LIJDLR

Constitutionalism

CONSTITUTIONALISM AND THE PROGRESSION FROM FORMAL TO SUBSTANTIVE EQUALITY IN INDIA

Volume II Issue III /

CONSTITUTIONALISM AND THE PROGRESSION FROM FORMAL TO SUBSTANTIVE EQUALITY IN INDIA Vansh Saha, Chanakya Law College, Kumaon University, Nainital Download Manuscript doi.org/10.70183/lijdlr.2024.v02.26 The evolution of Indian constitutional law has undergone a remarkable transformation, moving from a rigid notion of formal equality, which mandates uniform treatment for all individuals under the law, to a more dynamic and nuanced understanding of substantive equality. Substantive equality recognizes that treating individuals equally does not always yield equitable outcomes, especially for those historically disadvantaged by systemic discrimination, such as Scheduled Castes (SCs), Scheduled Tribes (STs), and Other Backward Classes (OBCs). This shift is most evident in the judiciary’s approach to affirmative action policies and the constitutional provisions for reservations, aimed at addressing socio-economic inequalities and fostering inclusive growth. This paper delves into the Indian judiciary’s growing commitment to substantive equality, tracing its journey through landmark judgments. Beginning with Indra Sawhney v. Union of India, the paper examines the legal basis for reservations and the recognition of socio-economic backwardness as a criterion for affirmative action. The discussion extends to M. Nagaraj v. Union of India, where the Supreme Court upheld reservations in promotions but emphasized the need for quantifiable data to justify such measures, ensuring that affirmative action remained grounded in demonstrable need. The paper also explores State of Punjab v. Davinder Singh which raised questions about sub-categorization within marginalized communities. These cases highlight the tension between ensuring equitable distribution of benefits within SCs and STs and the risk of fragmenting collective identities. Through these judicial interpretations, the research traces how Indian constitutionalism has increasingly recognized the need for a more substantive approach to equality, one that actively seeks to remedy historical injustices while balancing the need for social cohesion. Type Information Research Paper LawFoyer International Journal of Doctrinal Legal Research, Volume II, Issue III, Page 437-455. Creative Commons Copyright This work is licensed under a Creative Commons Attribution-NonCommercial 4.0 International License. Copyright © LIJDLR 2024

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CONSTITUTIONALISM TOWARD SAFEGUARDING AGAINST ‘ILLIBERAL DEMOCRACY’ IN UGANDA: A CONSTITUTIONAL PERSPECTIVE

Volume 1 Issue IV /

CONSTITUTIONALISM TOWARD SAFEGUARDING AGAINST ‘ILLIBERAL DEMOCRACY’ IN UGANDA: A CONSTITUTIONAL PERSPECTIVE Hanifa Tyakagire, PhD in Law Candidate, Ahmad Ibrahim Kulliyah of Laws, International Islamic University Malaysia. Shamrahayu A. Aziz, Assoc. Professor Ahmad Ibrahim Kulliyah of Laws, International Islamic University Malaysia. Download Manuscript ABSTRACT This study aims to discuss constitutionalism as a tool for protecting Uganda from ‘illiberal democracy’. The study examines constitutionalism and its principles on the fate of democracy in Uganda. It offers a valuable constitutional perspective on illiberal democracy while giving insightful viewpoints on how constitutionalism can protect and strengthen democratic systems. Through an evaluation of the strengths and weaknesses of Uganda’s constitution, this paper seeks to contribute information regarding whether constitutionalism can be a viable approach to limiting government authority in instances where states engage in illiberal democratic practices. The study employs a qualitative research design to explore constitutionalism in Uganda and especially its prevention of ‘illiberal democracy.’ This approach involves the content analysis of judicial opinions as the legal doctrinal research is combined with the applied law methods. This will give a clear and thorough understanding of primary sources, for example, the 1995 Uganda constitution and secondary sources, including research literature and documentary reviews. The findings reveal that illiberal democracy is not committed to the idea of ‘‘checks and balance’’ and, in particular, it maintains four fundamental principles: 1) the limits of governmental power; 2) adherence to the law; 3) protection of individual rights; and 4) preservation of democratic principles and approaches to interpreting the Constitution and is often a threat to constitutionalism. Consequently, the study recommends that changes should be called for through the way in which the Constitution is restored back to its 1995 status or that of the original version, as that would potentially reduce the presidential powers and strengthen provisions such as those regarding age and term limits. In addition, these reforms are in place to create a system conscious of Enlightenment ideas within society. By creating independent institutions to oversee government actions, constitutionalism can ensure that democratic principles are safeguarded against illiberal democracy. Type Information Research Paper LawFoyer International Journal of Doctrinal Legal Research, Volume I, Issue IV, Page 467-486. Creative Commons Copyright This work is licensed under a Creative Commons Attribution-NonCommercial 4.0 International License. Copyright © LIJDLR 2024

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