Constitutionalism, fundamental rights, and rule of law in contemporary India: analysis of the Indian constitutional scholarship and its variations in the context of an activist constitutional jurisdiction

Abstract

The present research constructs a comparison between the nomonological standards of the Indian constitution and the distinct approaches about the meaning of the constitutional jurisdiction and human rights in the indian legal experience, following the divisions immanently constituted by the indian constitutional scholars themselves. Its main methodological protocol consisted in a configuration of a sampling of text from the indian legal literature concerning the constitution and the effectivity of human rights. Futhermore, the analysis is augmented by a reflection regarding the influence of the distinct traditional cultures still present at the complex indian society, and in the equally distinct perspectives of its contemporaneous constitutionalism. As its mains results, it verifies not only the existence of conflicting positions in India's constitutional culture as a general tendency of centering its constitutional debate at India's Supreme Court activist rulings. At the same time, it was verified that, on one hand, the tense relationship between the constitutional normativity and the traditional normativities, and, on the other hand, the primacy of the constitutional jurisdiction itself, contribute to its constitutional experience effectivity problems regarding human rights, for distinct and peculiar reasons, here analyzed as well.