Comparative Constitutional Law

The Indian Constitution: Origins and Structure

Class 15: October 14, 2008

India: Compare to Canada, U.S., Germany

• Very populous: more than 1 billion

• Slightly over 1/3 size of U.S.

• Enormous linguistic, ethnic, religious, and cultural diversity

Diversity: 24 official languages

• Can anyone name any of these?

Diversity: 24 official languages (see Part XVII Constitution)

• Hindi is the national language and is spoken as the main language of 30% of the population

• English is the language of political and commercial communication. It has associate status. Authoritative text of legislation is English (art. 348(1)). Supreme Court official language is English (art. 348(1)).

• 22 other official languages (see Eighth Schedule):

22 other official languages

• Asamese, Bengali, Bodo, Docri, Gondi, Gujarati, Kannada, Kashmiri, Konkani, Malayalam, Maithili, Manipuri, Marathi, Nepali, Oriya, Punjabi, Sanskrit, Santali, Sinchi, Tamil, Telugu, Urdu

• Over 1600 languages and dialects are spoken in India

Diversity: Many religions and ethnicities

Diversity: Many religions and ethnicities

• Hindu 80.5%, Muslim 13.4%, Christian 2.3%, Sikh 1.9%, Buddist 1.1%, Jain .4% other .5% (2001 census)

• Every major religion is represented

• More than 2,000 ethnic groups

Caste system

• What are castes?

• Are they legal?

• What significance do they have in modern Indian society?

Caste system

• Hindu, Muslim, and Christian castes• Many castes (3,000) and subcastes (25,000)• Jati and varna • 4 basic varnas: Brahmins—priests, Kshatryas—

warriors,

Vaishyas—traders, Shudras—laborers• Some view castes as a function of karma, but

others see some mobility between castes

Dalits

• K.R. Narayanan, President of India 1997-2002, a Dalit

• Dr. B.R. Ambedkar – Chairman of Constituent Assembly Drafting Committee for the Constitution (see Art. 17 abolishing untouchability)

• Your book discusses dalits as untouchables

Dalits

• Sometimes called untouchables or (by Gandhi harijan (this is now considered patronizing)

• Dalit is the most politically correct name now – still controversial

• Divided into subgroups • Formerly required to do the most menial jobs in society• Have suffered much discrimination• Status of dalit has been officially abolished under Art. 17 of

the Constitution• Constitution provides for social and economic uplift of Dalits

who remain Hindu via affirmative action for Scheduled Castes (around 24% of population) and Tribes (around 8% of population) (e.g. reserved seats in Parliament)

• Nonetheless, discrimination persists in society

Art. 17

• Article 17. Abolition of Untouchability. -"Untouchability" is abolished and its practice in any form is forbidden. The enforcement of any disability arising out of "Untouchability" shall be an offence punishable in accordance with law.

Article 46. Promotion of educational and economic interests of Scheduled Castes,

Scheduled Tribes and other weaker sections. – (A Directive Principle)

• The State shall promote with special care the educational and economic interests of the weaker sections of the people, and, in particular, of the Scheduled Castes and the Scheduled Tribes, and shall protect them from social injustice and all forms of exploitation.

Origins of Indian Constitution

• Compare these to the other constitutions we have studied

Indian Independence from Britain

• Achieved after a century of violent and non-violent protests (e.g. 1857 mutiny, Gandhi’s campaign of civil disobedience (starting around 1918), Bose’s Indian National Army (starting in 1942), non violent Quit India movement (1942)

Indian Independence from Britain

• 1935 Government of India Act (enacted by UK Parliament)

• Members of provincial legislatures elected Constituent Assembly (in which All Indian National Congress initially had 69% of seats)

1947 Indian Independence Act (UK statute) Partition

Indian Independence from Britain: Partition

• India became a Dominion (independent nation) on August 15, 1947 (Independence Day) after a traumatic event, Partition into India and Pakistan

• Migration of around 15 million people

• Terrible violence: between 200,000 and 1 million deaths

Indian Independence from Britain

• After Partition, Congress had 82% of representation in Constituent Assembly

• Constitution drafted between 1946 and 1949• Draft published in Jan. 1948. People of India could

proposed amendments. Nearly 8,000 proposed; 2,473 discussed.

• Some provisions came into force on November 23, 1949 when CA adopted it and president Prasad signed it.

• The rest came into force on January 26, 1950 • Is the Indian Constitution older or younger than the

German Basic Law?

First PM Nehru signing Indian Constitution Jan 24, 1950

• He was a member of the Constituent Assembly

Indian Independence from Britain

• Is the Indian Constitution older or younger than the German Basic Law?

• Younger -- German basic law adopted on May 23, 1949

Main Features

• Parliamentary Government (next slides)• Federalism (next Monday’s class)• Bill of Rights “Fundamental Rights” (Oct. 22

class) – arts. 12-35• Directive Principles – borrowed from Ireland:

not enforceable but fundamental to governance – arts. 36-51

• Separation of Powers – (next Monday’s class)

• Amendment – see art. 368• Judicial Review (tomorrow’s class)

Indian Parliament

• Bicameral: House of the People and Council of States

• Legislation must be passed by both Houses with presidential assent

House of the People Lok Sabha

• Directly elected lower house• Elected every 5 years by all over 18

(President can dissolve earlier if no party has majority)

• There have been 14 Lok Sabhas since 1952 (14th formed May 2004)

• 545 members (some seats reserved for Scheduled Castes and Tribes) (Art. 81)

• Must introduce money bills

Lok Sabha

• Current ruling coalition after 2004 elections is United Progressive Alliance led by Indian National Congress Party and supported by Left Front

Council of States Rajya Sabha

• 1/3 of 250 members elected every two years

• Members of Rajya Sabha are elected by the elected members of State Legislative Assemblies in accordance with the system of proportional representation by means of single transferable vote.

• Unlike U.S. Senate, states do not have equal representation in Rajya Sabha

President of India• Head of State• Largely ceremonial role• Appoints as Prime

Minister leader of majority party in Lok Sabha

• Real executive authority is vested in Council of Ministers (responsible to the Lok Sabha) (inference from Art. 74)Pratiba Patil

Elected in 2007

President

• Elected for 5 year term by electoral college consisting of elected members of both houses of Parliament and elected members of the State Legislative Assemblies (Vidhan Sabha) by a method of proportional representation.

Prime Minister

• Most powerful politician in India

• Effectively head of government

• Must be a member of Parliament

• Selects the Council of Ministers (formally appointed by president)

• Advises president on appointments, dissolving Lok Sabha, emergencies

Dr Manmohan SinghFirst Sikh PM and firstMember of Rajya Sabha

Amendment

• How can the Indian Constitution be amended?

Amendment

• How can the Indian Constitution be amended? Ways:

• i. Most provisions – bill passed by 2/3 of members of both Houses of Parliament present and voting (and absolute majority of them)

• ii. Small number of provisions: simple majority (arts. 3, 4, 11, 105(3), 120, 196(3), 345, 348)

• iii. Some require special majorities AND no less than ½ of state legislatures (eg election of President, executive power of Union and of states; Union judiciary . . . )

How many times has the Indian Constitution been amended?

Limits on amendment

• What does art. 13(2) provide?

Art 13(2)

• The state shall not make any law which takes away or abridges [the Fundamental Rights]. . . and any law made in contravention of this clause shall be void

• Does this clause limit amendment?

Golak Nath v. Punjab (1967)

• Challenge to 17th Amendment Act 1964• 6-5 majority prospectively overruled prior

decisions and held that A 368 did not give Parliament the power to amend (it only set out the procedure). An amendment was a law subject to A 13(2) and could not abrogate any Fundamental Right

• Big change from literalist, positivist interpretation to acknowledgment of Supreme Court’s law making function

• But took a literalist approach to art. 13(2) to reach decision

Keshvanand Bharat v. Kerala (1973)

• Challenge to 24th, 25th, 26th Amendments• Overrules Golak Nath denying Parliament

the power to amend fundamental rgihts – A 368 contained power (even before 24th Amendment) to amend as well as procedure for amendment

• 24th Amendment valid• Court enunciates basic structure doctrine• Special bench of 13 judges

Basic Structure Doctrine

• Implied limit on amendment (7-6)• Under A 368, Parliament is not

empowered to amend the basic structure or framework fo the Constitution. So part of 25th Amendment was invalid: “no such law, containing the declaration that it is for giving effect to such policy shall be called into question in any Court on the ground that it does not give effect to such policy.”

What is the Basic Structure?

• Examples given in Keshvanand by Sikri C.J.• 1. supremacy of the Constitution• 2. republican and democratic government• 3. secular character of the Constitution• 4. separation of powers• 4. federal character of the Constitution• Other opiions gave slightly different examples.

See p. 720 Pandey

Indira Gandhi v. Raj Narayan (1975)

• Challenge to Thirty-Ninth Amendment Act 1975

• State of Emergency declared by Indira Gandhi under art. 352

• Supreme Court avoided direct confrontation with government like Marbury v. Madison

Minerva Mills v. India (1981)

• Considered constitutional validity of 42nd Amendment Act (another Indira Gandhi measure)

• Sought to amend art. 368 to add clauses: (4) “no amendment of the Constitution . . . shall be called in question in any court on any ground.” and (5) “there shall be no limitation whatever on the constituent power of Parliament to amend by way of addition, variation or repeal the provisions of this Constitution.”

• How did the Supreme Court rule on (4) and (5)

Court in Minerva Mills

• Struck down (5) as contrary to power of amendment as interpreted in Keshavanand Bharti

• Clause (4), read narrowly as prohibiting courts from questioning validity of constitutional amendment that did not destroy basic structure of amendment, was held valid

S.R. Bommai v. India (1994)

• President’s Rule (art. 356)

• Secularism and basic structure

• “secular” added to Preamble by 1976 amendment so how could it be part of basic structure of Constitution?

Court

• Has been very restrained in striking down constitutional amendments