Author: Shruti Mittal, Vivekananda Institute of Professional Studies
To the point
Populism as a matter of law is not necessarily unconstitutional, but its mode of operation necessarily runs against liberal-democratic promises. Populist politicians openly characterize court opposition, media opposition, or opposition from civil society as sabotage by “unelected elites” and thereby justify moves that bypass constitutional limits. Constitutional democracy gives way to electoral majoritarianism, leading to reduced judicial review, politicized judges, and undermined checking bodies. Legal institutions with deeply rooted protection mechanisms (such as judicial independence, basic rights, and international accountability mechanisms) have withstood the test. The problematique legal issue is not populism itself, but its direction towards constitutional backsliding covered up by formal legality.
Abstract
The world-wide emergence of populism is a serious threat to liberal democracy, and this is mainly by degrading constitutional standards and distorting legal orders. Populist governments, while presenting themselves as democratically legitimate, erode rule of law, the separation of powers, and the independence of the judiciary. Populist rulers weaken checks and balances, dilute core rights, and undermine institutional protection by legislative overreaching and executive encroachment. This article examines the populist legal trend based on comparative jurisprudence, empirical evidence, and constitutional principles. It isolates trends of autocratic legalism worldwide and considers the courts’ national and supranational role in pushing back or facilitating democratic deterioration.
Use of Legal Jargon
Populist governments make use of ambiguities in legal documents in order to practice autocratic legalism—the undermining of democracy by means of the law itself. Principal legal principles under attack are the doctrine of proportionality, which guarantees that state actions that impinge on rights are as limited as possible; ultra vires review, which constrains executive overreach; and separation of powers, which ensures the independence of democratic institutions. By exercising control over states of emergency and passing unconstitutional changes to the foundations of the state, populists bypass established constraints. Judicial capture, where judges are promoted for political allegiance instead of merit, further undermines judicial independence, especially where constitutional courts are charged with examining the constitutionality of populist reforms.
The Proof
Empirical evidence supports the link between populist leadership and democratic backsliding. The V-Dem Institute released in its 2023 index that more than 40% of democracies under populist leaders had witnessed sharp declines in rule of law and civil liberties in five years of such rule. Freedom House listed nations such as Hungary and India as “partly free,” attributing them to assaults on judicial independence and the media. The World Justice Project ranked nations such as Brazil and Turkey in the lower third in the world in terms of limitations on government authority. These results indicate that, in populist governments, legal techniques are employed not to uphold rights but to promote control through state-dominated lawmaking and constitutional reinterpretation.
Case Laws
Szabó and Vissy v. Hungary (ECtHR, 2016): The European Court of Human Rights ruled that Hungary’s bulk surveillance had insufficient judicial review, which violated Article 8 ECHR. This case exemplified how populist regimes misuse national security rhetoric to suppress opposition.
Commission v. Poland (CJEU, 2019): The Court of Justice of the EU struck down Polish judicial reforms reducing judges’ retirement ages, which breached the principle of judicial independence in Article 19 TEU. The legislation was an outright attempt at judicial capture.
ADPF 572 (Brazil STF, 2019): Brazil’s Supreme Court declared President Bolsonaro’s interference with the federal police null. The ruling enforced the constitutional independence of investigative agencies and strengthened separation of functions under Articles 127–128 of the Brazilian Constitution.
Trump v. Mazars USA (U.S. Supreme Court, 2020): The Court affirmed Congress’s access to the president’s financial records through a subpoena, an affirmation that the executive is not superior to legislative supervision, an essential aspect of American checks and balances.
Anuradha Bhasin v. Union of India (India SC, 2020): The Court directed periodic review of Jammu & Kashmir’s indefinite internet shutdowns, invoking the doctrine of proportionality under Articles 19 and 21 of the Constitution, albeit without invalidating the restrictions.
Conclusion
The populist threat to liberal democracy is based upon a strategic perversion of law. Although procedurally constitutional in appearance, populist regimes gradually drain substantive democratic conventions. By using constitutional hardball, states of emergency, and a redefinition of institutional function, they bypass accountability. Yet, as shown by comparative jurisprudence, strong judicial autonomy, constitutional protection of rights, and energetic international monitoring are counterweights. Populism flourishes where rule of law is not strong and political institutions are not resilient. The legal community will thus have to shore up constitutionalism not just as legal writings but as a living system of democratic responsibility, supported by long-lasting standards, judicial alertness, and civic opposition.
FAQS
Q1: Is populism unconstitutional?
Not by nature. Populism is a political methodology. It becomes legally troubling when it causes executive overextension, compromises judicial autonomy, or infringes upon constitutional rights in the name of majority rule.
Q2: What is judicial capture, and why is it dangerous?
Judicial capture is the appointment or domination of judges by political forces to obtain favorable judgments. It diminishes the impartiality of judges and makes constitutional review useless, and unconstitutional legislation stays unchallenged.
Q3: How does international law react against populist threats?
Regional courts such as the ECtHR and CJEU impose legal norms on judicial independence, minority rights, and democratic values. They render binding judgments that can pressure local governments to overturn autocratic legal changes.
Q4: Are emergency powers subject to legal abuse?
Yes. Populists commonly apply state of exception to circumvent normal legislative checks. In the absence of proportionality and judicial review, emergency powers turn into weapons of oppression instead of actual crisis management.
Q5: What can prevent democracies from being eroded by populists?
Entrenched separation of powers, independent judiciaries, media freedom, civic education, and supranational legal frameworks are the main protections. They function as legal and cultural walls against authoritarian roll-back.
