1. Comparative Constitutional Law
The Indian Constitution: Origins and Structure
Class 15: October 14, 2008

2. 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

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

4. 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):

5. 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

6. Diversity: Many religions and ethnicities

7. 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

8. Caste system What are castes? Are they legal?
What significance do they have in modern Indian society?

9. 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

10. 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

11. 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

12. 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.

13. 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.

14. Origins of Indian Constitution
Compare these to the other constitutions we have studied

15. 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 (starting in 1942), non violent Quit India movement (1942)

16. 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)

17. 1947 Indian Independence Act (UK statute) Partition

18. 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

19. Indian Independence from Britain
After Partition, Congress had 82% of representation in Constituent Assembly
Constitution drafted between 1946 and 1949
Draft published in Jan 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?

20. First PM Nehru signing Indian Constitution Jan 24, 1950
He was a member of the Constituent Assembly

21. 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

22. Main Features Parliamentary Government (next slides)
Federalism (next Monday’s class)
Bill of Rights “Fundamental Rights” (Oct. 22 class) – arts
Directive Principles – borrowed from Ireland: not enforceable but fundamental to governance – arts
Separation of Powers – (next Monday’s class)
Amendment – see art. 368
Judicial Review (tomorrow’s class)

23. Indian Parliament Bicameral: House of the People and Council of States
Legislation must be passed by both Houses with presidential assent

24. 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

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

26. 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

27. 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

28. 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.

29. 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

30. Amendment
How can the Indian Constitution be amended?

31. 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 )

32. How many times has the Indian Constitution been amended?

33. Limits on amendment
What does art. 13(2) provide?

34. 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?

35. 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

36. 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

37. 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.”

38. 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

39. 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

40. 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)

41. 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

42. 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?

43. Court
Has been very restrained in striking down constitutional amendments