ICLP Turns 13 || A belated note – Constitutional Law and Philosophy

On August 2, the Constitutional Law and Philosophy blog turned thirteen years old. I normally mark blog anniversaries with a few reflective notes about the state of constitutionalism in India. For the thirteenth anniversary, I had planned a somewhat ambitious essay. Life intervened, and the essay was not ready by August 2. I then thought that it would be finished some time in the month of August, and I could put it up alongside a belated anniversary post. However, it soon became clear that the essay was not going to get done any time soon, leaving me in the awkward position of no anniversary post and no essay. So I finally decided to bite the bullet and put up an embarrassingly late anniversary post, and an abstract in lieu of an essay:

Constitutionalism is as much about constraining judicial power as it is about constraining executive and legislative power. Constraint upon judicial power is crucial for constitutionalism, as it ensures that there exists a degree of friction between individual judges’ ideological positions and their articulation into the law of the land. This is important both when judicial ideology is opposed to the dominant governing ideology, but equally so – if not more – when it is aligned with it. To achieve this constraint upon judicial power, over the years and decades, across jurisdictions, a range of principles have evolved: of standing, maintainability, jurisdiction, timeliness, structured hearing, rules of evidence, the obligation to give public reasons, the doctrine of precedent, the finality of judgments, case allocation rules, and so on. Over the last decade, successive Chief Justices have chipped away at each of these principles (some more so than others), leading to a situation where the Supreme Court now acts in the absence of constraint – or, as I have written in a previous post, in a “realm of pure discretion.” This presents unique challenges for constitutionalism, which need to be recognised – and debated – as such.

I hope to have the essay out sometime this year, or at least well before the blog’s fourteenth anniversary – but if my vaulting ambition o’erleaps itself and falls on th’other, I can only apologise in advance. In the meantime, thank you to everyone who has read, commented, submitted and authored guest posts, and thrown verbal brickbats, sometimes swathed in a tapestry of colourful language, my way – thank you for being along for the ride.