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Changing Dynamics of Constitutionalism: South Asia's Tryst with Constitution

: The prevailing view of the constitutional framework in South Asia is seen as secondary and subsidiary to developed constitutional systems worldwide. Meanwhile, South Asian countries have merely re-produced the constitutional framework of developed nations. The emergence and development of South Asian constitutionalism present a range of perspectives and methodological approaches that contribute to comparative constitutional law scholarship in South Asia. The overt attention toward the Western notion of liberalism has often led to an incomplete and unclear approach to South Asian constitutionalism. The paper aimed to explore the elements of South Asian constitutionalism alongside underlying socio-economic and political discourse surrounding its contemporary understanding. It also analyzed the role of courts in affirming and transforming South Asian constitutionalism. Instead of reviving interest in South Asia and Third World Approach to International Law, this paper showed that it is only practical and pragmatic to study constitutionalism with specific reference to the modern discourse of democracy, judicial review, separation of power, and human rights enshrined in their respective constitutions. In terms of its emergence from the colonial history and other prevalent forms of distinct cultural, social, and political practices, South Asia presented a heterogeneous experience in the light of recognition and enforcement of socio-economic rights and transformations and deviations from its past experiences.


I. INTRODUCTION
The term constitutionalism represents the idea of limited government. 1 Today, the dominance of Western liberal philosophy underlying constitutionalism in comparative constitutional law is questionable. 2 Scholars have voiced the need to undertake country-specific studies and analyzes focusing on unique historical, cultural, social, economic, and political factors pre-existing in a country. 3 Studies focusing on the historical, social, and cultural institutional setup in South Asian countries are inadequate and divergent in their approach. 4 The complexities which Asian constitutionalism represents arise from the history based on colonialism, communism, evolution, and revolution.
After World War II, an enhanced interest and revived awakening towards the constitution-building processes had flourished worldwide. 5 Constitution-making incorporated constitutionalism tacitly, and irrespective of the unique conditions pre-existent in these nations, there was a desire to adopt the Western liberal philosophy dominating the sphere of constitutional studies. However, the working of these newly drafted constitutions proved difficult and posed novel changes unique to the specific countries. Similarly, South Asian countries faced challenges in mirroring the sentiments projected by Western liberal philosophers in 1 For a detailed discussion, see, Jeremy Waldron, Constitutionalism: A Skeptical View (Scholarship@Georgetown Law, 2010). Douglas Sturm, "Constitutionalism: A Critical Appreciation and an Extension of the Political Theory of C. H McIlwain" (1969) 54:125 Minn Law Rev 216-244. Also see, KN Llewellyn, "The Constitution as an Institution" (1934) 14:1 Columbia Law Review 108-130 at 116 &117. maintaining a constitutional threshold domestically. 6 In the past few decades, there has been tremendous change in South Asia, whether with altering constitutions, ascertaining individual rights, or enhancing the judicial role in maintaining the constitutional balance. 7 However, the South Asia projects have raised innumerable questions on constitutionalism in the region. Therefore, to counter the prevailing view that South Asian countries, in the light of underlying vulnerabilities and inequalities, have a fragile constitutional system compared to other established constitutional frameworks worldwide, this study establishes and reaffirms a contrary view.
It is beyond the scope of the paper to focus on the idea of the constitution or discuss in detail the constitutional making process historically in South Asian countries. Instead, this paper aimed to explore establishing constitutionalism through analyzing the constitutional provisions alongside underlying socio-economic and political discourse surrounding its contemporary understanding. It also analyzed judicial approaches to strengthen constitutionalism in South Asian countries that focus on India, Sri Lanka, Nepal, Pakistan, and Bangladesh. These countries have distinct cultures and have fostered the oldest civilizations. South Asia has been perceived as a center of emerging economies with common indicators of colonialism, political instability, and socio-cultural and institutional similarities.
The background presented above reflects the relevance of constitutionalism in South Asian countries by drawing requisite parallels from the Western notion of liberal constitutionalism. Therefore, this paper deals with two main parts of the discussion. The first part explores the elements of Asian constitutionalism in underlying historical, political, social, economic, and cultural discourse on its contemporary understanding. The second part analyzes the role of courts in affirming and transforming constitutionalism in South Asia. 6 Landau & Dixon, supra note 2.

II. METHODS
Taking inspiration from the ideals of scholars who believe in the notion of varieties of constitutionalism, this paper explored constitutionalism with specific reference to modern discourse in the light of issues on democracy, judicial review, separation of power, and human rights enshrined in the national constitutions of India, Sri Lanka, Nepal, Pakistan, and Bangladesh. Once identified, the next step was to translate it into practice by understanding the judicial approach and subsequent historical, political, social, cultural, and economic development. This paper adopted the qualitative analysis of the above-described problem, lacing it with an empirical analysis of the available literature and instances that support the existence of constitutionalism in South Asia. The research attempted to critique the dominance of Western liberal philosophy in the area of comparative constitutional law by focusing on the revived need to undertake country-specific constitutional analysis. The doctrinal analysis focalized on identifying the contextual problem and derived argumentative support through a collection of secondary sources for theoretical constitutional law from different schools of thought.

III. CONSTITUTIONALISM IN SOUTH ASIA
The term "constitutionalism" presupposes different meanings in different settings. 8 Roger Scruton defined constitutionalism as the government channeled through and limited by a constitution. 9 According to McIlwain, constitutionalism has one essential quality: a legal limitation on government. 10 De Smith asserted the statement as follows: "Idea of constitutionalism involves the proposition that rules shall bound the exercise of governmental power, rules prescribing the procedure according to which legislative and executive acts are to be performed and delimiting their permissible content-Constitutionalism 8 Waldron, supra note 1.

| LENTERA HUKUM
becomes a living reality to the extent that these rules curb the arbitrariness of discretion and are observed by the wielders of political power, and to the extent that within the forbidden zones upon which authority may not trespass there is significant room for the enjoyment of individual liberty." 11 Colonization, a common factor in South Asian countries, led to the drafting of the constitutions of these countries, which marked their transition to democracy. 12 The constitutions of South Asian countries are either foundational or transformative, duly reflected through their historical transitions. 13 For instance, constitution-making was undertaken as an outcome of the revolution in India and Pakistan, negotiations in the case of Sri Lanka, violent dismemberment in Bangladesh and to an extent in Nepal, royal determination in the case of Bhutan, internal political arrangement in the Maldives, and executive-driven in Afghanistan. 14 Certain factors that affected constitution-making in these countries were political, social, and economic, driven by internal and external influences. 15 The constitutional development in these countries has been far less stable and uniform in reality. 16 These conflicts, tensions, and instability make the South Asian experience unique and diversified, marred with internal and external challenges. 17 Despite these challenges and instability, these countries have undeniably garnered global attention for their tremendous growth potential. These countries have undertaken the developments in the past few decades to overcome the struggles underlying their socioeconomic development, making this study all the more critical in the contemporary sphere.

A. India
The Indian Constitution, establishing one of the largest democracies in the world. It enjoys a special place in South Asia and prominently discussed in the cross-border scholarship. The terms democracy, socialism, secularism, sovereign, republic, equality, and justice are mentioned in the Preamble of the Indian Constitution. 18 The Indian Constitution proclaims India as an independent state and its framers made sure to establish the aversions and the aspirations on which the Indian Constitution was based, 19 in addition to its adoption in the name of "We the People of India." 20 The struggle for freedom followed the years of colonial rule, which finally resulted in the Indian Independence Act of 1947. 21 The Constituent Assembly undertook the task of framing the Indian Constitution under the mandate of the Indian Independence Act of 1947. The Constituent Assembly adopted the final draft of this document in its final session on November 26, 1949. 22 The Indian Constitution adopts certain fundamental constitutional norms and principles such as the rule of law, separation of powers, and federalism. It also contains provisions relating to fundamental rights, directive principles of state policy, and the establishment of 18 constitutional courts, namely the Supreme Court and High Courts. 23 However, the Indian Constitution and institutions have often been criticized for the non-fulfillment of constitutionally ordained social and economic justice goals. 24 Several decades after independence, the concept of welfare in India is still at a primary level, with vast sections of its population not having access to basic social goods such as education, water, health, and social security. 25 In the first 50 years after independence, the state did not achieve the end goals of welfarism. Progress on these welfare goals has been slow even with neoliberalism despite enacting specific welfare laws. 26 India currently witnesses ample instances where liberalism is under threat globally. In such a scenario, India presents ample examples of instability. It has garnered international attention, whether it was the imposition of an emergency by former Prime Minister Indira Gandhi or the vehement actions of current Prime Minister Modi. Many strands of the founding vision and aspirations have taken root in the constitutional system. Meanwhile, citizens and constitutional institutions face various social, political, and economic challenges that impede fulfilling constitutionally ordained aspirations and goals. 27

B. Sri Lanka
The constitutional provisions in both the Republican Constitutions of Sri Lanka (of 1972 and 1978), which accord to Buddhism, the religion of the bulk of majority Sinhalese, have been a sensitive issue among minority groups and have certainly added to a larger sense of grievance arising from other issues. Since 1978, constitutionalism has been at the center of discourse in Sri Lanka. 28 The 1978 Constitution adopts the Westminster model and the executive presidential system. Article 3 affirms sovereignty, whereas Article 4 provides separation of power by defining limits of powers in each branch of government. 29 Sri Lanka's civil war ended in May 2009, with the comprehensive defeat by the Sri Lankan government of Tamilarmed secessionism. It led to a widespread expectation of a comprehensive post-war reconstruction and reconciliation program. However, due to political and social instability, the efforts had been frustrated. 30 The dominating religious affiliation reflected in the Ceylonese politics in the 1970s accelerated the ethnoreligious violence and discrimination against the Tamil minority. 31 It subsequently led to a civil war between the state and the extra-constitutional Tamil

D. Bangladesh
The Constituent Assembly adopted the Constitution of Bangladesh on November 4, 1972. It was established by those who liberated the country from Pakistan in a war of independence. It is a revolutionary document, but its democratic foundation is rooted in the local specificities and moored in the people's lived experiences in the pre-1971 period that raised aspirations for liberal democracy. 43 The declaration of independence triggered the constitution-making process. 44 Bangladesh, which existed as East Pakistan earlier, emerged as an independent sovereign nation on March 26, 1971, when  Even though democracy, the rule of law, and sovereignty have been underlying constitutional principles, democracy has had a chequered history in Bangladesh. The constitution-making in Bangladesh was largely participatory and inclusive. Commitments toward the fulfillment of international commitments and entrenched of the bill of rights have proved highly pivotal in shaping the constitutional dynamics of the country. After the Constitution's founding, its transformative aspirations for a democracy based on the higher values of social justice, the rule of law, and popular sovereignty have primarily remained unfulfilled.

E. Pakistan
The Indian Independence Act 1947 granted Dominion status to both India and Pakistan. 55 The founding constitution of Pakistan was enacted after a lapse of nearly eight years following the partition of British India. 56 The founding constitution established a democracy alongside assuring fundamental rights to the citizens and the power of judicial review. 57 However, the constitution was short-lived, followed by an interim constitution in 1962.

President and indirect election, which the 1973 Constitution again succeeded. 58
Constitutionalism in Pakistan has faced many challenges from various power holders who asserted their understanding by using constitutional mechanisms to serve best and protect their interests and ideologies. 59 In Pakistan, the courts initially agitated for the constitution. Subsequently, it upheld the executive above the Parliament, placing the state over and above the constitution. During this process, the doctrine of state necessity and tacit acceptance of the military's constitutional engineering often led to diarchic arrangements for sharing power by "presidentializing" the parliamentary system. 60 The founding Constitution adopted in 1956 declared Pakistan as an "Islamic Republic" in which the sovereignty belonged to Allah and was to be exercised by the people through their elected representatives. 61 The 1956 Constitution vested the Parliament with authority to test laws against Islamic injunctions with the assistance of an advisory council. The framers of the constitution rejected the proposal to vest the authority to exercise "Islamic judicial review" with the Supreme Court. 62 This model also continued under the 1962 Constitution. Even the 1973 Constitution adopted originally instituted the Council of Islamic Ideology only as an advisory body to ensure the conformity of laws to the injunctions of Islam. 63 Article 5(2) of the 1973 Constitution establishes compulsory obedience to the constitution and law as an inviolable obligation of every citizen. However, there are instances of indifference towards the sanctity of the constitution in practice. 64 Hence, constitutionalism in its own right has been subjected to occasional judicial reviews.
The power-wielding bureaucratic apparatus first ruled the country under the constitutional "cover" for a decade. However, it gradually lost the initiative to the army at the top of the state's decision-making framework. 65 The army leadership, in turn, took up an ambitious project of constitutional engineering through the 1962 Constitution, the 1985 18 th Amendment, and the 2003 17 th Amendment, essentially centralizing power and presidentializing the form of government. Correspondingly, the elected political leadership retaliated in the form of the 1973 Constitution, the 1997 13 th Amendment, the 2010 18 th Amendment, and the 21 st Amendment to restore parliamentarianism and expand the mechanism for exercise of state authority in the provinces. 66 Pakistan's experience of incorporating Islam into its constitutional setup illustrates the flexibility of Islamic constitutionalism. Islam neither prescribes nor proscribes a particular constitutional model for the political organization of the Muslim community. Islamic constitutionalism is based on the concepts of consultation (shūrā), consent (bayʿa), and public interest (maṣlaḥa), which are fluid enough to accommodate a wide variety of governmental models. 67 The dichotomy between state elite and political elite has been more so apparent in the constitutional history of Pakistan. It reflects through the institutional imbalance between the state apparatuses of the army and bureaucracy. The judiciary is a maverick partner on the one hand and Parliament and political parties on the other. 68 Hence, constitutionalism in Pakistan remains an epitome of an unresolved conflict among rival contenders for power.

A. India
The British common law system has hugely influenced India in South Asian Countries. Judicial independence has been at the core of the democratic landscape of India. B. R Ambedkar considered being India's constitutional architect remarked. 69 Indian constitutional courts have had an enormous impact on the creation of new rights and in upholding liberal constitutionalism. The judiciary in India has been labeled as an "activist" judiciary. However, scholars who criticize the activist role of the judiciary have also rightly appreciated the role of the Supreme Court in ensuring the guarantee of fundamental rights. 70 The basic structure doctrine and emphasis on the rule of law, separation of power, democracy, secularism, and federalism have immensely changed the landscape of constitutional law in the country. 71 The advent of Public Interest Litigation, writ remedies, expansive interpretation of Article 21, reservation policies, holistic reading of fundamental rights, and directive principles of state policies have immensely contributed to the affirmation of constitutionalism and have strengthened the concept of justice in the Indian constitutional framework. 72 69 "There can be no difference of opinion in the House that our judiciary must both be independent of the executive and must also be competent in itself and the question is how these two objects could be secured." B. R. Ambedkar, VIII Constituent Assembly Debates 258 (May 24, 1949 In India, the Supreme Court has presumed the role of guardian, protector, and defender of the Constitution. 73 Certain decisions of the Supreme Court have acted as a positive catalyst to bring forward, affirm and realize the aspirational goals of the people of the country. 74 In the case of NALSA v. Union of India, 75 the Supreme Court recognized the issues faced by the transgender community, upheld their right to self-determination, and guaranteed and affirmed their rights under Articles 14, 19, and 21 of the Indian Constitution. In another case on the decriminalization of S. 377 of the Indian Penal Code, the Supreme Court of India decriminalized voluntary sexual intercourse among the same-sex couple.
In the Indian Young Lawyers Association v. the State of Kerala, the Supreme Court heard the issue of prohibition imposed on women of menstruating age from entering the temple premises. It struck down the prohibition on entry in Sabarimala Temple in Kerala as being violative of the fundamental rights of women. 76 In the judgment, Justice D.Y. Chandrachud highlighted the vision of the Indian Constitution as being transformative while setting up institutions of governance and granting the promise and fulfillment of full citizenship to those who are deprived and marginalized. 77 In Justice K S Puttaswamy v. Union of India, the Court affirmed the right to privacy as a fundamental right, explaining the tenets of the principle of proportionality and its applicability in India. 78 In Harsh Mander v. Union of India, the Delhi High Court declared several provisions of the Anti-Beggary Act unconstitutional. 79 Thus, the Supreme Court has played a pivotal role in establishing and expanding jurisprudence related to human dignity, gender justice, environmental justice, affirmative action, and education, among other fundamental rights and freedoms guaranteed in the Indian Constitution. 80

B. Pakistan
Pakistan is mostly represented by its apparent tensions between civilian and military rule, which has shaped the history of the country. Because of undergoing constitutional instability for a long, it has been defined by extra-constitutional pressures on its formal constitutional system. Pakistan's past constitutional history outlines the nature of the judicialization of politics that the country has witnessed. 81 Regime legitimization through judicial endorsement in the wake of direct martial rule has been often cited as an example of judicialization of politics in Pakistan. 82 Unstable constitutionalism and an undesirable judicialization of politics have been its unavoidable outcomes. 83 The judiciary in Pakistan has undergone huge turmoil and has seen different phases of judicial acquiescence, judicial activism, and judicial restraint. The significance of judicial independence is embedded in the Siddique, supra note 81. However, the term "Chaudhry Court" is befitting for two reasons: (1) the most important judgments from this era always involved benches led by Justice Chaudhry and share several common characteristics in terms of ideologies, methods, arguments, and outcomes; and (2) despite the controversial and complex issues involving mega-politics adjudicated by the Court during this period, its judgments are unusual for a near absence of any dissenting notes. On major matters, the Chaudhry Court essentially operated as a monolith.
Constitution of Pakistan, with the Preamble proclaiming, "...the independence of the judiciary shall be fully secured." 84 In Muhammad Aslam Awan v. Federation of Pakistan, the Court stated as follows: "Judicial independence both of the individual Judge and the Judiciary as an institution is essential so that those who bring their causes/cases before the Judges and the public, in general, have confidence that their cases would be decided justly and by law... The fundamental rights guaranteed under the Constitution cannot be secured unless Judiciary is independent because the enforcement of these rights has been left to Judiciary in terms of Articles 184 (3)

C. Nepal
Nation-building in Nepal has been considered difficult because of political aspirations, its constitutional history post-monarchic state, and complications relating to constitutionalism. 94 The Preamble of the Constitution of Nepal lays down a commitment to having an independent, impartial, and competent judiciary and the rule of law. 95 Supreme Court of Nepal in Bharatmani Jungam & others v. Office of the President & others took up the task of ordaining the formation and adoption of the new Constitution. 96 The judiciary in Nepal has played an essential role in affirming economic, social, and cultural rights by acknowledging the justiciability of the right to food security and food sovereignty, education, employment, health, reproductive health, and right to a healthy environment. 97 Code. 99 In November 2020, the five judges of the constitutional bench refused to issue an interim order challenging the Nepal Communist Party Vice Chair Bamdev Gautam's appointment to the National Assembly. However, one of the judges, Justice Ishwar Prasad Khatiwada, gave a dissenting opinion and contested the appointment of Bamdev Gautam to the National Assembly. 100 The politicization of the court in Nepal and the transition subsequent has not been peaceful.
There have been illustrations on the excessive interference of the executive and legislature over the judiciary body, leading to the state of a constitutional crisis. When Justice Karki prosecuted three former Chiefs of Nepal Police on a corruption charge, she was charged on the grounds of biasness, and an impeachment motion was brought against her. Similar kinds of instances have been noted to weaken the judicial system and further the interest of the elites. 101 Thus, Nepal has a long way ahead to achieve the goals of judicial independence and judicial impartiality. Only the value of judicial power can be fully realized without the fear of facing huge opposition from the legislature and executive bodies.

D. Bangladesh
Bangladesh is perceived as an unstable democracy. For almost the majority of its existence, it has been under military-autocratic and nearly autocratic regimes. 102 The Constitution of Bangladesh affirms a democratic form of governance and establishes constitutional supremacy, judicial review, judicial independence, and enumerates certain rights. 103 In Bangladesh, judicialization of politics has recently embraced the phase of unprincipled and unpragmatic judicial intrusion into "mega-politics." 104 There are various illustrations of judicial involvement in political issues. 105 However, in one of the dissenting opinions about the validity of the Thirteenth Amendment, Justice Ali held it to be valid and not violative of the basic structure of the Constitution of Bangladesh on the grounds of the republican and democratic structures of the state. 106 Judicial opinions, especially the dissenting ones depending upon the country's political climate, are generally not a norm. There has been high intolerance for those who dissent, including the judiciary, civil society, and bureaucracy. 107 Thus, there is a need for structured augmentation and institutional freedom to a judicial role in Bangladesh in light of such constitutional instability.

E. Sri Lanka
The Government of Sri Lanka has transformed the civic space, leading to the curtailment of freedom of speech and expression. 108 Even the judiciary has been targeted in government-sanctioned abuses. International human rights watchdogs like Amnesty International have also expressed their concern about the status of the rule of law and the "political victimization" undertaken by the government under the leadership of Gotabaya Rajapaksa. 109 There has also been huge political interference against those charged with prosecuting serious human rights violations. The courts in Sri Lanka have been struggling to maintain their independence. 110 Various factors emerged with judicial independence in Sri Lanka. Firstly, the appointment process is highly political and manipulated. In 1988, a seven-year junior judge was preferred as a Chief Justice because the President was not in favor of the senior-most judge due to his opinions. 111 Secondly, such influenced and manipulated appointments of Chief Justice leads to curtailment and control of the exercise of judicial power by other judges. 112 As remarked during the tenure of Chief Justice Silva, there were far fewer dissenting opinions. 113 Also, the impeachment of Chief Justice Shirani Bandaranayake accorded support to eroding democratic institutions in Sri Lanka. 114 Failing judicial standards in Sri Lanka results from institutional breakdown and failure of political will. Until the political influences are minimized, the judiciary's role in the sphere of constitutional structure will remain disputed.

V. CONCLUSION
The establishment of constitutionalism dependent on varying factors raises a pertinent question of whether having a constitution satisfies constitutionalism. South Asia countries have had a troubled history regarding colonialism, communism, and religious-based distinctions. However, by adopting the Western concept of liberalism, these countries undertook the task of constitution-making to establish stability. For instance, since its inception, India has proclaimed itself a democratic, secular, and federal state, but democracy and secularism can be brought to question. The constitution-making process in countries like Bangladesh, Pakistan, Nepal, and Sri Lanka was undertaken in a state of turmoil. Constitutional instability has always been problematic, especially in these selected countries, with political power struggles dominating the field of constitutional interpretation. India has grappled with its share of issues surrounding constitutional interpretation yet presents stability in the sense of having a constitution that has continued to date being perceived as the fundamental law of the land. The integration of South Asia is vital for regional stability, and despite their distinct history and political experiences, they have shared constitutional experiences.