Comparative Constitutional
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
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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
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, Gandhi’s
campaign of civil
disobedience (starting
around 1918), Bose’s
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 Monday’s 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 Monday’s
class)
• Amendment – see art. 368
• Judicial Review (tomorrow’s class)
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 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
Pratiba Patil
Elected in 2007
• 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)
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
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
½ 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 Court’s 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 (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
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.”
What is the Basic Structure?
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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
Indira Gandhi v. Raj Narayan
(1975)
• Challenge to ThirtyNinth Amendment Act
1975
• State of Emergency
declared by Indira
Gandhi under art. 352
• Supreme Court
avoided direct
confrontation with
government like
Marbury v. Madison
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)
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
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?
Court
• Has been very restrained in striking down
constitutional amendments
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Comparative Constitutional Law