Over the last few months, Law and Other Things has had the opportunity to host an international blog symposium on India and Global Decline in Democracies as a part of our New Scholarship initiative.

We discussed Professor Tarunabh Khaitan’s article “Killing a Constitution with a Thousand Cuts: Executive Aggrandizement and Party-State Fusion in India” which focuses on decline of the Indian democracy with international scholars to facilitate a discussion on comparative constitutional law. In this roundtable, we focused on the global trends of weakening of the democratic apparatus in constitutional democracies along with prominent constitutional law scholars from Australia, Hungary, Israel, South Africa, Sri Lanka, and United States of America.

The discussion features the following posts:

1. Introductory Piece by Tarunabh Khaitan (Oxford University)
2. Giving Form to a Shapeless Threat: Tarun Khaitan’s Work on Democratic Decay in India by Tom Daly (University of Melbourne): Prof. Daly explains how Prof. Khaitan’s work significantly puts together seemingly isolated events and provides a framework for evaluating democratic downfalls of countries across the globe.
3. Can the Judiciary Guard Democratic Transitions of Power? An Indian-Israeli Perspective by Rivka Weill (IDC Herzliya): Prof. Weill analyses how the Indian judiciary failed to curb the systematic misuse of parliamentary mechanisms by the government. She brings in an Israeli perspective to show how a similar problem is also present in Israel.
4. Subversion by Law by Samuel Issacharoff (New York University): Prof. Issacharoff identifies three striking aspects of Prof. Khaitan’s paper, while giving examples of similar events taking place in other countries (including the USA). He also expands on how attack on accountability mechanisms significantly contributes in erosion of democracy.
5. Chameleon Constitutions and Sri Lanka’s 20th Amendment by Dinesha Samararatne (University of Colombo): Prof. Samararatne bases her analysis of the Sri Lankan government on Prof. Khaitan’s framework, and compares and contrasts the position in Sri Lanka with the Indian government. She also observes how the process of democracy evasion in Sri Lanka has been more explicit than the one in India.
6. Putting Politics Ahead of Institutional Critique by Mark Tushnet (Harvard University): Prof. Tushnet uses the framework proposed by Prof. Khaitan to raise some questions about how scholars are analyzing constitutional retrogression or deconsolidation, and to suggest a different approach.
7. Fellow Travelers in Illiberalism: India and Hungary by Gábor Halmai (European University Institute): Prof. Halmai uses the framework proposed by Prof. Khaitan to argue that accountability mechanism which must be present in any democracy have already broken down in Hungary.
8. The Case for Systemic Constitutional Analysis by Kim Lane Scheppele (Princeton University): Prof. Scheppele provides examples of democratic decline from all around the world, and observes that the need of the hour is to conduct a holistic diagnosis on constitutional breakdowns to aptly understand the problem and its possible solutions.
9. We Have Met The Enemy And He Is Us by Mark A. Graber (University of Maryland): Prof. Graber draws upon Prof. Khaitan’s framework to observe the similarities and differences between democratic decline in India & the USA. He also pens his thoughts on right-wing populism’s interaction with democracies around the world.
   
10. Concluding Response to the Discussion Pieces by Tarunabh Khaitan

This symposium has been co-edited by our Editors Bhavisha Sharma and Dayaar Singla. You can follow Law and Other Things on our social media handles. (Facebook, Twitter, LinkedIn and Instagram). Find more information about the theme of the symposium and our discussants below!

Professor Tarunabh Khaitan is a Professor of Public Law & Legal Theory and the Vice Dean at the Faculty of Law, Oxford. He is also a Future Fellow at Melbourne Law School. In his paper, Professor Khaitan discusses how Indian democracy has been imperilled under the premiership of Narendra Modi, which began in 2014. To examine this claim, the Article sets up an analytical framework for accountability mechanisms that liberal democratic constitutions put in place to provide a check on the political executive. The Article finds that the first Modi government in power between 2014 and 2019 undermined strands of executive accountability in an incremental manner. Hence, the Article characterizes the phenomenon as “killing a constitution by a thousand cuts.”

This paper is extremely relevant in the contemporary political scenario in India as well as globally. Thus, LAOT is hosting a discussion on Prof. Khaitan’s paper with international scholars from different jurisdictions in order to further Indian scholarship via global insights. These scholars shall be examining the question of whether/how India fits in with the trends in global decline in democracy.  The discussants who are participating in this discussion are Dinesha Samararatne, Gabor Halmai, Kim Scheppele, Mark Graber, Mark Tushnet, Rivka Weill, Samuel Issacharoff and Tom Daly.

Dr. Dinesha Samararatne is a Postdoctoral Fellow in the ARC Laureate Program in Comparative Constitutional Law. Her recent research work has been in relation to public participation in constitution-making, judicial enforcement of economic and social rights, judicial interpretation of fundamental rights, the influence of Indian public law in the development of public law in Sri Lanka and access to justice.

Professor Gabor Halmai was appointed in September 2016 as Professor and Chair of Comparative Constitutional Law, and in January 2018 as Director of Graduate Studies at the Law Department, European University Institute. His primary research interests are comparative constitutional law and international human rights.  

Professor Kim Lane Scheppele is the Laurance S. Rockefeller Professor of Sociology and International Affairs in the Princeton School of Public and International Affairs and the University Centre for Human Values at Princeton University. Professor Scheppele’s work focuses on the intersection of constitutional and international law, particularly in constitutional systems under stress.

Professor Mark Graber is a Visiting Professor of Law at Yale Law School and a Regents Professor at the University System of Maryland. He is recognized as one of the leading scholars on constitutional law and politics.

Professor Mark Tushnet is a William Nelson Cromwell Professor of Law, Emeritus at Harvard Law School. He specializes in constitutional law and theory, including comparative constitutional law. His research includes studies of constitutional review in the United States and around the world, and the creation of other “institutions for protecting constitutional democracy.”

Professor Rivka Weill is a Professor of Law at the Radzyner Law School, Interdisciplinary Center (IDC), Israel. Her work focuses on constitutional law as well as administrative law with a focus on theoretical and comparative dimensions.

Professor Tom Daly is the Deputy Director of the University Of Melbourne School Of Government, Director of the global online research platform Democratic Decay & Renewal, Co-Convenor of the Constitution Transformation Network (Melbourne), and Associate Director of the Edinburgh Centre for Constitutional Law. His research focuses on democratic governance, with a strong cross-disciplinary approach drawing mainly on public law and political science scholarship, and analysing connections between law and policy at the domestic, transnational, and international levels.

Professor Samuel Issacharoff is the Bonnie and Richard Reiss Professor of Constitutional Law at NYU Law. He served as the reporter for the Principles of the Law of Aggregate Litigation of the American Law Institute. His wide-ranging research deals with issues in civil procedure (especially complex litigation and class actions), law and economics, constitutional law, particularly with regard to voting rights and electoral systems, and employment law. 

We look forward to many of you joining us in this initiative, participating in this discussion and engaging with these scholars through our comments section.