On January 17, the German constitutional court rejected a proposed ban on a far-right party accused of neo-Nazi links, because its members were deemed too ineffective to pose a real threat to democracy. The Independent reported that the court rejected an attempt by the Bundesrat, comprising Germany’s 16 states, to outlaw the National Democratic Party, which has been described by intelligence services as racist and anti-Semitic. But the far right is growing steadily in Germany.
The day after, the New York Times had a chilling story of the extreme within the far right party, the Alternative for Germany or AfD – of an even more radical figure, Björn Höcke. Höcke talked of the “vanquished German psyche” and criticised the national culture of atonement for the Holocaust. The AfD has grown in prominence over the last two years due to their venomous opposition to Chancellor Angela Merkel’s refugee policy. More distressing, given that national elections are only months away, is the New York Times reporting that polls indicate the party has a 15% approval rating. Germany has famously eschewed charisma-driven politics and opted for the more low-key, thoughtful, clever and efficient manner of Merkel and a consensus-oriented coalition form of parliamentary government. But, Germany’s list system, (not a first-past-the-post option), also means that a party that wins 15% of the vote will be represented in Parliament.
In 1997, Fareed Zakaria, writing in Foreign Affairs, said, “From Peru to the Palestinian Authority, from Sierra Leone to Slovakia, from Pakistan to the Philippines, we see the rise of a disturbing phenomenon in international life – illiberal democracy.” He was responding to concerns that free and fair elections might result in racists and fascists being elected to office. Over the last year, I have watched as India, Germany and the United States, three well-established democracies, have steadily either started falling to or slowly settled into a comfortable illiberalism.
In 2014, the Bharatiya Janata Party, led by its charismatic leader Narendra Modi, came to power in India. The party advocated a resurgence of Hindu nationalism, including contested constitutional claims over consumption of beef, dominance of the Hindi language, and curtailment of free speech. Dissent from a nationalist agenda was often met with abusive trolls, parroting the age-old Partition-era abuse of “go to Pakistan”. But, this robust Hindu nationalism, the kind rejected by the drafters of India’s Constitution, came with a modernising package of an embrace of big business and the world outside.
In November, as I watched the US election results pour in on television, Donald Trump swept the electoral college, if not the popular vote, on a strident platform of muscular Americanness and a demonisation of immigrants and minorities, with sexism thrown in for good measure. Swathed in a hue of being a big successful businessman, Trump promised more trade protections and to keep much needed manufacturing jobs in America.
The United States, Germany and India are great constitutional democracies, whose apex courts enjoy uniformly high approval from their respective peoples. West Germany’s Grundgesetz or Basic Law was adopted in May 1949 and India’s Constitution followed soon after in January 1950. German constitutional values provided for equality, life and dignity, and in contemporary times, the country also made a definitive choice to establish a national culture of the memory of the brutal Holocaust. India’s Constitution was adopted eschewing any politics or constitutionalism of the memory of Partition, but also committing to quintessential liberal values of equality, life and, with time, a more radical agenda of redistribution of socio-economic resources.
While these two countries picked different but also similar paths, America’s founding in 1789 was substantially less liberal, reflecting the times. The American Constitution, made primarily for white landed men, soon transformed with hard-fought-for amendments to also reflect the rights of women and African Americans – essentially all citizens.
Yet, today, all three countries are united by a failure, of varying degrees, in national politics to successfully reflect a discourse of liberal constitutionalism of equal respect, tolerance and dignity that their constitutions committed to and their highest courts enforced. Part of the reason for this failure is the loss of a tradition of the charismatic lawyer-politician, like a Jawaharlal Nehru or Sardar Patel, who while adroit at the use of legal methodology to craft a unifying constitutional dispensation, were also adept politicians who could communicate and shape populist political discourse. Bruce Ackerman, Sterling Professor of Law and Political Science at Yale University, credited charismatic constitutionalists like Nehru with successful constitution-making in India.
With the end of Barack Obama’s term, America loses its rather popular community organising-law professor president, who was firmly committed to a progressive liberal agenda. But, the lack of a certain kind of constitutionalist-politician doesn’t entirely explain the steady degradation of constitutional liberalism as a national political ideology.
Some part of the blame must also be borne by lawyers and legal academics. We write and work exclusively in forums that are not accessed by the majorities of our peoples, in subscription-only legal journals or appellate courtrooms far away from people. Most legal scholars do not write in the popular press, especially in local language newspapers/media in India, which have a far greater reach than the English press. The language of Indian appellate courts is English and their judgements are rarely translated. Many lawyers and scholars never reach out to their people in any meaningfully accessible way – to discuss constitutionalism and the founding of our countries. This has enabled the terrain of the mainstream political discourse to be influenced largely by charismatic nationalists and other politicians who have little interest in constitutional values.
This article will be published in time for India’s 68th Republic Day, observed rather surprisingly with a large military parade on January 26 every year. As India celebrates its Republic Day, one wonders at the irony of the constitutional republic that is India, imagined and founded by lawyers like Nehru, Patel, BR Ambedkar, C Rajagopalachari, Rajendra Prasad and BN Rau amongst others, rendering our constitutionalism increasingly irrelevant. For Germany and the United States, time will tell how their own liberal constitutionalists respond to the challenges of the politics of demonisation, misogyny and charismatic non-constitutionalists.
Menaka Guruswamy practices law in the Supreme Court of India, and is a fellow at the Wissenschaftskolleg zu Berlin for 2016-’17.