come to play a role in European politics. The General Court of the EU has contributed to these developments by forcing the European Commission which had in several cases refused to register the Citizen’s Initiative on grounds of competence etc. to look more closely, including annulling the Commission’s

60 Kohler-Koch and Quittkat (n 56), Ch. 6, 114. See also Sabine Saurugger, ‘Interest Groups and Democracy in the European Union’ (2008) 31(6) West European Politics 1274. 61 Donatella della Porta and Louisa Parks, ‘Social Movements, the European Crisis, and EU Political Opportunities’ (2018) 16(1) Comp Eur Polit 85, available at accessed 22 October 2020. Though shrinking space for civil society movements may also be part of a larger global trend, see some of the considerations in European Parliament, Directorate General for External Policies, PE578.039 ‘Shrinking Space for Civil Society: The EU Response’ (2017) 35, available at accessed 22 October 2020. 62 See della Porta and Parks (n 61).

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decision on an Initiative against CETA.63 More recently, the legal framework for the Citizens’ Initiative is being reformed, making it less burdensome to launch and seeking to enable it to achieve its potential for increasing citizen participation.64 Though the reform proposal is promising when it comes to doing away with some of the substantial legal and practical hurdles to launching an Initiative, it nevertheless seems likely that the Initiative’s impact on EU policy-making will remain limited.65 Ultimately, what institutions will be targeted by social movements will depend on where openings exist. If national institutions offer little space for contestation and opposition, EU institutions are more likely to be addressed and vice versa.66 Here, too, however, conventional actions are more common at the EU level whereas demonstrations and protest usually target national institutions. 3.B.2 Access to justice Like in India, an important avenue for social movements to pursue specific goals or raise objections to specific policies has been through courts. Though European law – unlike Indian law – generally does not provide for public interest standing apart from certain exceptions in the field of environmental law, social movements such as the environmental and womens’ movements have had some success with strategic litigation in the European Court of Justice in the past.67 Generally, individuals, unlike EU institutions and member states,

63 See Case T-754/14 Michael Efler and Others v European Commission EU:​ T:​2017:​323 (initiative against CETA), before that the Court had already criticized the Commission’s handling of initiatives on procedural grounds in Case T‑646/13 Bürgerausschuss für die Bürgerinitiative Minority SafePack v European Commission EU:​T:​2017:​59. See also Elaine Fahey, ‘Casenote-European Citizens Initiative “Stop TTIP” Can Proceed Says General Court’ (2017) 8(4) European Journal of Risk Regulation 787. 64 European Commission, COM/2017/0482 final ‒ 2017/0220 (COD): Proposal for a Regulation of the European Parliament and the Council on the European citizens’ initiative, available at accessed 22 October 2020. 65 Anastasia Karatzia, ‘The European Citizens’ Initiative and the EU Institutional Balance: On Realism and the Possibilities of Affecting EU Lawmaking’ (2017) 54(1) Common Market Law Review 177. For an analysis of the network building effects of past initiatives see Justin Greenwood and Katja Tuokko, ‘The European Citizens’ Initiative: The Territorial Extension of a European Political Public Sphere?’ (2017) 18(2) European Politics and Society 166. 66 Manuela Caiani and Paolo Graziano, ‘Europeanisation and Social Movements: The Case of the Stop TTIP Campaign’ (2018) 57(4) European Journal of Political Research 1031. 67 Rachel A. Cichowski, The European Court and Civil Society: Litigation, Mobilization and Governance (CUP 2007).

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need to demonstrate that a matter is of ‘direct and individual concern’ to them (Article 230 TFEU) to bring a case before the ECJ. Attempts by the Court of First Instance to push the ECJ towards a more generous approach in interpreting the requirement of standing have largely failed.68 Yet, most cases reach the ECJ via the preliminary reference procedure as references from domestic courts which apply their own national standing rules. More relaxed standing rules at the national level that may provide for broader public interest standing can therefore indirectly open up access to the ECJ. Cichowski’s study on strategic litigation in the ECJ suggests that this may indeed account for a comparatively large number of references in environmental matters from certain member states with broad standing rules such as Italy, Belgium and France.69 When it comes to questions of substantive law, the ECJ has generally taken a generous approach to individual rights when individuals have invoked EU law to challenge domestic rules, but a less generous one with regard to challenges to EU law itself.70 The women’s movement in particular has achieved considerable success in using European anti-discrimination frameworks to fight existing discriminatory national practices over the last decades. Much like the Indian Supreme Court, the European Court of Justice has a reputation for judicial ‘activism’, interpreting European law frequently expansively and generously, thus earning it its honorific title as ‘Motor of European Integration’. Yet, in spite of its expansive approach to the substantive interpretation of EU law, the European Court of Justice has shown more restraint when it comes to judicial procedure and remedies, compared to Indian style public interest litigation. Though interested individuals can apply for leave to intervene in the ECJ, such applications are usually only granted where the intervener’s legal or economic situation is directly affected by the operative part of the ECJ’s decision.71 This makes public interest litigation rather more difficult. Similarly, the ECJ does not usually invite amicus briefs from civil society organizations, and never holds the kind of expansive hearings involving a multitude of interested civil society and governmental actors we see in Indian Public Interest Litigation – or for that matter in other Global

68 Case C-263/02 P Commission v Jégo-Quéré EU:​C:​2004:​210, [2004] ECR I-03425. The ECJ defines the requirement slightly more loosely requiring only evidence of direct concern where regulatory acts are concerned that do not require implementing measures, see Case C-583/11 P Inuit Tapiriit Kanatami v European Parliament EU:​C:​2013:​625; Case C-274/12 P Telefónica SA v Commission EU:​C:​2013:​852; Case C-456/13 P T&L Sugars v European Commission EU:​C:​2015:​284. 69 Cichowski (n 67) 34. 70 ibid. 71 Koen Lenaerts, Ignace Maselis, Kathleen Gutman and Janek Tomasz Nowak (eds), EU Procedural Law (OUP 2014) 828, with further references.

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South courts. The same is true for remedies. Though the ECJ has frequently developed robust remedies for breaches of EU law,72 its judgments end a case rather than provide for extended oversight and monitoring of governmental efforts that involve civil society. Finally, unlike the Indian Supreme Court whose activism has in the past often been understood in terms of furthering social justice, the ECJ has a decidedly more ambiguous reputation as a matter of ideological categorization.73 From the perspective of contestation, or, more conventionally speaking, opposition to existing institutions, the ECJ and its jurisprudence are therefore very much a mixed blessing. Despite the occasional progressive decision on certain questions at the ECJ which has not only brought legal changes that were sought for but also encouraged the strengthening of social movements pursuing such issues more generally, the legal position of social movements in EU law nevertheless remains comparatively weak. 3.C Comparison Though at the surface we see both in India and the EU social movements acting in similar ways and through some similar channels, there still remains a sense in which participation in politics through social movements is foundational to the Indian political experience whereas it clearly is not in the EU, which has attempted to remedy its deficits in these areas with mixed success. In particular when it comes to litigation, the Indian model is considerably more open to social movements litigating on behalf of others or in the public interest than the European Court of Justice. These differences reflected at least for some time broader ideological differences ‒ an emphasis on social justice in the first phase of Indian PIL74 ‒ as opposed to the ECJ’s more

72 For a good overview see e.g. Paul P. Craig, EU Administrative Law (2nd edn, OUP 2012), Ch. 22: Remedies, 703 ff. The central case is Case C-6/90 and C-9/90 Francovich, Bonifaci and others v Italian Republic EU:​C:​1991:​428, [1991] ECR I-05357. 73 See e.g. the differences between its expansive jurisprudence on Union citizenship in cases such as Case C-184/99 Grzelczyk v Centre public d’aide sociale EU:​C:​ 2001:​458, [2001] I-06193; and its jurisprudence on labour rights in Case C-438/05 Rosella or International Transport Workers Federation v Viking Line ABP EU:​C:​ 2007:​772, [2007] ECR I-10779; and Case C-341/05 Laval un Partneri Ltd v Svenska Byggnadsarbetareförbundet EU:​C:​2007:​809, [2007] ECR I-11767. 74 See e.g. Arun K. Thiruvengadam, ‘Swallowing a Bitter PIL? Reflections on Progressive Strategies for Public Interest Litigation in India’ in Oscar Vilhena, Upendra Baxi and Frans Viljoen (eds), Transformative Constitutionalism: Comparing the Apex Courts in Brazil, India and South Africa (Pretoria University Press 2013); Anuj

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market-oriented approach which has left the promise of solidarity largely unfulfilled.75 Perhaps the closest Indian analogue to the European story becomes only visible once we complement the internal Indian picture with the mobilization of Indian social movements at the international level such as the World Bank, which has provided an increasingly important forum for lobbying for at least some Indian NGOs, similar to the way European NGOs are often turning to European actors when national avenues are not promising. Internationalization and Europeanization are for social movements very much a mixed blessing: On the one hand, national sovereignties are fragmented, and decision-making has been shifted to international bodies with limited political accountability and this often restricts the spaces for social movement to voice protest and influence policy. ‘Cunning states’ may portray themselves ‒ rightly or wrongly ‒ as bound by international rules and thus try to disarm and silence internal opposition.76 On the other hand, social movements have adapted to these new realities by targeting different institutions at different levels, wherever it seems most promising. Both in India and Europe, this has meant that social movements are engaged in ever-shifting alliances with different state and international actors. As Internationalization and Europeanization close existing avenues they also constantly open up new opportunities for influence and participation. What changes, however, with those different opportunity structures are the requirements for success. In other words: different kinds of organization and means of strategy may be necessary to succeed at an international than at a local level. And this gives rise to further parallels. Litigation by social movements in Europe often assumes a dual function of contestation and enforcement of order at the same time when plaintiffs challenge national rules in light of overarching principles of European law such as the prohibition of discrimination. In other words: when citizens invoke European law, they usually do so to disapply national law. Counter-politics in Europe is thus often at the same time European hegemony-reinforcing. A similar reading is available in the case of India. Standard accounts stress the development of PIL in India as fora for contestation and alternative visions of politics after the Indian emergency. However, accounts of the last three decades of PIL also underline the dominant

Bhuwania, Courting the People. Public Interest Litigation in Post-Emergency India (CUP 2016). 75 Turkuler Isiksel, Europe’s Functional Constitution. A Theory of Constitutionalism Beyond the State (OUP 2016), 171 ff. 76 Shalini Randeria, ‘Cunning States and Unaccountable International Institutions: Legal Plurality, Social Movements and Rights of Local Communities to Common Property Resources’ (2003) 44(1) European Journal of Sociology/Archives Européennes de Sociologie 27.

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judicialization of politics and political representation. In this reading, law serves as a tool of integration into a newly founded polity both in Europe and India, even though integration may mean somewhat different things in the two contexts. There are also entanglements beyond these comparisons. How political parties and social movements are inextricably entangled with each other, and the difficulties law finds to frame these entanglements. The rise of the far right or social movements whose values that are generally considered alien to the constitutional values of EU or India, and its expression in political parties, are palpable, yet capricious for law. When such porosity ‒ of the political parties from illiberal social movements ‒ can hollow out constitutions, what comparisons can be theoretically productive itself requires further thought.

4. CONCLUSION What insights can we take from this rough attempt at comparison? This chapter suggests that the legal rules and indeed key developments in both India and the EU are similar: political parties are regulated to ensure their commitment to the broader values of the polity, trying thus to enforce a certain degree of ideological homogeneity. In both India and the EU, however, these legal rules seem to have a largely symbolic function given the BJP’s rise to a dominant power in spite of its doubtful commitment to secularism and the success of populist conservative movements who advocate a concept of ‘illiberal democracy’ in parts of Eastern Europe. The homogenizing agenda of these movements, both in Europe and India, threatens the remarkable achievement of both polities to live with and sometimes thrive in the context of political and cultural diversity. What is at stake in both cases is the loss of an astonishing tolerance of the people to be subject to rules that were created by those different from us – in Europe, these ‘others’ are defined in national terms, in India they are more likely to be framed in terms of religious identities. At the same time, the differences in our regulatory frameworks – the regulation of parties through the prism of elections in India, and through the prism of funding in Europe and the greater access to justice granted to social movements in India as compared to the EU – also point us to different, larger narratives of both polities. When we try to look beyond the detailed regulations, explaining why European law regulates political parties in connection with funding appears not merely as the consequence of an incomplete federal nature of the EU as a polity. It also fits into a symbolic narrative of the EU as a source of primarily economic and thus monetary benefits. Ironically then, the very means the EU uses to overcome its ‘political’ deficit are monetary, thus reinforcing the very narrative it attempts to displace. This fits with a functionalist understanding of European constitutionalism as subordinate to the logic of

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market integration as it has been put forward more recently by Turkuler Isiksel in her monograph,77 and an understanding of the legitimacy of the EU as output-oriented rather than input-oriented.78 Though Dann and Thiruvengadam rightly note in the Introduction that both input- and output-legitimacy play a role in India and the EU, Indian politics and law are rooted in a different founding paradigm than that of the EU. The agitational character of India’s founding and the roots of its key political players such as the Congress Party, many regional parties and of course the BJP in ‒ sometimes revolutionary ‒ social movements continue to shape the grammar of Indian politics and law.79 Like Indira Gandhi before him, Modi and his party have often been described as populist with their appeal to the ‘real people’ as distinct from Delhi elites.80 The same label has occasionally even been attached to Indian courts.81 There is no European analogue to this. Rather, European institutions and actors represent to many the very incarnation of technocratic elites removed from the people. And whatever the truth of such accusations, if there is a founding paradigm for the EU it is certainly not revolutionary or populist, but rather its opposite, a strong commitment to law and management and, of course, the overarching goal of market integration. Even as law has structured and spelt out the normative ideals around which political parties can be created, and how movements can facilitate social change through accessing the law, the weakness of law as a tool to check political parties from representing unconstitutional values of illiberal movements, and capturing constitutions and state power appears clear.

Isiksel (n 75). See Dann and Thiruvengadam, ‘Comparing constitutional democracy in the European Union and India: an introduction’, in this book, Chapter 1, Section 4.A. 79 Emphasizing the revolutionary character of India’s founding, see Bruce Ackerman, Revolutionary Constitutions. Charismatic Leadership and the Rule of Law (Harvard University Press 2019) 54 ff. 80 Ali Zain, ‘The Rise of Modi’s Techno-Populism in India’ (2019) 6(1) Journal of Cultural Studies, Faculty of Communication, Hacettepe University 199. 81 Bhuwania (n 74). 77 78

7. Freedom of expression and hate speech Smarika Lulz and Michael Riegner 1.

INTRODUCTION: FREE SPEECH AND HATE SPEECH AS COMPARATIVE LENS ON DIVERSE DEMOCRACIES

In the copious comparative law literature on free speech, it is commonplace to assert that freedom of expression is instrumental for democracy.1 This relationship between free speech and democracy is the starting point of this chapter: we compare free speech law in India and the EU as a way of addressing the overarching question that animates this book: how can collective self-determination be organized in vastly diverse, multi-ethnic and multi-lingual societies? Diversity poses particular challenges for expressive freedoms, and legal responses to these challenges may thus reveal diverging or converging characteristics of diverse democracies. While many areas of free speech law are relevant for such a comparison, we focus on one aspect that promises to be particularly revealing for diverse democracies: the regulation of so-called ‘hate speech’. The term can comprise a variety of offensive expressions, ranging from derogatory statements against vulnerable communities to defamation of racial or religious groups to incitement of discrimination or violence against individuals associated with certain group identities.2 What all forms have in common is that they target specific social groups typically with the aim of excluding them from the further debate, or from public life in general. Hate speech seeks to sustain power asymmetries between different individuals who hold different communitarian identities. So defined, hate speech not only impairs other individual rights – dignity, 1 See only Eric Barendt, ‘Freedom of Expression’, in András Sajó and Michael Rosenfeld (eds), The Oxford Handbook of Comparative Constitutional Law (OUP 2013) 891. 2 Marcel Maussen and Ralph Grillo, ‘Regulation of Speech in Multicultural Societies: Introduction’ (2013) 40(2) Journal of Ethnic and Migration Studies 174.

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reputation, mental health – but also has a collective, structural impact: on the protection of minorities and societal pluralism; on the public sphere, public opinion and the quality of democratic deliberation; and on the formation of collective identities which underlie the demos of diverse democracies.3 Despite their many obvious differences, the EU and India lend themselves for a comparison in this area. Both share basic democratic commitments to free speech and to equality, and thus face similar tensions between the two in law and politics. Technologically, the internet and digital media pose new and often similar challenges for free speech law across jurisdictional boundaries. This transnational dimension is even constitutive for EU free speech law: While traditional media remain predominantly regulated at the national level, online speech and digital media have quickly become the domain of EU law and supranational regulation.4 Finally, comparing the EU and India has epistemic value: If the existing free speech literature compares at a continental scale at all, these comparisons are usually between ‘Europe’ and the United States (US) or between India and the US. This limits comparative findings to two ‘models’, an absolutist ‘First Amendment model’ and the more restrictive European/Indian model.5 This limited horizon not only makes the comparative law of free speech unrepresentative, but also tends to miss the many variations 3 Jonas Kaiser, ‘Public Spheres of Skepticism: Climate Skeptics’ Online Comments in the German Networked Public Sphere’ (2017) 11 International Journal of Communication 1; Uladzislau Belavusau, ‘Fighting Hate Speech Through EU Law’ (2012) 4(1) Amsterdam Law Forum 20, 31‒32. 4 James Banks, ‘Regulating Hate Speech Online’ (2010) 24(3) Int. Revs. of Law, Comp. & Tech. 233; Christopher van Blarcum, ‘Internet Hate Speech: The European Framework and the Emerging American Haven’ (2005) 62(2) Washington and Lee Law Review 781; Facebook: D. McGoldrick, ‘The Limits of Freedom of Expression on Facebook and Social Networking Sites: A UK Perspective’ (2013) 13(1) Human Rights Law Review 125; Corey Omer, ‘Intermediary Liability for Harmful Speech: Lessons from Abroad’ (2014) 28(1) Harvard Journal of Law and Technology 289. 5 Ioanna Tourkochoriti, ‘Should Hate Speech be Protected?: Group Defamation, Party Bans, Holocaust Denial and the Divide Between (France) Europe and the United States’ (2014) 45(2) Columbia Human Rights Law Review 552; Erik Bleich, ‘Freedom of Expression Versus Racist Hate Speech: Explaining Differences Between High Court Regulations in the USA and Europe’ (2013) 40(2) Journal of Ethnic and Migration Studies 283 (developing a model to explain differences between US and ECHR hate speech law); John C. Knechtle, ‘Holocaust Denial and the Concept of Dignity in the European Union’ (2008) 36(1) Florida State University Law Review 41 (on holocaust denial laws as marker of difference); Robert A. Khan, ‘Why Do Europeans Ban Hate Speech? A Debate Between Karl Loewenstein and Robert Post’ (2013) 41(3) Hofstra Law Review 545; Uladzislau Belavusau, ‘Judicial Epistemology of Free Speech Through Ancient Lenses’ (2010) 23 International Journal for the Semiotics of Law 165 (on epistemological difference in American and Strasbourg approaches to hate speech). Critical on the state of the literature Maussen and Grillo (n 2) 176f.

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on the regulatory spectrum beyond its absolutist end. It thus promises to be epistemically enriching to replace the US in the equation. One immediate consequence is that it becomes possible to ask more nuanced comparative questions about regulatory choices and their democratic significance: Which groups are legally protected, and what does that tell us about the salience of specific minority-majority relations in a diverse democracy? Which historical facts are protected against denial, and what does that tell us about collective memory as a basis for political identity? What are the rationales under which hate speech is sought to be regulated, and how does such regulatory design seek to address the power relationships between different communities in a diverse democracy? To address these questions, the chapter proceeds in three steps: Section 2 sets out the textual basis of free speech and hate speech law as well as the historical and social contexts in which these legal norms evolved. The subsequent Sections seek to understand how free speech/hate speech law relates to democracy in heterogeneous societies. More specifically, they address two challenges to democracy that arise out of diversity: How does free speech law respond to inequality among different social groups (Section 3)? And how does hate speech law relate to collective identity as a basis for collective self-government (Section 4)?

2.

TEXT AND CONTEXT OF FREE SPEECH LAW IN INDIA AND EUROPE

2.A

Freedom of Expression and Hate Speech in Post-colonial India

The legal landscape governing speech and expression in post-colonial India is one which cannot be sketched without canvassing its colonial origins. Freedom of speech for Indians was not a protected right under the British colonial rule. In fact, in 1860, the colonial regime enacted the Indian Penal Code (IPC), which criminalized certain kinds of speech and expression through a number of provisions. The IPC is still enforced throughout the country today. What makes its regulatory provisions colonial is not just that they were enacted during the colonial period, but that they conceive hate speech regulation for a racially constituted colonial subject. In his work outlining the genesis of hate speech laws in colonial India, Asad Ali Ahmed illustrates how major legal architects of the IPC portrayed the residents of the colonized subcontinent as highly excitable people who were easily prone to taking offence and responding vio-

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lently to it.6 In contrast to the white male European Enlightenment subject, the people of the Indian subcontinent were seen in Europe’s knowledge systems as peculiarly or ‘irrationally’ sensitive to insulting language or challenges to the status quo in discussions where caste, religion, or women were involved.7 The IPC was enacted in response to such racially constituted hypersensitivity of the colonized subjects. Consequently, hate speech regulation in the Code was designed to control primarily the ‘irrational’ or excitable nature of colonized subjects through the exchange of speech and expression between them. In this way, the enactment of hate speech regulation under the Code was not rooted in reasons of democracy or justice, but rather, aimed at making colonial administration easier through the maintenance of public order. For example, section 153A of the Code penalizes the ‘promotion of enmity between different groups on grounds of religion, race, place of birth, residence, language, caste or community’ among other grounds. Section 153 B. criminalizes ‘imputations, assertions, prejudicial to national integration’. Section 295A. of the Code penalizes ‘deliberate and malicious acts, intended to outrage religious feelings of any class by insulting its religion or religious beliefs’, section 298 penalizes ‘uttering, words etc., with deliberate intent to wound the religious feelings of any person’, and sections 505(1) and (2) criminalize the publication or circulation of any statement, rumour or report causing public mischief and enmity, hatred or ill-will between classes’. Section 124A. criminalizes ‘hatred or contempt’ or the excitement of ‘disaffection’ against the state. Characteristics like ‘outrage’, ‘insult’, ‘wound’, ‘public mischief’, ‘hatred’, ‘contempt’ and ‘enmity’ that these hate speech provisions target and which they implicitly attribute to the colonized subject, illustrate their underlying assumption that Indians were incapable of ‘reason’ or ‘rationality’. But as has been widely established since, this form of ‘rationality’ which was idealized by European Enlightenment corresponded specifically only to the experiences of the white male property holder.8 Nevertheless, it was these racialized narratives of Indians that gave impetus for the appearance of hate speech regulation in the Penal Code.9 6 Lawrence Liang, ‘Free Speech and Expression’ in Sujit Choudhry, Madhav Khosla and Pratap B. Mehta (eds), The Oxford Handbook of the Indian Constitution (OUP 2016) 845. 7 Asad Ali Ahmed, ‘Spectres of Macaulay, Blasphemy, the Indian Penal Code, and Pakistan’s Postcolonial Predicament’ in Raminder Kaur and William Mazzarella (eds), Censorship in South Asia: Cultural Regulation from Sedition to Seduction (Indiana University Press 2009) 166. 8 See, for seminal work on this point, Edward W. Said, Orientalism (Penguin Books 1978); Gayatri Spivak, A Critique of Postcolonial Reason (Harvard University Press 1999); Homi K. Bhabha, The Location of Culture (Routledge 1994). 9 Ali Ahmed (n 7).

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When the Constitution of India was enacted in 1950, such racialized accounts of the colonial subject were sought to be challenged through the enactment of the fundamental right of freedom of speech and expression to all citizens under Article 19(1)(a). The drafters of the Constitution in the Constituent Assembly were very aware of the deployment of hate speech regulation under the Penal Code to curb freedom of speech, public deliberation, and anti-colonial resistances in India. Several of the Assembly’s own members had been victims of these draconian hate speech laws and looked forward to a constitutional guarantee of free speech for a free India. But against this anti-colonial rationale for an absolute right to free speech stood the shadow of the communal riots that followed in wake of the postcolonial partition of the Indian subcontinent.10 These riots had seen vicious propagation of hate speech targeting different religious and communal groups and had displaced 14 million people, created an overwhelming refugee crisis and left in its wake gut-wrenching stories of murder, rape, violence and homelessness. The experience of the Partition thus also made the Constituent Assembly aware of the dangers of absolute freedom of expression and the need for some kind of hate speech regulation in the newly-formed republic. Additionally, the oppressive experience of casteism and untouchability within Indian society had also led to the realization that casteist and racist expressions and hate speech could not possibly be protected as freedom of speech.11 The juxtaposition of the experiences of casteism and Partition against the anti-colonial sentiment towards hate speech regulation created a tension within the Constituent Assembly about the legal framework for free speech: should freedom of speech be absolute or should it be limited? And if limited, how? In his work on the history of free speech governance in India, Arun Thiruvengadam has attributed such tension to two different ways of understanding free speech viz., from a universalist position or from a particularist position. A universalist understanding refers to the idea that freedom of speech is best understood as a widely shared (even universal) value among all humans, a transcendental norm which overcomes contextual differences to be guided by the very human need for expression. In contrast, the particularist understanding perceives free speech as a right with a highly differentiated meaning according to context within and as between cultures and legal systems.12 Thiruvengadam 10 Arun K. Thiruvengadam, ‘The Evolution of the Constitutional Right to Free Speech in India (1800‒1950): The Interplay of the Universal and the Particular Rationales’ (2013) Centre for Asian Legal Studies, National University of Singapore, Working Paper Series, available at accessed 23 October 2020. 11 Constituent Assembly Debates, Vol VII, 40‒41. 12 Thiruvengadam (n 10).

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traces how universalist arguments for free speech were broadly dominant in the colonial era, when nationalists drew upon understanding of freedom of speech as a universally shared human value to resist against the colonial regime, and that such universalist arguments were moderated by pressing demands of social, political and economic conditions discussed above which the Constituent Assembly felt at the time of the drafting of the Constitution.13 Consequently, this tension resulted in Article 19(2) of the Constitution, which limits the guaranteed freedom of speech and expression under Article 19(1)(a) through certain ‘reasonable restrictions’. Under Article 19(2) such restrictions could be made in the interest of ‘the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence’. Unfortunately, this constitutional framework for freedom of speech was not enough to demolish colonial hate speech legislations. Post-independence, the judiciary tested the constitutional validity of colonial hate speech provisions in the IPC against the constitutional dualism of Article 19(1)(a) and Article 19(2). Many provisions of the IPC survived these judicial tests by legitimizing the regulation of controversial speech as ‘hate speech’ instead of as ‘free speech’, often on the grounds of ‘public order’ and ‘morality’ afforded under Article 19(2). Through such jurisprudence, the racialized colonial logic of the IPC persists as a significant feature of free and hate speech governance in India till today. Additionally, this colonial logic does not end with the IPC in postcolonial India. A number of post-independence legislations employ the language of the IPC to curtail hate speech. For example, section 125 of the Representation of People Act of 1951 uses language similar to sections 153A and 505 of the Indian Penal Code to penalize any person who promotes or attempts to promote ‘feelings of enmity or hatred, between different classes of the citizens of India’ on grounds of ‘religion, race, caste, community or language’ in context of an election.14 In light of this, a recurring assertion in critical analyses of free speech laws in India is that there is a colonial continuity in the legal framework governing speech and expression.15 Such colonial continuity is particularly apparent in the area of hate speech regulation. Hate speech regulation in India is commonly weaponized by pow ibid. Law Commission of India, Report No 267, ‘Hate Speech’ (March 2017), available at accessed 23 October 2020, 5‒6. 15 Arudra Burra, ‘Arguments from Colonial Continuity: The Constitution (First Amendment) Act, 1951’ (2008), available at accessed 23 October 2020. 13 14

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erful constituencies – both state and private actors – that seek to clamp down on legitimate public discourse by claiming to be hurt or offended by a literary or artistic work. Such clamping down on freedom of expression often begins in the realm of Executive Power.16 However, it is not merely through public authority that curtailment of speech and expression occurs. Recent times have seen instances whereby private censorship has become increasingly prevalent. This is visible not just in conjunction with social media whereby the design of online intermediary liability often allocates the burden of determining and policing hate speech to internet platforms like Google or Facebook or to internet service providers.17 But even in the case of offline or traditional media private enforcement of ‘hate speech’ regulation is evidenced, whereby militant interest groups representing a miniscule section of society have successfully collaborated with publishing houses through private contractual agreements into withdrawing from circulation critically acclaimed books like Wendy Doniger’s ‘Hindus: An Alternative History’.18 And even when Executive Power used to limit freedom of speech and expression was challenged before the judiciary, the restriction of freedom of expression on the grounds of hate speech is often nevertheless upheld. Take for example, the 2007 judgment of Baragur Ramachandrappa v State of Karnataka which concerned the ban on an award-winning Kannada novel which fictionalized the life of 12th century Saint Basaveshwara. The novel had suggested that the saint’s nephew was born out of wedlock. This suggestion infuriated a group of people who petitioned the state to ban the book on the grounds that it contained material that was ‘objectionable, inflammatory, hurtful and insulting to the sentiments and feelings of the Veerashaivas and the followers of Basaveshwara’.19 The Executive proceeded to issue this ban under sections 95 and 96 of the Criminal Procedure Code, which empowers the Executive to ban any publications which, among others, violate section

16 Such Executive Power is often exercised through ss. 95 and 96 of the Criminal Procedure Code 1973, which allows the state Government to ban, forfeit and seize publications when they are deemed to violate ss. 153A, 153B. or 295A of the IPC among others. 17 For a general mapping of this issue see Gargi Chakrabarti and Saahil Dama, ‘Intermediary Liability and Hate Speech, Country Report: India’ as part of the Online Intermediary Liability Research Project, School of Law, University of Washington, 2016, available at accessed 23 October 2020. 18 Jason Burke, ‘Outcry as Penguin India pulps “alternative” history of Hindus’ The Guardian (13 February 2014), available at accessed 23 October 2020. 19 Sri Baragur Ramachandrappa & Ors. v State of Karnataka & Ors. 2007 (5) SCC 11.

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295A of the IPC, discussed before. The ban was eventually challenged before the Supreme Court, given especially that it was a fictionalized account of the saint’s life, and a ban on such expression seems to impinge upon the freedom of speech and expression guaranteed under Article 19(1)(a) of the Constitution. The Supreme Court, however, understood the novel as hate speech and upheld the ban. The rationale for this decision was that ‘no person has a right to impinge on the feelings of others on the premise that his right to freedom of speech remains unrestricted and unfettered’20 and because ‘India is country with vast disparities in language, culture and religion and unwarranted and malicious criticism or interference in the faith of others cannot be accepted’.21 Much like the racialized colonial subject who is constructed as overtly excitable, the reasoning of this judgment implicitly constructs the post-independence citizen of India as overtly sensitive in the matter of religion. Hate speech regulation is then interpreted as a tool to mollify such sensitivity by suppressing public discourse which challenges the status quo in religious matters. This trend in postcolonial judicial interpretation of hate speech regulation is also reflected in the earlier judgment in Veerabhadra Chettiar v Ramaswami Naicker,22 concerning certain public speeches made against idolatry which were alleged to be an offence and in violation of section 295A of the IPC. The Supreme Court held that the defendants were guilty of hate speech, reasoning that courts have to ‘pay due regard to the feelings and religious emotions of different persons with different beliefs irrespective of the consideration … whether they are rational or otherwise in the opinion of the Court’.23 The protection of the feelings of the ‘irrational’ colonial subject again becomes the central task of hate speech regulation here, thus marking its colonial continuities. Similarly, in N. Veerabrahmam v State of Andhra Pradesh,24 which concerned a ban on the book Bible Bandaram that analysed the Bible from a scientific point of view by highlighting its complicity in colonial empire-building and questioning its veracity. The Court considered the book as hate speech, reasoning, ‘If people are permitted to indulge in activities calculated to wound the religious susceptibilities of the other religious denominations in the State, that would inevitably lead to the disruption of public order’.25 Such judicial reasoning which deploys hate speech regulation as a tool to maintain public order among citizens which are constructed as highly excitable by religious criticism reso-

ibid. ibid. 22 Veerabhadra Chettiar v Ramaswami Naicker AIR 1958 SC 1032. 23 ibid. 24 N. Veerabrahmam v State of Andhra Pradesh AIR 1959 AP 572. 25 ibid, 3. 20 21

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nates perfectly with the colonial logic of governance. The oppressive colonial nature of the hate speech regulation is thus reproduced in postcolonial India. This line of judicial interpretation of hate speech regulation is also particularist because it is particular to a (colonially constructed) social and communitarian context. According to the rationale of this thread of judgments, freedom of expression depends on the context within and between cultures and legal systems26 and can thus accordingly be restricted as hate speech given the particularities of the relevant context. This corresponds to what Thiruvengadam has termed the particularist rationale for free expression.27 Because of this reason, I term this thread of cases as the particularist jurisprudence on hate speech. The particularist understanding of free speech invoked in the Constituent Assembly against the anti-colonial sentiment towards hate speech regulation thus lives in the postcolonial jurisprudence on hate speech. From the point of view of free speech and democracy, this brand of particularist jurisprudence is, of course, highly regressive. It dismantles the possibility of diversity of perspectives in the public discourse. This point has not gone unnoticed by the Indian judiciary, which on occasion, has interpreted hate speech regulation by taking into account its democratic implications. This link between free speech, hate speech and democracy in the contemporary legal framework and its implications are explored in a later section. But a broad survey of the legal landscape on free speech in postcolonial India reveals that its colonial tether has not yet snapped. 2.B

Free Speech and Hate Speech in the European Multi-level System

A major structural difference in free speech law of India and the EU lies in the legal nature of their polities: India is a federal nation state with a uniform fundamental rights system; free speech law is thus, in principle, harmonized across the Union and the states: what a citizen is constitutionally allowed to say in Kerala cannot be forbidden in West Bengal, and vice versa. The EU, in contrast, is a supranational system of nation states with several levels of governments and individual rights, which are intertwined but not fully harmonized. Statements protected as free speech in Ireland may thus be criminal offences in Germany, and vice versa. A key question within the EU multi-level system of fundamental rights is thus not only whether EU free speech law 26 Siddharth Narrain, ‘Hate Speech, Hurt Sentiment and the (Im)Possibility of Free Speech’ (2016) 51(17) Economic and Political Weekly, available at accessed 23 October 2020. 27 Thiruvengadam (n 10).

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allows or prohibits certain forms of speech, but also to whom it applies: Does it bind only to the EU institutions themselves, or does it harmonize member state freedom of expression law as well? These questions are as controversial as they are fundamental for the identity of the EU, which seeks to transcend its legacy as an economic community and to offer its citizens a new raison d’être beyond the common market. Within the multi-level system of the EU, the law of the member states is still the starting point for both free speech protections and hate speech regulation. While free speech guarantees in early European constitutions reacted to numerous historical restrictions, a new concern arose in the 20th century around prohibitions of racist and anti-Semitic speech. Prior to World War II, such initiatives were sporadic, but the idea that racist and anti-Semitic speech spread and legitimated racist and anti-Semitic action was carried over into post-war legislation in Germany and Austria.28 During the 1970s, European states ratified the 1965 UN Convention on the Elimination of Racial Discrimination and enacted anti-racism legislation, including criminal bans on racist speech (UK in 1970/76, Denmark and Netherlands 1971, France 1972). In Western Europe, racism and anti-Semitism, rather than public morals (obscenity) or religious doctrine (blasphemy), thus became the principal concern of speech regulation.29 This regulation responded to intellectual, historical and socio-political influences. Intellectually, the idea that language has performative force and is thus a type of action gained currency thanks to philosophers such as Wittgenstein and Austin, political sociologists like Foucault and Bourdieu, and critical studies of the role of language in the marginalization of minorities.30 Historically, World War II and the Holocaust formed the background for legislation against national hatred and for criminalizing holocaust denial as a particular from of anti-Semitic speech in Germany, France and a number of other countries.31 Socio-politically, hate speech regulation reacted to growing ethnic diversity, resulting from postcolonial and labour migration, family reunification and refugee influxes, and the ensuing rise of populist and extreme

28 Erik Bleich, The Freedom to Be Racist?: How the United States and Europe Struggle to Preserve Freedom and Combat Racism (OUP 2011) 19f. 29 Maussen and Grillo (n 2) 179f. 30 cf. ibid, 179 with further references. 31 Tourkochoriti (n 5); Jennifer Allen and George Norris, ‘Is Genocide Different? Dealing with Hate Speech in a Post-Genocide Society’ (2010) 7 Journal of International Law and International Relations 146; Knechtle (n 5).

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right parties such as the French Front National.32 Given this context, the restrictions on free speech usually passed constitutional muster at the national level. National constitutional courts, however, did not have the last word on freedom of expression. Within the multi-level system of European fundamental rights protection, two other free speech regimes beyond the nation state evolved. For the first decades after World War II, the salient forum was not the EU but the Council of Europe. The 1950 European Convention of Human Rights (ECHR) protected freedom of expression in Article 10, and the European Court of Human Rights (ECtHR) interpreted its meaning and limits in individual complaints procedures. In its 1976 leading case Handyside v UK, the Court held that freedom of expression ‘is applicable not only to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb the State or any sector of the population. Such are the demands of that pluralism, tolerance and broadmindedness without which there is no “democratic society”’.33 Yet when it came to justifying restrictions on hate speech, the Court typically sided with member states, using Article 17 (abuse of rights) or the limitation clause in Article 10(2). Holocaust denial, insults of immigrants, the glorification of terrorism, and the disruption of ethnic peace were left to the member states’ margin of appreciation.34 Some harmonization did occur through political initiatives at the Council of Europe but it was limited to racist and xenophobic speech online.35 In contrast to the Council of Europe, the EU did not have a codified, legally binding rights catalogue until 2009, when the Charter of Fundamental Rights became part of EU primary law with the Treaty of Lisbon. The initial treaties had only guaranteed free movement of goods, services, persons and capital but did not explicitly protect fundamental rights. In 1970, the European Court of Justice (now the Court of Justice of the EU – CJEU) found that fundamental

32 Maussen and Grillo (n 2) 179. On postcolonial dimensions, see also Jogchum Vrielink, ‘Judging the Past: Discrimination Law, Hate Speech Legislation and the Colonial Imagination’ (2012) 12(2) International Journal of Discrimination and the Law 99. 33 Handyside v the United Kingdom App No 5493/72 (ECHR, 7 December 1976) para 49. 34 ECHR Press Unit, ‘Factsheet Hate Speech’ (July 2017); Antoine Buyse, ‘Dangerous Expressions: The ECHR, Violence and Free Speech’ (2014) 63(2) ICLQ 491; Bleich (n 5); Uladzislau Belavusau, ‘A Dernier Cri from Strasbourg: An Ever Formidable Challenge of Hate Speech’ (2010) 16(3) European Public Law 373. 35 Additional Protocol to the Convention on Cybercrime 2003, European Treaty Series No 189. See in detail Tarlach McGonagle, ‘The Council of Europe against online hate speech: Conundrums and challenges’, Expert Paper (Republic of Serbia, Ministry of Culture and Information 2013); van Blarcum (n 4).

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rights were protected as unwritten ‘general principles’ derived from member state constitutional traditions and the ECHR. Freedom of expression was recognized as a general principle in the 1990s, and some aspects of media freedom were harmonized in secondary law. But the overall case law remained limited, with only 15 cases evoking freedom of expression between 1992‒2006.36 Since 2009, the Charter of Fundamental Rights explicitly protects freedom of expression as a fundamental right in Article 11. Its wording is largely identical to Article 10 ECHR, and Article 52(3) mandates interpretation in conformity with the ECHR, thus importing ECtHR case law on hate speech. The Charter does not, however, impose a uniform free speech regime across Europe: Charter rights fully bind Union organs, but apply to member states only to the extent that they ‘implement Union law’ (Article 51(1)). The judicial development of EU freedom of expression law has long been driven by the logic of the common market. In this logic, free speech becomes relevant either as a restriction of cross-border trade, or as an exercise of free movement rights. In one of the leading cases of EU free speech law, Schmidberger v Austria (2003), demonstrators blocked border crossings in a political protest and thus restricted the free movement of goods. In Schmidberger the Court found the restriction to be justified by the unwritten fundamental rights to free expression and free assembly as ‘fundamental pillars of a democratic society’.37 A second line of case law concerned commercial expressions that constitute an exercise of free movement rights, typically free movement of broadcasting services or advertising.38 In this perspective, diverging national media regulations, including bans on hate speech, appear as obstacles to a common market in the media sector. These obstacles call for harmonization in EU secondary law, which indeed harmonizes media law to some extent, including some requirements concerning hate speech: EU directives on television broadcasting, audiovisual media and electronic commerce

36 Lorna Woods, ‘Freedom of Expression in the European Union’ (2006) 12 European Public Law 371, 379. 37 Case C-112/00, Schmidberger v Republic of Austria [2003] ECR I-5659, para 79. On this case, see Belavusau (n 3) 26; Woods (n 36) 385f; Catherine Barnard and Ivan Hare, ‘The Right to Protest and the Right to Exports’ (1997) 60 MLR 394, Butterman, ‘European it Union: Free Movement of Goods Versus Human Rights Protection’ (2003) 21 NQHR 527; Derrick W. Wyatt, ‘Freedom of Expression in the EU Legal Order and in EU Relations with Third Countries’ in J. Beatson and Y. Cripps (eds), Freedom of Expression and Freedom of Information (OUP 2000), 205. 38 Consequently, a majority of cases arises within the media sector, raising the question of to what extent transborder broadcasting of TV or radio should also comply with destination state regulation, cf. L. Woods, ‘Article 11 ‒ Freedom of Expression and Information’ in S. Peers et al. (eds), EU Charter of Fundamental Rights (Hart 2014) 311.

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require member states to ensure that the respective media do not ‘contain any incitement to hatred based on race, sex, religion or nationality’.39 With the evolution of the EU beyond the common market, EU hate speech law has also extended to non-commercial contexts. In 2008, the Council enacted the most comprehensive harmonization of member state hate speech law thus far, Framework Decision 2008/913/JHA on combating certain forms and expressions of racism and xenophobia by means of criminal law.40 The Decision obliges member states to criminalize not only incitement to violence and hatred against groups defined by race, colour, religion, descent or national or ethnic origin. It also requires criminal sanctions for publicly condoning, denying or grossly trivializing crimes of genocide, crimes against humanity and war crimes under international law if the act risks inciting group-based violence or hatred. Despite the fact that the first draft appeared two months after the September 11 attacks, its intended focus was not on hate speech by Islamic radicals, but on far-right groups and the adversaries of immigration policy. The legislative process took seven years of controversial discussions among member states, eventually completed under German leadership. The final wording of the Decision has been criticized as too broad, as disproportionate and as having chilling effects.41 Thus far, the implementation and enforcement of the Framework Decision and EU media directives lay with legislators and judiciaries at the national level. However, the rise of hate speech on the internet and social media has cast doubt on the effectiveness of domestic judicial enforcement. In response, the EU has turned to transnational privatized enforcement: In 2017, the Commission brokered a Code of Conduct with major platforms and software firms. Facebook, YouTube, Microsoft and others commit to self-police their networks and delete hate speech as defined by the Framework Decision. This scheme makes enforcement swifter but goes against the initial rationale of

39 Art. 6 of Directive 2010/13/EU of 10 March 2010 (Audiovisual Media Directive). See also Arts 9 and 22a of Directive 89/552/EEC of 3 October 1989, as amended in 1997 (Television Broadcasting Directive); Art. 3(4)(a)(i)) of Directive 2000/31/EC (Electronic Commerce Directive). 40 Council of the EU, ‘Council Framework Decision 2008/913/JHA on combating certain forms and expressions of racism and xenophobia by means of criminal law’ (28 November 2008). 41 European Parliament, ‘The European legal framework on hate speech, blasphemy and its interaction with freedom of expression’ (2015), available at accessed 23 October 2020; Belavusau (n 3) 28‒29; Knechtle (n 5); on the history Mark Bell, Racism and Equality in the European Union (OUP 2008) 164‒68.

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excluding liability of internet intermediaries, namely to ensure free speech against private censorship.42 Despite the criticisms of the recent expansion of the EU hate speech regime, it seems unlikely that the CJEU would find it in violation of freedom of expression. When an older hate speech provision in the EU television directive came to the Court in 2011, it did not attract particular scrutiny under Article 11 CFR.43 To the contrary, the Advocate-General of the case provided a far-reaching constitutional rationale for limiting hate speech: ‘the freedom of expression guaranteed in Article 11 of the Charter ceases to operate when the message infringes other principles and fundamental rights recognized by the Charter, such as the protection of human dignity or the principle of non-discrimination’.44 Anti-discrimination law, in particular, increasingly provides the foundation for EU hate speech law, as discussed in Section 4 below.45 Before doing so, however, we need to turn to the political-democratic dimensions of EU free speech law, which increasingly came to the fore with the introduction of EU citizenship, the changing self-perception as a political community, and debates about a European public sphere.

3.

FREE SPEECH LAW AND DEMOCRACY IN INDIA AND THE EU: THE CHALLENGE OF EQUALITY

3.A

Universalist Hate Speech Regulation and Liberal Democracy

Liberal constitutional discourse advances three distinct justifications of freedom of expression:46 first, the argument from truth, which holds that the free exchange of opinions in the ‘marketplace of ideas’ will ultimately allow the best arguments to prevail. The second justification stems from self-fulfillment, arguing that freedom of expression is necessary to develop the mind to its fullest potential. The final argument for freedom of expression 42 Kate Klonick, ‘The New Governors: The People, Rules, and Processes Governing Online Speech’ (2018) 131 Harvard Law Review 1598. 43 Case C-244/10 and C-245/10 Mesopotamia Broadcast and Roj TV A/S v Bundesrepublik Deutschland [2011] ECR I-08777, paras 33ff. 44 Opinion of Advocate General Bot on 5 May 2011, Case C-244/10 and C-245/10 Mesopotamia Broadcast and Roj TV A/S v Bundesrepublik Deutschland [2011] ECR I-08777, para 68. 45 Directive 2000/43/EC on Racial Equality, complemented by other antidiscrimination legislative instruments such as Directive 2000/78/EC (the Employment Equality Directive) and Directives 2004/113/EC and 2006/54/EC (the Equal Treatment Directives). 46 Frederick Schauer, Free Speech: A Philosophical Inquiry (CUP 1982) 15‒59.

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stems from democracy, whereby freedom of expression is core to a society which locates its sovereignty in the people who constitute it. While the argument from truth has found significant expression in Indian jurisprudence on the freedom of speech,47 the following discussion will focus on the argument from democracy in the Indian context. Though hate speech governance in India still carries its colonial past, the links between freedom of expression and democratic governance have not gone unrealized. The Constituent Assembly debates emphasize the link between ‘freedom of speech and expression’ enshrined under the draft Constitution and democratic aspirations of the newly constituted India.48 A number of jurisprudential instances from the Indian courts since also make that claim.49 In Secretary, Ministry of Information Broadcasting v Cricket Association Board,50 for example, the Supreme Court linked the freedom of expression with democratic functioning: [D]emocracy is a government by the people via open discussion. The democratic form of government itself demands its citizens an active and intelligent participation in the affairs of the community. The public discussion with people's participation is a basic feature and a rational process of democracy which distinguishes it from all other forms of government.51

Both these examples point to the presence of a legal tradition in India which understands the freedom of expression as an indispensable aspect of democracy. Against the background of this relationship between freedom of expression and democracy, one can also discern a turn in legal scholarship, to the evaluation of freedom of expression in India against the touchstone of democracy.52

47 Smarika Kumar, ‘Governing Speech on the Internet: From a Free Marketplace Policy to a Controlled “Public Sphere”’, Studying Internets in India, Centre for Internet and Society (28 August 2015), available at accessed 23 October 2020. 48 Constituent Assembly Debates (4 November 1948) 1459. See also Law Commission of India (n 14) 3. 49 See e.g. Bennett Coleman v Union of India AIR 1973 SC 106; S Rangarajan v P Jagjivan Ram (1989) 2 SCC 574; Anand Patwardhan v Union of India AIR 1997 Bom 25; N.V.S.J. Rama Rao v Broadcasting Corporation of India AIR 2013 AP 165; Khushwant Singh v Maneka Gandhi AIR 2002 Del 58. 50 Secretary, Ministry of Information Broadcasting v Cricket Association Board AIR 1995 SC 1236. 51 ibid, 16. 52 Gautam Bhatia, Offend, Shock, or Disturb: Free Speech Under the Indian Constitution (OUP 2016); Smarika Kumar, ‘Zero Rating as the Demon and Saviour: Rethinking Net Neutrality and Freedom of Expression for the Global South’ (2018)

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However, if the freedom of expression is so core to democratic functioning, then why must it be curtailed by regulating any speech, including hate speech? Such line of questioning is often highlighted by positions advocating absolute free speech that have found significant place in the US.53 Nevertheless, the regulation of hate speech is not inherently antithetical to democratic theory. One of the more influential theories of democracy, viz. Habermasian deliberative democracy, provides grounds to construct a justification for the regulation of hate speech.54 According to Habermas, for the democratic model to work, two important conditions need to be fulfilled: first, the public sphere must be inclusive – it must not exclude any individual or groups of individuals in the society from participation. This is termed as the inclusion principle. Secondly, the public sphere must be constituted of individuals who are equally situated to one another, and have equal power to speak or to be heard. In other words, everyone must have not just a voice, but also an equal voice, and the ability to speak with equal dignity within the public sphere. This is termed as the equal dignity principle. It is on the basis of these two principles that the regulation of hate speech has been sought to be justified in both legal literature and jurisprudence.55 Indian hate speech jurisprudence has not been totally devoid of such reasoning either. Consider the case of Pravasi Bhalai Sangathan v Union of India,56 which concerned a petition to the Supreme Court to declare unconstitutional, ‘hate speeches’ delivered by elected representatives, political and religious leaders, who hold the power to influence society on a large scale. Therein, the Court based its rationale for hate speech regulation not in public order or morality, but rather in the protection of marginalized people: Hate speech is an effort to marginalise individuals based on their membership in a group. Using expression that exposes the group to hatred, hate speech seeks to delegitimise group members in the eyes of the majority, reducing their social standing and acceptance within society. Hate speech, therefore, rises beyond causing distress to individual group members. It can have a societal impact. Hate speech lays the groundwork for later, broad attacks on vulnerable that can range from discrimination, to ostracism, segregation, deportation, violence and, in the most extreme cases, to genocide. Hate speech also impacts a protected groups ability to respond

13(2) Indian Journal of Law and Technology; Laura Stein, Speech Rights in America: The First Amendment, Democracy and Media (UI Press 2007); Jeremy Waldron, The Harm in Hate Speech (Harvard University Press 2014). 53 Stein (n 52). 54 Robert Post, ‘Participatory Democracy and Free Speech’ (2011) 97(3) Virginia Law Review 477. 55 See Waldron (n 52); Bhatia (n 52). 56 Pravasi Bhalai Sangathan v Union of India AIR 2014 SC 1591.

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to the substantive ideas under debate, thereby placing a serious barrier to their full participation in our democracy.57

The rationale for regulating hate speech in this judgment lies soundly in the principles of inclusion and equal dignity of the Habermasian deliberative democracy: Here, hate speech is seen to erode equality between different communities which participate in the public sphere, and therefore undermine one’s participation in the rational discourse of the public sphere. This rationale is further seen at work in judgments that target casteist expression as hate speech. The logic of caste-based discrimination and stigmatization parallels in many ways the logic of racist oppression. Both target the racial or caste identity of an individual and stigmatize them for having this identity. For instance, consider the case of casteist hate speech that came up before the Supreme Court in Swaran Singh and Others v State.58 The casteist slur of ‘chamar’ was hurled at a worker in a private housing colony and he was prevented from walking before certain residents because of the casteist fear of pollution. The question before the Court was whether this qualified as a criminal offence under section 3(1)(x) of The Scheduled Castes and The Scheduled Tribes (Prevention of Atrocities) Act 1989. This section lays down that whoever, not being a member of a Scheduled Caste (SC) or a Scheduled Tribe (ST), ‘intentionally insults or intimidates with the intent to humiliate’ a member of a SC or a ST within public view is punishable under criminal law. In this case, since the term ‘chamaar’ is often used to humiliate a SC/ST member, the Court held that it amounts to a hate speech offence under said provision. In holding so, the Court links the principle of equal dignity with democratic participation in the public sphere: Our Constitution provides for equality which includes special help and care for the oppressed and weaker sections of society who have been historically downtrodden. The SC/ST communities in our opinion are also equal citizens of the country, and are entitled to a life of dignity […] In the age of democracy no people and no community should be treated as being inferior.59

Similarly, in its judgment in Arumugam Servai v State of Tamil Nadu60 which concerned a comparable incident whereby a SC/ST member was insulted with the usage of the casteist term ‘pallapayal’, the Supreme Court invoked the context of ‘democracy and equality’ to curb hate speech. It held that democ-

59 60 57 58

ibid, 6. Swaran Singh v State of Punjab (2008) 8 SCC 435. ibid, 29. Arumugam Servai v State of Tamil Nadu (2011) 6 SCC 405.

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racy and equality can be fostered only when no people of the community are insulted or looked down upon.61 The reasoning in such judgments justifies the regulation of hate speech in order to facilitate one’s equal participation in the public sphere of the Habermasian deliberative democracy, and therefore seems progressive. Unlike the regression of colonial particularist understanding of free speech, in these instances, the regulation of hate speech is a defensive act which prevents exclusion and unequal participation of all identities in the public sphere. These judgments thus prioritize a democratic norm which emphasizes the equal participation and deliberation by all citizens in the public sphere, viz. a universal participatory norm, universal in the sense that it allows for everyone to participate in the deliberations of the public sphere. This universal participatory norm corresponds to what Thiruvengadam has termed the universalist understanding of free expression, that is, an understanding of free expression which roots it in a widely shared or universal value. Under this universalist understanding, free expression can be restricted as hate speech only when it threatens the equal participation of all in the public sphere. Because of this reason, this thread of judgments can be termed as universalist jurisprudence on hate speech. Thus, in opposition to the colonial particularist rationale of ‘public order’ and ‘morality’ for the regulation of hate speech emerges the democracy-oriented universalist rationale of inclusion, equal dignity and equal participation. In this way, the Indian legal framework on hate speech can be understood as being constituted not merely by the particularist understanding of hate speech but rather, by the tension between two distinct threads with distinct rationales of hate speech regulation, viz. between the deliberative democratic universalist jurisprudence and the colonial particularist jurisprudence on hate speech. The tension between these two threads parallels the tension between universalist and particularist understandings of free speech felt in the Constituent Assembly. 3.B

The EU’s ‘Democratic Deficit’ and the European Public Sphere

In the EU, the link between freedom of speech and democracy equally exists but is more complicated. The CJEU has termed freedom of expression a ‘fundamental pillar’ and ‘essential foundation’ of a ‘democratic society’, even where expressions ‘offend, shock or disturb’.62 Restrictions of speech must Woods (n 38) 13. Case C-112/00, Schmidberger v Republic of Austria [2003] ECR I-5659, para 79; Case C-398/14 European Commission v Portuguese Republic [2006] OJ C380/03, para 154; Case C-274/99 Conolly v Commission [2001] ECR I-01611, para 39 (citing ECtHR Handyside). 61 62

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be ‘necessary in a democratic society’, in line with Article 10(2) ECHR and ECtHR case law. This essentially means that restrictions must pass a proportionality test. In the balancing of interests, the CJEU accords a higher level of protection to ‘discussions of public interest’ than to commercial speech like advertising.63 Beyond such general statements, however, the CJEU does not elaborate on the relationship of freedom of expression to democracy. Especially the notion of ‘democratic society’, so prominent in the case law, remains underdeveloped with respect to the EU. Unlike in India, democracy in the EU has a multi-level structure: it is not only located within the nation state, but also at the supranational level. If the EU is a multi-level democracy, and speech is regulated at multiple levels, this raises a more complex question: How does EU hate speech law relate to democracy at the national and supranational level? Can we even conceive of EU free speech law as an attempt to create the legal conditions for an egalitarian transnational public sphere? Answers to these questions depend on how democracy in the EU is conceptualized.64 As long as European integration remained limited to the economic sphere, the EU’s legitimacy rested on democratic processes within the member states. After the 1993 Treaty of Maastricht, this national strand of democratic legitimation increasingly seemed insufficient. As a political community with expanded competences, the EU suffered from a ‘democratic deficit’. It required a second, supranational strand of democratic legitimacy. But was democracy beyond the nation state possible at all? Critics pointed to electoral problems with the European parliament and to the absence of a unified European ‘people’. Besides, deliberative democracy beyond the state would require a ‘European public sphere’, where a transnational public opinion could form and critically debate public policy and its alternatives.65 The German Constitutional Court insists until today that democracy ‘first and foremost lives on, and in, a viable public opinion’ whose communicative preconditions are absent at the European level: Europeans debate in different languages, in distinct national media systems, and within the framework of

63 Woods (n 38) 329, citing Sunday Times v UK App No 6538/74 (ECHR, 26 April 1979); Case C-421/07 Criminal proceedings against Frede Damgaard [2009] ECR I-02629, para 27. 64 See Chapter 2 by Baruah and Volkmann, ‘Concepts of democracy’, in this book. 65 On this debate, see only Joseph H.H. Weiler, ‘Does Europe Need a Constitution? Demos, Telos and the German Maastricht Decision’ (1995) 1 (3) ELJ 238; Koen Lenaerts and Marlies Desomer, ‘New Models of Constitution-Making in Europe: the Quest for Legitimacy’ (2002) 39 CMLRev 1252; Armin von Bogdandy, ‘The Preamble’ in Bruno De Witte (ed), Ten Reflections on the Constitutional Treaty for Europe (CUP 2003) 5.

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national identities.66 National diversity, it seems, stood in the way of supranational democracy. In this regard, legal discourse drew on political theory and democratic theory, in particular Jürgen Habermas’ thinking about democratic deliberation in the public sphere. Since then, democratic theorists have debated the normative necessity of a single, unified European public sphere, and political scientists have empirically analysed the Europeanization of public opinion. Empirical studies found that EU-related issues have become more salient in national public opinion and mass media. They also observed the emergence of issue-specific transnational public spheres, which however tended to remain limited to specialist discourse and elite media.67 These debates paid little attention to the contribution of EU free speech law to European multi-level democracy. With respect to deliberative democracy in national contexts, it is often argued that law does not just ‘regulate’ speech in pre-existing public spheres but constitutes publics. Hate speech law in particular aims at equality and consensus-orientation in deliberations in the public sphere by minimizing speech that seeks to exclude particular groups from the debate.68 It could thus be argued that EU free speech law contributes to the formation of an egalitarian European public sphere. But can such arguments from domestic democracy be transposed to the multi-level context of the EU? At first sight, such reasoning does not seem to be implausible. Free movement law contributes not only to the integration of communication markets, but also reduces regulatory barriers between national public spheres. Beyond the common market, Article 11(1) CFR also protects non-commercial expression ‘regardless of frontiers’. Transnational communication among ordinary citizens is facilitated by the internet and social media. The EU itself has hailed the internet as opportunity for citizen participation and as basis for a European public sphere. Such claims pair technological optimism about digital democracy with Europhile optimism about the EU’s capacity to harness this democratic potential.69 The reality is more ambivalent: While the internet and social media have opened transnational debate to the wider citizenry, they have also facilitated

66 Federal Constitutional Court, judgment of 30.6.2009, 2 BvE 2, 5/08, BVerfGE 123, 267 (Lissabon) paras 250f, 268‒69; judgment of 12.10.1993, 2 BvR 2134/92, BVerfGE 89, 155 (Maastricht) paras 81, 98f. 67 Hakan G. Sicakkan, Integration, Diversity and the Making of a European Public Sphere (Edward Elgar 2016); Thomas Risse, European Public Spheres: Politics Is Back (CUP 2014). 68 See above, Section 2.A. 69 Zizi Papacharissi, ‘Democracy Online: Civility, Politeness, and the Democratic Potential of Online Political Discussion Groups’ (2004) 6(2) New Media and Society 259.

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the rise of nationalist and right-wing hate speech online. Given this ambivalence, EU hate speech law appears as necessary corollary of guarantees for cross-border speech. Little would be gained if levelling communicative barriers allowed divisive nationalist propaganda to move freely across Europe. Consequently, harmonization of hate speech law not only extends the logic of the internal market to citizen deliberation, that is, preventing nationalist and racist groups from moving – physically, or more often virtually on the internet – to countries with less restrictive legislation.70 Arguably, harmonization also seeks to integrate national public spheres by excluding speech that harms equal access to, and consensus-orientation of, transnational deliberation. The prohibition of nationalist hate speech, in particular, appears as an important precondition for the Europeanization of national public spheres. Anti-nationalism not only speaks to the EU’s original raison d’être as a project of peace among nation states, but also evolves in response to contemporary conflicts within European societies along ethnic and religious lines. The protection of non-majoritarian groups from exclusionary transnational speech was at issue in the case of Mesopotamia TV (2011): The CJEU held that EU law prohibiting ‘incitement to hatred on grounds of race, sex, religion or nationality’ also covered offensive broadcasts directed at ethnic groups within member states.71 Taken together, these arguments suggest that EU free speech law can be reconstructed as staking a normative claim to address some (of the many) necessary preconditions for a deliberative democracy beyond the nation state. But the – still emergent – EU free speech law is certainly not a sufficient condition, and one should be careful not to overstretch it empirically and normatively. Empirically, we know relatively little about the impact of EU free speech law on transnational deliberation. Different national languages remain a barrier for broad-based horizontal communication among citizens as does the national orientation of many news media. Normatively, important questions remain: What is the relative weight of the democratic rationale within EU free speech law? And does it really show equal concern for all citizens, or does it privilege certain speakers over others? The origins of EU free speech law in a market integration rationale have led to a characteristic focus on speech as commercial activity.72 From a comparative perspective, market integration not only differs from usual justifications of freedom of expression in liberal legal discourse – truth, individual self-fulfillment, or democracy.73 The focus on free movement also privileges For this logic, see Belavusau (n 3) 28. Case C-244/10 and C-245/10 Mesopotamia Broadcast and Roj TV A/S v Bundesrepublik Deutschland [2011] ECR I-08777, paras 33ff. 72 Woods (n 38) 334. 73 See above, Sections 2.B and 3.B. 70 71

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speech as commercial activity, and thus tends to benefit speakers with access to professional journalism or broadcasting. Likewise, the early cases on the fundamental right to freedom of expression had an elitist flavor: The CJEU’s jurisprudence has developed to a considerable extent in cases in which members of the EU civil service sought to vindicate their right to voice public criticism of the EU.74 This narrow focus potentially changes with the Charter of Fundamental Rights. In theory, Article 11 covers a much broader range of speech regulations and has the potential to transcend the commercial focus of EU freedom of expression law.75 In practice however, the Charter has not produced salient cases on free speech since its entry into force. To the contrary, the CJEU has been criticized for ignoring Article 11 CFR in high-profile cases such as Google Spain (2014), where the Court focused exclusively on privacy, data protection and the ‘right to be forgotten’.76 If the EU is evolving into a fundamental rights community,77 freedom of expression is not a driving force behind this evolution. In sum, neither the Court nor the Commission seem eager to make free speech a vehicle of political integration. To the contrary, the Commission pursues a strategy of privatizing enforcement of EU hate speech law on internet platforms, effectively transforming US-American corporations into gatekeepers of transnational deliberation in the European digital sphere. The Commission’s reluctance to enforce free speech law by supranational means is also evident in the handling of democratic backsliding within member states in Eastern Europe, which has re-focused attention on the first, national strand of democracy within member states. In Hungary, such backsliding involved enactment of a restrictive media law in 2011. While the Commission criticized the law, it ultimately chose not to challenge it in the CJEU and rather focused infringement procedures on threats to judicial independence and other aspects.78 This drew the criticism of the European Parliament, which deplored

74 One of the most elaborate discussions of the right to freedom of expression in EU law is found in Case C-274/99 Conolly v Commission [2001] ECR I-01611, paras 39ff.; cf. Woods (n 36) 382f. 75 Woods (n 38) 312f. 76 Stefan Kulk and Frederik Borgesius, ‘Google Spain v González: Did the Court Forget about Freedom of Expression?’ (2014) 5(3) European Journal of Risk Regulation 389. 77 See generally Stijn Smismans, ‘The European Union’s Fundamental Rights Myth’ (2010) 48(1) JCMS: Journal of Common Market Studies 45; Armin von Bogdandy, ‘The European Union as a Human Rights Organization? Human Rights and the Core of the European Union’ (2000) 37(6) Common Market Law Review 1307. 78 See only Ulrich Sedelmeier, ‘Anchoring Democracy from Above? The European Union and Democratic Backsliding in Hungary and Romania after Accession’ (2014) 52(1) JCMS: Journal of Common Market Studies 105.

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the Commission’s desistence and called on Hungary to ‘restore the independence of media governance in the country and halt state interference with freedom of expression’.79 At least for now, it seems that the democratic dimension of freedom of expression in the EU finds its most outspoken defender in European parliamentary politics, not in a court of law.

4.

HATE SPEECH LAW AND THE CHALLENGE OF IDENTITY

4.A

The Violence of ‘Progressive’ Universalist Free Speech: Reportage From a Struggling Democracy

Given the outlined landscape of hate speech regulation in India, it has been argued that a move from the particularist understanding of hate speech/ free speech to a universalist understanding of the same can help realise the democratic aims of its free speech framework.80 Prima facie, such arguments seem well-placed. The universalist understanding, after all, is oriented towards inclusiveness and participation of multiple identities in the public sphere which the particularist understanding is not. However, this presumption has been challenged in democratic theory to argue that universalist positions can still be exclusionary. What this implies for the relationship of universalist hate speech regulation with democracy needs to be interrogated. The universalist rationale for hate speech regulation presumes a specific understanding of democracy viz. Habermasian deliberative democracy based on a concept of the public sphere which has since been dubbed ‘Habermasian’. However, this understanding of the Habermasian public sphere has also been widely critiqued by several philosophers: from a normative point of view, the critique put forth by Nancy Fraser has been particularly influential. In her 1990 article ‘Rethinking the Public Sphere’, Fraser questions certain assumptions of the Habermasian public sphere, which for her fail to address the power relations between different identities participating in the public sphere. According to one of Fraser’s challenges, the Habermasian conception allows for the possibility of bracketing of particularities of identity (and consequent inequalities) in the public sphere. Bracketing means that the differences of identity are not acknowledged in the Habermasian public sphere and everyone 79 European Parliament, Resolution of 10 March 2011 on media law in Hungary, P7_TA(2011)0094. 80 Bhatia (n 52); Jack Balkin, ‘Digital Speech and Democratic Culture: A Theory of Freedom of Expression for the Information Society’ (2004) Faculty Scholarship Series 240, available at accessed 23 October 2020.

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is treated as an equal participant.81 Fraser argues that such bracketing can never eliminate social inequalities which differences of identity create. Rather, it only serves to mask domination by a particular subset of the population whose identity evokes more power than others’. In the Indian context, one example of such domination might be evoked in the context of caste, viz. the domination of Savarnas (so-called ‘upper caste’) over Dalits. For Fraser, masking of domination through bracketing is actualized by the transformation of the ‘I’ of the particular subject favoured by the power relation (in our example, the Savarna) into the ‘we’ of the universal subject (in our example, the Indian national citizen).82 It is the experience of a particular powerful identity which becomes universalized as the norm for participation in the public sphere. For instance, the experiences, aspirations, and troubles of Savarnas become the experiences, aspirations, and troubles of the ‘Indian’ and Dalit experiences are excluded. As a corollary, it is the history, ambition, and problems of Savarnas which becomes the history, ambition and problems of the Indian nation, and therefore worthy of discussion in the national public sphere. Dalit problems are wiped off from the agenda of this public sphere, not through a conscious act of rejection operating within the public sphere once it is constituted, but rather, through the very act of constituting a public sphere which brackets identities. This is illustrated by the extremely long history of oppressing Dalit voices in all issues that are deliberated in the Indian public sphere.83 For Fraser, the idea of a unitary public sphere or an integrated national public sphere then serves only to support and not challenge the status quo of the power relations between different identities. The universalist jurisprudence on hate speech, however, very much operates on such assumption of a unitary, national public sphere within which it tries to integrate everyone under the universalized identity of ‘Indian’. In this manner, the ‘Indian’ identity assumed in the universalist jurisprudence of hate speech implicitly supports the operation of a unitary national public sphere which through its very form, is exclusionary. 81 Nancy Fraser, ‘Rethinking the Public Sphere: A Contribution to the Critique of Actually Existing Democracy’ (1990) (26) Social Text, available at 63, accessed 23 October 2020. 82 ibid, 64. 83 K. Satyanarayana, ‘Beyond the Symbolic Ambedkar’ (Countercurrents, 28 June 2003), available at accessed 23 October 2020; Jeya Rani, ‘The Dalit Voice is Simply Not Heard in Mainstream Media’ (The Wire, 15 November 2016), available at accessed 23 October 2020; Mimi Mondal, ‘A Dalit Woman’s Thoughts on #MeTooIndia’ (The Indian Express, 15 October 2018), available at accessed 23 October 2020.

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Political theorist Neera Chandhoke provides further insight into how such exclusions operationalize. In her work, she builds upon Fraser’s challenge to the Habermasian public sphere to explain the oppressive power of universalized or unitary public spheres in the Indian context. She argues that difference of languages also set the terms of power in the public sphere of a deliberative democracy.84 Language in this sense should be understood not merely as regional and linguistic differences in the spoken word, but also in the broader language which constitutes and allows one to inherit a world and have a shared understanding.85 As an example, Chandhoke traces the archetypal figure of the indigenous person or Adivasi in an Indian public sphere to argue that when two or more languages meet in the public sphere, the more powerful or hegemonic language (of the property-owning non-Adivasi subject) has already set the terms of communicative exchange and deliberation by being implicit in constituting the regime of truth of that normative universe.86 Consequently, the oppression faced by and the demands mounted in the language of the archetypal Adivasi which rejects the conception of property is never addressed in the Indian national public sphere. And on the slight occasion that it is even heard, this language is merely treated as an assault on the Indian nation, an insurgency problem, and not as a legitimate subject of public sphere deliberation. Because of such a priori setting of terms of deliberation by the hegemonic language Chandhoke argues that the Habermasian public sphere is inherently exclusionary, and can never achieve the norm of equal participation. What does this imply for our understanding of hate speech regulation in India and its relationship to democratic functioning? Universalist jurisprudence on hate speech recognizes that not all public sphere participants or citizens are situated equally, and there exist identity-based advantages and disadvantages which can hinder their inclusion or equal participation in the public sphere. It then envisages the role of hate speech regulation as an equalization of these identity-based inequalities through their bracketing in the public sphere. However as seen, such bracketing does not actually equalize power relations between diverse identities but rather serves to mask them under the guise of a ‘national citizenship’. Even as the universalist jurisprudence legitimately outlaws casteist hate speech, it simultaneously resurrects the universalizing notion of the ‘Indian’ public sphere which represents in its 84 Neera Chandhoke, ‘Exploring the Mythology of the Public Sphere’ in Rajeev Bhargava and Helmut Reifeld (eds), Civil Society, Public Sphere, and Citizenship: Dialogues and Perceptions (SAGE 2005) 332. 85 ibid, 334; Rajeev Bhargava, ‘Introduction’ in Rajeev Bhargava and Helmut Reifeld (eds), Civil Society, Public Sphere, and Citizenship: Dialogues and Perceptions (SAGE 2005) 26. 86 Chandhoke (n 84) 343‒44, 346.

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very structure, the language of a limited but powerful identity, viz. the Savarna or the non-Adivasi. Universalist hate speech regulation only addresses power relations between identities when they speak within the public sphere but it does not address the operation of these power relations in the very way the public sphere is constituted. Rather, it even reinforces the status quo of these identitarian power relations when it presumes or aspires to the operation of a unitary public sphere. The complicity of universalist hate speech regulation in supporting a public sphere which is constructed around the assumption of a unified and equal polity (viz. the Indian nation) illustrates the complicity of such regulation in also structurally obliterating languages of less privileged identities from the public sphere. Unless one ‘integrates’ into a unitary public sphere of the Indian polity, which is already implicitly structured around powerful identities, one may not effectively participate in public sphere deliberation. Thus the deliberative agenda and experiences particular to less privileged identities like the Adivasi or the Dalit remain excluded from the focus of the public sphere. Rather, the deliberative agenda and experiences particular to powerful identities take centre stage. From a democratic point of view then, even seemingly progressive universalist hate speech regulation remains problematic. 4.B

Collective Identity and Hate Speech Law in Europe

Identity is also an important topos underlying debates about diverse democracy in the EU, although in different ways. Traditional conceptions of democracy in Europe rely on the idea of one unified ‘people’ as subject of self-determination. To critics, the absence of a European ‘people’ is an obstacle to democracy beyond member states. The German Constitutional Court insisted in its 2009 judgment on the Treaty of Lisbon that ‘it cannot be overlooked, however, that the public perception of factual issues and of political leaders remains connected to a considerable extent to patterns of identification related to the nation state, language, history and culture’.87 These different national identities stand in the way of a unified European democracy. Others argue that with European citizenship, a European collective identity is emerging and able to co-exist with national identities. European identity and citizenship need not rely on ethnic, cultural or linguistic homogeneity but can be based on shared values discursively forged in communicative processes in the European public sphere.88

Federal Constitutional Court, BVerfGE 123, 267 (Lissabon), para 251. On this debate, see Jürgen Habermas, Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy (Blackwell Publishers 1996) 491ff.; 87 88

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EU hate speech law intervenes in these debates at two points which are crucial for collective identity in Europe, namely in respect of history and immigration. With respect to history, hate speech law can be interpreted as a building block in the normative construction of a shared European memory transcending historic differences of nationality and race. In the context of immigration, EU law protects identity-based minority groups against discriminatory speech and can be seen as embracing a new, pluralist raison d’être aimed at the peaceful inclusion of migrants in European society. Collective identity is intimately linked to collective memory.89 If nations are imagined communities,90 then imagining a shared history is the glue that holds a national community together. The EU, critics point out, lacks such a common historical narrative as a basis for a truly European identity.91 In contrast, proponents of European identity argue that history is a contested terrain on which a common European narrative can be constructed.92 If this is possible, EU hate speech law can be seen as a building block in the normative construction of a shared European memory. This applies in particular to those provisions that seek to preserve specific elements of European history against denial: the 2008 Framework Decision requires member states to criminalize incitement to violence and hatred through ‘publicly condoning, denying or grossly trivialising crimes of genocide, crimes against humanity and war crimes under international law’. This prohibition covers, in particular, holocaust denial and atrocities during World War II. By protecting the collective memory of these events across all member states, EU law arguably makes a normative claim on what should be part of a Europe-wide collective memory. War caused by national hatred and the Holocaust based on racist anti-semitism are a common European history, we may read the Framework decision. From the desire to

Jürgen Habermas, The Inclusion of the Other: Studies in Political Theory (MIT Press 1998), 105ff.; Joseph H.H. Weiler, The Constitution of Europe: Do the New Clothes Have an Emperor? (CUP 1999); Follesdahl, ‘A Common European Identity for European Citizenship’ (2014) 15 GLJ 765. 89 Aleida Assmann, Der lange Schatten der Vergangenheit: Erinnerungskultur und Geschichtspolitik (C.H. Beck 2006). 90 Benedict Anderson, Imagined Communities (Verso 1991). 91 Helmut König, Julia Schmidt and Manfred Sicking (eds), Europas Gedächtnis (transcript Verlag 2008); Peter Kielmannsegg, ‘Integration und Demokratie’ in Markus Jachtenfuchs and Beate Kohler-Koch (eds), Europäische Integration (Leske + Budrich 2003) 58f. 92 Hannes Hansen-Magnusson and Antje Wiener, ‘Studying Contemporary Constitutionalism: Memory, Myth and Horizon’ (2010) 48(1) Common Market Law Review 21; Armin von Bogdandy, ‘Europäische und nationale Identität: Integration durch Verfassungsrecht?’ (2003) 62 Veröffentlichungen der Vereinigung Deutscher Staatsrechtslehrer 156.

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overcome this divisive, yet common history grows a shared European identity that transcends national and racial difference, so the narrative goes. The claim here is not that law effectively succeeds in this aim, but simply that it expresses a normative commitment to protecting a specific version of collective memory as a basis for a European identity. From a comparative perspective, this identity is particularist in the sense that it sets Europe apart from its Other: only Europeans share this particular past. This is reinforced by the implicit focus on the singular event of the Holocaust. The reference to crimes under international law is also less universal than it may appear: it only includes historic events that occurred after the notion of international crimes emerged. Consequently, it excludes the violent history of European colonialism, such as the quasi-genocide of Herrero and Nama by the German colonial army.93 From the perspective of postcolonial critique, this exclusion is not a minor oversight but rather part of a structural pattern in European identity politics: The identity of the European citizen is not only constructed against Europe’s violent internal history, but also against its external non-European Other. In one of the earliest leading cases on European citizenship, Advocate-General Jacobs contrasts the rights-bearing European citizen – ‘civis Europaeus sum’ – with a savage legal order in which theft is punished by chopping off the thief’s hand.94 In contemporary Europe, this strong image is more likely to conjure up the imaginary of a savage Islamic Sharia law – rather than the memory of European colonizers chopping off the hands of colonial subjects in the Belgian Congo.95 Postcolonialism not only offers a critical lens on the role of law in European memory politics. It also speaks directly to another crucial site for the negotiation of European identity: contemporary discourses concerning immigration. EU law intervenes in these discourses by prohibiting discriminatory speech based on race, ethnicity and religion, especially xenophobic and Islamophobic speech against migrants originating from predominantly Muslim countries. The legal intervention emanates from a distinct strand of European hate speech law, namely EU anti-discrimination law. The centrality of the anti-discrimination rationale is illustrated by the fact that fullest discussion of hate speech in EU law to date is found in a case based on anti-discrimination law: the

See generally Gregory Gordon, Atrocity Speech Law (OUP 2017). Opinion of Advocate General Jacobs on 9 December 1992, Case C-168/91, Christos Konstantinidis v Stadt Altensteig [1993] ECR I-01191, para 46: ‘civis europaeus sum’; on the implicit Othering in this case, see Ulrich Haltern, Europarecht (3rd edn, Mohr Siebeck 2017) 836‒39. 95 cf. Adam Hochschild, King Leopold’s Ghost (Houghton Mifflin 1999); Idesbald Goddeeris, ‘Colonial Streets and Statues: Postcolonial Belgium in the Public Space’ (2015) 18(4) Postcolonial Studies 397. 93 94

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2008 Feryn case,96 termed by some observers ‘the long-awaited birth’ of a ‘European law of freedom of expression’.97 The facts of the case are relatively simple: The director of Feryn, a company which installs doors in private homes, complained in a newspaper interview that it was difficult to recruit staff to do the job. The director said: ‘Apart from these Moroccans, no one else has responded to our notice in two weeks … but we aren’t looking for Moroccans. Our customers don’t want them. They have to install up-and-over doors in private homes, often villas, and those customers don’t want them coming into their homes.’98 Following these public statements, an anti-racism organization sued Feryn for discrimination, invoking the EU Racial Equality Directive.99 Since none of the ‘Moroccans’ had come forward personally and there was no evidence that any actual job application had been rejected, the case turned on the legal question whether mere discriminatory speech can constitute an act of discrimination under EU law. The CJEU ultimately answered in the affirmative and found for the plaintiff. Even more importantly, it relied heavily on the reasoning of Advocate General Maduro. Maduro starts his Opinion with a metaphorical statement: ‘contrary to conventional wisdom, words can hurt’,100 echoing the title of the probably most cited collection of articles produced by US-American critical race theorists about hate speech, ‘Words that Wound’.101 Maduro continues: By publically stating this intention not to hire persons of a certain racial or ethnic origin, the employer is, in fact, excluding those persons from the application process and from his workflow. He is not merely talking about discriminating, he is discriminating. He is not simply uttering words; he is performing a ‘speech act’. The announcement that persons of a certain racial or ethnic origin are unwelcome as applicants for a job is thus itself a form of discrimination.102

96 CJEU, Case C-54/07 Centrum voor gelijkheid van kansen en voor racisme bestrijding v Firma Feryn NV [2008] ECR I-05187. 97 Belavusau (n 3) 22. 98 Opinion of Advocate General Maduro on 12 March 2008, Case C-54/07 Centrum voor gelijkheid van kansen en voor racismebestrijding v Firma Feryn NV [2008] ECR I-05187, para 3. 99 CJEU Feryn (n 96) para 34: The organization which brought the claim before the ECJ (the Centrum voor gelijkheid van kansen en voor racismebestrijding) was a body established under Art. 13 of the EU Racial Equality Directive 2000/43/EC of 29 June 2000. National Belgian law included the capacity to sue on behalf of discriminated groups. 100 Opinion of Advocate General Maduro (n 98) para 1. 101 Mari J. Matsuda, Words That Wound: Critical Race Theory, Assaultive Speech, and the First Amendment (Westview Press 1993). 102 Opinion of Advocate General Maduro (n 98), para 16.

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This reasoning has been hailed by observers as a promising ‘transplant’ of critical race theory into the European context.103 It is in line with speech act theory, and it recognizes discrimination as transcending individual harm and was understood in terms of community exclusion. Yet the term ‘race’ has its own meaning in the European context: By far the most obvious specificity of the contemporary European anti-racist discussion is an apparent focus on ethnicity, in conjunction with the issue of Islamophobia. … The racist black-and-white dichotomy manifests itself in the European context through the contrast between citizens and third country nationals, titular national citizens and immigrants, old and new Member States nationals, Christians and Muslims … ‘Europeans versus non-Europeans’.104

The implications for democracy of an anti-discrimination approach to hate speech have yet to be spelled out. One possible reading is that recognizing identity-based differences embraces internal diversity and thus promotes a more inclusive collective identity that does not rest on a dichotomy of European vs. non-European. Some observers go even further and find in hate speech law the seed of a new raison d’être for the EU: as a multi-level exception to freedom of expression, hate speech law combines ‘a traditional post-war ethos of militant non-racism [with] a newer telos of the peaceful integration of migrants’.105 A less optimist reading would doubt the inclusiveness of an identity politics that does not dismantle underlying political-economic power structures (for example, who is the employer, and who the employee) and that remains committed to ‘integration’ rather than pluralism. Other sceptics will be wary of reproducing politically divisive identity differences in hate speech law and rather look for inspiration in ideas of a post-categorical anti-discrimination law.106 In any event, anti-discrimination law does provide the EU with a strong constitutional rationale to oppose the rise of illiberal right-wing populism across Europe. Whether or not this rise can be success103 Belavusau (n 3) 33. For an account of critical race theory and its potential applicability in European law, see also Uladzislau Belavusau, ‘Instrumentalisation of Freedom of Expression in Postmodern Legal Discourses’ (2010) 3(1) European Journal of Legal Studies 145; M. Möschel, ‘Race in Mainland European Legal Analysis: Towards a European Critical Race Theory’ (2011) 23(10) Ethnic & Racial Studies 1648. 104 Belavusau (n 3) 30‒31. On meaning of and overlap between ‘race’, ‘nationality’ and ‘ethnicity’ in the European context see also Opinion of Advocate General Bot on 5 May 2011, Case C-244/10 and C-245/10 Mesopotamia Broadcast and Roj TV A/S v Bundesrepublik Deutschland [2011] ECR I-08777, paras 70‒75. 105 Belavusau (n 3) 34. 106 Doris Liebscher et al., ‘Wege aus der Essentialismusfalle: Überlegungen zu einem postkategorialen Antidiskriminierungsrecht’ (2012) 45(2) KJ 204.

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fully countered will determine not only the future of hate speech law, but also that of diverse democracy in Europe. 4.C Conclusion Analysing the relationship of hate speech law to diverse democracies in India and the EU highlights some of the comparative themes developed in the introduction to this book. The social conflicts that hate speech law seeks to address reflect the more divisive forms of diversity at work in the two polities. Indian free speech law struggles with a tension between racialized colonial particularity in the arena of religion-based hate speech and a liberal-democratic universalism in the sphere of casteist hate speech. On the other hand, the focus of EU law has evolved from nationalist hate speech to islamophobic speech and attacks against migrants. Federalism remains a strong structuring principle of EU hate speech law which has no complement on the Indian side. Historical legacies loom large in India not only in the form of criminal provisions imposed by the British colonizers but also in terms of a colonial-style particularist rationale of hate speech law geared towards preserving public order among racialized ‘irrational’ subjects. In Europe, World War II and the holocaust form the immediate historical experiences that inform denial laws until today; but the legacy of colonialism also lurks deep in European collective imaginaries and attempts at forging a shared memory. The role of law in these contexts is constitutive and expressive as much as it is repressive. In both polities hate speech law is used to repress unwanted expressions. But it is also crucial in constituting publics and collective memory, and in expressing shared values. Indian hate speech law survives as an awkward strain between colonial continuities and liberal democratic ideals. Although in either case, it is mobilized as much by government agencies as bottom-up by social groups. In the EU, hate speech law is no exception to the general top-down and technocratic legal culture, even though some social mobilization occurs through organized civil society as in the Feryn case. The enforcement of hate speech law in the EU shows a trend towards privatization, which enlists US-American internet platforms as guardians of the European public sphere. This opens an avenue of influence for US-American free speech culture much more tolerant of hate speech. But generally, and ironically, it is the minority views from within US free speech debates that seem most influential in European jurisprudence: What remains within the social realm of ‘political correctness’ in the US, is partly hard law in India and EU.107

cf. Khan (n 5); Jeremy Waldron, The Harm in Hate Speech (HUP 2012).

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But despite hard law regulating hate speech in these jurisdictions, both India and EU have developed a rationale for hate speech regulation internal to democracy. In Europe, law plays a role in the emergence of transnational public spheres as a precondition for democracy beyond the nation state. Here the attempt is to overcome diversity and integrate national public spheres. This integration is most forceful when speech is protected as an exercise of market freedom: EU law ultimately privileges speech as an activity of the common market subject. At the same time, anti-discrimination law furnishes an alternative rationale for hate speech law, more focused on embracing internal diversity within European societies. In India, the democratic rationale for hate speech regulation is founded in a universalism that aims primarily at countering exclusionary speech directed at marginalized groups and at ensuring equal participation in democratic deliberation. This universalist strand focuses on speech as the activity of a rational subject. However, a careful analysis of power relations shows neither the colonial particularist nor the universalist understandings of freedom of expression and hate speech in Indian law can enable the effective participation of diverse and historically oppressed identities like that of the Dalit or Adivasi in the Indian public sphere. This allows one to open up the question of who the ‘Indian’ in the Indian public sphere and the national imagination actually addresses and excludes. Consequently, it allows for a problematization of the relationship between hate speech law and the imagination of the constitutional polity in which such speech occurs. Relatedly it encourages a deeper pursuit of a normative analysis of a particularist yet post-colonial public sphere. The turn to such normative analyses unveils an approach for further research in the field of freedom of expression that eschews the assumptions of liberal democracy entrenched in the idea of an a priori unified polity (here, the nation-state), and instead focuses on the power relations of inclusion and exclusion at play in the process of construction of a ‘unified public sphere’ through the exercise of the polity’s hate speech laws.

8. Social rights Gautam Bhatia and Emilios Christodoulidis 1. INTRODUCTION Our specific mandate in this comparative project that has built up over a series of workshops and a productive dialogue spanning a number of years, is to look at social rights in the context of the European and Indian systems of democratic governance. Over the last few years this has involved the team of researchers in a ‘slow comparison’, a ‘layered and dialogical way [of doing] comparative constitutional law’. If this, methodologically, invites a ‘self-reflective, often critical’ contextual approach that confounds readily drawn and unthinkingly rehearsed descriptive/normative distinctions, it also invites a problem-oriented approach. Accordingly, we centre the analysis we offer on the following problem: What does it mean to raise the question of social rights constitutionalism today? The usual answer is that it means increasingly little. Under the dominant rationalization social rights are increasingly less affordable compensations for the social costs of the integration of markets on a global scale. Social rights are the more obvious casualties, however ‘regrettable’, of the seemingly inexorable process of globalization. And while the comparison we undertake cannot escape the diagnosis of the relative diminution of the relevance of rights in the age of austerity, it insists nonetheless on the theoretical importance of insisting that the thinking of social constitutionalism is an independent dimension of the achievement of democratic constitutionalism, crucial to the self-understanding and self-reflection of both constitutional systems, and thus irreducible to market exigencies. And that thus the analysis of social rights must reflect both this rationale and the irreducibility. A critical approach in this mode must, we argue, confront and critique the pervasiveness of a new ‘thinner’ constitutional imaginary that threatens to eclipse the social dimension of the constitution. There is much at stake, conceptually, in this defence of social constitutionalism across the jurisdictions, because in both cases, as with all cases where the social constitution is debated, what it concerns crucially is the political capacity of a citizenry to act collectively. Not just because social rights provide sustainable lives for voters, though they no doubt do that too. 223

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But more than that, social constitutionalism imbues democratic institutions within the economy with force. To constitutionalize solidarity in the forms of social rights means, as we will go on to argue, to introduce it as the expression of a political will of a society, as axiomatic and non-negotiable. ‘Collective self-determination’ in the field of work sanctions, collective capacity for action in the forms of freedom to associate, to bargain and to strike; and the provision of a living wage, of unemployment benefit and the protection of the health and safety of people at work offer collective defence against the risks of existence. Together they offer the institutional forms of the realization of solidarity, as organizing principle and mainstay of the constitutional imaginary, extending from the social production of value through labour (right to work) to the forms of protection of vulnerability and the pooling of the risks to which we are collectively exposed. In his seminal lecture of 1949,1 Thomas Marshall argued that successive waves of rights ‒ civil, political and social ‒ should be conceived along a continuous trajectory as markers of society’s struggle to contain and overcome the constitutive significance of class. Social rights in the continuity argument are tied to the efforts of ‘political power to supersede, supplement or modify operations of the economic system in order to achieve results which the economic system would not achieve on its own, … guided by values other than those determined by market forces.’ His theory engaged a ‘secondary system of industrial citizenship’, where syndicalist activity assumes ‘the guise of an action modifying the whole pattern of social inequality’.2 Keen to remain with Marshall’s normative argument about citizenship, current ‘resolutions’ to the contradiction between democracy and capitalism have variously invoked, rationalized and deployed social rights as continuous to civil and political rights. As we explore these ‘accommodating’ syntheses they are gradually exposed as forms of the reconciliation-cum-subsumption of democracy to capitalism, and all too often captive forms of thought. So, let us return to our guiding question: What does it mean to raise the question of social rights constitutionalism today? We can present it in terms of the following pressures. First, as a result of the economic freedom afforded to capital to circumvent the national systems of social protection by relocating to cheaper sites – whether it is the reality, or merely the threat, of relocation – systems of social and labour protection have been thrown into the vicious circle of competitive alignment, with the slashing of the welfare budget and the diminution of social

1 T.H. Marshall, ‘Citizenship and Social Class’ in Sociology at the Crossroads and Other Essays (CUP 1997 [1949]). 2 Marshall (n 1) 28.

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protection as the principal adjustment factor. The effects that the ‘race to the bottom’ has had on social rights have been devastating. The social constitution entrusted with the redress of the worse effects of market integration can only be mobilized at the extreme end of the released social devastation, as ultimum refugium at the most basic level of guaranteeing the needs of biological existence, and remains otherwise toothless in regard of the majority of the effects of globalization. Secondly, constraints of the ‘Exchequer’ are increasingly invoked to curtail or block the operation of social rights, and ‘hollow out’ social constitutionalism. In India, for instance (as we shall see), following the ‘liberalization’ of the economy in 1991, the Supreme Court has interpreted labour laws in a manner that constantly shrinks the constituency which is protected by them, and correspondingly decreases the economic and financial burden (of social protection) upon the state. In the context of the European Union, for those economies that austerity has locked into the vicious circle of shrinkage, the spectre of sovereign debt has largely come to displace social constitutionalism as such. The transition of many European states from ‘tax states’ to ‘debt States’ – states, that is, that cover the larger part of their expenditure through borrowing rather than taxation and have to service that accumulating debt with an ever-increasing share of their revenue3 – has led to excessive borrowing and the spectre, or reality, of sovereign debt. This entails the loss of budgetary sovereignty and the shrinking of the political capacity of the state. A qualification is important at this stage: while the project involves the comparison of the EU as a separate political as well as constitutional system, and object of comparison in its own right, the question of social rights brings to the fore an important query over this assumption. It asks whether the faultline that has opened between the states of Europe’s North and South, splitting the EU down the middle,4 can indeed be bracketed in order to allow for critical self-reflection of the EU as a whole? Thirdly, another kind of pressure that social constitutionalism in both systems is under, involves not what markets threaten but what laws demand. In the European Union, national governments take steps to weaken existing forms of social protection not in a bid to attract capital investment, but because they are legally bound to do so – under the terms of international trade agreements, or loan agreements, to which they are signatories. In India, while there remains a political cost to deregulation of labour laws that no government has – as For a fuller analysis see Wolfgang Streeck, Buying Time (Verso 2014). See Emilios Christodoulidis, ‘Europe’s Donors and its Supplicants; Reflections on the Greek Crisis’ in Jeffrey Ellsworth and Johan Van der Walt (eds), Constitutional Sovereignty and Social Solidarity in Europe (Luxemburger juristische Studien, Bloomsbury Academic 2015) 241. 3 4

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yet – been willing to pay (notwithstanding international pressure), it is the Supreme Court that has taken this mantle upon itself, choosing to ‘interpret’ existing labour laws in a manner that privileges the logic of the market over the guarantees of social constitutionalism. As we will focus in particular on worker protections in our contribution, we can identify in this context the international and regional legal and institutional frameworks that are developed which allow for the re-characterization of labour as services, and the consequent circumvention of otherwise applicable labour laws. As a result of these steps, companies and transnational corporations are further empowered to configure relations with workers to their own benefit. It is of course a key question for any account of social rights constitutionalism to ask whether the capacity of free trade agreements and other aspects of the liberalization of trade and finance to disadvantage workers might be countered by international human rights and guarantees of social constitutionalism at the national level. Against the background of these concerns and questions, we have structured our essay as follows. First, we shall explain and defend our decision to locate the ‘right to work’ at the heart of our discussion of social rights and democracy within the comparative legal frameworks of India and the European Union (Section 2); we shall then examine the character of social rights in the constitutional system of India and the European Union with an emphasis on their ‘semi-binding’ character (Section 3); in the heart of our essay, we shall compare the treatment of the right to work (as a social right) in the two legal and constitutional systems. Although the major issues that have preoccupied the two legal systems are (naturally) different, we shall organize our discussion around three core themes: first, that over time, constitutional courts have done progressively less to protect the right to work; secondly, this has been accompanied by an incremental subordination of social rights and the right to work to economic freedoms; and thirdly, the judiciary has been a primary actor in accomplishing this transition (whether it is the Indian Supreme Court, or the European Court of Justice), although – again, naturally – the methods it has used are different (Section 4). We shall end with a brief summary of our conclusions (Section 5). We begin with the ‘special case’ of work, the justification of granting its protection a privileged position amongst social rights which underlies also our own decision of treating it as paradigmatic comparator.

2.

SOCIAL RIGHTS, DEMOCRACY, AND THE RIGHT TO WORK

‘There are two ways in which society acts upon the distinction between necessary and unnecessary suffering,’ wrote Maurice Glasman in his exceptional,

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if now largely ignored, Polanyian analysis.5 ‘The first is through adopting principles of justice which establish a common status of citizenship for each person, the second concerns the treatment of people at work. While the idea of individual rights has partially succeeded in establishing durable legal institutions, the capacity of society to use moral or democratic categories in its conceptualisation of the economy is in disarray’.6 Distinctions between categories of rights will allow us to navigate the ‘disarray’. The first set of distinctions that we will explore situates work as a special case, within the category of social rights; the second set exposes us to what it might mean to understand it as extending across the range of categories of rights in terms of its protection under the freedom of association. We will look at both these in turn. But key to these conceptual inquiries – of what distinguishes the right to work as a ‘special case’ and what extends it, crucially into the realm of political rights – remains a determination to hold on to the constitutional rationale of the right to work as first and foremost a social right, and it is this, that we begin with. The protection of work as a social right draws its essential rationale from the constitution of the International Labour Organization (ILO) that declares famously that ‘labour is not a commodity’. As such it is, in principle, distinguished from the circulation of commodities and the regulation of that circulation, and constitutively tied instead to the constitutional protection of dignity (of the worker) and of solidarity, the ideal that undergirds and informs the whole category of social rights. It is this, above all, that founds the continuity of the right to work with other social rights under the organizing ideal of solidarity. Alain Supiot reminds us that in its original juridical sense – that dates from Roman law – solidarity was the term for what was effectively a technique of holding co-responsible all those who played a role in the generation of a certain risk.7 This meaning was generalized with the advent of the social state which introduced the pooling of the risks of existence and gave solidarity the organizational form of social security and public services, to which one contributed according to one’s resources and benefited according to one’s needs. For the purposes of this founding of social rights constitutionalism on solidarity as legal-constitutional foundation, it is important to identify the key function that solidarity performs as constitutional value. If social rights (social protection and capacity to act) give institutional form to solidarity, the fact that they receive sanction as constitutional rights, means a political-constitutional

5 Maurice Glasman, Unnecessary Suffering; Managing Market Utopia (Verso 1996). 6 Glasman (n 5) xi. 7 Alain Supiot, ‘Grandeur and Misery of the Social State’ (2013) 82 NLR 99.

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commitment that underwrites social and labour protection and the obligation of social security. To understand solidarity as the foundation of the social state and the founding commitment to mutualize the risks of existence through the provision of social protection, is to appreciate the gesture that understands societal valorization as irreducibly collective, where even those less exposed to risks bear a duty of responsibility given that they partake as beneficiaries of the totality of social production: and this involves clearly, as we will stress, work in both the formal and the informal economy. To constitutionalize solidarity in the forms of social rights means, as we said above, to introduce it as binding as a matter of the expression of a political will of a society. And while it would exaggerate the function of social constitutionalism to suggest that the institutions of social democracy and constitutional commitments of the social state actually resolved the contradiction between democracy and capitalism, they went a long way to sheltering democracy from capitalist excess, imbuing democratic institutions within the economy with force, and recognizing the constituent role of virtue in the economy. Work is of course principally contracted for, and thus the principles of private law and the operation of market freedoms are key factors in the organization of work. If the social right to work is indeed a ‘special case’, it is because it is uniquely positioned between state sanction and market freedom. The paradigmatic change in legal thinking of the last few decades away from a more political conception of constitutionalism and toward its market varieties is reflected in the field of labour as a move toward the regulation (law) of the labour market,8 where the shift to market regulation has facilitated the total and totalizing re-conceptualization of the right to work in terms of the exercise of a market freedom. This is of course not to suggest that the mere re-introduction of principles of public law will of itself contain the excesses of market self-regulation or curb the excesses of the extraction of value from the forms of quasi- or under-employment in the ‘gig economy’, forms of economic activity where the protection afforded is disproportionately limited while forms of exploitation proliferate. Here the introduction of categories of ‘publicness’ and the attempt to wrest the definition of what constitutes work from private usurpation (the very important constitutional determination of ‘industry’ in the Indian constitutional jurisprudence, below) are important attempts to resituate the debate and realign it to public-collective understandings. And it underlies the attempt to resist what in the informal economy, huge in India and expanding in Europe, has been the devaluation of work as a social right.

8 For the definitive account see Ruth Dukes, The Labour Constitution: The Enduring Idea of Labour Law (OUP 2014).

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What, then, underlies the particular status of the right to work as a social right? We would argue that it is three-fold: first it is the significance of the activity that is protected, which underlies no less than the production of value in society; secondly it is the particular juncture that it occupies between public and private (a juncture on which so much is currently staked in both economies, Indian and European) and thus the particular type of market exposure that work is subject to with the attendant danger of its co-optation, as a market freedom simpliciter, into the sphere of purely market allocations; and thirdly it is because of the way the right to work straddles social and political categories enjoining (at the level of individual rights) the protection of dignity and at the level of political rights the value of democracy. In terms of this third dimension of its significance it informs ‘the capacity of society to use moral or democratic categories in its conceptualisation of the economy’.9 Under the aegis of the right to association, the social right to work sanctions the capacity of workers to act and as such taps the social resources of solidarity, the social right understood now as the collective-democratic action of producers, recast positively in categories of self-determination and voice rather than negatively as addressing the alleviation of suffering.

3.

‘SEMI-BINDING’: SOCIAL RIGHTS UNDER THE INDIAN CONSTITUTION AND THE EU SOCIAL CHARTER

3.A India Under the Indian constitutional scheme, all laws inconsistent with ‘fundamental rights’, which are set out in Part III of the Constitution, may be declared void by the courts.10 Through these twin mechanisms of judicial review and entrenchment, the Indian Constitution insulates a set of rights from the transience of everyday democratic politics, allowing them to be modified or abrogated only through the ‘higher lawmaking’11 of constitutional amendments. For the most part, Part III consists of familiar civil and political rights (equality before law, right to non-discrimination, freedom of speech, expression, and association, right to life and personal liberty etc.), as well as group and minority rights. In addition, Part III contains two rights that pertain to work and labour. Article 19(1)(c) guarantees to all citizens the right ‘to form



Glasman (n 5). Constitution of India, Arts 13 and 32. 11 Bruce Ackerman, We the People, Volume 1: Foundations (Bellknap Press 1993). 9

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associations or unions.’12 Article 23 prohibits ‘traffic in human beings and beggar and similar forms of forced labour’.13 That is not all that the Indian Constitution has to say about work. After Part III comes Part IV of the Constitution, titled ‘Directive Principles of State Policy’, which the constitutional drafters directly borrowed from the Irish Constitution. The Directive Principles are judicially unenforceable, but are nonetheless stated to be ‘fundamental in the governance of the country and it shall be the duty of the State to apply these principles in making laws.’14 Here we find directives to the state to secure social and economic justice,15 an adequate means of livelihood to all citizens,16 equal pay for men and women,17 the right to work,18 just and humane conditions of work,19 a living wage20 and economic democracy.21 As much as one-third of Part IV is dedicated to spelling out the various aspects of what may broadly be defined as the ‘protection of work as a social right’. The division between enforceable civil and political rights and unenforceable social rights was not always so. Trade unions played a significant role during India’s struggle for political independence from British colonialism. In recognition of this, the Indian National Congress’ 1931 draft ‘Bill of Rights’ placed civil/political rights and social rights of labour (such as a right to a living wage, to healthy conditions of work, to a machinery for industrial dispute settlement, and freedom from ‘conditions bordering on serfdom’) on par with each other, without any distinctions of status or enforceability.22 Sixteen years later, however, when the Constitution came to be drafted, civil/political rights were granted a privileged status, while social rights were shunted into Part IV. A perusal of the Constituent Assembly Debates does not reveal too much about the reasons for this bifurcation, apart from stray observations23 (and anguished

Constitution of India, Art. 19(1)(c). Constitution of India, Art. 23. The word ‘begar’ refers to ‘bonded labour’, a form of labour servitude where an individual’s debt was handed down to his children. See also Constitution of India, Art. 24. 14 Constitution of India, Art. 37. 15 Constitution of India, Art. 38(1). 16 Constitution of India, Art. 39(a). 17 Constitution of India, Art. 39(d). 18 Constitution of India, Art. 41. 19 Constitution of India, Art. 42. 20 Constitution of India, Art. 43. 21 Constitution of India, Art. 43A. 22 The Karachi Resolution 1931. 23 Constituent Assembly Debates, Vol. IV, 30 August 1947, speech of Sri R.K. Sidhwa. 12 13

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counter-arguments24) about the state’s financial capacity to immediately implement social rights, or the lack thereof.25 In the first ten years of its jurisprudence, the Indian Supreme Court accorded no role to the Directive Principles (and therefore, to social rights) in its adjudication.26 However, by the end of the 1960s, the Court progressed to abandoning its earlier position that the Directive Principles of State Policy (Part IV) had no role to play in constitutional adjudication. Increasingly, it was beginning to use Part IV principles as interpretive aids for determining the meaning of ambiguous statutes (including in the domain of labour law27), as markers of ‘public interest’ for upholding challenged laws,28 and most importantly, as structuring principles for determining the concrete content of abstract Part III rights. For instance, in State of Kerala v N.M. Thomas – an affirmative action case – Justice Mathew invoked Part IV to hold that the equal treatment provisions of the Constitution committed the state to principles of substantive, and not formal (or ‘colour-blind’) equality.29 In at least three different ways, therefore, the Court was engaged in a project of re-coupling Parts III and IV, treating them – in the words of constitutional scholar Granville Austin – as two wheels of the same chariot.30 An excellent example of this interpretive approach in the domain of social rights – and in particular, the right to work – may be gleaned from a judgment of the Supreme Court in 1983, where the Court read together the right to equal treatment under law – which was an enforceable fundamental right – and the right to equal pay for equal work – which was an unenforceable Directive Principle of State Policy – to equalize pay scales in a company.31 It is in this sense that we can say that social rights – including the right to work – which were technically unenforceable Directive Principles of State Policy, nonetheless came to occupy a ‘semi-binding’ character under Indian constitutional jurisprudence.

24 Constituent Assembly Debates, Vol. III, 29 April 1947, speech of Sri Somnath Lahiri. 25 This, of course, is a familiar – and controversial – theoretical argument against making socio-economic rights enforceable. 26 For an account, see Gautam Bhatia, ‘Directive Principles of State Policy’ in Pratap Bhanu Mehta et al (eds), The Oxford Handbook for the Indian Constitution (OUP 2016). 27 UPSEB v Hari Shankar (1980) AIR SC 65. 28 Mohd Hanif Qureshi v State of Bihar (1958) AIR SC 731. 29 State of Kerala v N.M. Thomas (1976) AIR SC 490. 30 Granville Austin, The Indian Constitution: Cornerstone of a Nation (OUP 1966). 31 Randhir Singh v Union of India (1982) AIR SC 879.

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The European Union

For the purposes of the comparative exploration of this project, the European Union is taken as ‘an object of comparison in its own right’ that conceives it as a separate polity and political as well as constitutional system. For our discussion of social rights such a methodological assumption poses an immediate problem. European integration was conceptualized by the architects of the Rome Treaty from the very beginning in terms of a decoupling of economic integration and social protection. At the heart of the European Union lays a project to create a single market within which goods, services, capital and labour could move freely across borders. Economic integration, via the four economic freedoms, was fast-tracked and its protection entrusted to the European Court of Justice in Luxembourg. Social protection, along with labour protection, freedom of association and collective bargaining, were entrusted to member states, in the name of subsidiarity that demands that decisions concerning matters of the national lifeworld, such as questions of welfare and work, should be decided and defended by the national peoples. When it came to violations of rights by national courts, the European Court of Human Rights in Strasbourg would be the relevant forum. Complicating this complex architecture further is the fact that the decisions of the Luxembourg Court, on economic integration, became vested with ‘direct effect’, entrenching the constitutional role of the Court vis-à-vis the other courts of Europe at regional and national levels. It is for the reasons of this division of labour at all levels (legislation, implementation, adjudication) and the different competences when it comes to protection that the story of social rights, we will tell it, in the next section, as a story of the two Courts. The split between market integration and social protection, and with it the constitutional disconnection of the processes of production of value from their effects on Europe’s producers, draws its inspiration for the Ordo-liberal imagination of the inception of the European Community. Pitted against discretionary politics, ordo-liberalism underwrote the framing conditions of market order with a rule-of-law like commitment to upholding and guaranteeing economic freedoms, guarantees of property, and the sanctity of contract. At the European level it promised the opening up of national economies and a commitment to undistorted competition. The ordo-liberal emphasis on what is properly the function of the economic constitution, as Christian Joerges puts it ‘that [it] should respect the interdependence of a system of undistorted competition, individual freedoms and the rule of law – and protect this precious

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balance against discretionary political influence’,32 importantly unburdens the European project from the political tasks of meeting the social costs of integration. We need to take this more slowly, and while it would not be possible to recount in any detail the history of the EU since 1957, it is useful to refer back to both the original constitutional settlement in respect of social policy and labour law as well as key moments of its development. Drawing heavily on the Ohlin report, commissioned by the original member states from an ILO committee of experts on ‘the social aspects of European cooperation’, it was deemed that market integration would not require the ‘equalisation of social costs across borders’; instead economic growth itself, as pursued through market integration, would lead to an improvement of standards across the board. While it is clear that in the Ohlin Report (and in the Spaak Report that followed it in 1955), the market rationale advanced played a formative role in the pursuit of integration, it is important to stress that it ran alongside a commitment to the preservation of strong labour standards within member states, which is clearly enshrined in the Treaties of Rome. When it came to work, in other words, a decision was taken to make only very limited provision in the foundational Treaty for the creation or enforcement of labour standards at the ‘European’ level. The intention was that these should remain squarely within the jurisdiction of the member states. While economic rights to free movement for goods, services, capital and labour should be enshrined as fundamental within the Treaty, labour rights and rights to social welfare need barely figure at all. And it is certainly the case that for the initial decades at least, the effects of the separation of the economic from the social system were kept relatively at bay. The European integration project involved embedding the [supranational] internal market within national social policy. This was predicated on the ability of these industrialized nations to alleviate any adverse impact of market integration through national systems of employment protection and social welfare, and to fund social policy interventions.33

By the mid-1960s and 1970s we witness the emergence of a stronger rationale to protect labour and to construct a body of social policy at the European level, and in 1974 the EEC adopted the Social Action Programme that promised full

32 Christian Joerges, ‘What is Left of the European Economic Constitution? A Melancholic Eulogy’ (2005) 30 ELR 461, 468. 33 Diamond Ashiagbor, ‘Unravelling the Embedded Liberal Bargain: Labour and Social Welfare Law in the Context of EU Market Integration’ (2013) 19(3) European Law Journal 303, 307.

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and better employment and the participation of workers in decision-making. By the mid-1980s Jacques Delors had launched the project of the Espace Sociale Européen, and in 1989 the Community Charter of Fundamental Social Rights was adopted, which, while not binding as such, clearly delineated the fundamentals of social and labour protection, with a commitment – insisted on by Delors – that no legislation on social policy matters would proceed without the agreement of social partners. This chapter closes with the constitutionalization of the Social dialogue in the Treaty of Maastricht of 1992. There can be little doubt in retrospect that the ‘social dialogue’ was nothing like a functional equivalent of national collective bargaining at the European level. Vast asymmetries of bargaining capacity, the paucity of the representative structures and institutions of workers at the European level (vis-à-vis the overwhelming representation of interests of business), the unwillingness and inability of states to broker agreement at the supranational level (especially with the systematic use of state veto powers by the UK making unanimous regulation impossible), any semblance of harmonization of social policy and labour law at the European level remained a chimera; in Wolfgang Streeck’s formulation, a ‘neo-voluntarism’ characterized by its low capacity to impose binding obligations on market participants.34 3.C

A Comparison

As India is a sovereign state and a constitutional democracy, and the European Union – as its name suggests – is a union of states that ‘pool’ a part of their sovereignty, while nonetheless remaining sovereign in their own right, any comparison between the two would, naturally, have to be drawn at a somewhat abstract – or thematic – level. At the level of institutions or rules, the role of the Indian Supreme Court and the European Court of Justice – for example – is so radically different, that a straightforward comparison between the two will make little sense. Rather a thematic comparison – and in light of that, an examination of how the institutional mechanisms in both jurisdictions have dealt with the issue in question in concrete terms – demonstrates a clearer way forward. With these remarks in mind, the guiding thematic issue in this Section has been that of ‘imperfect constitutionalisation’. By this we mean that although social rights have been present in the respective constitutional frameworks of India and the European Union, they have not been granted the status of full-blooded, enforceable rights. Their role, instead, has been more in the realm

34 Wolfgang Streeck, ‘Neo‐Voluntarism: A New European Social Policy Regime?’ (1995) 1(1) European Law Journal 31.

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of the hortatory, or, at best, playing an indirect role by setting guidelines or soft standards. Let us then close this section with a short analysis of this imperfect constitutionalization of social rights and labour protection. We saw in the section on India, above, both the discussion of the ‘bifurcation’, with civil and political rights granted full constitutional protection on the one side, while on the other side social rights only ever weakly constitutionalized. This took shape in India’s constitutional document: civil and political rights were made the subject of judicial review, with the constitutional courts empowered to strike down parliamentary legislation, if it did not conform with the requirements set out in the fundamental rights chapter. Social rights, however, were placed in a separate part of the Constitution, where the government was supposed to take them into account when framing laws, but if it did not, there was no remedy. Over time, social rights came to occupy a slightly greater role, as Courts invoked them to infuse material content into abstract civil and political rights, but they have always remained confined within the initial, constitutional dichotomy of enforceable and non-enforceable. In Europe this bifurcation took, as we saw, structural relevance in the founding asymmetry of Europe’s constitutional design. While economic rights understood as the rights of cross-border movement of people, capital, services and goods were fast-tracked and given full protection and became binding through ‘direct effect’, social rights remained stuck at national level, only ever imperfectly constitutionalized at the European level. The forms that this imperfect constitutionalization took were charted briefly above. We might repeat them here: the European Social Charter (dealing with the right to work (Article 1), the right to organize (Article 5), to bargain collectively and to strike (Article 6) to social security (Article 12) along with the right to safe and healthy conditions at work, etc.), introduced a constitutional arrangement consolidated in Maastricht and then in Amsterdam where the Social Charter received formal recognition in the TEU.35 Notwithstanding the development of shared competence over labour law and social policy, certain matters – including, importantly, freedom of association – remain outside the legislative competence of the EU, and instead within the jurisdiction of the various member states.36 At the international level the International Labour Organisation, the 35 On these developments see Silvana Sciarra, ‘From Strasbourg to Amsterdam: Prospects for the Convergence of European Social Rights Policy’ in Philip Alston (ed), The EU and Human Rights (OUP 1999) 473. 36 Article 4(2) of the Treaty on the Functioning of the European Union [TFEU] provides for shared competence. Freedom of association is a fundamental right under EU law, but its protection as such is limited. See for example Art. 28 of the EU Charter of Fundamental Rights, which states: ‘Workers and employers, or their respective organi-

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oldest international organization in operation, has since 1919 laid down the minimum standards to govern working conditions, and enshrines the freedom of association in convention 87. The regional and international protections are coupled with the sanctioning of social rights in national constitutions where social and labour protection are institutionalized in the majority of national constitutions. When we say ‘imperfect constitutionalization’, of course, we do not mean that nothing has been done. The ‘reading in’ of the unenforceable social rights into the fundamental rights chapter of the Indian Constitution has meant that, although there is no direct enforcement of social rights, indirectly, social rights have given a certain shape to civil and political rights. This shape is one that is more oriented towards the social than it otherwise would be. Similarly, in the context of the European Union, let us be clear that this range of agreements and instruments, for all the ‘toothlessness’ of their implementation, have institutionalized protection of a range of substantive and procedural aspects pertaining to the protection of work: substantive rights include the right to work, to a minimum or living wage, to healthy working conditions, and to social security for unemployment and incapacity to work; procedural rights include the rights of workers and their trade unions to organize, to bargain collectively and to strike. However, it is also clear that Europe is far from having established a comprehensive framework of effective social rights.37

4.

THE INTERRUPTED CONSTITUTIONALIZATION OF THE RIGHT TO WORK AS A SOCIAL RIGHT IN INDIA AND THE EUROPEAN UNION

The right to work, as we have discussed above, is best understood within the framework of the freedom of association, insofar as it strengthens the political/ collective capacity of labour. It is within this broad context that we compare the approaches of the Indian and EU Courts below. It is important to note, however, that the concrete issues that have attained salience in the two jurisdictions are different. In India, while the scope of associative freedoms granted to labour has been relatively settled, what has been controversial is which sets of workers are entitled to exercise those freedoms. Courts, therefore, have been predominantly concerned with questions of definition (as we shall see). In the zations, have, in accordance with Union law and national laws and practices, the right to negotiate and conclude collective agreements at the appropriate levels and, in cases of conflicts of interest, to take collective action to defend their interests, including strike action’. 37 K.D. Ewing, ‘Constitutional Reform and Human Rights: Unfinished Business?’ (2001) 5(3) Edinburgh Law Review 297, 317.

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European Union, on the other hand, Courts have confronted issues of freedom of association more directly. As we shall show, however, concrete differences notwithstanding, there are some interesting insights to be gleaned from analysing the philosophical overlap between the approaches of the two sets of courts. 4.A India In the previous section, we observed that at the time of the framing, the Indian Constitution decoupled civil, political and social rights, making the former enforceable against the state, but not the latter. This decoupling of social rights (apart from the right to form unions and the right against forced labour) and enforceable constitutional protection was accompanied by a flurry of law-making by independent India’s new legislative assemblies. The concrete aspects of the protection of work as a social right – such as minimum wages, security of tenure, work safety and other facilities, and access to dispute resolution – came to be defined in a complex statutory regime. Inevitably, there were gaps. Consequently, right from the beginning, the Courts were called upon to interpret the scope and ambit of India’s labour laws. Of course, they were asked to do this within the background framework of a Constitution that expressly stipulated that social rights – while not being directly enforceable – were nonetheless fundamental in the governance of India, and must be applied by the state while framing its laws. Textually and structurally, therefore, the Courts had every opportunity to fashion something akin to the German doctrine of the ‘radiating effect’:38 that is, to apply constitutional principles in interpreting, explicating, and developing labour law39 ‒ especially in light of the ‘semi-binding’ character of social rights, itself a product of incremental judicial evolution. So, to what extent has the Indian Supreme Court ‘constitutionalized’ the protection of work as a social right, in some of its important aspects? We argue that the career of the Indian Supreme Court is characterized by three aspects: first, social rights have been gradually moved from the foreground of adjudication to the background; secondly, this move has been accompanied by the subordination of social rights to ‘economic freedoms’; and thirdly, this has been accomplished by the judiciary through the employment of an interpretive approach that defines the protection of work in terms of the dominant economic philosophy of the period. In other words, instead of anchoring the interpretation of social rights within a set of consistent constitutional princi-

BVerfGE 7, 198 (Luth Case). See Gautam Bhatia, ‘Directive Principles of State Policy’ in Sujit Choudhry (ed), The Oxford Handbook for the Indian Constitution (OUP 2016). 38 39

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ples, the Court has chosen to base its interpretation on principles which – in its opinion – enjoy broad popular (or even, ‘democratic’) and elite support, as evidenced through contemporary legislative policy. The Court’s trajectory can be best understood by dividing its jurisprudence, chronologically, into three separate periods, which we now proceed to consider. 4.A.1

Phase I: labour law as an autonomous statutory regime (1950–1975) The conscious decoupling of social rights and enforceable guarantees under Part III, accompanied by the evolution of a detailed statutory labour regime in the years after independence, resulted in a judicial tradition that, in the beginning years, interpreted labour legislation by using a logic internal to the domain of labour law, rather than one grounded in the Constitution. Consider, for example, the scope of the word ‘industry’. This was a legal question of particular significance, because India’s omnibus industrial legislation – the Industrial Disputes Act – which provided a host of rights-based protections to labour – applied only to ‘industries’. The scope of work-related rights open to an individual, therefore, depended on whether or not she was working in an ‘industry’. Between 1970‒1975, the Supreme Court decided at least 14 cases on the scope of the word ‘industry’. Most of these cases were decided in favour of workers claiming protection under the Industrial Disputes Act, and by consciously giving an almost counter-intuitively wide interpretation to the word ‘industry’ (hospitals, research institutes and municipal corporations were all held to be industries). The basis for this, however, was not Part IV of the Constitution, but a certain industrial philosophy. Here, for instance, is a representative statement from the first case before the Court: … there is nothing … to prevent a statute from giving the word ‘industry’ … a wider and more comprehensive import in order to meet the requirements of rapid industrial progress and to bring about in the interests of industrial peace and economy, a fair and satisfactory adjustment of relations between employers and workmen in a variety of fields of activity … the limited concept of what an industry meant in early times must now yield place to an enormously wider concept so as to take in various and varied forms of industry, so that disputes arising in connection with them might be settled quickly without much dislocation and disorganization of the needs of society and in a manner more adapted to conciliation and settlement than a determination of the respective rights and liabilities according to strict legal procedure and principles.40

D.N. Banerji v P.R. Mukherjee (1953) AIR SC 58.

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In these cases, therefore, the Court developed a definition of industry (albeit with a few hiccups and inconsistencies along the way) that only required the existence of an organized and systematic enterprise, functioning upon the cooperation between capital and labour, and producing goods and services for the public or a section of the public. Its justification – as described above – was based on the ideal of the achievement of industrial peace and progress through harmony and community of interest; this was also the philosophy of India’s powerful first Prime Minister, who was a Fabian Socialist, and the official policy of the ruling Congress government. A second pre-requisite for the application of the Industrial Disputes Act was the existence of an employment relationship (as opposed to a merely contractual relationship). In classic common law, if the employer controlled not merely the end-product, but also the manner in which the product was made, it was deemed to be a relationship of employment. Very early on, however, the Court moved away from that understanding, and developed a broader view of ‘employment’. Again, there were at least eight substantive cases on this point before the Supreme Court in its first two-and-a-half decades,41 most of which were won by workers claiming that a relationship of employment existed. Again, without invoking the Constitution, the Court nonetheless broadened the class of claimants who were covered by the rights under industrial law, by replacing the ‘control’ test with the milder ‘overall control or supervision’,42 holding that a right to reject the final product was a significant guide in establishing an employment relationship,43 the employer only needs to be the ‘ultimate authority’.44 And lastly, the Court also developed a jurisprudence holding that if companies hired contract labour as a pure sham, designed to circumvent the protections under industrial law, it was open to the Industrial Tribunal not only to abolish the contract labour system in the company, but also to safeguard the livelihood of the (erstwhile) contract workers by asking the company to give them preferential employment while now hiring its (newly) permanent staff.45 41 Shivnandan Sharma v The Punjab National Bank (1955) AIR SC 404; Dharangadhara Chemical Works v State of Saurashtra (1957) AIR SC 264; Shri Chintaman Rao v State of Madhya Pradesh (1959) AIR SC 388; Shri Birdhichand Sharma v First Civil Judge Nagpur (1961) AIR SC 644; Shankar Balaji Waje v State of Maharashtra (1962) AIR SC 517; D.C. Dewan Mohidin Sahib v Industrial Tribunal (1966) AIR SC 370; Mangalore Ganesh Beedi Workers v Union of India (1974) ILLJ 367; Silver Jubilee Tailoring House v Chief Inspector of Shops and Establishments (1974) 3 SCC 498. 42 Dharangadhara Chemical Works (n 41). 43 Shri Birdhichand Sharma (n 41). 44 Silver Jubilee (n 41). 45 Standard Vacuum Refining Co. v Its Workmen (1960) AIR SC 948.

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The underlying justification, once again, was based upon a ‘broad sense of law and equity’46 that viewed contract labour as an evil practice that must eventually be destroyed. As Chief Justice Gajendragadkar, one of the pioneering labour law judges of the Supreme Court, observed: With the emergence of the concept of a welfare state, collective bargaining between trade unions and capital has come into its own and has received statutory recognition; the state is no longer content to play the part of a passive onlooker in an industrial dispute. The old principle of the absolute freedom of contract and the doctrine of laissez faire have yielded place to new principles of social welfare and common good.47

4.A.2

Phase II: expansion under the directive principles of state policy (1976–1995) We have discussed above how social rights, via the ‘unenforceable’ Directive Principles of State Policy, came to occupy a ‘semi-binding’ character under the Constitution; however, when it came to the protection of work as a social right, this interpretive turn – that is, expressly invoking the Directive Principles to constitutionalize the right to work – was largely bypassed despite the fact the Court regularly delivered judgment in favour of labour rights. For instance, in Bangalore Water Supply and Sewage Board v Rajappa,48 a seven-judge bench of the Supreme Court effectively overruled previous judgments that had refused to extend the definition of ‘industry’ to cover universities, solicitors’ chambers, and private clubs, holding that as long as the ‘triple test’ – that is, organization, employer-employee cooperation, and provision of material goods or services to the community – was satisfied, the enterprise constituted an ‘industry’. In one stroke, the Court transformed a very large number of hitherto unprotected workers into rights-bearers. Justice Krishna Iyer, in his majority opinion, and Chief Justice Beg, in his concurring opinion, referred (once) to the Directive Principles as a ‘compass’ guiding the Court, but did not substantiate any further. Justice Krishna Iyer, indeed, continued to cleave to the logic of previous cases (even as he expanded their scope), observing that the purpose of industrial law was ‘the betterment of the workmen’s lot, the avoidance of out-breaks blocking production and just and speedy settlement of disputes’.49 Similarly, in the domain of the employer-employee relationship, while in the beginning the Court was making slow and incrementally progressive

Shibu Metal Works v Their Workmen (1966) I LLJ 717 (SC). ibid. 48 Bangalore Water Supply and Sewage Board v Rajappa (1978) AIR SC 548. 49 ibid. 46 47

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advances upon the classical common law test, in Hussainbhai, Calicut v Alath Factory Thozhilali Union50 it broke with incrementalism and set out an almost-revolutionary new standard. Replacing the old tests of employer’s control, or supervision, or the degree to which the employee was ‘integrated’ into the industry, the Court (through Krishna Iyer J., again) simply stated that what was of essence was the following: Where a worker or group of workers labours to produce goods or services and these goods or services are for the business of another, that other is, in fact, the employer. He has economic control over the workers’ subsistence, skill, and continued employment. If he, for any reason, chokes off, the worker is, virtually, laid off … if the livelihood of the workmen substantially depends on labour rendered to produce goods and services for the benefits and satisfaction of an enterprise, the absence of direct relationship or the presence of dubious intermediaries or the make-believe trappings of detachment from the Management cannot snap the real-life bond.51

In other words, the Court introduced the simple test of economic dependency, holding that in such relationships, the worker was entitled to exercise the rights of employees. In doing this, the Court was directly tapping into multiple Part IV principles, including the right to an adequate livelihood, the right to just and humane conditions at work, and the elimination of inequalities of status. Once again, though, although the Court tipped its hat to Part IV – in one passing reference – it did not trouble to ground its reasoning in the constitutional text, preferring, once more, to observe that laissez faire economics (including deference to contract) has been replaced by principles of social justice. The most significant use of Part IV, however, occurred two decades later (and therefore, chronologically, is slightly outside our periodization). In 1971, Parliament had passed the Contract Labour (Regulation and Abolition) [CLRA] Act. The CLRA provided for the ‘regulation’ of contract labour, and also gave the government power to abolish contract labour in any establishment, if certain preconditions were fulfilled. The Act remained silent, however, on the legal consequences that would follow after abolition. Evidently, the employer would be required to hire permanent labour. However, was subsequent hiring entirely at his discretion? Was he required to give preferential treatment to the contract workers already working for him (as had been held in pre-CLRA cases)? Or was he required to directly ‘absorb’ his contract labourers into his permanent workforce? In Air India Statutory Corporation v United Labour Union,52 the Supreme Court selected the third option. The Court interpreted the silences in the CLRA Hussainbhai, Calicut v Alath Factory Thozhilali Union (1978) AIR SC 1410. ibid. 52 Air India Statutory Corporation v United Labour Union [1996] 9 SCALE 70. 50 51

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by directly tapping into Part IV of the Constitution, noting the constitutional mandate to ‘eliminate inequalities in status through the rule of law’,53 and observing that: after abolition of the contract labour system … workmen [w]ould be left in a lurch denuding them of the means of livelihood and the enjoyment of the basic fundamental rights provided while the contract labour system is regulated under the Act [i.e., through the various statutory safeguards under the CLRA itself] … the Act did not intend to denude them of their source of livelihood and means of development, throwing them out from employment. As held earlier, it is a socio-economic welfare legislation. Right to socio-economic justice and empowerment are constitutional rights. Right to means of livelihood is also constitutional right. Right to facilities and opportunities are only part of and means to right to development. Without employment or appointment, the workmen will be denuded of their means of livelihood and resultant right to life, leaving them in the lurch since prior to abolition, they had the work and thereby earned livelihood.54

Consequently, what stands out in Air India Statutory Corporation is its attempt to constitutionalize labour law by expressly using Part III as well as the Directive Principles as interpretive aids to determine questions left open by the CLRA. At the beginning of its reasoning, the Court observed that ‘the concepts engrafted in the statute require interpretation from that perspectives [i.e., fundamental rights and directive principles of state policy (DPSP)], without doing violence to the language. Such an interpretation would elongate the spirit and purpose of the Constitution and make the aforesaid rights to the workmen a reality lest establishment of an egalitarian social order would be frustrated and Constitutional goal defeated’.55 Through the course of its judgment, the Court regularly referred to the social/workers’ rights provisions of the DPSPs, speaking, in particular, of economic justice and dignity (through Article 38), and social justice through the rule of law as a method for removing social, economic and political imbalances (of power), even where these imbalances existed between private parties. Implicit in the Court’s analysis was the idea that imbalances of power within the workplace are of constitutional concern, and subject to the application of constitutional values. 4.A.3 Phase III: the rollback of social rights (1996–2016) In 1991, after coming perilously close to a sovereign default, India made a decisive economic break. Under the ‘New Economic Policy’, socialism as the guiding principle of the political economy was abandoned, and the

ibid. ibid. 55 ibid. 53 54

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government embarked upon a programme of ‘liberalization’, disinvestment, and privatization. The ‘neoliberal turn’ remains the political and economic consensus today. Once the guiding political principles of the welfare state and social democracy had begun to recede, this was – perhaps unsurprisingly – reflected in industrial adjudication. A particularly startling example is State of U.P. v Jai Bir Singh,56 where the Supreme Court observed that the case of Bangalore Water Supply and Sewage Board v Rajappa57 [BWSSB] needed to be reviewed. What is striking about Jai Bir Singh is that (many of) its reasons justifying review are transparently grounded in (neoliberal) economic philosophy. The Court (incorrectly) noted that BWSSB had interpreted the Industrial Disputes Act solely from the point of view of workers, and had not taken into account the interests of employers, and of the general public; it observed (without citing any evidence) that after BWSSB, labour tribunals across the country had handed down a large number of awards granting worker rights such as reinstatement and payment of back wages, which, in turn, was harming small business and the general public; and it suggested that insofar as the government was engaging in ‘welfare’ functions, its establishments should automatically be excluded from the definition of ‘industry’, leaving employees without protection under the Industrial Disputes Act. The Court’s analysis is striking, because it represents a 180-degree interpretive turn from the first phase of industrial adjudication. Then, the Court had cited principles of social-welfare (under a self-described socialist government) to expand the scope of the protection of work as a social right; now, the Court invoked the spectre of over-intrusive labour protections causing small business to close down and result in unemployment as well as an industrial slow-down, a textbook argument from neoliberal economics. In both cases, instead of grounding its reading in the Constitution, the Court – it appears – preferred to invoke a kind of (surface-level) democratic mandate for itself, and to portray itself in line with the prevailing economic and social consensus in the government. In the other domains under discussion, the judgments were not so transparent, but reflected a similar orientation. While Hussainbhai was not overruled – and initially, applied58 – in subsequent years, its principles were gradually eroded.59 In 2014, while continuing to pay lip service to precedent, the Supreme State of U.P. v Jai Bir Singh (2005) 5 SCC 1. Bangalore Water Supply (n 48). 58 M/s Shining Tailors v Industrial Tribunal II, UP, Lucknow (1983) 4 SCC 464. 59 Judgments discussing the employment relationship include Management of M/s Puri Urban Cooperative Bank v Madhusudan Sahu (1992) AIR SC 1452; Secretary, HSEB v Suresh (1999) I LLJ 1086; Indian Petrochemicals Corporation Ltd v Shramik 56 57

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Court held that the correct test to determine an employment relationship was that of ‘absolute’ or ‘complete administrative control’,60 which it distinguished from mere ‘supervision’. ‘Complete administrative control’, however, had never been the test even in common law (ironically, common law had moved away from the control test as far back as 1960), and previous Supreme Court judgments had treated control or supervision as an indicator of an employment relationship. But what was particularly revealing about the Court’s interpretive approach was its transplantation of the company law doctrine of lifting the corporate veil – that is, dispensing with a company’s separate legal personality – in order to decide when the ‘contractor’ (i.e., the company supplying contract labour to the employer) could be eliminated, and a relationship of employment established between the primary employer and the workers. The Court invoked lifting the corporate veil not merely as a metaphor, but as a legal test; in other words, it used a doctrine specifically evolved to shield the corporate form from legal liability in all cases other than outright fraud, in order to determine the scope of social rights available to labour. And lastly, Air India Statutory Corporation – which had made an express attempt to ground its legal interpretation within the Constitution – was simply overruled. In SAIL v National Union of Waterfront Workers,61 a larger bench of the Supreme Court overruled Air India on the sole ground of legislative silence. Apart from a half-hearted, half-paragraph attempt to argue that it would be illogical if recently-recruited contract labourers got the benefit of absorption while long-standing contract labourers who had recently been let go did not, the Court provided no independent justification for its judgment apart from the fact that the CLRA did not specifically mandate the absorption of contract labour into the permanent workforce, after abolition. However, as Air India had pointed out, legislative silence with respect to the consequences that followed the prohibition of contract labour left both options open: absorption, or no absorption. The Air India court had then applied the well-accepted interpretive principles of asking itself which of the two interpretations served the purpose of the CLRA, and also, which of the two interpretations better

Sena (1999) 6 SCC 439; Indian Overseas Bank v I.O.B. Staff Canteen Workers’ Union (2000) 4 SCC 245; Indian Banks Association v Workmen of Syndicate Bank (2001) 3 SCC 36; Bharat Heavy Electricals Ltds v State of UP (2003) 6 SCC 528; Ram Singh v Union Territory, Chandigarh (2004) 1 SCC 126; Workmen of Nilgiri Co-Op Marketing Society v State of Tamil Nadu (2004) 3 SCC 514; Haldia Refinery Canteen Employees Union v Indian Oil Corpn Ltd (2005) 5 SCC 51; International Airports Authority of India v International Air Cargo Workers’ Union (2009) 13 SCC 374; Bengal Nagpur Cotton Mills v Bharat Lal (2011) 1 SCC 635. 60 Balwant Rai Saluja v Air India Ltd. (2014) 9 SCC 407. 61 SAIL v National Union of Waterfront Workers (2001) 7 SCC 1.

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served the constitutional scheme. This argument was repeated before the Court in SAIL by the lawyers for the National Union of Waterfront Workers. The Court’s only response was a silence as deep as the statutory silence of the CLRA. In summary, therefore, we can see that over time, the importance of the right to work – and allied rights – as framing the legal debates surrounding the relationship between labour and capital has declined; that this decline has been accompanied by a subordination of social rights to economic considerations; and finally, that both aspects have been driven by the evolving jurisprudence of the Supreme Court, where the weakly-binding, or ‘semi-binding’ character of social rights within the Constitutional scheme has, in practice, resulted in their near-irrelevance. 4.B

The European Union

The judicial protection of the right to work by Europe’s constitutional courts has been a subject of live controversy and of acute contradiction. We will remain with two moments that throw the dilemmas into sharp relief: the first moment is the decision of the Court of Justice in the Laval/Viking ‘quartet’ of cases of Labour Law decided in the latter part of the last decade, the EU’s very own ‘Lochner’ moment and in terms of the Union’s constitutional development; if this is indeed a ‘constitutional moment’ in Bruce Ackerman’s sense, it is also nothing short of degenerative. The second moment concerns the (short-lived) upholding of a robust interpretation of the freedom of association in Demir and Baykara by the ECtHR, a constitutional moment only in the sense of its passing, and for the glimpse it left behind of what is constitutionally possible. We looked previously (in Section 3) at how the split between economic integration and social protection sent the EU on a very particular trajectory. A trajectory whose implication is that EU labour law descends into contradiction when economic freedoms directly clash with social rights. Such is the case when the terms of a trade agreement positively require a signatory state to lower, or ‘disapply’, its national labour standards. It is precisely this possibility that the Court of Justice of the European Union addressed in the landmark cases of Viking and Laval, both of 2007.62 Laval concerned a Latvian company that won a contract to renovate school premises in Sweden using its own Latvian workers who earned about 40 per

62 Case C-341/05 Laval v Svenska Byggnadsarbetareförbundet ECLI:​EU:​C:​2007:​ 809, [2007] ECR I-11767; Case C-438/05 International Transport Workers’ Union v Viking ECLI:​EU:​C:​2007:​772, [2007] ECR I-10779.

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cent less than comparable Swedish workers. The Swedish Building workers’ Union demanded that the company provide comparable wages and conditions to those of Swedish workers extending the relevant sectoral collective agreement to the posted workers. When the negotiations failed there followed a union picket at the school site, a blockade by construction workers and sympathy industrial action by the electricians’ unions (all permissible under Swedish law), which eventually resulted in Laval’s Swedish subsidiary going into liquidation. Laval brought an action in the Swedish courts. The firm sought a declaration that the industrial action was unlawful, an injunction to stop the action and compensation from the unions for the losses it had suffered. Viking concerned a Finnish company wanting to reflag its ferry (that sailed the Helsinki – Tallinn strait) under the Estonian flag so that it could man the ship with Estonian crew, who would be paid considerably less than the existing Finnish crew.63 The International Transport Workers federation [ITF], known for its long-standing campaign against the use of flags of convenience, told its affiliates to boycott the Finnish vessel and to take other solidarity industrial action in order to prevent the firm from re-flagging the vessel. Viking sought an injunction in the English High Court to restrain the ITF and the Finnish Seaman’s Union – now threatening strike action – from breaching Article 43 TFEU on freedom of establishment. The English Courts referred the case to the Luxembourg Court. In summary, the Court, impelled by a ‘liberalizing’ dynamic of its own making as Fritz Scharpf put it,64 found that EU law did apply to the cases; and that it applied in a way that implicated trade unions directly. It found that collective action was a restriction on fundamental freedoms and so presumptively unlawful unless it could be justified and was proportionate. In both cases, the 63 Case C‑438/05 International Transport Workers’ Federation v Viking ECLI:​EU:​ C:​2007:​772, [2007] ECR I‑10779. 64 Fritz Scharpf, ‘The Asymmetry of European Integration’ (2010) 8 Socio-Economic Review 211, 211‒14. Scharpf speaks here of the stark ‘institutional asymmetry’ in the European Union. The questions and cases which come before the CJEU tend always to ‘reflect the interest of parties who have a major economic or personal stake in increased factor or personal mobility as well as the financial and organizational resources to pursue this interest’ (221). Parties with an interest in the maintenance of existing national laws and regulations are not heard. ‘What the Court cannot do is to establish a common European regime that would respond to some of the values and policy purposes, which, as a consequence of its decisions, can no longer be realized at the national level’ (223). The Court’s inability to rule in a way that would create common labour standards at the supranational level be easily addressed by political action. Given the ever-increasing diversity of national interests and preferences in an enlarged EU, political agreement on common labour standards is likely to be ‘nearly impossible’ to achieve (217). As long as that is the case, Scharpf concludes, a European ‘social market’ economy simply cannot be.

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Court thus held that the relevant (EU) market freedom was applicable horizontally such that it ought to have been respected by the trade union. Nationally protected labour rights, including the right to strike, should only be exercised, according to the Court, in ways which respected the supra-nationally protected market freedoms of others. The rationale is that where the exercise of labour rights conflicts with the exercise of free movement rights, the former are understood to breach the latter – and not vice versa. But how does this asymmetry square with Europe’s commitment to social rights – especially freedom of Association – as protected by the Strasbourg Court of Human Rights? In one of the most important decisions of the last decade as far as the freedom of association is concerned, in Demir and Baykara v Turkey,65 the European Court of Human Rights [ECtHR] reversed earlier jurisprudence to hold: (i) that the right to collective bargaining is ‘an essential element’ of the right to freedom of association in Article 11 of the European Convention on Human Rights and Fundamental Freedoms [ECHR]; and (ii) embedded the jurisprudence of the International Labour Organisation and the European Social Charter into that right. In the initial wave of optimism, labour lawyers attached ‘dramatic implications’66 to the Strasbourg Court decision. With the terms of the European Union’s Charter of Fundamental Rights now legally binding since 2009, the collision between the two Courts, between the trade union rights established under the ECHR in Demir and Baykara at the ECtHR and the trade union liabilities introduced under EU law by the Viking and Laval judgments of the European Court of Justice, would be resolved in favour of the former. The optimism was short-lived. The most recent consideration of this area by the ECtHR is in Unite the Union v United Kingdom67 decided in 2016. It was the first case since Demir to consider a submission that Article 11 required the state to put, or at least maintain, in place a system of compulsory collective bargaining.68 In answering the question whether the UK was under a positive 65 Demir and Baykara v Turkey App No 34503/97 (ECHR, 12 November 2008), para 19. 66 Keith D. Ewing and John Hendy, ‘The Dramatic Implications of Demir and Baykara’ (2010) 39(1) Industrial Law Journal 2. 67 Unite the Union v United Kingdom App No 65397/13 (ECHR 26 May 2016). 68 The case arose out of the abolition in 2013 of the Agricultural Wages Board in the UK, which was a body comprising representatives of employers and agricultural workers which negotiated minimum terms and conditions in the agricultural sector. The union argued that ‘the abolition of the AWB amounted to an interference with its right to engage in collective bargaining, an essential element of the freedom of association accorded to trade unions’ – the latter phrase being reference to para 154 of the judgment in Demir. The Court rejected that argument, pointing out that the removal of a particular forum for collective bargaining could not be equated with the kind of inter-

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obligation ‘to have in place a mandatory, statutory forum for collective bargaining in the agricultural sector in order to comply with its Article 11 obligations’, the Court declared ‘the social and political issues involved in achieving a proper balance between the interests of labour and management [to be] of a sensitive nature. The starting point is, therefore, that the United Kingdom enjoys a wide margin of appreciation in determining whether a fair balance has been struck between the protection of the public interest in the abolition of the Agricultural Wages Board of England and Wale (AWB) and the applicant’s competing rights under Article 11 of the Convention’. Developments point to a current state of impasse. Prior to 2009, the impact of economic and monetary union on the labour laws of member states appears to have been limited.69 On the face of it, at least, national labour laws remained mostly stable throughout the 2000s, albeit within a context of trade union decline and growing inequality between lower and higher earners. Beginning in late 2009, however, the sovereign debt crisis which followed the public bail-outs of the ‘too big to fail’ banks, resulted in quite radical changes to national labour laws. In response to the crisis, the EU pursued policies of ‘internal devaluation’, imposing these more or less directly on member states. In the case of Portugal, Ireland and, most dramatically, Greece, the ‘Troika’ of the European Central Bank, the European Commission and the International Monetary Fund [IMF] required, as a condition of loans, that existing labour laws, terms and conditions of employment, and social benefits be cut.70 In respect of countries which were not in receipt of loans, Spain and Italy, the Troika otherwise exerted significant pressure in favour of similar drastic measures.

ference that occurred in Demir, where the agreement voluntarily entered into between the union and the employer was annulled. See Alan Bogg and Ruth Dukes, ‘Article 11 ECHR and the Right to Collective Bargaining: Pharmacists’ Defence Association Union v Boots Management Services Ltd.’ (2017) 46(4) Industrial Law Journal 543; also K.D. Ewing and J. Hendy, ‘The Trade Union Act 2016 and the Failure of Human Rights’ (2016) 45(3) Industrial Law Journal 391. 69 Simon Deakin and Aristea Koukiadaki, ‘The Sovereign Debt Crisis and Evolution of Labour Law in Europe’ in Nicola Countouris and Mark Freedland (eds), Re-Socializing Europe in a Time of Crisis (CUP 2013) at Part 2. 70 Deakin and Koukiadaki (n 69) 333‒43; C. Barnard, ‘The Financial Crisis and the Euro Plus Pact: A Labour Lawyer’s Perspective’ (2012) 41(1) Industrial Law Journal 98; Aristea Koukiadaki and Lefteris Kretsos, ‘Opening Pandora’s Box: The Sovereign Debt Crisis and Labour Market Regulation in Greece’ (2012) 41(1) Industrial Law Journal 276. See also Christodoulidis (n 4).

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4.C Comparison In the previous Section, we highlighted thematic similarities in the context of the ‘imperfect constitutionalization’ of social rights in India and the European Union. In this section, we have examined one of the consequences of imperfect constitutionalization: in the absence of social rights having a firm and unambiguous constitutional status, when it comes to adjudication, after a period of unsteady and uncertain steps towards greater and more integrated constitutionalization, the Courts have ultimately settled on according to them a backseat in their order of priorities. And in both cases, Courts appear to be responding to the dominant political consensus of the day, which favours the subordination of social rights, and the institutional structures that preserve and maintain them, to the logic of the market. In India, this has taken the following form: through statutory interpretation, the Supreme Court has narrowed the categories of workers who are protected by the industrial legal regime against the vagaries of the market. In this way, there is a dilution of the right to work, and its accompanying regime of social protection. The Court’s justificatory arguments for this narrowing have often involved expressly invoking neoliberal logic, which is a courant with India’s turn towards liberalizing and globalizing its economy after 1991. In the European Union, this has taken the form of favouring ‘economic rights’ (narrowly understood) over social rights, in case of a clash. This is, of course, a more direct way of making clear that there exists a hierarchy of values, where social rights are secondary and subordinate to economic freedom within the existing structure of the market. Once again, these decisions come within a larger political backdrop of the neo-liberal commitments of the EU as an institution, which we touched upon in the previous Section.

5. CONCLUSION After every Indian general election, the ‘reform of labour laws’ is touted as a top priority for the national political parties. These claims are made in the context of a settled consensus that Indian labour laws are ‘over-protective’, stifle the economy and the growth of small and medium business, and hurt consumers. The present Indian government has brought forward legislation to consolidate India’s labour legislation into three ‘labour codes’ in order to streamline and rationalize them. At the same time, any such ‘reform’ would affect no more than 13 per cent of the workforce; the rest of the labour force remains tied up in ‘informal’ or ‘contractual’ labour – a form of work that only promises to grow with the rise of the platform economy, and the rapid inroads that it is making into India.

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In a similar manner, the High Level Mission that visited Greece in 2011 on behalf of the ILO reported on the ‘exponential’ rise in the use of part time and ‘rotation’ contracts, as well as the emergence of large numbers of ‘discouraged’ workers. New contractual arrangements have seen wages and pensions fall by over a third of their value. The concern is not only that wages established by collective agreements have been slashed. Also, employers have now won the right not to pay collectively agreed wage rates, if they can secure the ‘agreement’ of workers to accept less and to sign away minimum terms and conditions of employment. Commenting on Greek measures aimed at decentralizing collective bargaining, the Mission concluded that these were ‘likely to have a significant – and potentially devastating – impact on the industrial relations system in the country’; that ‘the entire foundation of collective bargaining in the country may be vulnerable to collapse under [the] new framework’.71 Far from acting to reverse the changes in light of the ILO’s conclusions, however, the Greek Government has been working in recent years – on the instructions of the Troika – on proposals to restrict labour rights yet further, especially rights to protection against unfair dismissal and to take collective action. These are developments that are most striking because of their assumed un-remarkability. It has become commonplace in times of economic crisis for business to make a case against regulation and the imposition of labour standards, on the grounds that economic survival depends on reducing labour costs, passing risks on to employees and curbing the power of work groups and trade unions. The constant refrain from politicians on the right is that legislative burdens on business must be removed. The effect, as Mark Freedland and Nicola Kountouris have pointed out, is the ‘demutualization’ of personal work relations, turning the individual worker into the sole bearer of risks formerly mutualized between workers and employing enterprises.72 At the global level, and as a result of the economic freedom afforded to capital to circumvent the national systems of social protection by relocating to cheaper sites – whether it is the reality, or merely the threat, of relocation, systems of social and labour protection have been thrown into the vicious circle of competitive alignment, with the slashing of the welfare budget and the diminution of social protection as the principal adjustment factor. The effects that the ‘race to the bottom’ has had on social rights have been devastating. The social constitution entrusted with the redress of the worse effects 71 ILO, 101st Session, Report of the Committee of Experts on the Application of Conventions and Recommendations (Geneva: ILO, 2012) (Greece), my emphasis. 72 Mark Freedland and Nicola Kountouris, ‘Conclusion’ in Mark Freedland and Nicola Kountouris (eds), The Legal Construction of Personal Work Relations (OUP 2011).

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of market integration can only be mobilized at the extreme end of the released social devastation, as ultimum refugium at the most basic level of guaranteeing the needs of biological existence, and remains otherwise toothless in regard of the majority of the effects of globalization.

9. Federalism and democracy Philipp Dann and Arun K. Thiruvengadam 1. INTRODUCTION There is a special sense in which the existence of democracy in India is itself a problem. The establishment, relative success, and unfamiliar historical elaboration of form of this phenomenon all go against some of the deepest assumptions of conventional democratic theory.1

This quote by Sudipta Kaviraj, one of India’s leading political theorists, could apply as well to democracy in the European Union (EU). Here too, political theorists and constitutional scholars struggle to make sense of the EU’s democratic character and trajectory. The ‘unfamiliar historical elaboration’ also concerns the relation between federal or multi-level structure and democracy in both polities. The way democratic governance is organized across the levels of governance surely confounds traditional assumptions of scholars of federalism. The Indian Constitution, for example, grants the lower house of the Union’s parliament the competence to redraw the boundaries of the states (Articles 2‒4) by overriding the wishes of the state in question. Quite shockingly, from a European and traditional perspective, the Indian Parliament has frequently used this power on several occasions. Equally puzzling from an Indian or traditional theoretical perspective on federalism might be the German Constitutional Court’s 2014 ruling invalidating the election law to the European Parliament. What has a sub-level court got to do with Union level elections? These peculiarities trouble political and constitutional theory and makes the task of comparing the two polities even more difficult. So how can one approach juxtapose and even compare these two systems of federal democracy, without flattening out differences, overlooking particularities or ending up simply finding two incomparable structures, each of which is sui generis? We approach these questions in four steps, based on our concept of

1 Sudipta Kaviraj, The Enchantment of Democracy in India (Permanent Black 2001) 1.

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slow comparison.2 We first sketch a comparative frame, in which we briefly survey federal and democratic theory and formulate two overarching, guiding questions and a set of further inquiries to answer these two questions (Section 2). Bearing in mind these questions, we then narrate the stories of federal democracy in the EU (Section 3) and in India (Section 4). In the comparative conclusion, we draw some tentative comparative insights but also point to current and perennial problems, not least with regard to the authoritarian challenge facing both polities (Section 5). An underlying though central question that we try to answer in the comparative conclusion will then be: What does the EU-India comparison make us see? What do we learn about their distinct and particular qualities?3

2.

COMPARATIVE FRAME AND GUIDING QUESTIONS

Federal structures are not typically viewed through a democratic lens. It is equally plausible, perhaps even more common, to conceive of federalism in terms of efficiency. The question then is whether the balance of competences between the centre and the subunits achieves the desired ends. Is more central power and unity necessary or perhaps more diversity and competition between the subunits? Federal structures can also be seen through the angle of a (vertical) separation of powers concept and hence as devices to avoid concentration of power in the centre. When looked at through the democratic lens,4 as we do here, a first concern might be whether democracy as a concept even applies at all to both levels of governance. This has been a question in particular with regard to the early EU but is now settled (see Articles 2, 10 TEU). Beyond this, two questions and perspectives can be distinguished and will serve as recurrent themes in this analysis. One asks from the outside, whether federalism has supported or rather hindered democracy, whether federalism was democracy-enhancing or democracy-constraining. The other question, more from within the institu-

2 On ‘slow comparison’ and the methodological and theoretical challenges of comparison in general and of Indo-European comparison in particular, see Dann and Thiruvengadam, ‘Comparing constitutional democracy in the European Union and India: an introduction’ (Chapter 1 in this book). 3 For an earlier attempt to answer such questions, see Philipp Dann, ‘Federal Democracy in India and EU’ (2011) 44 VRÜ/WCL 160. 4 We understand democracy here as input legitimacy. For different paradigms of legitimacy, see Dann and Thiruvengadam, ‘Comparing constitutional democracy in the European Union and India: an introduction’ (Chapter 1 in this book); Baruah and Volkmann, ‘Concepts of democracy’ (Chapter 2 in this book).

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tional system of federal democracy, is about the ‘federal quality’ of democratic decisions taken on the central level. Given that central level decisions regularly affect the units, the question arises whether, when the centre decides, subunits participate adequately in such decisions. This can concern the interplay between two houses of parliament or other mechanisms, through which the interests of subunits can be voiced.5 The answer here depends particularly on the appropriate balance between the input of the ‘Union citizenry’ and the ‘citizenry of the subunits’. Surely, every system of federal democracy has to make choices and trade-offs between different demands (especially between efficiency, separation of powers and democracy). What complicates the analysis is that federal orders tend to be dynamic, that is, the balance between centre and subunits shifts over time, which in turn has implications for the expectation with regard to their democratic legitimacy. A historical understanding is hence central to our topic. In order to get answers to our two guiding questions, we study each polity and approach the issue of federal democracy around four sets of guiding inquiries: First, we want to understand the historical background and the motives in relation to the founding moments in India and the EU, when their multi-level structure was designed. What was the ‘problem’ that the multi-level structure responds to? Was it rather seen as a response to functional demands of effective government or was a normative value of democratic voice also attached? Which demos/demoi were there and how relevant are they? Secondly, we want to study the division of competences between the levels – in legislative, executive and financial matters. What is the balance between the two levels? Where is the centre of gravity? And equally important, what is the interconnectedness between the competences of the levels? Do they follow the model of cooperative or dual federalism? The third set of questions revolves around the institutional structure and multi-level process of voice and representation. How do the Constitution and the wider law of democracy organize democratic governance more concretely? How are the states represented and built into the system of decision-making at the Union level? Is the bicameral structure of the legislatures geared to ensure 5 A particular problem of federal gridlock can be caused, when the ideological, political (i.e. not regional) positioning of parties in the federal chamber (Upper House) dominates and the federal chamber is used to block the other ideological camp in the lower house. See on this classic problem for Germany and Europe, Fritz Scharpf, Governing in Europe: Effective and Democratic? (OUP 1999); for India see: Sudhir Krishnaswamy, ‘Constitutional Federalism in the Indian Supreme Court’ in Mark Tushnet and Madhav Khosla (eds), Unstable Constitutionalism (CUP 2015) 355.

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that the interests from states are taken into account? How is the equal representation of citizens from different states in the Union and in the central parliament ensured? And beyond formal procedures and institutions, what other mechanisms or dynamics provide voice and contribute to a fair representation of interests of all levels (e.g. party system, media, trade unions, etc.)? Against this background of understanding the starting points of both approaches to federal democracy, we need to understand then their evolution over time. Has the federal balance (in terms of competences or voice) changed over time? If yes, what were the triggers and drivers? What conflicts and demands arose that questioned the original set-up? What is the role of nationalism, language and other cultural factors? Finally, in understanding the dynamics, we want to study in particular the role of historical path-dependency. What structures and logics remain in place? Which are changed or circumvented?

3.

FEDERALISM AND DEMOCRACY IN THE EU

To describe the relationship between federalism6 and democracy in the EU, its structural elements and their evolution, two snapshots in time are useful, one taken in the beginning of European integration and the other taken in early 2020. 3.A

The Early EU: The Structure of Executive Federalism

3.A.1 Purpose, mode of governance and division of competences What is today the EU, started in 1952 as an international organization founded by six states (Belgium, France, Germany, Italy, Luxembourg and the Netherlands), which were ravaged by not one, but two World Wars. It was a matter of utter urgency for them, not just to somehow rebuild and move on, but to prevent another war on that scale. And here lies the basic impulse to create the EU. The organization founded in 1952 was the European Community of Coal and Steel, which in essence collectivized and hence wrested control from these states of those industries that were essential to wage war. Five years later, in 1957, this idea was extended. The basic idea of the European Economic Community (EEC) was to open up the economic systems of these six states by creating a common, transnational European market, which would bind not just the states, but all economic actors (i.e. each and every citizen) 6 We are aware that the notion of ‘federalism’ is tricky with regard to the EU, as it is a notion from the vocabulary of state theory and many might think that its use implies a state-like finality in European integration. We do not. We understand it as a general term of comparative politics that can apply to all sorts of polities and political systems. The equivalent notion of ‘multilevel governance’ is simply too bulky.

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into the European project.7 The basic motivation to found the then European Communities (now EU8) was hence twofold: (i) prevent war by making war impossible, because industries and the citizens are too connected, profiting too much from the European structure and hence too interested in keeping it; and (ii) defeat nationalism by economic egoism of each citizen. The EU was, from the very beginning, mostly concerned with creating the common market by creating common rules. Rule-making is the EU’s central mode of exercising public authority: setting common tariffs and regulating the common market – from the price of milk to safety standards for cars to rules about migration of workers and acceptance of certificates in other states. The EU is thus a huge machine for harmonizing the different legal and economic systems into one common, that is, commonly governed market. This distinguished the EU from its inception from almost all other international organizations (such as the UN), which are more about dialogue, implementation of treaties or gathering expertise and it made the EU in its very mode of governance to some extent more similar to regular federal systems, like India, Germany or the US.9 This basic purpose and mode of governing is connected to the basic division of competences between the Union and the member state level.10 Legislative and administrative competences have to be separated but also seen in their interconnectedness. The legislative competences have been mentioned already and were a mix of exclusive (especially in the economic area) and of shared legislative competences, that were initially rather limited. But equally important are the administrative or implementation competences (or rather their absence). From the very beginning, the EU itself had almost no powers to implement or execute its rules. Instead the member states are responsible for this. So, if the EU sets a customs tariff, there is no EU customs authority. Very

7 For a thoughtful and up-to-date history of European integration, see now Kiran Klaus Patel, Project Europe (CUP 2020); for an early and influential account especially of the early years of European integration, see Alan Milward, The European Rescue of the Nation State (Routledge 1992). 8 The European Communities merged and were renamed as the European Union in a treaty reform 1993 (Maastricht treaty). To make it easier, we just speak of the European Union (EU). 9 On the current effect of EU regulations, see Anu Bradford, The Brussels Effect (OUP 2020); Jürgen Bast, ‘Europäische Gesetzgebung’ in Claudio Franzius, Jürgen Neyer and Franz C. Mayer (eds), Strukturfragen der Europäischen Union (Nomos 2010) 173; Paul Craig and Grainne De Burca, EU Law: Text, Cases and Materials (OUP 2015) 124. 10 For a legal analysis, Armin von Bogdandy and Jürgen Bast, ‘The Federal Order of Competences’ in Armin von Bogdandy and Jürgen Bast (eds), Principles of European Constitutional Law (2nd edn, Hart Publishing 2010) 275.

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much like in the German model of cooperative federalism, it is the customs officers of the member states who administer the EU rules. This is an important aspect, since it means that the member state governments are effectuating the European rules. Ultimately, the central principle at work is the interconnectedness of legislative and executive competences across the levels. EU laws are implemented by member states. It is a form of cooperative federalism. One more element is important in order to understand the particular and limited mandate of the EU – and that is the division of fiscal competences and hence the budgetary side of the European project. The EU did not at its inception (and still does not) have any independent power of the purse; it cannot levy any significant taxes. It is financed by contributions of the member states, which agree on a seven-year budget. The EU is thus always dependent on the goodwill and political support of the member states. It also implies a very fundamental division of labour with regard to welfare and social policies: these remained with the member states. The EU was tasked to create a market. But social cohesion and solidarity were seen as tasks of the nation states that formed the Union, not of the EU itself.11 3.A.2

Institutional structure and legitimacy in the postnational constellation The institutional structure of the EU in the beginning resembled international organizations but had special features, which later clearly distinguish it from anything like the UN.12 At the heart of the EU was a European ‘high authority’ (today Commission), which was to be composed of experts, not diplomats. They would administer the common market and generate ideas for its further development. The second chamber in the institutional heart of the EU was (and is) an organ composed of the representatives of the member states, the Council. This had the final say to decide about regulations, though proposals for these regulations always (!) had and have to come from the Commission.13 Though there was also an Assembly, which called itself European Parliament from the very beginning, this institution lacked any powers and was composed of delegates from the national parliaments, and were not directly elected. More importantly, however, the EU from the very beginning had a court.

11 Mark Dawson and Bruno De Witte, ‘Welfare policy and Social Inclusion’ in Anthony Arnull and Damian Chalmers (eds), Oxford Handbook of EU Law (OUP 2015) 964. 12 For an overview of the institutional structure, see Dann, ‘Political Institutions’ in Armin von Bogdandy and Jürgen Bast (eds), Principles of European Constitutional Law (2nd edn, Hart 2010) 237. 13 Treaty on the European Union, Art. 17.

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Considering that EU regulations would be binding on citizens, access to courts and judicial review seemed indispensable. What was the legitimacy of this organization? In the early years of the EU, democratic legitimacy of the EU itself was not considered a pre-requisite.14 States, not citizens or a people, governed the EU (like any other international organization) and it was enough that the member states were democracies.15 The assumption was that governments are elected by their national parliaments and controlled by them and that would suffice to grant legitimacy to the Union. This meant that the Council, in which each member state is represented by its government, had to be the centre of decision-making (though in collaboration with the Commission). All member states had the same voting rights, despite their differences in population or economic output. Equally important, up until the 1980s, unanimity was the main voting rule in the Council, ensuring each member state the power to veto decisions that they considered vital to their interests. What about the legitimacy of parliament in this early phase of European integration and hence of the representation of individual citizens at the EU level? Even though a parliamentary assembly existed from the very beginning (which is already very unusual for an international organization: think of the UN or the WTO), it didn’t have any significant competences. It was to be consulted for certain matters, but had no decision-taking powers. This was in step with the political context at the time. The nation-states were the undisputed frame of political identity. There was no idea of a European nation, European people or European demos, despite a surely existing popular movement but also politically vague sympathy for the idea of ‘Europe’. But the EU was not born out of a national movement. On the contrary: The idea of the EU was to overcome the ideology of nationalism, which had led to two world wars. It was a post-national project.16 More important than democratic input legitimacy was what is called output legitimacy, that is, the capacity of problem-solving, the concrete results of policies, and the rule of law. Creating the market and hence trading opportunities was meant to create wealth and clearly, this was the most important expectation to legitimize the Union. This also had to be accomplished in a rule-bound way.

14 Damian Chalmers, ‘The Democratic Ambiguity of EU Law Making and its Enemies’ in Anthony Arnull and Damian Chalmers (eds), Oxford Handbook of EU Law (OUP 2015) 303. 15 See contribution by Bharua and Volkmann, ‘Concepts of democracy’ (Chapter 2 in this book). 16 Joseph Weiler, ‘To be a European Citizen’ in Joseph Weiler (ed), The Constitution of Europe (CUP 1999) 324; Jürgen Habermas, Postnational Constellation (MIT Press 2001).

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Ultimately, the notion of executive federalism might sum up this structure of decision-making, where the governments (i.e. executives) of the member states dominate decision-making at the Union level and its implementation at the state level. In a way, this was a very simple system, in which legitimacy was secured through the equality of each member state. Their limited number and basic homogeneity (six member states) meant that political differences could be dealt with in mutually satisfactory ways. At the same time, problems of the institutional system were visible even in the early phase. Most important and vexing was the question of the Union’s decision-making and problem-solving capacity. The original plan had been to move from unanimity to majority voting in the Council in the course of the 1960s. But the French government blocked this move and insisted on a national veto in all important questions. This resulted in a decision-making culture that always had to respect national interests and often required consensus. While it ensured political legitimacy among governments, it was also very, very slow. Since the 1970s, the EU was known to suffer from ‘Eurosclerosis’. Beyond that, one also has to note that the EU was mainly ignored by the larger public. Until way into the 1990s, it was a regional organization that only a few people registered and cared about. 3.B

The EU’s Transformation and the Slow Emergence of a Federal Democracy

Seven decades on, major parts of the original structure of decision-making, in particular its executive federalism, are still in place. Yet the organization and its context have changed in fundamental ways. One can say that: (1) the EU as a federal democracy only emerged after a massive shift of powers from the national to the Union level during the 1970s to 1990s, (2) this was accompanied and had profound ramifications for the institutional balance on the Union level, in particular parliamentarization, and (3) at the level of the states, where in particular national parliaments come under increasing pressure. The result is a very young, tentative and highly federalized democracy with profound limits. The astonishing growth of Europe: competences, membership, constitution Starting in the 1970s and till the end of the 2000s, the EU witnessed an astonishing transformation from a sectoral economic organization of six European states to the dominant political system for all types of European cooperation. This growth had various dimensions: for one, the EU was entrusted with more and more tasks and competences by the member states. Facing global competition and new transnational challenges, member state governments 3.B.1

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decided to make the EU the organizational centre of their cooperation.17 While creating a transnational market was the beginning, increasingly other matters were also taken up: environmental protection, border regulation and migration (e.g. Schengen agreement), even monetary policy (e.g. introduction of the Euro). But it was not only competences, but also the territory of the EU that grew exponentially in that period. From six it grew to now 27 member states, effectively covering the entire European continent.18 All European states were attracted to what was considered the core of European stability and wealth.19 This dramatic rise in power and territory triggered two decades of constitutional and institutional reform. From 1987 to 2009, the European treaties, that is, its functional constitution, was revised in five major treaty reforms – and created a political union with a comprehensive (even though overly complicated) constitutional framework. It is important to examine the central driver of this stunning growth. This process was not driven in the first place by popular demand, civil society movements for European integration or the like, but by an economic rationale – and governmental strategy. A general sense that European transnational cooperation was the better framework to deal with new challenges met with a clever European technocracy that offered solutions – and a broad societal consensus that European integration in general is a good thing. And equally importantly, it met with a set of political leaders, who had lived through the World Wars and for whom the EU was the best answer to nationalistic fighting and World Wars. At the same time, it might be useful to note two truly fundamental aspects, where the EU did not grow. For one, the EU did not develop a social policy and did not get an independent budget. The member state governments decided to keep the division of labour and EU out of social policy. And secondly, the EU did not gain the power to change its own treaties. The so-called competence-competence, that is, the power to change the Constitution, remains with the member states.

For contextualization see Kiran Klaus Patel, Project Europe (CUP 2020). Some states (especially Norway and Switzerland) decided to stay outside the EU, but they are very closely connected to it in economic, legal and political terms. 19 There were four rounds of enlargement: 1972 – UK, Ireland, Denmark. 1979‒1981 – Greece, Spain, Portugal. 1994 – Austria, Sweden, Finland. 2004 – Czech Republic, Slovakia, Slovenia, Poland, Hungary, Baltics, Malta. And more countries are still negotiating to get in, especially in the Balkans. The UK was always probably the most hesitant member and is the only country (so far) that chose to leave the EU. 17 18

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3.B.2

EU level institutions: resilience of the Council, rise of the European Parliament Interestingly, while the EU was transformed in terms of its territory and scope of its competences, its basic model of sharing and using competences, the model of executive federalism remained intact. Its model of interconnected legislative and administrative powers and the Council, as its institutional heart where member state governments decide about the European rules that they have to administer, continued to operate largely in the same way. The most important changes occurred with respect to the Council’s voting rules. As the number of member states and expectations grew, unanimity became a major hindrance to its decision-making capacity. In the mid-1980s, majority voting was introduced at least in some areas. After many battles, the Council now has a system of majority voting with requirement of a double-majority: 55 per cent of states, representing 65 per cent of the citizens (Article 16 paragraph 4 TEU). This ensures that there is always the necessity for broad coalitions, but also the chance of being outvoted. This has been called ‘decision-taking in the shadow of the vote’. Interestingly, however, the older culture of consensus survived. Even in areas where majority voting would legally be possible, it is mostly avoided and a compromise is forged. This culture of consensus has clear advantages (keeping the group together, ensuring the implementation of rules, etc.) but also major disadvantages, especially the fact that consensus veils responsibility. It is often not clear who is taking which position in the Council. At the same time, the institutional structure changed in one profound way, making it finally a system of federal democracy20 – and that is through the rise of the European Parliament (EP). In 1976, the EU decided to allow European citizens to vote directly for the EP. This decision dramatically changed the balance of legitimacy and power in the institutional system of the EU. Suddenly, there was an organ that had major democratic legitimacy, even though it had no major powers to use this legitimacy at the time. Starting in its first directly elected term, the EP used this major boost to demand more powers and was supremely successful in doing so over the coming decades.21 Today, after two decades of constitutional reform rule-making in the EU is

20 Interestingly, only since the 1990s is the EU itself (not only its member states) legally considered a democracy. For an overview today, see Vivien A. Schmidt, ’Democracy and Legitimacy in the European Union’ in Erik Jones, Anand Menon and Stephen Weatherill (eds), Oxford Handbook of the EU (OUP 2012). 21 On this rise, see Bertold Rittberger, Building Europe’s Parliament (Oxford 2005); for an interpretation of the Parliament’s legal functions and role, see Philipp Dann, ‘European Parliament and Executive Federalism’ (2003) 9 European Law Journal 549; for an overview also David Judge and David Earnshaw, The European Parliament (2nd edn, Palgrave 2008).

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a shared and co-equal power of the Council and the EP. The EP now also has the power to elect the President of the Commission, which is the executive branch of the EU. Clearly, the EP has become a central organ on the EU level. From a federal perspective, however, looking at it in the multi-level structure of the EU, the EP has three main problems: The first concerns its election law. This does not guarantee the equality of vote for all European citizens – for a political reason: considering that member states have hugely different sizes of population,22 the European treaties revert to a rule of degressive proportionality, Article 14, paragraph 2 TEU.23 This means that the votes of citizens in smaller states have relatively more influence than votes of citizens from larger states. This denial of the right to an equal vote is a major concern, especially (not surprisingly) in Germany and for the German Constitutional Court, which almost annulled the German consent to the respective treaty reform because of that clause. At the same time, it is a pragmatically and normatively necessary compromise to avoid a domination of the EP by bigger member states (such as Germany). A second problem concerns the logic of decision-taking and legitimacy in the EP. Stemming mostly from parliamentary systems, European citizens normally expect a parliament to work in a clear majority-minority fashion, in which positions are set up against each other presenting alternatives for voters, that is, a model of majority legitimacy. And yet, decision-making in the EU normally requires many compromises – between the member states, between different institutions, between regions. Consequently, decision-making in the Council adheres to a system of super-majorities, if not consensus. In terms of democratic theory it is a consensus model. The EP, itself split in a great number of party factions that require coalition building, has to play along this consensus mode.24 The most fundamental problem of the EP is its public perception. European citizens hardly know the EP, hardly understand its role and generally consider it to be unimportant. It does not help that it is a multi-lingual chamber on a continent where there is no continental press or media and no common European

22 Germany (the largest state) has 82 million inhabitants, Malta has less than half a million. On the political implications, see Simone Bunse and Kalypso Nicolaïdis, ‘Large Versus Small States: Anti-Hegemony and The Politics of Shared Leadership’ in Erik Jones, Anand Menon and Stephen Weatherill (eds), Oxford Handbook of the EU (OUP 2012) 249. 23 See on this Aditi and von Achenbach, ‘Electoral systems and representation’ (Chapter 5 in this book). 24 In more detail on the conflicting dynamics of parliamentary democracy and executive federalism, see Dann (n 21) 549.

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language.25 Even though we have major European challenges (Euro crisis, refugees, etc.), these issues are mostly dealt with in national media. In effect, the EP is not very present in national media. At the same time, the system of political parties is equally centred more on the national than the European level.26 Even though parties do cooperate in a trans-European way and the EP is more dominated by ideological than national divisions, their centre of political gravity are member states. As a result, there is normally a very low turnout in elections and very low voter expectation of the EP. 3.B.3 Effects on the national institutions Europeanization and EU parliamentarization had a profound effect also on the national political systems but in different ways on different actors. National governments have been the clear winners of European integration. They were anyway represented in the Council but in the 1970s, another organ composed of national executives emerged that makes parliamentary control more difficult: The European Council became a meeting point of the heads of the national governments, next to the Council as the meeting place of ministers (not to be confused with the Council or the Council of Europe27). This European Council over the years has gained a very important position in the decision-making process of the EU. The European Council meets regularly four times a year and follows the consensus rule. This is similar to the Council but not subject to a majority vote, and is therefore even less transparent. It doesn’t legislate (see Article 15 TEU) but has become politically the central body to set the agenda for the EU. In general, European integration strengthened the role of governments. National parliaments, on the other side, struggle very much with the dynamic of Europeanization. As more and more competences shifted to the EU, their role and influence was put in question. Few managed to co-govern European affairs with their respective government; most were pretty much shut out of most European decision-making, not least because national governments preferred to have more independent leeway there. In fact, member state governments often used the multi-level structure in the EU to escape democratic control at home and were quite happy to ignore their parliaments, while

25 Dieter Grimm, ‘Does Europe Need a Constitution? (1995) 1 European Law Journal 282; Dieter Grimm, The Constitution of European Democracy (OUP 2017). 26 See on this Hailbronner and Thayyil, ‘Political parties and social movements’ (Chapter 6 in this book). 27 The Council of Europe is a wholly different international organization in Europe, which was founded before the EU (already in 1949), focuses on human rights and has many more members (47 altogether, including Russia and Turkey). It is a completely different organization than the EU.

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acting in Brussels. Ultimately, the national parliaments’ institutional structure and rhythm is oriented towards their national policy cycle, not the European. But then again, multi-level European integration is also not a zero-sum-game, where the loss of one level or institution is the win of another. National political systems are still dominant in the sense that media, political parties and societal discourse take place mainly on the national level – still and for the foreseeable future. Hence, national parliaments are still at the heart of the communicatively dominant political system. Europe is still seeking to experiment and find out what role national parliaments can play in contributing to the EU federal democracy. 3.C

The EU’s Federal Democracy Today: Tentative and Limited

Federal democracy in the EU is a young phenomenon. Parliamentarization formally began only in the 1980s, the socio-political realization of a need for EU democracy set only in the 1990s. It is also still a tentative system, where in particular politicization is still low, fragmented and emerging.28 Coming back to the two framing questions on federalism and democracy (does federal structure enhance or hinder democratic governance? And what is the federal quality of central-level decision-making?) and looking first to the institutional model of federal democracy in the EU with an eye only to the formal features, we see a system with a (overly) strong sub-level representation in Union level decision-making. The Upper House (Council), as representation of subunits, has co-equal say in all legislative matters. The Lower House (EP) is co-equal but even the election and composition of the EP has a federal bias in the sense that European citizens’ influence on the election outcome is not equal but their votes are weighted according to which member state (big or small) they come from. Instead of equal representation of persons, we hence have a system of weighted, degressive proportionality. Turning to the second question of federalism’s effect on democracy (does federalism hinder or enhance democracy?), we can safely say that the multi-level character of the EU at least complicates democracy. Creating a new transnational level of governance would have to go way beyond creating formal structures. In fact, we have to take into account the various contexts in which this formal structure is located (context of time, political sociology, economy). And then, we see a system with many limits. First, the EP has to operate in the structure of executive federalism, which is dominated by governments and is based on a logic of compromise. This can collide with

28 Hanspeter Krisie, ‘The Politicization of European Integration’ (2016) 54 Journal of Common Market Studies 32.

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a parliament’s need for clear contrast between government and opposition. Secondly, looking at the wider political context, the centre of political gravity is still on subunit level (parties, media, careers). European topics gain ground, but are still characterized by a lack of public understanding and social legitimacy. Thirdly, democratization in the EU has to take place without an overarching national idea but in a post-national context. This means that it has to take place beyond the regular national discourse, often in a foreign language and concerning a somewhat alien political system (i.e. that of the EU). This impedes mobilization. Furthermore, the European citizenry is very fragmented in distinct regions with very different experiences, paces and expectations, in particular the integration of new member states. Finally, we also have to understand the concrete context of the time when the EP and democratization began. It was (and perhaps is) the era of neoliberal depoliticization, of waning political parties, the age of NGOs and distrust.29 All in all, the multilevel, multilingual and plural character of the EU does not hinder but surely complicates democratic governance and participation. The political centre of gravity is still located on the national level and not on the EU level. Brexit might be the more visible symptom but the Euro-crisis and austerity policies that were followed by Brexit were the actual problems in Europe in these years, also with profound effects on the federal balance and democratization.30 On the heels of this, the rise of right-wing and often anti-European populism all over Europe and especially in the Hungarian and Polish governments has now aggravated the problem, as suddenly the EU is asked not only to create a transnational democratic culture for itself but also to protect national democracy in some of its member states.31

4.

FEDERALISM AND DEMOCRACY IN INDIA

The Indian experience of federalism and democracy is quite in contrast with that of the EU.32 In many ways, the two polities have had opposing trends during their various stages of evolution. Yet, there are also striking parallels.

On the age of distrust, Pierre Rosanvallon, Counter-Democracy (CUP 2010). Mark Dawson and Florian De Witte, ‘Constitutional Balance in the EU after the Euro-Crisis’ (2013) 76 Modern Law Review 817. 31 Matthijs Rooduijn and Stijn van Kessel, ‘Populism and Euroskepticism in the European Union’ in Oxford Research Encyclopedia, Politics (August 2019), available at accessed 23 October 2020. 32 For an excellent introduction into federalism in India see Louise Tillin, Indian Federalism (OUP 2019). 29 30

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How to capture and characterize the interplay of federal form and democratic governance in India – and answer our inquiries and questions? Louise Tillin has recently argued that the model of federalism adopted by India in its constitution has helped consolidate democracy in a nation that threatened to break up into several smaller nations given the many threats it faced in the aftermath of Partition in 1947.33 Tillin argues that it is possible to attribute the fact that India fared better than her neighbours in South Asia to its model of federalism. As she and other scholars have argued, Indian federalism was moulded by sagacious leaders such as Nehru to facilitate a ‘state-nation’ model instead of following the strictures of the ‘nation-state’ model that was historically deployed across Europe in the 19th century (and attempted in Pakistan or Sri Lanka).34 However, as later events have shown, relying on sagacious leaders alone will not lead to a stable arrangement for federal relations. That original situation has had to witness quite dramatic shifts in later years, as was also the case in the EU that we examined in earlier sections. 4.A

Historical Background and its Continuing Influence

Federalism in India is a legacy of colonialism. While federalism is generally understood as a democracy-enabling device in contemporary political science, it is important to emphasize that colonial forms of federalism were introduced to aid imperial interests in British governed India and were decidedly democracy-curtailing in nature. The framers of India’s independence constitution did seek to modify and adapt the colonial model of federalism, but by retaining its essential core and characteristics, persisted with many of these democracy-curtailing traits, especially in the early years of independence. The nature and circumstances of the creation of the Indian nation-state were such that its leaders felt the need to opt for a strongly-centralized model of federalism, which, to some critics, actually represented a threat to democracy because such centralization would result in losses to regional autonomy. However, demands for India’s multiple identities forced India’s post-independence leaders to yield and make changes to the originally prescribed constitutional model of federalism which resulted in major changes. Many of these changes led to democracy enhancing features, especially in the era of coalition governments between 1989 and 2014. Nevertheless, since these changes were often in response to political developments and did not always result in formal

33 Louise Tillin, ‘The Federalist Compromise’ (2017) 28(3) Journal of Democracy 64, 64. 34 Alfred Stepan, Juan Linz and Yogendra Yadav, Crafting State Nations (Johns Hopkins Press 2010).

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constitutional change, the formal model of Indian federalism continues to be very heavily slanted towards the central government. To understand the urge for a centralized version of federalism, one has to go back a step. From 1858 onwards, when India became a formal colony of the British empire,35 India was divided into two broad political units: the much larger British India (which accounted for 54 per cent of the territory and 70 per cent of the population; was administered directly by the British government; and was further divided into Provinces) and the Princely States (which consisted of 565 separate and geographically widely disseminated units that were governed by local princes, kings and feudal lords who were allowed limited internal autonomy in exchange for accepting British suzerainty). At the time of independence in 1947, British India consisted of 17 Provinces, while the Princely States numbered 565.36 The latter were not nation-states as we understand them, but sought to mimic some of the characteristics of a nation, while strongly retaining the role of a hereditary monarch. Looking at the structure of federalism imposed by the British through these colonial instruments, it is clear that the model of federalism instituted in India was primarily to serve imperial interests. Although imperial interests were served well by a top-down model of administration, India was too large and unwieldy to be administered from a single centre. While the constituent units were given some powers, the lion’s share vested with the centralized authority. This is evident most clearly in the powers of the Governor General to issue ‘ordinances’ and the ‘emergency’ provisions which enabled him to take over the governance of a particular province, particularly through the infamous Section 93 procedure. By the time the framers of the Indian Constitution met in Delhi in 1947, several considerations had emerged to make the adoption of a centralized federal order nearly inevitable. The decision that British India was to be formally partitioned into the states of India and Pakistan led to communal/ religious violence on a horrific scale and the forced movement of nearly 15 million people (the largest forced migration in human history till that time). Several constitutional proposals advanced by the Indian National Congress in the build up to the Constituent Assembly process had suggested federalism as an avenue for addressing communal tension. In the aftermath of Partition, the consensus view was that ‘only a strong government could survive the communal frenzy preceding and accompanying Partition, accomplish the administrative tasks created by Partition and the transfer of power, and resettle

35 On the larger constitutional history, see generally, Arun K. Thiruvengadam, The Constitution of India: A Contextual Analysis (Bloomsbury 2017). 36 Francine Frankel, India’s Political Economy: 1947‒2004 (OUP 2005) 74.

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the refugees’.37 An independent factor which favoured centralization was the unstable financial position of the new Indian state which confronted a climate of economic uncertainty and whose finances were already being stretched by a range of hostile circumstances. What this narrative should make clear is that the origins of Indian federalism do not at all approximate to the ‘Coming Together’-model (such as the US case where the 13 colonies came together to set up a federal constitutional system), and that this was perhaps an extreme case of a ‘Holding Together’-federal model (where the Centre was constituted first, and the States were first blended together and then continuously divided up further). A central issue that has affected the evolution of the shape of Indian federalism has been language. The provisions relating to language in the Constitution were among the most bitterly contested ones in the entire text.38 In the years before the making of the Constitution, there was a steady demand for reshaping the territorial boundaries of provinces based on language.39 However, closer to the time of formal independence, again due to the communal violence experienced during Partition, the Congress leadership became wary of igniting further disharmony on the basis of language. Within the Assembly, the demand for linguistic division of provinces was emphatically rejected, on the logic that it would revert the new nation to the ‘centuries-old India of narrow loyalties, petty jealousies, and ignorant prejudices engaged in mortal conflict’.40 However, this rejection of the demand for linguistic rejection had an afterlife beyond the Constitution and had a profound effect on both the discourse and nature of Indian federalism in the post-independence years. At this stage, it is important to obtain an overview of several important features of Indian federalism as set out in the constitutional text and as evolved over time.

37 Granville Austin, The Indian Constitution: Cornerstone of a Nation (OUP 2000) 236. 38 Austin (n 37) 313. 39 Ramachandra Guha, India After Gandhi (Ecco 2008) 180‒200. 40 The quotation is from the Report of the Linguistic Provinces Commission (the Dar Commission) appointed by the Constituent Assembly to study the issue of linguistic provinces. See, Constituent Assembly of India, Report of the Linguistic Provinces Commission (Government of India Press 1948) 13.

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The Constitutional Framework of Federalism and Democracy

4.B.1

Indian legislature, state’s rights and the distribution of legislative power The Constitution of India establishes a Parliament consisting of two Houses. The more significant institution is the lower House, called the Lok Sabha or the House of the People with a term of a maximum of five years.41 Its members are elected from country-wide general constituencies, on a first-past-the-post basis, which requires a win by simple plurality.42 All citizens who are adults have the right to vote once they turn 18 (21 in the original constitution, which was amended in 1988).43 The adoption of the principle of universal adult suffrage is regarded as one of the most crucial, revolutionary decisions taken by the framers in mid-20th century India at a time when much of its population was wracked with illiteracy and poverty, and more ‘developed’ nations were yet to adopt such a measure.44 What is interesting from a federal perspective (and puzzling for a German reader) is the matter of equal representation in Indian law. Originally, the right to vote was accompanied by a mechanism to ensure equal representation of all citizens.45 In 1976, however, the respective provision was amended and the obligation to update the delimitation of constituencies frozen. Ever since, there has been no equal representation but voters in Southern states are effectively advantaged.46 The Upper House, called the Rajya Sabha or the House of States, is an indirectly elected body.47 Its members are elected by the various State legislative assemblies and Union Territories.48 Unlike the Lok Sabha, the Rajya Sabha is a continuing House, with one third of its members retiring every two years, while each member has a total term of six years. While the Rajya Sabha is, as its name suggests, supposed to act as a forum for the States, there are important differences between its purpose and orientation when compared to a body like the US Senate or the Council of the EU. The Indian Rajya Sabha is, by design, less powerful and less representative of the states. Alfred Stepan has cogently argued that ‘If multilingual India had followed the U.S. pattern, it would not 41 To arrive at this figure, one has to engage in a combined reading of Arts 81 and 331 of the Constitution. 42 On the election law in India, see Aditi and von Achenbach, ‘Electoral systems and representation’ (Chapter 5 in this book). 43 Articles 325 and 326. 44 Ornit Shani, How India Became Democratic (CUP 2017). 45 Articles 80, 81. 46 On this, Aditi and von Achenbach, ‘Electoral systems and representation’ (Chapter 5 in this book). 47 The Constitution, Art. 80. 48 Except for 12 of whom are nominated by the President.

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have been able to do some things that were absolutely crucial for political stability’ such as the reorganization of states on the basis of language.49 The Indian Rajya Sabha has no role to play in the survival of the central government, as it has been excluded from voting on No Confidence motions. Going beyond the Rajya Sabha to the power of State Legislatures, they lack the power to influence a range of constitutional amendments, which can be enacted without involving the states at all, including on issues which impact their roles significantly. Most significantly, the State Legislatures do not have a say on the existential question of whether a state’s boundaries are to be altered, even to the point of extinction or their being downgraded, as was the case most recently with Kashmir in August 2019. Turning to the distribution of legislative powers, the balance tilts heavily in favour of the Centre over the states again. The Union List of exclusive powers – List I ‒ contains 97 entries; List II (or ‘The State List’) comprises 66 entries over which the states have exclusive power to make laws, and consists of subjects such as ‘Police’ (Entry 2), ‘Public health and sanitation’ (Entry 6), ‘Agriculture’ (Entry 14) and ‘Betting and Gambling’ (Entry 34). List III (or ‘The Concurrent List’) sets out subjects on which both the Union and the State Legislatures can pass laws. Judging by the quantity and quality of the entries, it is clear that the Union legislature is the major actor in this context. This impression is confirmed by a reading of Article 248, which declares that residuary power of legislation vests in the Union Parliament, a departure from the norm in several federal states where residuary powers vest in the state units. An important addition to the tiers of governance in India was added in 1992, when Parliament enacted the 73rd and 74th constitutional amendments. These provisions mandate the creation of local governance institutions at the urban and rural levels, adding a third tier of governance to the federal mix.50 Scholars who have studied the evolution of this system over the last quarter century note that despite many design and implementation problems, the move has done much to deepen democracy in India.51

49 Alfred Stepan, ‘Federalism and Democracy: Beyond the US model’ (1999) 10(4) Journal of Democracy 19. 50 For a brief introduction into India’s local governance institutions see Kuldeep Mathur, Panchayati Raj (OUP 2013); K.C. Sivaramakrishnan, ‘Local Government’ in Sujit Choudhry, Madhav Khosla and Pratab Bhanu Mehta (eds), The Oxford Handbook of the Indian Constitution (OUP 2016) 560; Sharmila L. Murthy and Maya J. Mahin, ‘Constitutional Impediments to Decentralization in the World’s Largest Federal Country’ (2015) 26 Duke Journal of Comparative & International Law 79. 51 Anoop Sadanandan, Why Democracy Deepens (CUP 2017); Peter Ronald deSouza, ‘The Struggle for Local Government: Indian Democracy’s New Phase’ (2003) 33 Publius: The Journal of Federalism 99.

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4.B.2

Emergency powers and fiscal federalism: more sources of central dominance The pronounced tilt towards the Union is strongly evident in provisions relating to emergency powers. Many of the provisions in Chapter II of Part XI (specifically Articles 256‒261) seek to empower the Union executive in respect of diverse situations. These provisions render a situation where a state can defy the Union executive by expressing dissent against an imposed Central policy almost impossible, but these powers are hardly used. Very much in contrast to that and one of the most controversial provisions in the context of federal-state relations is Article 356. This provision empowers the President of India (who acts on the advice of the Union Cabinet) to declare that a situation has arisen, in which the government of a state cannot be carried out in accordance with the provisions of the Constitution, and enables the President to assume the powers of the state government.52 This gave rise to the popular understanding that the provision authorizes ‘President’s Rule’. This provision was criticized in the Constituent Assembly for continuing the colonial abuse of executive authority at the expense of legislative power. Defenders of it alluded to ‘the grave and difficult times facing the nation’.53 Ambedkar, however, saw the force of the argument and the very real potential for abuse. He argued that the provision was a measure of last resort in times of severe governmental crisis. This power is used frequently. On an average, President’s Rule under Article 356 was declared 1.5 times per year during the years between 1951 and 1966, 3.1 times between 1967 and 1988, and on an average of 2.3 times between 1989 and 1997.54 In several cases, these were acts of naked political partisanship, with the government at the Centre using the provision to punish state governments where a different political party was in power. Such acts were also clearly undemocratic as they allowed the Union to invoke a power to throw out of power governments duly elected in elections to state assemblies. The Constitution makes ‘the Union Government the banker and collecting agent for the state governments’.55 The provinces had a relatively low bargaining status at independence: no provincial delegation could quit the Assembly and this had to be borne in mind while negotiating for claims on behalf of the provinces in the Constitution. A significant factor that contributed to this mindset was the extremely unstable and uncertain financial situation con52 Rahul Sagar, ‘Emergency Powers’ in Sujit Choudhry, Madhav Khosla and Pratab Bhanu Mehta (eds), The Oxford Handbook of the Indian Constitution (OUP 2016) 213. 53 Constitutional Assembly Debates, Vol. IX, 4, 151. 54 Subrata Mitra and Malte Pehl, ‘Federalism’ in Niraja Gopal Jayal and Pratap Bhanu Metha (eds), Oxford Companion to Politics in India (7th edn, OUP 2010) 51. 55 Austin (n 37) 275.

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fronting the newly formed nation. All of this reinforced the view that finances should be tightly regulated and carefully controlled, preferably through a centralized system. Interestingly, the Constitution prescribes a particular multi-level mechanism to decide the allocation of resources. Article 280 provides for the creation of a Finance Commission, which has a significant role to play in the distribution of revenues, because the Constitution only outlines how certain revenues are to be levied and collected, but does not prescribe how the proceeds are to be distributed. Appointments to the Finance Commission are made by the Central government, and although the constitutional body is mean to be balanced, in effect it is the Central government, which has considerable power over its processes and final content. The Finance Commission is given the great power to decide how to make adjustments in the distribution of revenues and thus affect the balance of the federal system. The practice has been that states are consulted extensively in the proceedings of the Finance Commission, but they are seen to be constituted at the behest of the Central government, which has a clear controlling effect on their functioning. That said, the Finance Commission was envisaged as a neutral arbiter between the Centre and the different state governments, and the decisions of the first 14 Finance Commissions have broadly adhered to this description. The only constraint on ensuring that the Finance Commission works sagaciously is the good sense of its members and the Centre’s statesmanship in ensuring that a fair balance is maintained between the interests of the Centre and the state. However, this is not something that can be taken for granted.56 In 1992, through the introduction of local governance institutions, it was also made incumbent upon states to institute state Financial Commissions to recommend how revenues would be distributed within each state and to the different local governance institutions. Although states could potentially levy taxes on a host of subjects in the State List, in practice, only the tax on sale of goods has turned out to be significant for state revenues.57 This is also because, under pressure of populism, many states have either done away with or drastically reduced the taxation on land and income from agriculture. This has resulted in a drastic reduction of the capacity of states to finance both revenue and capital expenditure from their own resources: From 2010 to 2013, the states on average raised about 39 per cent of combined government revenues, but incurred about 53 per cent of 56 Jayati Ghosh, ‘The Destruction of Fiscal Federalism’ (The Wire, 16 September 2019), available at accessed 23 October 2020. 57 Nirvikar Singh, ‘Fiscal Federalism’ in Sujit Choudhry, Madhav Khosla and Pratab Bhanu Mehta (eds), The Oxford Handbook of the Indian Constitution (OUP 2016) 521.

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expenditures.58 The unequal status of states in revenue distribution was further emphasized by the manner in which the Modi government, in its first term, introduced a General Sales Tax (GST) and set up a GST Council where the states had unequal negotiating power in relation to the Centre. The move was criticized as anti-federal but the Central government was able to use its superior clout to push through the amendments.59 4.B.3

Asymmetric federalism and the Centre’s power to rearrange state borders India’s federal model is rife with asymmetries. The original classification of states was based on their different pedigree and needs that were constitutionalized political compromises to bring and hold the Union together. Even today, the states and Union Territories are treated differently. There are three major types of asymmetry in Indian federalism. First, Article 370 provides an example of asymmetric federalism because it granted to the state of Jammu and Kashmir, which was the only state to have its own constitution, autonomy in respects that other states in India are not entitled to (at least in theory).60 This status has now been changed by the Modi government since August 2019. While the legality of this move is under challenge, for now, this asymmetry is no longer legally in existence. The second major example of asymmetric federalism in India are the special measures for ‘Scheduled Tribes’ set out in the Fifth and Sixth Schedules to the Constitution. The Fifth Schedule applies to majority tribal districts outside of the North East states, and enables the Union government, acting through the Governor, to intervene to aid the socio-economic development of tribal populations. Each state covered by the Fifth Schedule is to establish a Tribal Advisory Council and the Governor is empowered to declare that particular Parliamentary or state legislative enactments are not to apply to Scheduled Areas. The Sixth Schedule applies to states in the Northeast, and creates entities referred to as ‘Autonomous District Councils’ (ADCs), which are given

58 Nirvikar Singh, ‘Holding India Together’ in Ajit Mishra and Tridip Ray (eds), Markets, Governance, and Institutions in the Process of Economic Development (OUP 2018) 300, 308. 59 Suhrith Parthasarathy, ‘Taxing times for the States’ (The Hindu, 24 July 2017), available at accessed 23 October 2020. 60 As Louise Tillin notes, ‘the extension of very numerous constitutional provisions to Jammu and Kashmir via presidential orders has reduced the extent to which Article 370 has functioned as a form of ethnic conflict management’; see Louise Tillin, ‘Asymmetric Federalism’ in Sujit Choudhry, Madhav Khosla and Pratab Bhanu Mehta (eds), The Oxford Handbook of the Indian Constitution (OUP 2016) 547.

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more extensive powers of self-governance, and have been established in the states of Assam, Meghalaya, Tripura and Mizoram.61 The third category of asymmetric treatment is to be found in special arrangements for new states that have been created or admitted since independence as a result of two types of processes:62 the reorganization of state boundaries that gave rise to concerns about intra-state equity in newly merged regions, and the resolution of ethnic conflicts in the North East states. The Indian Union’s historical willingness to make special concessions to individual federal units has been praised by scholars as contributing to the integration of states that have at times experienced secessionist movements, and for facilitating plural identities and avoiding the perils of the creation of uniform national identities.63 This is thus another example of how federal provisions can enhance democratic values. Yet, the recent diminution in the status of Kashmir unilaterally by the Union emphasizes how that can be imperilled by the powers vested in the Union. Perhaps the most unusual features of Indian federalism are Articles 2‒4 of the Constitution. These provisions vest in the Parliament the power to create new states or to alter the area of an existing state, doing away with the traditional sanctity accorded to the territorial boundaries of constituent units within federations.64 Although Article 3 imposes a requirement that the affected states be ‘consulted’, Parliament is not bound to consider the view of the states affected and the change in territory can be effected by a mere Parliamentary law, without having to pursue a constitutional amendment. This has resulted in changes in the nomenclature and form of states at regular intervals in India. The original motivation for these provisions appears to have been to ensure that considerations of national unity were given priority over claims for provincial autonomy and identity. At least some of the framers appear to have been concerned that without such provisions, the demands for linguistic provinces (which had been increasing rapidly since August 1946) would increase

61 Balveer Arora, K.K. Kailash, Rekha Saxena and H. Kham Khan Suan, ‘Indian Federalism’ in Achin Vanaik and K.C. Suri, Political Science: Indian Democracy (2nd Vol., OUP 2013) 100, 131f. 62 These provisions deal respectively with special provisions for the states of Maharashtra and Gujarat, Nagaland, Assam, Manipur, Andhra Pradesh, Sikkim, Mizoram, Arunachal Pradesh, Goa and Karnataka. For a critical reading of these provisions, see Pritam Baruah and Nicolas M. Rouleau, ‘Democracy, Representation, and Self-Rule in the Indian Constitution’ (2011) 44 VRÜ/WCL 177. 63 Stepan, Linz and Yadav (n 34). 64 Mahendra Pal Singh, ‘The Federal Scheme’ in Sujit Choudhry, Madhav Khosla and Pratab Bhanu Mehta (eds), The Oxford Handbook of the Indian Constitution (OUP 2016) 451, 458f.

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and overtake the nation building efforts of the new government.65 As noted earlier, the influential members of the Assembly managed to resist such efforts within the Constituent Assembly, but these demands continued to escalate into the 1950s during the post-independence phase. In 1953, over his initial objections, Prime Minister Nehru had to accept the formation of the new state of Andhra Pradesh or face the prospect of violent agitation among the Telegu people. Once the dam had been breached, the demand for linguistic reorganization grew stronger and in 1956, Parliament enacted a law to enable the creation and re-arrangement of several states along linguistic lines. Over time, that had increased to 28 states and 8 Union Territories.66 Demands for new states have, somewhat unusually, ‘become an everyday feature of the political marketplaces’ in India.67 The steady increase in number of states has been a consequence of shifting political developments across the vast nation. Following Nehru’s logic, there was a sense in 1956 that the movement for linguistic states would lead to the Balkanization of India. Over time, however, scholars have come to recognize that the phenomenon of linguistic reorganization has consolidated rather than diminished unity in India, by acting as a ‘constructive channel for provincial

Austin (n 37) 294‒302. So far, there have been five major revisions to state boundaries in India since 1947, even as other smaller changes have occurred with regularity. These have included: (i) the merging of Princely States and former British Provinces at the time of independence between 1947‒50; (ii) the creation of ‘linguistic’ states in the 1950s and 1960s; (iii) the formation of autonomous units for minority communities in the state of Assam in northeast India between the 1960s and 1980s; (iv) the reorganization and creation of the three new states of Chattisgarh, Jharkhand and Uttarakhand within the predominantly Hindi-speaking region of north and central India in 2000; and (v) the carving out of the new state of Telengana out of the existing state of Andhra Pradesh in 2014. 67 Louise Tillin, Remapping India: New States and their Political Origins (OUP 2013) 1. Tillin sets out the following major dates as representing major moments in the reorganization of states in India: 1950 (creation of Part A, B and C states); 1953 (creation of Andhra); 1956 (creation of Andhra Pradesh, Assam, Bihar, Bombay, Delhi (UT), Himachal Pradesh (UT), Jammu and Kashmir, Kerala, Madhya Pradesh, Madras, Manipur (UT), Mysore, Orissa, Punjab, Rajasthan, Uttar Pradesh, Tripura (UT) and West Bengal); 1960 (Bombay divided into Gujarat and Maharashtra); 1962 (Goa, Daman and Diu); 1963 (Nagaland); 1966 (Punjab divided into Punjab and Haryana); 1971 (Himachal Pradesh made into a state); 1972 (Meghalaya created from Assam, Arunachal Pradesh (UT), Mizoram (UT), Manipur and Tripura given statehood); 1975 (Sikkim); 1987 (Arunachal Pradesh, Mizoram and Goa given statehood); 2000 (creating Chattisgarh, Jharkhand and Uttarakhand); 2014 (Telangana). Ibid, 209‒10. 65 66

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pride’68 and by facilitating multiple identities among the vast numbers of people who reside within the Indian nation. However, the dark side of such powers has also been on display, especially in contemporary times. In August 2019, after it secured an increased mandate in the 2019 General Elections, the Modi government ‘de-operationalized’ Article 370 by enacting a series of amendments to the Constitution and to relevant statutes which have demoted the status of Jammu and Kashmir. The state has now been divided into three parts, each of which is now considered a Union Territory, which in effect means a severe diminution in its constitutional status. What is worrying is the manner in which this was done during the time the emergency power of Article 356 had been invoked. Since the state of Jammu and Kashmir was under President’s Rule, the Central government argued that it was not required to ‘consult’ the State Legislature under Article 3, and could proceed with the concurrence of its own nominee, the Governor, who is typically only too happy to go along with the dictates of its appointing authority, the Centre. There are serious doubts about the constitutionality of this measure, but the Supreme Court has so far not seen fit to intervene in this case. Since August 2019, the Kashmir valley has been under a state of lockdown with little access to the internet and communication with the outside world. Apart from the questions of legality overall, this episode shows how the formal model of federalism in India is still very heavily tilted in favour of the Centre, which, if it seeks to abuse this power imbalance, can result in profound consequences for individual states, to the point of their extinction. 4.C

Assessing the Evolution of the Federal Model: From the 1990s Onwards

Lloyd and Susan Rudolph have argued that federalism in post-independence India has transformed from ‘a relatively centralised “old” to a relatively decentralised “new” federalism’.69 According to this analysis, the period of four decades from 1950‒1990 can be characterized as exemplifying the ‘old’ federalism model, while the period of the two and a half decades from 1990 onwards is representative of the ‘new’ model. For the Rudolphs, the following features were prominent in the ‘old’ model: (i) a planned economy which was characterized by Prime Minister Nehru’s desire to industrialize India through 68 Ramachandra Guha, India After Gandhi (Macmillan 2007), 180‒200 at 200. See also, Domenico Amirante, ‘Nation-building Through Constitutionalism: Lessons from the Indian Experience’ (2012) 42 Hong Kong Law Journal 23‒42, 34‒35. 69 Lloyd I. Rudolph and Susanne Hoeber Rudolph, ‘The Old and the New Federalism in Independent India’ in Paul Brass (ed), The Routledge Handbook of South Asian Politics (Routledge 2010) 147‒61.

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a process of central planning for which the extra-constitutional Planning Commission was created; (ii) the existence of a one-party dominant system which enabled the Indian National Congress to counter the constitutional divisions of functions across many levels; and (iii) a model of fiscal federalism where the Union government and Finance Commission, which took cues from the Union government, dictated terms to the states with hardly any resistance. By contrast, the ‘new’ federal model that began to emerge from 1989 onwards had the following characteristics: (i) the replacement of the planned economy with a market economy, which saw a diminishing role for centralized institutions such as the Planning Commission, replaced instead by a growing role for State Chief Ministers and entrepreneurs; (ii) the substitution of a one-party dominant system with that of a multiparty system, where regional parties began to play a key role in the formation of coalition governments at the Centre and in the making of policy decisions – and has led to Indian federalism being characterized as ‘electoral federalism’;70 and consequently, (iii) the transformation of the model of fiscal federalism which in turn witnessed State Chief Ministers pushing back against traditional directives issued by the Finance Commission, and demanding market based measures to determine allocation of revenues and funds.71 The Modi government, which was elected in 2014 and then again in 2019 with a massive mandate, has moved back to the model of a Strong Centre that was witnessed in the first phase.72 Although Prime Minister Modi was able to garner only 31 per cent and 39 per cent of the total votes cast respectively in the last two General Elections, thanks to India’s electoral system being based on the first-past-the-post principle, this has translated into massive majorities in the lower House of Parliament, enabling the Bharatiya Janata Party (BJP) government to overrule even its allies in its governing coalition. The BJP, then, is behaving much like the hegemonic Congress in the first phase.

70 Yogendra Yadav, ‘Representation’ in Niraja Gopal Jayal and Pratap Bhanu Metha (eds), Oxford Companion to Politics in India (7th edn, OUP 2010) 356; for a more in-depth juxtaposition of Indian electoral federalism and European executive federalism, see Dann (n 3) 171‒76. 71 See also the analysis of Mitra and Pehl (n 54) 45 (who consider the evolution of federalism in post-colonial India across three phases: Phase I (lasting from 1950‒1965) characterized by Prime Minister Nehru’s statesman-like approach to federal issues; Phase II (lasting from 1967‒1989), which saw the decline of the Congress initially led Prime Minister Indira Gandhi to adopt radical measures to shore up her centralized form of leadership; and Phase III (1989‒present), which was characterized by coalition governments at the Centre and the rise of regional parties). 72 Chanchal Kumar Sharma and Wilfred Swenden, ‘Modi-fying Indian Federalism? Center-State Relations Under Modi's Tenure as Prime Minister’ (2018) 1 Indian Politics & Policy 51.

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As described earlier, the Modi government’s tendency towards dominating the federal landscape was evident even in the first term, when it imposed the GST through a constitutional amendment. The Indian States’ financial situation has only become worse in the last few years. The Modi government also strayed from past practice and has been influencing the working of the 15th Finance Commission, which it constituted in ways that are meant to favour the Centre in giving it greater powers to shape the financial futures of states. In its second term that began in May 2019, the Modi government has become more aggressive, and the abrogation of Article 370 in August 2019 is a clear indication of this. For the first time in India’s history, the number of constituent states was reduced instead of increased since independence in 1947, resulting in India being reduced to 28 states. This was followed up in November 2019 by the introduction of the Citizenship Amendment Act 2019. This law, which seeks to alter India’s citizenship regime, transforming it irrevocably from a jus soli to a jus sanguinis regime through the injection of a religious criterion for granting citizenship, has been opposed by the ordinary public as well as by almost all the states that have non-BJP governments. As of February 2020, 11 states have expressed their opposition to the new law, through the passing of resolutions in State Legislatures, and by the issuance of public statements opposing the new law by elected Chief Ministers.73 By themselves, given India’s strong federal structure, these resolutions and statements have no legal effect. However, when combined with the massive street protests against the Citizenship law in many states and cities across India, the symbolic value of these resolutions is very significant. From a democratic perspective, if not one of actual power, the anti-CAA protests and resolutions have tremendous importance. The Modi government has threatened to invoke its constitutional powers – almost all of which are in favour of the Centre over the states – but is perhaps hesitant to do so in the face of the numerous protests and is mindful of the political consequences of taking on an angry public. These include powers under Article 256, which require state governments to implement national legislation. In this emergent phase, we are witnessing a new phenomenon that goes beyond what was on display earlier. If, in earlier periods, the Congress and BJP governments employed their power in winning elections to drive federal policies according to their interests, the more recent trend shows that federal politics can extend beyond elections into periods between them. So, although the Central government wins an electoral mandate for five years, it is still

73 Shubhankar Dam, ‘Untied States: The contours of the Federal showdown over the CAA and NRC’ (Caravan, 30 January 2020), available at accessed 23 October 2020.

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required to focus on state elections during that period as losses in state elections can diminish its power at the Centre. This adds a new dimension of interaction between the Central and state systems, because it means in effect that important state elections can be seen as referenda for the performance of the Central government. This is not a situation contemplated by the framers of the Constitution, and has a destabilizing effect on normal constitutional politics. The Modi government is still capable of winning elections, but is beginning to realize that the use of federal power by states, especially in cases where the states are not ruled by the BJP, can shake their seeming chokehold on political power. For the first time in six years, the Modi government has had to pause and reflect on the way forward, instead of bulldozing along the path dictated by Hindutva pundits. Since its re-election on the national stage in May 2019, the BJP has, at the time of writing, lost three state elections, and barely managed to form a coalition to win in a fourth state. Once again, although the BJP has legal and constitutional power behind it, the working of everyday politics seems to be having an effect, as it did in the second phase, between 1989‒2014. How does one understand the Indian story when set against the questions we began with? Addressing first the external aspect, we can agree with Tillin’s argument that federalism has, broadly speaking, been democracy-enhancing in India. India’s potentially fissiparous linguistic movements were contained and resolved by federal measures by Nehru’s government, and this had long term stabilizing effects. Similarly, strategies of asymmetric federalism were resorted to in order to address simmering issues in Kashmir and the Indian north-east. We must acknowledge, however, that there were also regressive uses of federalism provisions – such as the misuse of Article 356 – which threatened democracy especially in federal units. Not surprisingly, therefore, we conclude that it is the sagacity and vision of political powerholders that matters as much as the soundness of the design of federal systems. On the second question of the quality of federal governance, the heavy tilt of the formal provisions towards the Centre makes it difficult for states to be taken seriously in the formation of national policy at all times. The only times when states are able to be taken into account for policy-making purposes occurs when they control political power. This occurred during the ‘coalition era’ in Indian politics (between 1989‒2014) when Central governments at the Union level were heavily dependent on regional political parties as allies in government and had to take state level concerns seriously. It is not coincidental that measures to deepen Indian democracy – such as the constitutional amendments that introduced the third tier of governance at the village and municipal levels – were brought in during this period. The last six years have shown that these advances can be quite quickly set back during periods of dominant single party rule at the Centre. The BJP is replicating the hegemonic pattern of the Congress in an earlier era, by disregarding the autonomy of

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states, as witnessed in its actions with respect to Kashmir in August 2019, and the ongoing struggles in relation to changes to India’s citizenship laws, and the altering of fiscal federal relations through the report of the Fifteenth Finance Commission which delivered its first report in early 2020.74 The BJP, as did the Congress earlier, asserts that it needs to use Central authority to implement a nationalist developmental agenda which requires centralization. However, a small group of scholars, basing their analysis on the weaknesses of the Indian welfare system across seven decades of independent India’s existence, have argued that India’s developmental needs may well be served by greater decentralization, rather than further centralization.75 This is an important strand of reasoning that questions the idea, held by many in India, that development is synonymous with centralization and is a potentially fruitful idea for advocates of decentralization to pursue more ardently in the future. It thus seems clear that the story of Indian federalism will continue to play out through this dynamic of formal constitutional powers that favour the Centre, and the working out of everyday politics where citizens and federal units seek to assert themselves to countermand the overwhelming power of the Centre.

5.

COMPARATIVE OBSERVATIONS AND QUESTIONS

The comparison between federal democracy in India and the EU is the story of two starkly different systems. But in both polities, the federal order triggered profound democratic questions, which were addressed (not necessarily resolved) in different and as such characteristic ways – through popular agitation and electoral federalism in India, and through executive federalism, top-down attempts of mobilization and a partial parliamentarization in the EU. When we juxtapose the two constitutional experiences now: (A) we are mindful of the divergent historical starting points in both systems that continue to shape them, (B) against this background, we recapitulate the transformations in both systems. We end by (C) answering the two starting questions (about the effect of federalism on democracy and the federal quality of democratic decision-making at the central level) and some observations on federal democracy and the special authoritarian challenges today.

74 Sugata Srinivasaraju, ‘The South’s Heartburn’ (Mumbai Mirror, 4 March 2020), available at accessed 23 October 2020. 75 See e.g. Rani Mullen, Decentralisation, Local Governance and Social Well Being in India (Routledge 2010).

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Original Structure

Regarding the role that the federal idea played at the founding moment, federalism in the Indian constitution is the result of a functional demand for effective government. It was inherited from the British colonial power as a device to better reach the vast reaches of the sub-continent but also evolved historically given that ‘India’ had never been governed from one centre but had always been a conglomerate of different polities. At the time of independence, too much decentralization was seen with anxiety that it would undermine the unity of the country and endanger its ability to create the conditions for economic development and social justice. Consequently, legislative, administrative and budgetary competences heavily tilt towards the centre. In Europe, six war-torn states came together to create an international authority that would organize a European common market – and thereby connect European citizens in a way that would make war unthinkable. The newly created EU had specific regulatory and legislative competences but there were no powers to implement the EU regulations; instead, the member states were tasked to do so through a structure of cooperative federalism. On balance and in contrast to India, the legislative, administrative and budgetary competences in Europe tilted heavily towards the member states. The institutional system of constitutional democracy in both polities reflected this almost opposite construction of the federal order. In India, the introduction of universal franchise and democracy was a key value of the new constitution, but the framers and institutional architects in India hardly cared for the interests of states to be voiced at the Union level; consequently, the Upper House has limited powers and rather individual voters, not sub-Union states were relevant considered voices. In contrast, through the first 30 years, the EU was mainly governed by the representatives of the member states, coming together in the Council of Ministers. It deliberated on the basis of proposals made by the European Commission, but decided alone. Democracy of the EU itself was not considered particularly important; instead, the trustful and mostly consensual cooperation of national governments was key. The European system of cooperative federalism was ultimately a system of executive federalism. This original set-up reflected the broader political sentiments and configurations at the time in both polities. Even though there was popular demand for a rather vague idea of ‘Europe’ after the horrors of the world war, the political centres of gravity in Europe in the founding years were clearly the nation-states. There was no European nation or demos that demanded a ‘European unification’, as Germans or Italians had demanded the unification of their nation in a state some hundred years before. On the contrary, to overcome nationalistic fervour, to instil some inter- or post-national rationality and

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frankly to limit the reaches of (supposedly irrational) democratic politics was the central goal.76 Quite the opposite is true for India. Here the national idea was rather new but very dynamic and alluding to many different constituencies. It was forged in the national movement of resistance against the British ‒ but also seen as a liberal counterweight to traditional collective identities that dominated the highly hierarchical Indian society. In summary, while the Indian Constitution was founded on the idea of national democracy, the EU in its beginning rested on the idea of a supranational technocracy, controlled by national governments and containing national democracy. 5.B

Transformation: Trigger and Reaction

But over the past 70 years, the federal order changed considerably in both polities. The more dramatic of these was the shift in Europe. The EU was transformed from an international organization with a limited sectoral mandate into a political Union with almost comprehensive reach of legislative competences though still only limited administrative and almost no budgetary powers. In India, there was a certain dynamic of decentralization, even though the dimension of this shift was less dramatic than in Europe. So, in both polities the federal balance of competences shifted – but in an inverse direction: in India from the Union to the states, in Europe from states to the Union. In both polities, this shift was connected to the democratic question – but again with remarkable differences, now with regard to what triggered the shift in competences and how the two constitutional orders reacted. In India, the story of decentralization is very much a story of democratization. Democratic structures that were initially designed only for Union level politics were opened up by bottom-up demand for more democratic participation. The federal order in India shifted because of popular unrest and demand for the recognition of sub-national language and political communities starting immediately after independence, but continuing through the decades. Among the effects are the substantial reorganization of the internal boundaries in India (more and more sub-national communities have their own state) and the transformation of the political party system. The latter is now characterized by a large number of regional parties competing in Union elections and being part of Union governments. Moreover, a third level of government (village level gram sabhas and urban municipalities) as a place of democratic governance was created by constitutional amendment. Beyond this amendment, however,

76 For an intellectual history of one important streak in this thinking, see Quinn Slobodian, The Globalists (Harvard University Press 2018).

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283

we see a strong path-dependency in terms of formal structures. Powers of the upper house of parliament were not changed; it still has limited powers. Representation and voice of the subunits takes place through elections and protests. This has been characterized as electoral federalism. In Europe, the centralization of competences was not triggered by popular demand but by a functional logic and governmental agreement. The cross-boundary nature of problems or policy goals suggested transnational, that is, European solutions; economic growth or environmental protection were only to be had by transnational cooperation and the EU the best set-up to pursue them. In fact, member state governments often used the multi-level structure in the EU to escape democratic control at home and were quite happy to ignore their parliaments, while acting in Brussels. At the same time, decision-making at the Union level changed profoundly by the rise of the European Parliament, now a co-equal to the Council. But this happened politically through a mix of clever manoeuvring of the EP and sympathies among (some) state governments, not because of political mobilization at the regional level as in India. It was later on enshrined in the EU treaties. The effect is a system of executive federalism in a semi-parliamentary democracy. 5.C

Federalism and Democracy Today

Coming back, finally, to our two opening questions regarding the role of federalism in constitutional democracy, the answers are fairly straightforward. With regard to the federal quality of Union level democratic governance, we see a clear contrast. While the European system is ultimately over-federalized in that it grants dominant power to lower level (i.e. member state) governments and compromises on the equality of voting individuals by instituting a system of degressive proportionality in EP elections, the formal structures of state representation in India and hence the ‘federal voice’ of sub-union units are weak and the system is rather under-federalized. Only bottom-up, political demand for voice and hence electoral politics created a more even federal balance in Union-level decision-making. As to the effect of the federal structure on democracy, the answer is more complicated. In India, federalism generally led to stronger democratic participation; federalism was hence democracy-enhancing – and maybe even a kind of safety valve or lock to preserve democratic structures in the face of challenge. Since the rise of Narendra Modi and his BJP in 2014, there seems to be a discernible shift back towards increasing central dominance once again, but for a decidedly new ideological orientation, reflected in the diminution of the status of India’s only Muslim-majority state of Jammu and Kashmir. In opposition to the centralization, the anti-CAA movement that formed in late 2019 represents a new alignment of forces of federalism, where opposition ruled

284

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states are coordinating with massive street protests to challenge the authority of a strong Centre represented by the Modi government. Still, an important lesson for federalism scholars is the importance of formal rules regarding federalism, and the continuing effects of design choices. Even as electoral politics has shaped the narrative of federalism in India, the heavy tilt of formal constitutional provisions towards the Centre – which have remained unaltered through amendment – ensures that the effect of politics at the ground level can be undone by the brute exercise of formal constitutional powers of federalism. The Indian story then is a reminder of the importance of both formal legal provisions, and more informal political and social norms that are ever changing, to understand the dynamics of federalism. In the EU, it is safe to say that the creation of the European level of governance and the emergence of a federal or multi-level structure has complicated democratic governance. Post- and transnational democratic politics and constitutional democracy is still an experiment. European integration has opened a new venue for democratic governance (the EU) but the people are hesitant to use it. Instead, power has shifted to the EU without enough democratic oversight of the new power centre. A common European democratic political culture is still emerging. Democratic institutions on the national level, in contrast, stand in danger to be hollowed-out as power shifts to the EU. At the same time, in Europe too, like in India, the 2010s were turbulent and testing for the democratic system and its federal structure. Brexit marked the first time that a country left the Union but its effect on the order of competences and the democratic discourse in the EU is limited. Far more important were the reactions to the Euro crisis post 2009 and the migration challenge post 2015. Especially the Euro crisis led to a further centralization of powers in the EU (especially in the banking sector) but without further democratization. In fact, centralization of competences in the EU in the past years has mostly strengthened the role of executive organs (Council or Commission) or technocrats (European Central Bank); bottom-up mobilization still has to catch up, not least because politicization and public perception of the EU is regionally fragmented.77 Here too, one can see the interaction of formal powers of federalism responding to and reacting against pressing socio-political issues occurring at the everyday level. The comparison demonstrates the need for scholars of comparative laws of democracy in federal structures to focus both on formal constitutional structures and the way in which emerging socio-political crises are handled by various tiers of government, and what this demonstrates about the actual working of institutions of federalism.

Dawson and De Witte (n 30); Krisie (n 28).

77

Federalism and democracy

285

Looking at the authoritarian challenges that both Europe and India are facing today, the federal orders play another distinct role for democracy. In India, authoritarian tendencies and democratic backsliding emerge from the Centre and the states might be an important safety wall, even though the dominant powers of the Centre (not least its emergency powers to rein in states) are a real threat. In the EU, the situation is the reverse. Here, the authoritarian threat occurs on the state level and the question has arisen, whether the EU can or should work to contain this. Ultimately, it seems that the EU and India in their structures of federal democracy err on different ends, when it comes to dealing with authoritarian challenges. The centre is too strong in India and too weak in the EU. Perhaps India is better equipped from a democratic perspective (or has more experience already), as the states can act as a safety wall, while the EU has not found a way yet to counter state-level developments.78 Ultimately, the federal structure is not only a central feature in both systems of democratic constitutionalism but perhaps even more. Pondering the responses to the authoritarian challenge, the federal character of democratic constitutionalism in India and the EU might well be its ultimate saviour.

78 On this discussion, see Armin von Bogdandy and Luke Dimitrios Spieker, ‘Countering the Judicial Silencing of Critics: Article 2 TEU Values, Reverse Solange, and the Responsibilities of National Judges’ (2019) 15 European Constitutional Law Review 391; Armin von Bogdandy and Michael Ioannidis, ‘Systemic Deficiency in the Rule of Law: What it is, What Has to be Done, What Can be Done’ (2019) 51 Common Market Law Review 59–96.

Index anti-discrimination law 25, 35, 125–6, 130–32, 134–5, 204, 218, 220, 222 anti-Semitic speech 200 appeasement of minorities 21 policy of 115 Arumugam Servai v State of Tamil Nadu 207 assembly, freedom of 56, 179 Assistant District Magistrate, Jabalpur v Shivakant Shukla 180 association, freedom of 175, 227, 232, 235–7, 245, 247 asymmetric federalism 58, 65, 273–6, 279 Austin, Granville 200, 231 authoritarianism, rise of 3, 36, 37, 98, 100, 180 authoritarian rule, rise of 92 Autonomous District Councils (ADCs) 273

Aam Aadmi Party (AAP) 62, 164, 176, 177 Aarhus Convention 183 Abhiram Singh v CD Commachen 116 abuse of power 88 adult suffrage 46, 108, 269 affirmative action 22, 34, 40, 58, 65, 113, 115, 119–23, 129, 132, 134, 158, 231 Ahmed, Asad Ali 193 Air India Statutory Corporation v United Labour Union 241, 244 Aiyar, Alladi Krishnaswamy 88 Alliance Européene des Mouvements Nationaux (AEMN) see Alliance of European National Movements (AEMN) Alliance for Peace and Freedom (APF) 173 Alliance of European National Movements (AEMN) 173 Ambedkar, Bhimrao 29, 86, 113, 120, 152, 271 American Journal of International Law 80 American political system 69 American Revolution 75 Amsterdam Treaty 95, 235 ancien régime 91 Anglo-Indians, political safeguards for 87 anti-colonial movements 46 anti-colonial nationalist movement 99 anti-colonial struggle, in India 11 Anti-Counterfeiting Trade Agreement (ACTA) 184 antidiscrimination and equal protection under EU law 22–3, 35, 218 as negative constitutionalization 132–3 politics of welfare 131–2

Babri Masjid, destruction of 66, 165 backward classes 86–7, 112 backwardness, notion of 104, 121, 153–4 Bajpai, Rochana 85–7 balance of power 86 Balkanization of India 275 bandhs (general strike) 166 Bangalore Water Supply and Sewage Board v Rajappa 240, 243 Baragur Ramachandrappa v State of Karnataka 197 Basaveshwara, Saint 197 basic structure, doctrine of 11, 78 Baxi, Upendra 11, 38, 78 Bharatiya Janata Party (BJP) 3, 12–13, 37, 98–9, 115, 151, 277 electoral victories of 99 Indian nationalism 169 286

Index

National Democratic Alliance (NDA) 151 populism of 25 resurgence of 12 rise to a dominant power 189 stance on delimitation 151 Bible Bandaram 198 bicameralism and federal distribution of power 57 in India 56 notion of 52 bi-cameral legislation 93, 95 in federal polities 95 Bill of Rights (1931), India 11, 84, 85, 230 Brexit referendum (2016) 49, 62–3, 68, 101, 265 British colonialism 230 British Empire, in Indian subcontinent 10, 267 British India 10, 267 British judiciary, values of 89 British Westminster, form of parliamentary democracy in India 10 budgetary sovereignty 225 campaign finance 139 caste-based discrimination 110, 120, 207 caste, concept of 153 caste identity 207 casteism and favouritism, rise of 119 caste-less society, idea of 88 centralized system, of effective governance 24, 145, 272 CETA 184–5 challenges to democratic constitutionalism in Europe 101–2 in India 98–100 Chandhoke, Neera 215 Charter of Fundamental Rights of the European Union (CFR) 126, 201–2, 204 Charter of Fundamental Social Rights 234 Chatterjee, Partha 104, 134 Christian Europe 106 Citizenship Amendment Act (2019), India 278

287

anti-CAA movement 283 civic nationalism 22, 104 civil liberties 58 civil society 18 civil society organizations 18, 25, 36, 89, 179, 186–7, 221, 260 participation in EU affairs 182–3 public participation of 183 class-conflict, solutions to 92 coalition dharma, discourse of 168 coalition governments, practice of 12, 33, 79, 151, 266, 277 collective autonomy, ideal of 1 collective bargaining 232, 234, 240, 247–8, 250 collective self-determination 31, 191, 224 collective self-government 25, 193 colonial bureaucracy 48 colonialism, legacy of 218, 221, 230, 266 colonial rule, in India 10, 12, 45, 86, 193 common citizenship 108, 117 cost of 116 vision of 107 common market, of EU 4, 15–17, 21, 23, 25–6, 29, 91, 94, 107, 132, 134, 200, 202–3, 210, 222, 256, 257, 281 common national identity, creation of 106, 115 communal electoral representation 48 communal hate crimes 66 communal hostilities, in India 20 communal ordering of society 99 communal riots 195 Communist Party of India (Marxist) 165–6 community-based political demands 48 community building 64–5 in European Union 66–8 in India 65–6 competences in the EU, centralization of 27 consensual democracies 33 consensus of apathy 48 Constituent Assembly of India 47, 85, 196, 230, 267, 271, 275 drafting of independence Constitution 99 Muslim League boycott of 86

288

Democratic constitutionalism in India and the European Union

policy of separate electorates 115 Constitution of India 10–11, 13, 252 Bill of Rights 85 as blend of liberal and non-liberal ideas 84–8 Chapter XV of 144 delimitation under Articles 81 and 82 145 destruction of a secular constitution 98–100 Directive Principles of State Policy 65, 117, 230–31 Drafting Committee 113 Fundamental Rights guaranteed in Part III of 78, 152 idea of national democracy 27 institutional structures of 12 Part III of 229–30 Part IV of 230–31, 241 Part XI of 143 Part XV of 144 politics of public interest litigation 89–90 principles of socialism, secularism and democracy 166 projected role of the judiciary in 88–9 representation for minority groups 86 role of Supreme Court in shaping 77–9 Sixth Schedule 273 social rights under 229–31 Tenth Schedule 163 Constitution of the EU 29 constitutional adjudication 76, 113, 231 constitutional changes, in India and the EU 82–98 democratic constitutionalism and ECJ 90–98 redistributive effects of economic integration 96–8 supranational democratic politics 93–5 supranationalism and its interplay with social constitutionalism 90–93 democratic constitutionalism and Indian Supreme Court 83–90

Constitution of India 84–8 politics of Public Interest Litigation 89–90 projected role of the judiciary 88–9 constitutional democracy 19, 137 development of India versus EU 20–21 in European Union 19 in India 45 India’s model of 13, 19 constitutionalism concept of 76 cultures of bi-legalism and 5 contextualized functionalism 6–7 epistemological caution and openness and 5–6 in India 2, 4 law of democracy and 5 European see European constitutionalism Indian see Indian constitutionalism constitutional jurisprudence 83, 228, 231 constitutional systems, of India and the EU 29 continental polities 2, 18–19, 32, 160 cooperative federalism European system of 281 German model of 257 Council of Europe 201, 263 Council of Ministers 38, 281 Council of the European members 171 Council of the European Union 51 Council, The 16–17, 94, 258 resilience of 261–3 Court of First Instance 186 Court of Justice of the EU (CJEU) 15, 17, 37, 76, 130, 209, 219 prohibition on wearing an Islamic headscarf 131 Craig, Paul 48 creamy layer, concept of 121–2 crimes against humanity 203, 217 Criminal Procedure Code 197 crisis of constitutionalism 100 cross-border movement, rights of 235 cross-border trade 202 cultural identity 104, 134–5

Index

cultural nationalism 22, 107, 113–14, 123, 130, 133 in India 106 social unity and cohesion 106 cultural nationalists 121 Dalits 12, 26, 87, 152–3, 214, 216, 222 Das, Seth Govind 115 Dawson, Mark 127 de Tocqueville, Alexis 13 de Witte, Florin 127 debt States 225 decentralization of India, dynamics of 27 decentralized democracy 62 decision-making process 21, 26, 38, 137, 259 co-decision procedure 94 in granting environmental clearances in India 181 intergovernmental modes of 184 parliamentary 143 political 95 supranational 93 degressive proportionality, principle of 24, 27, 35, 142–3, 154–8, 262, 264, 283 deliberation of citizens, process of 60 deliberative democracy 66, 206–11, 213, 215 concept of 60, 64 delimitation commission in India 149 Delimitation Commission Act (1952), India 145 exercise of 148–51 law regarding 151 NDA’s stance on 151 powers of apportioning seats 149 Delors, Jacques 234 Demir and Baykara v Turkey 245, 247 democracy challenges of duplication risk 43 indeterminacy risk 43 theoritical and practical 43–4 concept of 10, 21, 43–74 contending 53–5 development of 45 European process of 21, 49–51 governance deficit 21

289

Indian versus European 44–50 inherent value of 53–68 institutional system of 27 instrumental value of 69–72 in European Union 71–2 in India 70–71 judicial entrenchment of 51 law of see law of democracy legal framework of 50–53 in European Union 51–3 in India 50–51 principle of 165 theory and practice of 21 democracy-deficient systems 62 representative institutions in 61 democratic accountability 51, 62, 73 democratic constitutionalism 4, 9, 37, 223 challenges to 22 in Europe 101–2 in India 98–100 elements of 21–2 and European Court of Justice 90–98 in European Union 14–18 in India 10–14, 34 and Indian Supreme Court 83–90 political parties and social movements in 24–5 social dimension of 102 democratic credibility 57, 59 democratic deficit 44, 49, 62–3, 72, 73, 74, 208–13 democratic equality 3, 22, 56, 104, 128 in European nation state 125 goal of 132 pillars of 124 principle of 59 democratic governance 3, 16, 27, 205, 223, 252, 254, 264–6, 282–4 democratic institutions, in India 30, 58, 67, 224, 228, 284 conduct of 21 evaluation of 69 functioning of 73 legitimacy of 57, 70 monitoring of 175 democratic legitimacy 95 in European Union 52–3, 140 in India 50–51

290

Democratic constitutionalism in India and the European Union

democratic participation 27, 57, 67, 71, 111, 207, 282–3 democratic processes contending concepts of democracy 53–5 and degree of responsiveness 59–64 in European Union 62–4 in India 60–62 first past the post system (FPTP) 56 freedom and equality, issue of 55–6 in India 56–8 method of decision-making 54 for political integration/community building 64–5 in European Union 66–8 in India 65–6 political parties and social movements 24–5 quality of 53–68 regulation of hate speech 25–6 public sphere 25–6 representation and election law 23–4 democratic representation, theory of 23, 128, 137–40, 146, 156, 160–61 democratic self-government 28, 82–3, 98 democratic society 71, 125, 133, 201, 202, 208–9 democratic systems 18, 30, 107, 175, 284 credibility of 44 of government 44 democratic welfare nationalism 127 democratically elected institutions, quality of 61 Depressed Classes 86 Dicey, Albert Venn 124 diplomacy 38 Directive Principles of State Policy (DPSP), India 65, 112, 117, 230–31 expansion of right to work under 240–42 discriminatory speech 217–19 disproportionate electoral weight, principle of 59 distributive justice 111 equality and 127–8 politics of 127 division of labour 30, 260

with regard to welfare and social policies 257 dualism of law and politics 37–9 East India Company 10 economic competition, regulation of 133 economic constitution 29–31, 80, 131, 232 economic democracy 230 economic development 2, 11, 13–14, 20, 21, 38, 40, 47–8, 89, 281 economic disparity 56, 119 economic freedom, protection of 29, 128, 131, 224, 226, 232, 245, 249–50 economic globalization 36, 40 economic integration, of EU 23, 49, 134 redistributive effects of 96–8 spill-over effects of 93 economic liberalization, policies of 13 in European Union 23 economic wealth, distribution of 107 education, right to 61 EEC Treaty 81, 91 Election Commission of India 57, 163, 165–6, 174 power to withdraw recognition of political parties 166–7 on regulation of political parties 168 election of lawmakers, laws governing 137 elections and electoral laws 137–9 comparative analysis of 146, 157–61 pluralism, diversity and equality 157–9 political unity 157 in European Union 140–43 in India 143–4 issue of fair representation see fair representation, issue of elections in India, legitimacy of 58 electoral accountability 49 electoral alliances 168 electoral democracy 50, 57, 65–6, 71, 73 electoral federalism 277, 280, 283 electoral finance 58 electoral legislation, competences for 24, 146 electoral politics 27, 45, 57, 148, 283–4 electoral power 12 electoral process, regulation of 23–4

Index

electoral systems, of EU 23–4, 140–43 concept of democracy 140 democratic legitimacy 140 legal regime of 142, 143 minority representation, idea of 142 pluralist representation of the constituencies 143 second order theory 141 electoral systems, of India 23–4, 143–5 comparative analysis with EU electoral system 146 Conduct of Election Rules (1961) 144 disqualification of candidates from standing in elections 164 dual political membership of the electorate 143 Model Code of Conduct 144 Part XV of the Constitution on 144 plurality-based system 145 Registration of Electors Rules (1960) 144 representation of geographic identity 143 pluralism 146 political minorities 146 Westminster model of the Parliamentary System 143 electoral victories 12–13, 99 eminent persons 174 employer-employee cooperation 240 Employment Equality Directive 130 employment protection 233 Environment Protection Act 1986 (EPA, India) 181 Environmental Impact Assessments 181 equal opportunity, concept of 129 equal pay for men and women 126, 230 equal representation in Indian law 269 principle of 59, 152 equal treatment, principle of 80, 126, 128 equality claims of 108 concept of 21–3, 55–6, 59, 104 of EU citizen 22 guarantee of 110 norms of in European Union 123–30 in India 107–23

291

political 114 rights to 109–11 socio-economic 23, 112 substantive 112 women’s equality 118 equality norms, in EU 123–33 constitutional provisions equality and distributive justice 127–8 equal political participation 124–5 rights to equality and non-discrimination 125–7 from economic integration to political community 128–30 electoral gender quotas 124 limits of anti-discrimination law and policy as ‘negative’ constitutionalization 132–3 anti-discrimination law and the politics of welfare 131–2 implementation by member states and courts 130–31 ‘package’ of four instruments 125–6 political agenda of 125 political freedom and 128 equality norms, in India caste-centred affirmative action policies 119–23 claims of 108 Constitutional provisions on 107–13 equal political participation 108–9 equality and distributive justice 111–13 rights to equality and non-discrimination 109–11 cultural and linguistic rights 110 in matters of public employment 109 mediating equality and diversity 113–23 accommodating religious difference 115–19 caste and affirmative action 119–23 participation in government 108–9

292

Democratic constitutionalism in India and the European Union

against religious discriminating 110 rights to 109–11 safeguards provided to linguistic minorities 111 socio-economic obligations 112 Special Officer for Linguistic Minorities 111 universal adult franchise 108 vision of a common citizenship 107 on women’s equality 118 Espace Sociale Européen project 234 ethnic peace, disruption of 201 ethnic pluralism 147 EU citizens 68 duality of political membership of 140 equality for 22, 127 identity of 218 nationalist sentiments 63 right to participate in elections 124 vote 170 transnational European political identity of 141 EU law-making process 182–5 EU laws 142, 186 of democracy 35 democratic legitimacy of 141 against discriminatory speech 217 freedom of expression law 202, 219 on free speech 211 free speech law 202 notion of equality under 125, 128 procedural law 77 remedies for breaches of 187 secondary law 202 uniform interpretation of 76 EU legislative acts, judicial review of 77 euro crisis 63, 72, 263, 265, 284 euro zone 97 Europe, idea of 258, 281 Europe of Fatherlands 106, 134 European Central Bank 72, 248, 284 European citizenry 95, 140–41, 143, 223, 254, 265 plurality of political ideologies within 155 European Citizen’s Initiative 184–5 European citizenship 67, 140, 204, 216 development of 129

status of 128 European collective identity 216 and hate speech law 216–21 European colonialism, notion of 218 European Commission 51, 58, 59, 63, 281 anti-discrimination policy 126 decision on an Initiative against CETA 185 White Paper on European Governance (2001) 183 European Community of Coal and Steel 14, 255 European Constitution, role of ECJ in shaping 79–81 European constitutionalism 92, 190 EU level of 102 first phase of 90–93 pillars of 96 process of 94, 128 second phase of 93–5 Treaty amendments 95 European Convention of Human Rights (ECHR) 201 Article 10 of 202 ruling in Hirst v United Kingdom 124 European Council 59, 142, 171, 263 European Court of Human Rights (ECtHR) 201, 232, 245, 247 case law on hate speech 202 European Court of Justice (ECJ) 28, 38, 127–8, 134, 162, 185–7, 201, 226, 232, 234 adjudication on Islamic headscarves 130 case law on affirmative action for women 129 democratic constitutionalism and 90–98 judgments on workplace headscarf bans 130 Les Verts judgment (1986) 81, 172 shaping of European Constitution 79–81 strategic litigation in 186 supranationalism and its interplay with social constitutionalism 90–93 European currency zone 97

Index

European Defence Community 91 European defence policy 95 European democracy 21 democratic accountability 62 democratic processes in 58–9, 62–4 development of 49 as fragmented democracy 52 idea of 49–51 versus Indian democracy 44–50 legal framework of 51–3 legal institutionalization of democratic procedures 50 Maastricht Treaty 49 pillars of 51–2 as representative democracy 49 Schuman-Declaration 49 voter turnouts in national elections 63 European democratic identity 126 construction of 128 European Economic and Steel Community 98 European Economic Community 14, 125, 128, 255 European Enlightenment 194 European ‘high authority’ 16, 257 European identity 217, 218 national and racial difference 218 European institutions, politicization of 68 European integration 92, 128, 232 process of 16, 23, 103 project for 233 redistributive effects of 96–8 spill-over effects of 93 European law of anti-discrimination 128 European national democracies 125 European nation-state democratic equality in 125 rescue of 92 European Parliament (EP) 16–17, 24, 27, 51, 59, 63, 64, 92, 94, 124, 140, 155, 169, 209, 212, 252, 257 competencies of 17 election of 50 legitimacy of 258 Members of the European Parliament (MEPs) 142 powers of 52 representative structure and status of 140

293

rise of 261–3 role with the Council 52 European People’s Party (EPP) 171 European Political Foundations 173 European political parties 18, 67, 169, 171–4 European political public processing 68 European politics, politicization of 170 European public sphere 208–13, 221 communicative processes in 216 European Social Charter 235, 247 European technocracy 260 European transnational cooperation 260 European Union (EU) 201 Charter of Fundamental Rights 126, 201–2 competence of 17, 51 centralization of 27 competences, membership, and constitution 259–60 constitutional democracy in 19 democracy deficit 183 democratic legitimacy of 17, 48, 258 Economic and Social Committee 183 emergence of a federal democracy 259–64 idea of supranational technocracy 27 institutional structure of 257–9 model of democracy in 49–50 parliamentarization of 94–5 political deficit of 38 Racial Equality Directive 219 resilience to Europe’s polycrisis 101–2 transformation of 259–64 voting regulation 22 Withdrawal Agreement with the UK 101 European vs. non-European dichotomy 220 European way of life 93 Europeanization of the economy 93 executive federalism, notion of 259 expression, freedom of 191, 193–9, 201, 202, 204–6, 209, 213 fair representation, issue of 137, 147–8 in European Union 154–6 in India 148–54

294

Democratic constitutionalism in India and the European Union

delimitation 148–51 substantive equality 152–4 right to vote and equal availability 147 Federal Constitutional Court of Germany 52, 140–41, 209, 216 federal democracy 26, 252–5, 259, 261, 264, 280, 285 federal distribution of power 57 federal structures, comparative frame and guiding questions 253–5 federalism and democracy, in India 265–80 asymmetric federalism 273–6 and Centre’s power to rearrange state borders 273–6 colonial model of 266 ‘Coming Together’-model 268 under Congress leadership 268 constitutional framework of distribution of legislative power 269–70 Indian legislature and 269–70 state’s rights and 269–70 electoral federalism 277 emergency powers and fiscal federalism 271–3 evolution of 265 from the 1990s onwards 276–80 versus federal democracy in EU 280–85 historical background of 266–8 ‘Holding Together’-federal model 268 influence of 266–8 origins of 268 President’s Rule 271, 276 religious criterion for granting citizenship 278 ‘state-nation’ model of 266 federalism and democracy, in the EU effects on the national institutions 263–4 emergence of competences, membership, and constitution 259–60 European Parliament 261–3 resilience of the Council 261–3 executive federalism 259

versus federal democracy in India 280–85 German model of 257 present scenario of 264–5 structure of institutional structure and legitimacy 257–9 purpose, mode of governance and division of competences 255–7 felony disenfranchisement 124 Feryn case 219, 221 Finance Commission in India 272, 277–8, 280 finance referendum campaigns 175 financial crisis of 2008 62–3, 97, 101, 184 first past the post system (FPTP) 48, 56, 144, 146 Forest Rights Act of 2006 (India) 180 Framework Decision (2008) 203, 217 free movement of people, goods and services 67, 80, 140 free speech 191–3 anti-Semitic speech 200 EU law on 211 in European multi-level system 199–204 governance in India 195 law in India and the EU 25, 191 violence of ‘progressive’ universalist free speech 213–16 freedom, concept of 55–6 freedom of religion, right to 87, 110, 116 French Front National 201 French Revolution 75 Gandhi, Indira 78, 86, 190 declaration of emergency 78, 180 Gandhi, M. K. emphasis on self-rule 47 vision of a democratic India 47 General Court of the EU 184 General Data Protection Regulation 64, 72 General Elections 12 General Sales Tax (GST) 273, 278 genocide 203, 217 German colonial army 218

Index

German-French reconciliation 92 gig economy 228 Glasman, Maurice 226 global economy 13 Global North 1, 40 Global South 1, 10, 14, 40, 186 globalization, process of 223 Golwalkar, M.S. 115 gram sabhas 62, 282 grassroots social campaigns 179, 184 Great Powers 92, 272 Green Parties, in Europe 177 group-based violence 203 group rights and privileges, evolution of 85 Habermas, Jürgen 206, 210 Habermasian public sphere 213, 215 Handyside v UK 201 hartal (strike) 166 hate speech 191–3 anti-colonial sentiment towards 199 anti-discrimination law against 25–6 casteist 221 and the challenge of identity 213–21 collective identity and 216–21 cross-border speech 211 ECtHR case law on 202 in European public sphere 208–13 EU’s ‘democratic deficit’ and 208–13 Framework Decision 2008/913/JHA 203 harmonization of 211 on internet and social media 203 by Islamic radicals 203 judicial enforcement against 203 judicial interpretation of 199 liability of internet intermediaries against 204 and liberal democracy 204–8 nationalist 211 particularist jurisprudence on 199 regulation of 25–6, 35, 191 in EU context 25, 199–204, 216–21 in India 26, 163, 193–9, 213, 221 racialized 25 religion-based 25, 221

295

restrictions on 201 universalist jurisprudence on 208, 215 xenophobic speech 201 hereditary monarch, role of 267 Hindu nation state 167, 178 Hindu nationalist movement 115 Hindu religious identity 115 Hindu Right nationalism 12 Hindutva-led nationalism 99 Hirst v United Kingdom 124 Holocaust 200–201, 217–18, 221 homosexuality, criminalization of 66 human dignity, protection of 204 human rights 53, 226 Hussainbhai, Calicut v Alath Factory Thozhilali Union 241 identity-based inequalities 215 identity-based minority groups 217 imperfect constitutionalisation 234 independent India 44, 46 controversies in 117 elections in 12 formation of 46 governments of 39 legislative assemblies 237 India Against Corruption (IAC) 177 Indian Civil Services 70 Indian constitutional jurisprudence 228, 231 Indian constitutionalism 2, 66 British Westminster form of 10 challenges of 98–100 colonial rule 10 crisis of 100 democratic model 12 impact of Supreme Court on 83–90 national coalitions 12 origins of 10–14 ‘populist constitutionalist’ model 100 post-independence 10 and process of constitution-making 84 scholarship on 4 Indian democracy anti-CAA protests and resolutions 278 anti-colonial social movements 46

296

Democratic constitutionalism in India and the European Union

as constitutional democracy 45 democratic processes 56–8 democratic upsurge 46 design of 48 disagreements on the nature of 47 evaluative tradition of 46 first past the post system (FPTP) 56 Gandhi’s vision of 47 history of 46 idea of 46–9 legal framework of 50–51 nationalism, issue of 47 Nehru’s vision of 47 as parliamentary democracy 56 politicization of the populace 46 pragmatic tradition of 46 pre-independence 46 Presidential Ordinances 61 as representative democracy 46 Swarajya Resolution 46 Indian economy liberalization of 134 Nehruvian model of 13 privatization of 134 regulatory framework of 13 Indian federalism 110, 266–8, 273–4, 277, 280 Indian Independence Movement 46 objectives of 47 Indian legal system 39 Indian National Congress (INC) 12, 20–21, 46, 87, 150, 165, 180, 267, 277 Bill of Rights (1931) 230 declaration of complete independence (purna swaraj) 46 Lahore Conference (1929) 46 politics of presence 152 protection to minority groups 86 Swarajya Resolution (1931) 46 Indian nationalism 47, 169 Indian nation-state, creation of 266 Indian Penal Code of 1860 164, 193, 196 Indian public sphere 214–16, 222 Indian Young Lawyers Association v State of Kerala (Sabarimala) 118 individual dignity, ideal of 1

individual rights, idea of 76, 82, 113, 128–9, 183, 186, 191, 199, 227, 229 industrial citizenship 224 industrial dispute settlement 230 Industrial Disputes Act (India) 238–9, 243 informal economy 228 information, freedom of 56 institutional democracy-deficiency 56 instrumental value, of democracy 69–72 in European Union 71–2 in India 70–71 Internal Market 94 redistributive effects of 96 international crimes, notion of 218 International Labour Organisation (ILO) 227, 235–6, 247, 250 Internationale Handelsgesellschaft (1970) 80 intra-group heterogeneity 118–19, 121, 123 intra-state equity 274 Islamophobia, legitimization of 106, 218, 220–21 Jain Hawala diaries case 181 Jammu and Kashmir (India) 273, 275–6, 283 judicial activism 179–80, 187 judicial empowerment 36, 37 judicial enforcement, of basic individual rights 76, 203 judicial independence 71, 88, 212 judicial redress, for public injury 180 judicial review, of legislation 16, 43, 76–7, 89, 229, 235, 258 judicial self-empowerment 82–3 judicial supranationalism 94 judicialization of politics 28, 189 judiciary-led constitutional order 76–82 EU Court of Justice 79–81 Indian Supreme Court 77–9 parallels between Indian Supreme Court and EU Court of Justice 81–2 judiciary, politicization of 28 Juncker, Jean-Claude 170–71

Index

Kaviraj, Sudipta 252 Khosla, Madhav 83 labour laws, deregulation of 31, 225–6, 231, 233–5, 237, 238, 240, 245, 247–9 labour rights 36, 233, 240, 247, 250 labour standards, enforcement of 233, 245, 250 law-making processes, participation of civil society in 25 law of democracy 19–31 common exposure and reaction to global trends 36–7 and competing paradigms of legitimacy 20–21, 33–4 consensual democracies 33 constitutionalization, juridification and the interplay of institutions 28–9 on democratic process political parties and social movements 24–5 regulation of hate speech and the public sphere 25–6 representation and election law 23–4 duality of 37–9 economic constitution and social democracy 29–31 equality and diverse identities 21–3 EU laws 35 political institutions in the multi-level federal balance 26–7 representation, political dynamics of 34–6 research agenda 39–41 legal framework, of democracy in European Union 51–3 in India 50–51 legal pluralism 117 legislation, judicial review of 76 legislative powers, distribution of 56, 269–71 legitimacy, paradigms of 20–21 distrust legitimacy 20, 21 India versus EU 20–21 input legitimacy 20 output legitimacy 20

297

Les Verts judgment (1986) 81, 172 liberal constitutionalism 1 liberal-democratic universalism 25, 221 liberal universalism 22, 34, 104–5, 107, 113, 116–17, 123, 129, 133 versus pluralism 129 liberalization, policies of 90 limited government, concept of 75, 92 Lincoln, Abraham 69 linguistic diversity, protection of 110, 126 linguistic homogeneity 216 linguistic reorganization, phenomenon of 275 Lisbon Treaty 95, 127–8, 201, 216 local affected persons 181 Lok Sabha (House of the People) 143–4, 269 Lower House of Parliament (India) 13, 277 Luxembourg Compromise of 1966 94 Maastricht Treaty (1992) 49, 94, 128, 209, 234–5 Macron, Emmanuel 170 Maneka Gandhi v Union of India 180 Maoist Communist Centre of India (MCC) 167 marginalization of minorities 200 marginalized communities in electoral politics 45 of Indian society 12 market economy 277 market integration 16, 131, 155, 211, 232–3, 251 effects of 225 goal of 190 transnational 82 Marshall, Thomas 224 mass democracy 30 material inequality 29 mathematical equality of votes, concept of 147–8 Mehta, Uday 11 member states of EU competence of 17, 260 discriminated against their own nationals 125 electoral representation for 59

298

Democratic constitutionalism in India and the European Union

implementation of European law of equality 130–31 social benefits in 127 Members of the European Parliament (MEPs) 142 migration crisis 52, 62–3, 72 militant non-racism, ethos of 220 minority representation, idea of 142 Modi, Narendra 3, 12–13, 33, 99, 190, 273, 276, 283 abrogation of Article 370 278 views on six decades of Congress rule 20–21 moral and political disagreement, in India 66 multiculturalism, recognition and protection of 3, 40, 116 multinational democracies 2 multi-party systems 33 Muslim community 86 Muslim League 86 Muslim reservations, case of 153 National Advisory Council (India) 180 national citizenship 140, 215 national coalitions, in India 12, 143 national democracy, idea of 2–3, 21, 27, 125, 265, 282 National Democratic Alliance (NDA) 151, 168 stance on delimitation 151 National Employment Guarantee (India) 180 National Front 168 national identities 19, 47, 96, 106, 113, 115, 141, 156, 159, 210, 216, 274 national inequality, in voting 24 National Population Policy Statement (India) 150 national sovereignty 68 nation-building effects of 85 process of 48 nation state in Europe, evolution of 85 nationalism in Europe 15 Nehru, Jawaharlal 78, 89, 266, 275 desire to industrialize India 276–7 slogan of unity in diversity 48 vision of a democratic India 47 Nice Treaty 172

non-discrimination, rights to 109–11, 113, 125–7, 204, 229 non-governmental organizations (NGOs) 179, 184 non-nation-state-polities 2 non-party political movements 179–80 N. Veerabrahmam v State of Andhra Pradesh 198 Ohlin Report 233 one person one vote, principle of 56, 114, 137, 145, 147–8, 154, 161 opinion, freedom of 56 Other Backward Classes (OBCs) 121–2 criteria for 122 Panchayats 62 pan-European movement 91 Parliament of India 252 Lok Sabha (House of the People) 143–4 Rajya Sabha (Council of States) 143, 150 Westminster model of 143 parliamentary democracy, in India 10, 50, 56 parliamentary legislation 235 parliamentary representation 51, 155 Parliamentary sovereignty 89 participatory rights 56, 58 Partition of India (1947) 10, 266 forced migration 267 transfer of power 267 violence associated with 86, 267 party finance 139 party system, regionalization of 19, 35, 141, 156, 158, 160, 168, 169, 282 Pasmanda Muslims 119 People’s War Group (PWG) 167 personal empowerment 154 Pirate Parties, in Europe 177 Planning Commission of India 277 pluralism legal 117 liberal universalism versus 129–30 politics of 105–7, 113, 123, 133, 157–9 plurality representation, system of 146 political bargaining, process of 151, 156

Index

political Catholicism, universalism of 92 political democratic discourse 37 political discourse in Europe 29, 40, 63, 67, 84, 106, 127, 133 in India 104, 113, 168 political dissenters, instruments to appease 65 political empowerment 137, 160 political empowerment, of citizens 137, 160 political equality, idea of 114, 137, 147, 156, 158–9, 161 political freedom and equality 128 political goals, of democracy 69–72 in European Union 71–2 in India 70–71 political gravity, centres of in Europe 18–19 in India 19 political institutions in multi-level federal balance 26–7 relationship between the Union and the states 26 separation of powers 26, 28 system of democracy 27 political integration 64–5 in European Union 66–8 in India 65–6 political intergovernmentalism 94 political landscape, in India 12–13, 122, 157 political membership, of European citizens 140, 143 political parties in democratic constitutionalism 24–5 of Europe see political parties, in Europe of India see political parties, in India political parties, in Europe 18, 169–77 Alliance for Peace and Freedom (APF) 173 Alliance of European National Movements (AEMN) 173 comparison with Indian political parties 175–7 European People’s Party (EPP) 171 finance referendum campaigns 175 formation and recognition of 170

299

freedom of association and pluralism of 175 funding of 172, 174 ideology of 169 legal framework of 172–5 organization of elections 170 politicization of European politics 170 Regulation No 1141/2014 172 Regulation (EC) No 2004/2003 172 regulation of 169, 175 rights of Union citizens to vote 170 Spitzenkandidaten-approach 171 political parties, in India 163–9 Aam Aadmi Party (AAP) 62, 176, 177 allotment of election symbols 165 Bharatiya Janata Party (BJP) see Bharatiya Janata Party (BJP) Communist Party of India (Marxist) 165–6 conduct of organizational elections within 165 de-registration of 165–6 electoral alliances 168–9 federalization of 168–9 functioning of 165 Indian National Congress (INC) see Indian National Congress (INC) Model Code of Conduct during elections for 166 parliamentary politics 164 power to withdraw recognition of 166–7 recognition of 166 regulation of 163–4, 169 regulatory limitations on activities of 163 Shiv Sena 165 political representation group-specific guarantees of 139 notion of 138 structure of 23, 139 political system, legitimacy of 20 political unity, idea of 53, 134, 157, 267 polycrisis, in Europe 101–2 Popular Front 93 Populist movements 68, 139

300

Democratic constitutionalism in India and the European Union

Pravasi Bhalai Sangathan v Union of India 206 precolonial Indian society 99 presence, politics of 152 Presidential Ordinances, in India 61 President’s Rule, in India 271, 276 Princely States of India 10, 143, 145, 267 privacy, right to 66 privatization of education 122 problem-solving 20, 68, 258–9 procedural democracy 46 pro-European referenda campaigns 175 property, right to 78, 113 proportional allocation of seats, principle of 24, 148–9 proportional representation, principle of 24, 48, 142–3, 157, 170 proportionality principle 146 protection to minority groups under colonial rule in India 86 cultural rights and privileges for 86 educational rights for 86 group-differentiated rights 87 ‘political’ safeguards for 86 quota system for 86 rights for religious minorities 86 public authorities, power of 18, 20, 29, 33, 181, 197, 256 public discourse 19, 129, 197–9 public employment on basis of merit and qualification 120 case-based reservations in 121 equality in 109 public funds, redistribution of 30 public interest litigation (PIL) 25, 58, 77, 78, 162, 179, 181, 186 against policies of liberalization 90 politics of 89–90 public law, principles of 228 public morals 200 public opinion, Europeanization of 210 public order, disruption of 198 public sector enterprises, privatization of 48 public sphere European 208–13, 221 Habermasian 215 Indian 215–16, 222 regulation of 25–6

hate speech 216 purna swaraj 46 queer theory 106 quota system, for minorities 86–7 quotas of representation, to marginalized groups 24 Racial Equality Directive (EU) 219 racism, expressions of 203 raison d’être 29, 200, 211, 217, 220 Rajya Sabha (Council of States) 143, 150, 269–70 Ram Janam Bhoomi-Babri Masjid dispute 66, 165 Rashtriya Swayamsevak Sangh (RSS) 167, 178, 180 RC Poudyal and others v Union of India and others 151 redistributive justice 112 redistributive legislation, agenda of 30 redistributive welfare policies 92 reflexive constitutionalization, process of 95 reformist labour movement 92 refugee crisis 129, 195 regional economic integration 91, 96, 129, 131, 135 religion-based hate speech 221 religious denominations 110, 198 religious discriminating 110 religious doctrine (blasphemy) 200 religious freedom and equality 118 religious identity of citizens 114 religious minorities cultural and educational rights of 116 political safeguards for 86–7 Representation of the People’s Act (1950), India 144 Representation of the People’s Act (1951), India 144, 163–4 representation, political dynamics of 34–6 representative democracy 46, 49 demands for 46 reservation of seats, idea of 152 reservations, in public employment caste-based 121–2

Index

‘creamy layer’ exclusion 122 resources, redistribution of 107 Right to Information movement 61 right to work employer-employee relationship 240 in European Union 245–8 expansion under directive principles of state policy in India 240–42 in India 237–45 Indian versus European 249 interrupted constitutionalization of 236–49 labour law 238–40 social rights as 226–9 right-wing populism 12, 220 rise of 37 Rome Treaties of 1957 91, 125, 232–3 Rule of Law Crisis 102 Savarkar, V.D. 115 Savarnas, domination of 214–16 Scharpf, Fritz 20, 69, 97, 246 Scheduled Castes 86, 112, 152–3, 207 ‘creamy layer’ exclusion 122 equal political participation 108–9 political safeguards for 87 representation in electoral processes 121 Scheduled Tribes 112, 152–3, 207, 273 ‘creamy layer’ exclusion 122 equal political participation 108–9 political safeguards for 87 representation in electoral processes 121 Schengen agreement 260 Schmidberger v Austria 202 Schuman Declaration of 1950 49, 93, 98 Scottish Referendum 62 Secretary, Ministry of Information Broadcasting v Cricket Association Board 205 secularism principle of 165 violation of 165 self-governance, powers of 274 self-rule, principle of 46–7, 56–7, 62 sense of belonging 64–6 sense of community, amongst citizens 66 separate electorates, system of 86–7, 115

301

separation of powers 3, 47, 52–3 in political institutions 26, 28 September 11 attacks 203 shared sovereignty, model of 52 Shayara Bano v Union of India 118 Shiv Sena 164–5, 168 Sikh Panthic Party 86 Simmenthal II (1978) 80 Singh, Kuldeep 149 Single European Act of 1986 94 Social Action Programme 233 social and economic programmes, in India 12 social capital 40 social conflicts 221 social constitution 223, 225 social constitutionalism 92, 96, 97, 103, 223, 224, 225, 226 social democracy 29–31, 228, 243 Scandinavian model of 93 social devastation 225, 251 social dialogue, constitutionalization of 234 social equality 28, 103, 132 Social Europe, sustainable model of 97 social inequality 97, 105, 121, 224 social justice 11, 20, 29–30, 87, 187, 281 social movements 177–89 access to justice 185–7 comparison between Indian and European movements 187–9 in democratic constitutionalism 24–5 in Europe 182–7 in India 179–82 litigation 36 mobilization of 188 Right to Information movement 61 strengthening of 187 social protections 36, 224 decoupling with economic integration 232 market integration and 232 social revolution 84, 181 social rights 36 civil and political rights 230 constitutionalism of 226 of cross-border movement 235 democracy and 226–9 enforcement of 236

302

Democratic constitutionalism in India and the European Union

in European Union 232–4 imperfect constitutionalization of 235–6, 249 implementation of 231 in India 229–31 Indian versus European 234–6 notion of 223 right to work 226–9 in European Union 245–8 in India 237–45 Indian versus European 249 interrupted constitutionalization of 236–49 rollback of 242–5 sanctioning of 236 sustainable lives for voters 223 violations of by national courts 232 social security 14, 89, 127, 227, 228, 235, 236 social segregation 56 social stratification 153 social welfare 127, 233 policies 107, 132 rights to 233 socialism, principle of 165 societal exclusion and discrimination 110 socio-economic development 47, 150, 273 socio-economic equality 112 socio-economic rights law on 80 legislation on 180 socio-political linkages 137 South-North comparison 2, 5, 6 sovereign debt 225, 248 sovereign states 49, 51, 234 Spaak Report 233 Special Officer for Linguistic Minorities 111 speech, freedom of 193, 195–8, 205, 208, 229 spillover, concept of 49, 93 State assemblies 12, 271 state institutions in India, legitimacy of 48 State of Kerala v N.M. Thomas 231 State of U.P. v Jai Bir Singh 243 state representation, in India 27, 35, 59, 151, 283

state sovereignty 96 Stein, Eric 80 Stepan, Alfred 269 Streeck, Wolfgang 234 Structural Adjustment of the Indian economy, policies of 90 substantive democracy 46, 62, 71 substantive equality 147 concept of 112, 134, 152–4, 161 Supiot, Alain 227 supranational democratic politics, emergence of 93–5 supranational market 34 supranational organization 98 supranational political space 141, 156 supranational technocracy, idea of 27, 282 supranationalism judicial 94 as pillars of European constitutionalism 96 and social constitutionalism in Europe 90–93 transformative dimension of 93 Supreme Court of India 21, 25, 28, 39, 76–7, 186, 226, 231, 234 Abhiram Singh v CD Commachen 116 ‘basic structure’ doctrine (1973) 78 democratic constitutionalism and 83–90 on enforcement of Fundamental Rights 78 Indian Young Lawyers Association v State of Kerala (Sabarimala) 118 PIL jurisdiction 78, 89–90 power to amend the Constitution 78 on projected role of the judiciary 88–9 on protection to minority groups 84–8 as protector of rights of Indian citizens 83 shaping of Indian Constitution 77–9 Shayara Bano v Union of India 118 views on hate speech 206 vision of a ‘transformative constitution’ 88 Swarajya Resolution (India) 46

303

Index

Swaran Singh and Others v State 207 tax states 225 taxation, power of 22 technocracy 27, 38, 260, 282 television broadcasting 202 temple entry rights, to women 66, 118 tentative democracy 2 terrorism, glorification of 201 Tillin, Louise 266, 279 trade unions 97, 236, 240, 246–8, 250, 255 transformative constitution 14, 41, 83, 88, 92, 96 transnational communication 210 public spheres 210, 222 solidarity in production 93 Treaty establishing the European Community (TEC) 128 Treaty of European Union (TEU) 75 Article 2 of 126, 142 Article 3(3) of 126 Article 10 of 50–51, 59, 140, 142 Article 10(4) of 172 Article 14 of 262 Article 15 of 263 Treaty on the Functioning of the European Union (TFEU) 75, 126–7 Article 15 of 183 Article 20 of 140 Article 224 of 172 Article 230 of 186 Tribal Advisory Council (India) 273 tribal communities 152 Triple Talaq system 118 UN Convention on the Elimination of Racial Discrimination (1965) 200 unemployment 224, 236, 243 unification, of Europe 49, 281 Uniform Civil Code (UCC) 117–18 unitary public sphere, idea of 214–16

Unite the Union v United Kingdom 247 United Front 168 United Progressive Alliance (UPA) 168 universal adult franchise 12, 108 Universal Declaration of Human Rights 85 universal suffrage 2, 124–5, 142 electoral principles of 142 universalism, politics of 22, 25–6, 34, 92, 104–7, 113–14, 116–17, 123, 129, 132–4, 221–2 untouchability practice of 88, 110 removal of 11 untouchables, social category of 152 urban municipalities 282 varna, Hindu social doctrine of 152 Veerabhadra Chettiar v Ramaswami Naicker 198 village republics 47 voter turnouts 57, 63 voting rights 12, 22, 24, 269 in European Union 124 national inequality in 24 war crimes 203, 217 Weiler, Joseph 38, 81, 94 welfare, politics of 131–2 welfare state constitutionalism 96 democratic 93 western liberal democracy 47 Westminster model of the Parliamentary System 33, 143–4 women’s equality 118 World Bank 90, 188 World War II 14, 45, 125, 200–201, 217, 221 xenophobia 203 xenophobic speech 201 Zachariah, Benjamin 11