The Indian Constitution: Origins and Structure
Class 15: October 14, 2008

• Very populous: more than 1 billion
• Slightly over 1/3 size of U.S.
• Enormous linguistic, ethnic, religious, and cultural diversity

• Can anyone name any of these?

• 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):

• 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

• 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

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

• 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

• 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

• 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

• 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.

• Compare these to the other constitutions we have studied

• 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)

• 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)

• 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

• 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?

• He was a member of the Constituent
Assembly

• Is the Indian Constitution older or younger than the German Basic Law?
• Younger -- German basic law adopted on May 23, 1949

• 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)

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

• 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 (14 th formed May 2004)
• 545 members (some seats reserved for
Scheduled Castes and Tribes) (Art. 81)
• Must introduce money bills

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

• 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

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)

• 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.

• 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

• How can the Indian Constitution be amended?

• 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 . . . )

• What does art. 13(2) provide?

• 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?

• Challenge to 17 th 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

• Challenge to 24 th , 25 th , 26 th Amendments
• Overrules Golak Nath denying Parliament the power to amend fundamental rgihts –
A 368 contained power (even before 24 th
Amendment) to amend as well as procedure for amendment
• 24 th Amendment valid
• Court enunciates basic structure doctrine
• Special bench of 13 judges

• 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 25 th 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.”

• 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

• 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

• Considered constitutional validity of 42 nd
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)

• 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

• 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?

• Has been very restrained in striking down constitutional amendments