Fast facts on the unusual constitution that governs the world’s most populous democracy


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(THE CONVERSATION) India celebrates its 75th birthday on August 15, 2022.

Its independence from British colonial rule followed a complex process, including partition: the partition of India into Muslim-majority Pakistan and Hindu-majority India. Partition displaced tens of millions and caused the loss of life and property that is vividly remembered by many.

India’s future remained unresolved for more than two years after partition. While the country gained independence on August 15, 1947, it was not until January 26, 1950 that it became a fully sovereign republic with its own head of state.

Between those days, the 299 men and women of India’s Constituent Assembly worked to envision their burgeoning country and incorporate their vision and basic legal principles into a national constitution. The result of their efforts is a remarkable document that remains a source of both inspiration and debate to this day.

Here are some things you should know about the Indian Constitution.

#1: High word count

Perhaps appropriately, the world’s most populous democracy has the longest national constitution in the world.

At the time of its passage in 1949, the Indian Constitution had 395 articles and was approximately 145,000 words. The only longer written constitution belongs to the state of Alabama, where I currently live and teach law.

For comparison, the U.S. Constitution — widely believed to be the oldest national charter in the world — originally had just seven articles and around 4,200 words. The world’s shortest constitution belongs to its second smallest country, Monaco. It’s only about 3,800 words.

#2: Early specimen

When the Indian Constitution was ratified, constitutions were not as widespread as they are today. India’s constitution was just the 23rd national constitution in the world. In comparison, Pakistan only ratified its constitution in 1956.

Consequently, the ratification itself was a great achievement. In societies like India, with many deep cultural, religious, and socio-economic divides, the process of drafting and ratifying a common founding document can serve a valuable symbolic function.

Some countries, faced with the challenge of drafting a constitution for a deeply heterogeneous population, never agree on a single unifying document. Israel is an example.

#3: Crowdsourcing Inspiration

Since constitutions were still relatively rare in the 1940s, the drafting committee of the Indian Constituent Assembly sought inspiration wherever it could.

The committee chair, BR Ambedkar, drew on his training in the US and UK. Advisor BN Rau traveled to Canada, the USA, Ireland and Great Britain in the autumn of 1947 to learn from their experiences.

Rau even indicated which country had inspired each element of the draft constitution he was preparing for the assembly. For example, the 1947 Indian constitution did not contain a “due process” clause like its American counterpart: US Supreme Court Justice Felix Frankfurter had warned Rau that due process would give Indian courts too much power to legislate overriding them, while at the same time imposing a heavy burden on the judiciary.

India’s constitution, however, contains non-justiciable “principles of rule”. The term non-justiciable means that these constitutional provisions cannot be enforced by courts. This function was borrowed from the 1937 Irish Constitution to provide legislators and judges with a set of values ​​to keep in mind.

4: Simple adjustments

Today, India’s constitution is the most amended in the world. It has 105 amendments, the last of which was passed in August 2021.

Easy Change was intentionally coded into the Indian Constitution. “[T]here there is no permanence in constitutions,” declared India’s first prime minister, Jawaharlal Nehru. “There should be some flexibility.”

Consequently, Article 368 requires only that a single MP propose a bill amending the Constitution and that Parliament approve proposed amendments by a simple majority in order to pass them.

In contrast, the US requires that two-thirds of Congress propose a constitutional amendment or two-thirds of the states propose a constitutional convention to consider amendments. Two thirds of the states are required for ratification. Consequently, only 27 out of around 12,000 constitutional amendments proposed since 1787 were passed.

Easy Change is credited with contributing to the longevity of India’s constitution, which at 75 years far exceeds the global average lifespan of 17 years. In Asia, only two other countries that gained independence shortly after World War II still have their original constitutions: Taiwan and South Korea. Thailand, on the other hand, has had around 20 constitutions since 1932.

5: Distinctive features

The Indian Constitution has several other elements that are noteworthy – for better or for worse.

Two provisions have received wide recognition.

Article 17 responded to widespread and debilitating caste discrimination by abolishing untouchability—the practice of segregating and persecuting certain groups because they are considered “unclean”—“in any form.”

And Article 21, which protects life and personal liberty, directly contributed to Indians’ right to free, public primary education and was cited in India’s 2018 Supreme Court decision to decriminalize consensual same-sex conduct.

Other parts of the Indian constitution, such as a preventive detention provision that allows the government to imprison people before they commit a crime, have drawn significant criticism from academics, activists and advocates.

Finally, some features of the Indian constitution are unusual, but not necessarily good or bad.

The Constitution contains two provisions on freedom of religion. Article 25 establishes “the right freely to profess, practice and propagate religion” for all persons. That is, the article grants freedom of religion to the individual. More unusually, Article 26 recognizes “religious denominations.”[s]’ as it also has special rights in relation to property, institutional administration and ‘religious matters’.

These two rights – the individual and the collective – often collide, as my research on the high-profile dispute over women’s access to the Hindu temple in Sabarimala shows. When these two rights conflict, what matters is which restrictions apply to Article 25 and which communities qualify as religious communities for Article 26.

In 1991, a Supreme Court, after analyzing Articles 25 and 26, ruled that Sabarimala could ban women at any time, even though there were good reasons to believe that women had been granted entry under certain conditions in the past. Then, in 2018, the Supreme Court of India overturned that decision, declaring that all women are allowed to enter, as some women had likely visited Sabarimala for a long time. The Supreme Court’s ruling was also based on an interpretation of Articles 25 and 26.

Future of Indian Democracy

Despite its long and generally promising history, turbulent times lie ahead for Indian constitutional democracy.

Several recent scandals, including a chief justice accused of sexual harassment and another chief justice accused of abuse of power by his own peers, have compromised the Supreme Court’s reputation as custodian of the constitution.

And certain political developments, such as a controversial 2019 law that made religion a criterion for citizenship for the first time, threaten India’s status as a non-theocratic state.

When they began drafting the Indian Constitution 75 years ago, the 299 drafters wanted to create a charter that would serve all Indians, regardless of their creed, caste or gender. Whether this democratic tradition continues for another 75 years will depend on whether legislators and judges stay true to this vision.

This article was republished by The Conversation under a Creative Commons license. Read the original article here:


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