Comparative Constitutional Law The Indian Constitution: Origins and Structure Class 17: October 18, 2006

India: Compare to Canada, Australia, U.S., Germany Very populous: more than 1 billion Slightly over 1/3 size of U.S. Great linguistic, ethnic, religious, and cultural diversity

Diversity: 24 official languages Can anyone name any of these?

Diversity: 24 official languages 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. 22 other official languages:

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

Diversity: Many religions and ethnicities

Hindu 80.5%, Muslim 13.4%, Christian 2.3%, Sikh 1.9%, other 1.8%, unspecified 0.1% (2001 census)

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 , a Dalit 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 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. - 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 mutiny, Gandhi’s campaign of civil disobedience (starting around 1918), Bose’s Indian National Army (strarting in 1942), non violent Quit India movement (1942)

Indian Independence from Britain Elected Constituent Assembly (in which All Indian National Congress had 69% of seats)

Partition

Indian Independence from Britain: Partition Raj ends in India on August 15, 1947 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 has 82% of representation in Constituent Assembly Drafted between 1946 and 1949 Some provisions came into force on November 23, 1949 The rest came into force on January 26, 1950 Is the Indian Constitution older or younger than the German Basic Law?

Main Features Parliamentary Government Federalism (like all we have studied) Bill of Rights Directive Principles Separation of Powers Amendment Judicial Review

Indian Parliament Compare to other systems we have studied

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 ever 5 years by all over 18 (President can dissolve earlier if no party has majority) 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. and Australian Senates, states do not have equal representation in Rajya Sabha

President 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) Dr A.PJ. Abdul Kalam Tamil Muslim “The Missile Man of India” Elected in 2002

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

Federalism Compare enumeration of powers under the Indian Constitution with the Australian, U.S., Canadian, and Germany systems Has been described as a “union of states” rather than a federation of states

Art. 356

Gives the President power to dismiss a state government and impose direct federal rule (President’s Rule) Cease to operate after 2 months unless approved by resolution of both Houses Immune to judicial review?

Art. 356 Immune to judicial review? Seemingly the case until 1977 State of Rajasthan v. Union of India, AIR 1977 SC In SR Bommai v. India (1994) SC held that proclamations under Art. 356 could be judicially reviewed and found dismissal of 3 state governments invalid. Controversy over whether this power has been misused. – it has been invoked over 100 times (contrary to drafters’ intentions)

Federalism Most like Canadian system: has separate lists of subjects on which federal Parliament can legislate, state legislatures can legislate, and both can legislate concurrently (Seventh Schedule)

Bill of Rights Was it unusual at that time for a former British colony to have a bill of rights?

Bill of Rights Rights contain specific restrictions (unlike US I-X and XIV Amendments) (eg. Art. 19(2) restricting freedom of speech) Include economic rights (Art 21A requires state to provide free and compulsory education to students 6-14)., Art 24(prohibiting child labor in hazardous employment for children under 14)(but only as directive principles) Also certain fundamental rights

Fundamental Rights Listed on p. 219 of book As of Indian Constitution Detailed and specific Have specific restrictions

Directive Principles Art. 37 of the Indian Constitution provides: “The provisions contained in this Part shall not be enforced by any court, but the principles therein laid down are nevertheless fundamental in the governance of the country and it shall be the duty of the State to apply these principles in making laws.”

Directive Principles 36. Definition.Definition. 37. Application of the principles contained in this Part.Application of the principles contained in this Part. 38. State to secure a social order for the promotion of welfare of the people.State to secure a social order for the promotion of welfare of the people. 39. Certain principles of policy to be followed by the State.Certain principles of policy to be followed by the State. 39A. Equal justice and free legal aidEqual justice and free legal aid 40. Organisation of village panchayats.Organisation of village panchayats. 41. Right to work, to education and to public assistance in certain cases.Right to work, to education and to public assistance in certain cases. 42. Provision for just and humane conditions of work and maternity relief.Provision for just and humane conditions of work and maternity relief. 43. Living wage, etc., for workers.Living wage, etc., for workers. 43A. Participation of workers in management of industries.Participation of workers in management of industries. 44. Uniform civil code for the citizens.Uniform civil code for the citizens. 45. Provision for free and compulsory education for children.Provision for free and compulsory education for children. 46. Promotion of educational and economic interests of Scheduled Castes, Scheduled Tribes and other weaker sections.Promotion of educational and economic interests of Scheduled Castes, Scheduled Tribes and other weaker sections. 47. Duty of the State to raise the level of nutrition and the standard of living and to improve public health.Duty of the State to raise the level of nutrition and the standard of living and to improve public health. 48. Organisation of agriculture and animal husbandry.Organisation of agriculture and animal husbandry. 48A. Protection and improvement of environment and safeguarding of forests and wild life.Protection and improvement of environment and safeguarding of forests and wild life. 49. Protection of monuments and places and objects of national importance.Protection of monuments and places and objects of national importance. 50. Separation of judiciary from executive.Separation of judiciary from executive. 51. Promotion of international peace and security.Promotion of international peace and security.