Transcript Comparative Constitutional Law The Indian Constitution: Origins and Structure

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
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
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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
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Dalits
• K.R. Narayanan,
President of India
1997-2002, 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. 1857
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
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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
Dr A.PJ. Abdul Kalam
Tamil Muslim
“The Missile Man of India”
Elected in 2002
• 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
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
Dr Manmohan Singh
First Sikh PM and first
Member of Rajya Sabha
• 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
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
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 1361.
• 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
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Listed on p. 219 of book
As 12-35 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
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36. Definition.
37. Application of the principles contained in this Part.
38. 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.
39A. Equal justice and free legal aid
40. Organisation of village panchayats.
41. Right to work, to education and to public assistance in certain cases.
42. Provision for just and humane conditions of work and maternity relief.
43. Living wage, etc., for workers.
43A. Participation of workers in management of industries.
44. Uniform civil code for the citizens.
45. Provision for free and compulsory education for children.
46. 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.
48. Organisation of agriculture and animal husbandry.
48A. Protection and improvement of environment and safeguarding of forests and wild life.
49. Protection of monuments and places and objects of national importance.
50. Separation of judiciary from executive.
51. Promotion of international peace and security.