The paper compares free speech law in India and the EU and focus on one aspect that is particularly revealing for diverse democracies: the regulation of so-called “hate speech”. Despite their many obvious differences, the EU and India lend themselves for a comparison in this area, as they share basic democratic commitments. Technologically, the internet and digital media pose new and similar challenges for free speech law across jurisdictional boundaries. This transnational dimension is even constitutive for EU free speech law. We therefore inquire into more nuanced comparative questions about regulatory choices and their democratic significance: Which groups are legally protected, and what does that tell us about the salience of specific minority-majority relations in a diverse democracy? Which historical facts are protected against denial, and what does that tells us about collective memory as a basis for political identity?
This paper introduces and frames the project on constitutional democracy in India and the European Union. The project is the first to compare the structures and challenges of democratic constitutionalism in India and the EU in a systematic way, pursuing three larger aims: to start a comparative conversation about Indian and European structures of constitutionalism and open up a new field of comparative studies more generally; to showcase a different kind of comparative approach that we call ‘slow comparison’; and finally to deepen our understanding of democratic constitutionalism and the law of democracy in multinational and socio-culturally diverse polities. Surely, Indian and EU constitutional structures and contexts are very different and we do not intent to flatten those differences. Rather, we aim to understand better their particularities and differences but also convergent developments and insightful conceptions of representation and democracy.
A common and fundamental challenge that democratic constitutions face today arises from the tension between the promise of democratic equality and the respect for diverse identities. This paper compares the constitutional approach to equality and diversity in the law of democracy of India and the European Union. We argue that the meaning and function of equality in a democratic but heterogenous polity is shaped by at least three distinct registers of political discourse: liberal universalism, pluralism and cultural nationalism. The paper uses these frames to hightlight the different approaches in the two polities.
In the context of the European and Indian systems of democratic governance, we ask what it means to raise the question of social rights constitutionalism today. The usual answer is that it means increasingly little. Under the dominant rationalisation social rights are increasingly less affordable compensations for the social costs of the integration of markets on a global scale. But while the comparison we undertake cannot escape the diagnosis of the relative diminution in the age of austerity, it insists on the theoretical importance of insisting that the thinking of social constitutionalism is an achievement of democratic constitutionalism, crucial to the self-understanding and self-reflection of both constitutional systems, and thus irreducible to market exigencies. A critical approach in this mode must, we argue, confront and critique the pervasiveness of a new ‘thinner’ constitutional imaginary that threatens to eclipse the social dimension of the constitution.