Constitutional Comparative 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: Brahminspriests, Kshatryas warriors, Vaishyastraders, Shudraslaborers Some view castes as a function of karma, but others see some mobility between castes
Dalits
K.R. Narayanan, President of India 19972002, 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, Gandhis campaign of civil disobedience (starting around 1918), Boses 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 Mondays 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 Mondays class) Amendment see art. 368 Judicial Review (tomorrows class)
Indian Parliament
Bicameral: House of the People and Council of States must Legislation 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 Singh First Sikh PM and first Member 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 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 Courts 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 (eve...