Constitutional Jurisprudence Quietly Adrift: Towards a ‘Swadeshi’ Jurisprudence?

The Chief Justice of India recently remarked at Oxford that the Supreme Court is developing a “Swadeshi JurisprudenceSwadeshi JurisprudenceA framework advocating for legal interpretation rooted in India’s indigenous cultural and social traditions rather than foreign concepts.” instead of relying solely on “imported concepts.” Coincidentally, at almost the same moment, influential judicial voices have begun arguing that the 118-year-old Code of Civil ProcedureCode of Civil Procedure (CPC)A comprehensive 1908 law that governs the procedures and practices of civil courts in India. should be discarded and replaced with an entirely new procedural framework.

Viewed separately, both propositions appear harmless. Together, they should alarm every constitutional lawyer in the country, because they reveal a common intellectual project : the gradual replacement of constitutional liberalism with an undefined but emotionally resonant appeal to indigenous identity.

India has the credit of some very original jurisprudence, so the danger is not that India will produce “original” jurisprudence : it is that the Constitution itself may slowly cease to be the source from which jurisprudence derives its legitimacy. That would represent nothing less than a constitutional revolution carried out without amending a single word of the Constitution.

The revolution would occur through interpretation.

For long I have advocated a special body to focus on emerging legislation, and the trend of legislative drafting over the last two decades has proved my fears to be well founded.

That would represent nothing less than a constitutional revolution carried out without amending a single word of the Constitution.

A Deliberate Borrowing

The first and most fundamental misconception underlying the phrase “Swadeshi jurisprudence” is the assumption that the Indian Constitution somehow stands apart from comparative constitutional traditions.

Nothing could be further from the truth. The Constitution is itself an act of deliberate legal borrowing. Its framers consciously rejected the idea that legitimacy flows from antiquity or indigenous tradition. They searched the world for institutions that had survived tyranny, majoritarianism, war and constitutional collapse. In post-independence India, if majoritarianism has proved itself a critical danger, majoritarianism internalised judicially is bound to prove a greater.

Fundamental Rights owe obvious debts to the American Bill of Rights. Parliamentary government comes from Westminster. Federalism reflects multiple constitutional experiments. Judicial review evolved through American and Commonwealth experience. Directive Principles borrow heavily from Ireland. Due process jurisprudence emerged through comparative engagement with democratic systems across the globe.

The Constitution is therefore not merely influenced by “imported concepts.” It is the greatest act of selective constitutional importation in Indian history. To disparage imported ideas is, in a profound sense, to misunderstand the very document judges are sworn to uphold. This distinction deserves closer attention in judicial discourse.

The Constitution did not emerge from Manusmriti. It did not emerge from Dharmashastra. It did not emerge from any theological text. It emerged from the Constituent Assembly after perhaps the greatest comparative constitutional exercise ever undertaken by a newly independent nation.

Of course, there is nothing objectionable about developing distinctly Indian constitutional doctrine. The Supreme Court itself has gifted the world several uniquely Indian innovations. The Basic Structure DoctrineBasic Structure DoctrineA judicial principle established in 1973 dictating that fundamental features of the Constitution cannot be altered by Parliament.. Public Interest Litigation. The expansive interpretation of Article 21. Environmental constitutionalism. Transformative constitutionalism. All of these are indigenous creations.

However, notice what unites these indigenous creations. Every one of them emerged from interpretation of the text, structure and moral philosophy of the Constitution itself. They are constitutional innovations. Not civilisational substitutions. The distinction is critical.

A constitutional court may certainly ask : “What does Article 14 require?” It may ask : “How should liberty under Article 21 evolve?” It may ask : “What does secularism mean in the Indian context?”

It cannot legitimately ask : “What would ancient civilisational wisdom have preferred?” It cannot, because that is no longer constitutional adjudication. That is judicial theology.

A Secular Foundation

The Constitution deliberately severed political authority from religious legitimacy. The Preamble declares India to be a secular republic. In S.R. Bommai v. Union of IndiaS.R. Bommai v. Union of India (1994)A historic Supreme Court ruling that severely curtailed the arbitrary dismissal of state governments and cemented secularism as part of the basic structure., secularism was recognised as part of the Constitution’s basic structure. This was no drafting accident.

The Constitution was framed immediately after Partition, perhaps the bloodiest communal catastrophe in the subcontinent’s history. The framers had every opportunity to establish a Hindu state. They consciously refused.

The Indian Republic was built upon a revolutionary proposition : that citizenship would supersede faith. That rights would flow from personhood, not religious identity. That the State would derive authority from constitutional text, not some other text considered sacred or theological. Consequently, constitutional questions can only receive constitutional answers.

The Indian Republic was built upon a revolutionary proposition : that citizenship would supersede faith. That rights would flow from personhood, not religious identity.

If equality is at issue, Articles 14, 15 and 16 govern. If religious freedom is involved, Articles 25 to 28 control. If liberty is threatened, Article 21 provides the framework. No appeal to cultural authenticity can displace those commands. In contradiction of the founding principles and values, what do we see emerging legislation move towards, and worse, what do we see as Constitutional Courts’ response to challenges to the Constitutionality of what one might consider legislative misadventures?

A judge who substitutes civilisational morality for constitutional morality does not discover the Constitution. He tries to rewrite it. He has no such right.

History teaches that constitutional democracies rarely collapse through formal repeal. They decay through interpretive drift. The text remains unchanged. Only the reasoning changes. The vocabulary becomes subtly different. Courts begin invoking heritage. Then tradition. Then indigenous values. Then civilisational identity.

Eventually, constitutional rights become contingent upon conformity with the dominant cultural narrative. The formal Constitution survives. The real Constitution disappears.

The most successful constitutional revolutions are those that occur without constitutional amendment. They occur through precedent. A precedent is simply tomorrow’s Constitution wearing yesterday’s clothes.

The right to equality means little if procedural discretion permits selective enforcement.

The Procedural Threat

This is precisely why the contemporary demand for replacing the Code of Civil Procedure cannot be viewed as a purely administrative proposal. Its advocates speak the language of efficiency. Colour-coded files. Faster decrees. Summary procedures. Managerial judging. Execution-oriented litigation. All admirable as objectives. However, procedure is never politically neutral.

The history of constitutional law demonstrates that procedure is often the first casualty of authoritarianism. Substantive rights are difficult to abolish openly. Procedural barriers achieve the same result, quietly. The right to approach a court means little if filing becomes impossible. The right to obtain relief means little if injunctions become illusory. What does it mean when bail thresholds are kept carefully out of reach in security legislation? What does it say about the system when a relief-oriented judge can be disabled by crafting legislation to remove his jurisdiction? These are questions that any reform of procedural law must answer before it commands confidence.

The right to equality means little if procedural discretion permits selective enforcement. As the Supreme Court observed in Navtej Singh JoharNavtej Singh Johar (2018)The Supreme Court judgment that decriminalized consensual same-sex relations and emphasized procedure as a vehicle for equality., procedure is not merely the servant of substantive law : it is the vehicle through which equality itself travels. The Civil Procedure Code is therefore not simply a technical manual. It is one of the principal vehicles of constitutional guarantees against arbitrary state and private power, the vehicle that operationalises substantive rights. Punctured, the vehicle itself can be successfully stalled. The rights remain, on paper. The citizen remains, in jail.

The timing of these twin intellectual movements, the Oxford lecture and the demand for a new CPC, should not escape notice. To those who can read between lines, they announce something. First, constitutional adjudication begins speaking of “Swadeshi jurisprudence.” Then comes the suggestion that colonial procedural safeguards require wholesale replacement. One concerns constitutional philosophy. The other concerns institutional machinery. Together they provide both the justification and the mechanism for a profound restructuring of the legal order. The first asks citizens to trust that constitutional interpretation should become more “indigenous.” The second asks them to trust that procedural protections should become more “efficient.”

However, trust cannot exist in a vacuum. Recent legislative history offers ample reason for caution. Notice citizenship based explicitly upon religion. Preventive detention regimes where bail has become exceptional. Restrictions upon associational freedom. Expanding executive authority over speech. Repeated judicial engagement with statutes criticised for vagueness and disproportionate restrictions on fundamental freedoms. Against that background, asking constitutional minorities to welcome an entirely new procedural code requires an extraordinary degree of institutional confidence. Confidence, however, is earned. It is not commanded.

The Authentic Innovation

There is also a deeper irony. Those who invoke “Swadeshi jurisprudence” frequently describe constitutional liberalism as a foreign transplant. Umpteen persons holding high Constitutional office have called the Constitution (yes the same one on which they swore their oaths of office) firangi ! Yet constitutionalism itself is India’s greatest indigenous achievement. No civilisation in recorded history voluntarily emerged from Partition and consciously established a state that belonged equally to believers and non believers, majorities and minorities, victors and victims.

That was India’s original constitutional contribution to humanity. Not majoritarianism. Not religious nationalism. Not judicial civilisationalism. The truly Swadeshi idea was that the Republic would belong to everyone. The Constituent Assembly rejected the ancient proposition that political legitimacy derives from religious civilisation. It embraced the modern proposition that legitimacy derives from constitutional consent. That was the authentic Indian innovation.

The Supreme Court’s authority does not arise because it speaks for an ancient civilisation. It arises because it speaks for the Constitution. A civilisation can inspire. History can illuminate. Culture can enrich. Religion can guide private conscience. But none of them can become the source of constitutional authority.

The oath administered to every judge is not to protect a civilisation. It is not to preserve a tradition. It is not to defend a culture. It is to preserve, protect and defend the Constitution of India. That oath contains no adjective. It does not require the Constitution to be Western or Eastern. It does not require it to be Swadeshi. It requires only that it remain true to its moorings.

The moment a constitutional court begins searching sacred texts for constitutional answers, or invites the nation to believe that rights must ultimately bend before civilisational identity, it ceases to be the guardian of the Republic envisioned in 1950. It becomes the architect of a different nation altogether.

The moment a constitutional court begins searching sacred texts for constitutional answers, or invites the nation to believe that rights must ultimately bend before civilisational identity, it ceases to be the guardian of the Republic envisioned in 1950.

Constitutions are rarely destroyed by those who openly reject them. More likely, they are slowly, insidiously displaced by those who insist they are merely giving them a more authentic national soul. Many small nations from Junagadh to Awadh, from Kashmir to Hyderabad, came together as one; many identities from Sikhs to Muslims, Christians to Parsis, atheists to cultists, many denominations from tribals to Dalits, from all over the subcontinent, came together as one; and many linguistic groups from Malayalam, Kannada, Tamil, Telugu, Urdu to Hindi, all came together as one; all gave up their individual claims and merged together on one solemn guarantee : that they would all be equal, answering to a Constitution that sees them as equals, governed by a Parliament permanently committed to that Constitution, moored to the best the world has to offer from the American Bill of Rights, DPSPs from Ireland, the Westminster form of government, featuring federalism, judicial review… a Constitution representing their combined vision for a future as agreed upon.

That is the social contract “we the people” gave ourselves. That contract stood on three pillars : a Parliament, an Executive and a Judiciary. Considering that legitimacy derives exclusively from constitutional consent, actions of any of those three pillars, if seeking to redirect the nation away from that solemn commitment, or steer it to answer to a different monochromic vision, would constitute a betrayal of the constitutional compact with the people.

While certain extempore observations and reports thereof may, at times, lend themselves to interpretations that cause understandable disquiet among sections of the citizenry, we remain confident that such concerns will ultimately prove unfounded. We the people remain confident that the Judiciary will dispel such concerns through the only language that ultimately matters in a constitutional democracy : the language of its judgments. Fully conscious of the solemn trust reposed in it by the Constitution, the Court must and will continue to affirm in unmistakable terms that its allegiance is to constitutional principle alone. As the foremost guardian of constitutional governance, it bears not merely the responsibility of upholding the Constitution’s values and guarantees, but also of ensuring that every institution of the State remains faithful to them, providing the clear and unequivocal reassurance that this most vital pillar of the State remains steadfast in its constitutional mission. In that fidelity lies the Court’s legitimacy, the citizen’s confidence, and the enduring strength of the Republic itself.

Jai Hind