Constitutional Identity and Comparative Constitutionalism: Lessons from India and Beyond

In this lecture, Professor Gary Jacobsohn explored the relationship between constitutional identity and constitutional revolution, using India as a central case study within comparative constitutionalism. He outlined five core propositions: constitutional identity evolves over time through internal tensions; it reflects both historical inheritances and aspirational commitments; constitutional revolutions occur when the experience of constitutionalism undergoes a major transformation; such change may unfold incrementally rather than through dramatic rupture; and, once established, constitutional identity can itself become a source of resistance to radical change. Applying this framework to India, Professor Jacobsohn examined the development of the Basic Structure Doctrine, which emerged as a judicial mechanism to preserve the Constitution’s essential identity in the absence of an explicit eternity clause. Initially conceived as a safeguard against constitutional destruction, the doctrine gradually assumed a transformative dimension, enabling courts to advance the Constitution’s social and economic aspirations. Through decisions such as S.R. Bommai v. Union of India and rulings upholding the 93rd Constitutional Amendment, the Supreme Court linked constitutional identity to egalitarian commitments reflected in the Directive Principles and affirmative action policies. The lecture then turned to a contrasting narrative. While constitutional identity can reinforce liberal democratic ideals, it can also be mobilised for counterrevolutionary purposes in contexts marked by populism and majoritarian politics. Professor Jacobsohn argued that contemporary constitutional discourse in India increasingly reflects tensions between a pluralist, secular vision and a competing ethnocultural conception associated with Hindu nationalism. Judicial developments from the 1995 Hindutva judgments to the Court’s approach to the Citizenship Amendment Act and the Ayodhya dispute illustrate how courts may inadvertently facilitate shifts in constitutional identity. Concluding with a comparative reflection, Professor Jacobsohn drew parallels with developments in Hungary and the United States and cautioned against excessive reliance on courts to safeguard democracy. Echoing Judge Learned Hand, he emphasised that the preservation of constitutional democracy ultimately depends on the civic commitment of society to moderation and constitutional morality.