Comparative Constitutional Law

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Comparative Constitutional Law

• The Indian Constitution Origins and Structure
• Class 17 October 18, 2006

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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

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Diversity 24 official languages

• Can anyone name any of these?

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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

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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

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Diversity Many religions and ethnicities
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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)

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Caste system

• What are castes?
• Are they legal?
• What significance do they have in modern Indian
  society?

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Caste system

• Hindu, Muslim, and Christian castes
• Many castes (3,000) and subcastes (25,000)
• Jati and varna
• 4 basic varnas Brahminspriests,
  Kshatryaswarriors,
• Vaishyastraders, Shudraslaborers
• 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

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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

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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.

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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.

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Origins of Indian Constitution

• Compare these to the other constitutions we have
  studied

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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 (strarting in
  1942), non violent Quit India movement (1942)

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Indian Independence from Britain

• Elected Constituent Assembly (in which All Indian
  National Congress had 69 of seats)

17
Partition
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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

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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?

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Main Features

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

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Indian Parliament

• Compare to other systems we have studied

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Indian Parliament

• Bicameral House of the People and Council of
  States
• Legislation must be passed by both Houses with
  presidential assent

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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

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Lok Sabha

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

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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

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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
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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.

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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
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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

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Art. 356
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Art. 356

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

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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)

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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)

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Bill of Rights

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

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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

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Fundamental Rights

• Listed on p. 219 of book
• As 12-35 of Indian Constitution
• Detailed and specific
• Have specific restrictions

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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.

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Directive Principles

• 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.