The Constitution

The Constitution

The constitution of India draws extensively from Western legal traditions in its outline of the principles of liberal democracy. It is distinguished from many Western constitutions, however, in its elaboration of principles reflecting the aspirations to end the inequities of traditional social relations and enhance the social welfare of the population. According to constitutional scholar Granville Austin, probably no other nation's constitution "has provided so much impetus toward changing and rebuilding society for the common good." Since its enactment, the constitution has fostered a steady concentration of power in the central government--especially the Office of the Prime Minister. This centralization has occurred in the face of the increasing assertiveness of an array of ethnic and caste groups across Indian society. Increasingly, the government has responded to the resulting tensions by resorting to the formidable array of authoritarian powers provided by the constitution. Together with the public's perception of pervasive corruption among India's politicians, the state's centralization of authority and increasing resort to coercive power have eroded its legitimacy. However, a new assertiveness shown by the Supreme Court and the Election Commission suggests that the remaining checks and balances among the country's political institutions continue to support the resilience of Indian democracy.

Adopted after some two and one-half years of deliberation by the Constituent Assembly that also acted as India's first legislature, the constitution was put into effect on January 26, 1950. Bhimrao Ramji (B.R.) Ambedkar, a Dalit who earned a law degree from Columbia University, chaired the drafting committee of the constitution and shepherded it through Constituent Assembly debates. Supporters of independent India's founding father, Mohandas Karamchand (Mahatma) Gandhi, backed measures that would form a decentralized polity with strong local administration--known as panchayat (pl., panchayats --see Glossary)--in a system known as panchayati raj , that is rule by panchayats . However, the support of more modernist leaders, such as Jawaharlal Nehru, ultimately led to a parliamentary government and a federal system with a strong central government (see Nehru's Legacy, ch. 1). Following a British parliamentary pattern, the constitution embodies the Fundamental Rights, which are similar to the United States Bill of Rights, and a Supreme Court similar to that of the United States. It creates a "sovereign democratic republic" called India, or Bharat (after the legendary king of the Mahabharata ), which "shall be a Union of States." India is a federal system in which residual powers of legislation remain with the central government, similar to that in Canada. The constitution provides detailed lists dividing up powers between central and state governments as in Australia, and it elaborates a set of Directive Principles of State Policy as does the Irish constitution.

The 395 articles and ten appendixes, known as schedules, in the constitution make it one of the longest and most detailed in the world. Schedules can be added to the constitution by amendment. The ten schedules in force cover the designations of the states and union territories; the emoluments for high-level officials; forms of oaths; allocation of the number of seats in the Rajya Sabha (Council of States--the upper house of Parliament) per state or territory; provisions for the administration and control of Scheduled Areas (see Glossary) and Scheduled Tribes (see Glossary); provisions for the administration of tribal areas in Assam; the union (meaning central government), state, and concurrent (dual) lists of responsibilities; the official languages; land and tenure reforms; and the association of Sikkim with India.

The Indian constitution is also one of the most frequently amended constitutions in the world. The first amendment came only a year after the adoption of the constitution and instituted numerous minor changes. Many more amendments followed, and through June 1995 the constitution had been amended seventy-seven times, a rate of almost two amendments per year since 1950. Most of the constitution can be amended after a quorum of more than half of the members of each house in Parliament passes an amendment with a two-thirds majority vote. Articles pertaining to the distribution of legislative authority between the central and state governments must also be approved by 50 percent of the state legislatures.

Fundamental Rights

The Fundamental Rights embodied in the constitution are guaranteed to all citizens. These civil liberties take precedence over any other law of the land. They include individual rights common to most liberal democracies, such as equality before the law, freedom of speech and expression, freedom of association and peaceful assembly, freedom of religion, and the right to constitutional remedies for the protection of civil rights such as habeas corpus. In addition, the Fundamental Rights are aimed at overturning the inequities of past social practices. They abolish "untouchability"; prohibit discrimination on the grounds of religion, race, caste, sex, or place of birth; and forbid traffic in human beings and forced labor. They go beyond conventional civil liberties in protecting cultural and educational rights of minorities by ensuring that minorities may preserve their distinctive languages and establish and administer their own education institutions. Originally, the right to property was also included in the Fundamental Rights; however, the Forty-fourth Amendment, passed in 1978, revised the status of property rights by stating that "No person shall be deprived of his property save by authority of law." Freedom of speech and expression, generally interpreted to include freedom of the press, can be limited "in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence" (see The Media, this ch.).

Directive Principles of State Policy

An important feature of the constitution is the Directive Principles of State Policy. Although the Directive Principles are asserted to be "fundamental in the governance of the country," they are not legally enforceable. Instead, they are guidelines for creating a social order characterized by social, economic, and political justice, liberty, equality, and fraternity as enunciated in the constitution's preamble.

In some cases, the Directive Principles articulate goals that, however admirable, remain vague platitudes, such as the injunctions that the state "shall direct its policy towards securing . . . that the ownership and control of the material resources of the community are so distributed to subserve the common good" and "endeavor to promote international peace and security." In other areas, the Directive Principles provide more specific policy objectives. They exhort the state to secure work at a living wage for all citizens; take steps to encourage worker participation in industrial management; provide for just and humane conditions of work, including maternity leave; and promote the educational and economic interests of Scheduled Castes, Scheduled Tribes, and other disadvantaged sectors of society. The Directive Principles also charge the state with the responsibility for providing free and compulsory education for children up to age fourteen (see Administration and Funding, ch. 2).

The Directive Principles also urge the nation to develop a uniform civil code and offer free legal aid to all citizens. They urge measures to maintain the separation of the judiciary from the executive and direct the government to organize village panchayats to function as units of self-government. This latter objective was advanced by the Seventy-third Amendment and the Seventy-fourth Amendment in December 1992. The Directive Principles also order that India should endeavor to protect and improve the environment and protect monuments and places of historical interest.

The Forty-second Amendment, which came into force in January 1977, attempted to raise the status of the Directive Principles by stating that no law implementing any of the Directive Principles could be declared unconstitutional on the grounds that it violated any of the Fundamental Rights. The amendment simultaneously stated that laws prohibiting "antinational activities" or the formation of "antinational associations" could not be invalidated because they infringed on any of the Fundamental Rights. It added a new section to the constitution on "Fundamental Duties" that enjoined citizens "to promote harmony and the spirit of common brotherhood among all the people of India, transcending religious, linguistic and regional or sectional diversities." However, the amendment reflected a new emphasis in governing circles on order and discipline to counteract what some leaders had come to perceive as the excessively freewheeling style of Indian democracy. After the March 1977 general election ended the control of the Congress (Congress (R) from 1969) over the executive and legislature for the first time since independence in 1947, the new Janata-dominated Parliament passed the Forty-third Amendment (1977) and Forty-fourth Amendment (1978). These amendments revoked the Forty-second Amendment's provision that Directive Principles take precedence over Fundamental Rights and also curbed Parliament's power to legislate against "antinational activities" (see The Legislature, this ch.).

Group Rights

In addition to stressing the right of individuals as citizens, Part XVI of the constitution endeavors to promote social justice by elaborating a series of affirmative-action measures for disadvantaged groups. These "Special Provisions Relating to Certain Classes" include the reservation of seats in the Lok Sabha (House of the People) and in state legislative bodies for members of Scheduled Castes and Scheduled Tribes. The number of seats set aside for them is proportional to their share of the national and respective state populations. Part XVI also reserves some government appointments for these disadvantaged groups insofar as they do not interfere with administrative efficiency. The section stipulates that a special officer for Scheduled Castes and Scheduled Tribes be appointed by the president to "investigate all matters relating to the safeguards provided" for them, as well as periodic commissions to investigate the conditions of the Backward Classes. The president, in consultation with state governors, designates those groups that meet the criteria of Scheduled Castes and Scheduled Tribes. Similar protections exist for the small Anglo-Indian community.

The framers of the constitution provided that the special provisions would cease twenty years after the promulgation of the constitution, anticipating that the progress of the disadvantaged groups during that time would have removed significant disparities between them and other groups in society. However, in 1969 the Twenty-third Amendment extended the affirmative-action measures until 1980. The Forty-fifth Amendment of 1980 extended them again until 1990, and in 1989 the Sixty-second Amendment extended the provisions until 2000. The Seventy-seventh Amendment of 1995 further strengthened the states' authority to reserve government-service positions for Scheduled Caste and Scheduled Tribe members.

Emergency Provisions and Authoritarian Powers

Part XVIII of the constitution permits the state to suspend various civil liberties and the application of certain federal principles during presidentially proclaimed states of emergency. The constitution provides for three categories of emergencies: a threat by "war or external aggression" or by "internal disturbances"; a "failure of constitutional machinery" in the country or in a state; and a threat to the financial security or credit of the nation or a part of it. Under the first two categories, the Fundamental Rights, with the exception of protection of life and personal liberty, may be suspended, and federal principles may be rendered inoperative. A proclamation of a state of emergency lapses after two months if not approved by both houses of Parliament. The president can issue a proclamation dissolving a state government if it can be determined, upon receipt of a report from a governor, that circumstances prevent the government of that state from maintaining law and order according to the constitution. This action establishes what is known as President's Rule because under such a proclamation the president can assume any or all functions of the state government; transfer the powers of the state legislature to Parliament; or take other measures necessary to achieve the objectives of the proclamation, including suspension, in whole or in part, of the constitution. A proclamation of President's Rule cannot interfere with the exercise of authority by the state's high court. Once approved, President's Rule normally lasts for six months, but it may be extended up to one year if Parliament approves. In exceptional cases, such as the violent revolt in Jammu and Kashmir during the early and mid-1990s, President's Rule has lasted for a period of more than five years.

President's Rule has been imposed frequently, and its use is often politically motivated. During the terms of prime ministers Nehru and Lal Bahadur Shastri, from 1947 to 1966, it was imposed ten times. Under Indira Gandhi's two tenures as prime minister (1966-77 and 1980-84), President's Rule was imposed forty-one times. Despite Mrs. Gandhi's frequent use of President's Rule, she was in office longer (187 months) than any other prime minister except Nehru (201 months). Other prime ministers also have been frequent users: Morarji Desai (eleven times in twenty-eight months), Chaudhury Charan Singh (five times in less than six months), Rajiv Gandhi (eight times in sixty-one months), Vishwanath Pratap (V.P.) Singh (two times in eleven months), Chandra Shekhar (four times in seven months), and P.V. Narasimha Rao (nine times in his first forty-two months in office).

State of emergency proclamations have been issued three times since independence. The first was in 1962 during the border war with China. Another was declared in 1971 when India went to war against Pakistan over the independence of East Pakistan, which became Bangladesh. In 1975 the third Emergency was imposed in response to an alledged threat by "internal disturbances" stemming from the political opposition to Indira Gandhi (see The Rise of Indira Gandhi, ch. 1; National-Level Agencies, ch. 10).

The Indian state has authoritarian powers in addition to the constitution's provisions for proclamations of Emergency Rule and President's Rule. The Preventive Detention Act was passed in 1950 and remained in force until 1970. Shortly after the start of the Emergency in 1962, the government enacted the Defence of India Act. This legislation created the Defence of India Rules, which allow for preventive detention of individuals who have acted or who are likely to act in a manner detrimental to public order and national security. The Defence of India Rules were reimposed during the 1971 war with Pakistan; they remained in effect after the end of the war and were invoked for a variety of uses not intended by their framers, such as the arrests made during a nationwide railroad strike in 1974.

The Maintenance of Internal Security Act promulgated in 1971 also provides for preventive detention. During the 1975-77 Emergency, the act was amended to allow the government to arrest individuals without specifying charges. The government arrested tens of thousands of opposition politicians under the Defence of India Rules and the Maintenance of Internal Security Act, including most of the leaders of the future Janata Party government (see Political Parties, this ch.). Shortly after the Janata government came to power in 1977, Parliament passed the Forty-fourth Amendment, which revised the domestic circumstances cited in Article 352 as justifying an emergency from "internal disturbance" to "armed rebellion." During Janata rule, Parliament also repealed the Defence of India Rules and the Maintenance of Internal Security Act. However, after the Congress (I) returned to power in 1980, Parliament passed the National Security Act authorizing security forces to arrest individuals without warrant for suspicion of action that subverts national security, public order, and essential economic services. The Essential Services Maintenance Act of 1981 permits the government to prohibit strikes and lockouts in sixteen economic sectors providing critical goods and services. The Fifty-ninth Amendment, passed in 1988, restored "internal disturbance" in place of "armed rebellion" as just cause for the proclamation of an emergency.

The Sikh militant movement that spread through Punjab during the 1980s spurred additional authoritarian legislation (see Insurgent Movements and External Subversion, ch. 10). In 1984 Parliament passed the National Security Amendment Act enabling government security forces to detain prisoners for up to one year. The 1984 Terrorist Affected Areas (Special Courts) Ordinance provided security forces in Punjab with unprecedented powers of detention, and it authorized secret tribunals to try suspected terrorists. The 1985 Terrorist and Disruptive Activities (Prevention) Act imposed the death penalty for anyone convicted of terrorist actions that led to the death of others. It empowered authorities to tap telephones, censor mail, and conduct raids when individuals are alleged to pose a threat to the unity and sovereignty of the nation. The legislation renewing the act in 1987 provided for in camera trials, which may be presided over by any central government officer, and reversed the legal presumption of innocence if the government produces specific evidence linking a suspect to a terrorist act. In March 1988, the Fifty-ninth Amendment increased the period that an emergency can be in effect without legislative approval from six months to three years, and it eliminated the assurance of due process and protection of life and liberty with regard to Punjab found in articles 20 and 21. These rights were restored in 1989 by the Sixty-third Amendment.

By June 30, 1994, more than 76,000 persons throughout India had been arrested under the Terrorist and Disruptive Activities (Prevention) Act. The act became widely unpopular, and the Rao government allowed the law to lapse in May 1995.

The Structure of Government

The union government, as India's central government is known, is divided into three distinct but interrelated branches: legislative, executive, and judicial (see fig. 14). As in the British parliamentary model, the leadership of the executive is drawn from and responsible to the legislative body. Although Article 50 stipulates the separation of the judiciary from the executive, the executive controls judicial appointments and many of the conditions of work. In addition, one of the more dramatic institutional battles in the Indian polity has been the struggle between elements wanting to assert legislative power to amend the constitution and those favoring the judiciary's efforts to preserve the constitution's basic structure.

The Legislature

Parliament consists of a bicameral legislature, the Lok Sabha (House of the People--the lower house) and the Rajya Sabha (Council of States--the upper house). Parliament's principal function is to pass laws on those matters that the constitution specifies to be within its jurisdiction. Among its constitutional powers are approval and removal of members of the Council of Ministers, amendment of the constitution, approval of central government finances, and delimitation of state and union territory boundaries (see State Governments and Union Territories, this ch.).

The president has a specific authority with respect to the function of the legislative branch (see The Executive, this ch.). The president is authorized to convene Parliament and must give his assent to all parliamentary bills before they become law. The president is empowered to summon Parliament to meet, to address either house or both houses together, and to require attendance of all of its members. The president also may send messages to either house with respect to a pending bill or any other matter. The president addresses the first session of Parliament each year and must give assent to all provisions in bills passed.

Lok Sabha

The Lok Sabha in 1995 constitutionally had 545 seats. For a variety of reasons, elections are sometimes not held in all constitutiencies, leaving some seats vacant and giving the appearance of fewer seats in the lower house. A member must be at least twenty-five years of age. Two members are nominated by the president as representatives of the Anglo-Indian community, and the rest are popularly elected. Elections are held on a one-stage, "first-past-the-post" system, similar to that in the United States. As in the United States, candidates from larger parties are favored because each constituency elects only the candidate winning the most votes. In the context of multiple-candidate elections, most members of Parliament are elected with pluralities of the vote that amount to less than a majority. As a result, political parties can gain commanding positions in the Parliament without winning the support of a majority of the electorate. For instance, Congress has dominated Indian politics without ever winning a majority of votes in parliamentary elections. The best-ever Congress performance in parliamentary elections was in 1984 when Congress (I) won 48 percent of the vote and garnered 76 percent of the parliamentary seats. In the 1991 elections, Congress (I) won 37.6 percent of the vote and 42 percent of the seats.

The usual Lok Sabha term is five years. However, the president may dissolve the house and call for new elections should the government lose its majority in Parliament. Elections must be held within six months after Parliament is dissolved. The prime minister can choose electorally advantageous times to recommend the dissolution of Parliament to the president in an effort to maximize support in the next Parliament. The term of Parliament can be extended in yearly increments if an emergency has been proclaimed. This situation occurred in 1976 when Parliament was extended beyond its five-year term under the Emergency proclaimed the previous year. The constitution stipulates that the Lok Sabha must meet at least twice a year, and no more than six months can pass between sessions. The Lok Sabha customarily meets for three sessions a year. The Council of Ministers is responsible only to the Lok Sabha, and the authority to initiate financial legislation is vested exclusively in the Lok Sabha.

The powers and authority of the Lok Sabha and the Rajya Sabha are not differentiated. The index of the constitution, for example, has a lengthy list of the powers of Parliament but not for each separate house. The key differences between the two houses lie in their disparate authority in the legislative process.

Rajya Sabha

The Rajya Sabha has a maximum of 250 members. All but twelve are elected by state and territory legislatures for six-year terms. Members must be at least thirty years old. The president nominates up to twelve members on the basis of their special knowledge or practical experience in fields such as literature, science, art, and social service. No further approval of these nominations is required by Parliament. Elections are staggered so that one-third of the members are elected every two years. The number of seats allocated to each state and territory is determined on the basis of relative population, except that smaller states and territories are awarded a larger share than their population justifies.

The Rajya Sabha meets in continuous session. It is not subject to dissolution as is the Lok Sabha. The Rajya Sabha is designed to provide stability and continuity to the legislative process. Although considered the upper house, its authority in the legislative process is subordinate to that of the Lok Sabha.

Legislative Process

The initiative for substantial legislation comes primarily from the prime minister, cabinet members, and high-level officials. Although all legislation except financial bills can be introduced in either house, most laws originate in the Lok Sabha. A legislative proposal may go through three readings before it is voted on. After a bill has been passed by the originating house, it is sent to the other house, where it is debated and voted on. The second house can accept, reject, or amend the bill. If the bill is amended by the second house, it must be returned to the originating house in its amended form. If a bill is rejected by the second house, if there is disagreement about the proposed amendments, or if the second house fails to act on a bill for six months, the president is authorized to summon a joint session of Parliament to vote on the bill. Disagreements are resolved by a majority vote of the members of both houses present in a joint session. This procedure favors the Lok Sabha because it has more than twice as many members as the Rajya Sabha.

When the bill has been passed by both houses, it is sent to the president, who can refuse assent and send the bill back to Parliament for reconsideration. If both houses pass it again, with or without amendments, it is sent to the president a second time. The president is then obliged to assent to the legislation. After receiving the president's assent, a bill becomes an act on the statute book.

The legislative procedure for bills involving taxing and spending--known as money bills--is different from the procedure for other legislation. Money bills can be introduced only in the Lok Sabha. After the Lok Sabha passes a money bill, it is sent to the Rajya Sabha. The upper house has fourteen days to act on the bill. If the Rajya Sabha fails to act within fourteen days, the bill becomes law. The Rajya Sabha may send an amended version of the bill back to the Lok Sabha, but the latter is not bound to accept these changes. It may pass the original bill again, at which point it will be sent to the president for his signature.

During the 1950s and part of the 1960s, Parliament was often the scene of articulate debate and substantial revisions of legislation. Prime ministers Indira Gandhi, Rajiv Gandhi, and P.V. Narasimha Rao, however, showed little enthusiasm for parliamentary debate. During the 1975-77 Emergency, many members of Parliament from the opposition as well as dissidents within Indira's own party were arrested, and press coverage of legislative proceedings was censored. It is generally agreed that the quality of discourse and the expertise of members of Parliament have declined since the 1960s. An effort to halt the decline of Parliament through a reformed committee system giving Parliament new powers of oversight over the executive branch has had very limited impact.

Under the constitution, the division of powers between the union government and the states is delimited into three lists: the Union List, the State List, and the Concurrent List. Parliament has exclusive authority to legislate on any of the ninety-seven items on the Union List. The list includes banking, communications, defense, foreign affairs, interstate commerce, and transportation. The State List includes sixty-seven items that are under the exclusive jurisdiction of state legislatures, including agriculture, local government, police, public health, public order, and trade and commerce within the state. The central--or union--government and state governments exercise concurrent jurisdiction over forty-four items on the Concurrent List, including criminal law and procedure, economic and social planning, electricity, factories, marriage and divorce, price control, social security and social insurance, and trade unions. The purpose of the Concurrent List is to secure legal and administrative unity throughout the country. Laws passed by Parliament relevant to Concurrent List areas take precedence over laws passed by state legislatures.

The Executive

The executive branch is headed by the president, in whom the constitution vests a formidable array of powers. The president serves as head of state and the supreme commander of the armed forces. The president appoints the prime minister, cabinet members, governors of states and territories, Supreme Court and high court justices, and ambassadors and other diplomatic representatives. The president is also authorized to issue ordinances with the force of acts of Parliament when Parliament is not in session. The president can summon and prorogue Parliament as well as dissolve the Lok Sabha and call for new elections. The president also can dismiss state and territory governments. Exercise of these impressive powers has been restricted by the convention that the president acts on the advice of the prime minister. In 1976 the Forty-second Amendment formally required the president to act according to the advice of the Council of Ministers headed by the prime minister. The spirit of the arrangement is reflected in Ambedkar's statement that the president "is head of the State but not of the Executive. He represents the nation but does not rule the nation." In practice, the president's role is predominantly symbolic and ceremonial, roughly analogous to the president of Germany or the British monarch.

The president is elected for a five-year term by an electoral college consisting of the elected members of both houses of Parliament and the elected members of the legislative assemblies of the states and territories. The participation of state and territory assemblies in the election is designed to ensure that the president is chosen to head the nation and not merely the majority party in Parliament, thereby placing the office above politics and making the incumbent a symbol of national unity.

Despite the strict constraints placed on presidential authority, presidential elections have shaped the course of Indian politics on several occasions, and presidents have exercised important power, especially when no party has a clear parliamentary majority. The presidential election of 1969, for example, turned into a dramatic test of strength for rival factions when Prime Minister Indira Gandhi put up an opponent to the official Congress candidate. The electoral contest contributed to the subsequent split of the Congress. In 1979, after the Ja-nata Party began to splinter, President Neelam Sanjiva Reddy (1977-82) first selected Janata member Chaudhury Charan Singh as prime minister (1979-80) to form a minority government and then dissolved Parliament and called for new elections while ignoring Jagjivan Ram's claim that he could assemble a stable government and become the country's first Scheduled Caste prime minister.

Tensions between President Giani Zail Singh (1982-87) and Prime Minister Rajiv Gandhi (1984-88) also illustrate the potential power of the president. In 1987 Singh refused to sign the Indian Post Office (Amendment) Bill, thereby preventing the government from having the authority to censor personal mail. Singh's public suggestion that the prime minister had not treated the office of the president with proper dignity and the persistent rumors that Singh was plotting the prime minister's ouster contributed to the erosion of public confidence in Rajiv Gandhi that ultimately led to his defeat in the 1989 elections. In November 1990, President Ramaswami Venkataraman (1987-92) selected Chandra Shekhar as India's eleventh prime minister, even though Chandra Shekhar's splinter Samajwadi Janata Dal held only fifty-eight seats in the Lok Sabha. Chandra Shekhar resigned in June 1991 when the Congress (I) withdrew its support.

In the same manner as the president, the vice president is elected by the electoral college for a five-year term. The vice president is ex officio chairman of the Rajya Sabha and acts as president when the latter is unable to discharge his duties because of absence, illness, or any other reason or until a new president can be elected (within six months of the vacancy) when a vacancy occurs because of death, resignation, or removal. There have been three instances since 1969 of the vice president serving as acting president.

The prime minister is by far the most powerful figure in the government. After being selected by the president, typically from the party that commands the plurality of seats in Parliament, the prime minister selects the Council of Ministers from other members of Parliament who are then appointed by the president. Individuals who are not members of Parliament may be appointed to the Council of Ministers if they become a member of Parliament either through election or appointment within six months of selection. The Council of Ministers is composed of cabinet ministers (numbering seventeen, representing thirty-one portfolios in 1995), ministers of state (forty-five, representing fifty-three portfolios in 1995), and deputy ministers (the number varies). Cabinet members are selected to accommodate different regional groups, castes, and factions within the ruling party or coalition as well as with an eye to their administrative skills and experience. Prime ministers frequently retain key ministerial portfolios for themselves.

Although the Council of Ministers is formally the highest policy-making body in the government, its powers have declined as influence has been increasingly centralized in the Office of the Prime Minister, which is composed of the top-ranking administrative staff. After the Congress split to form the Congress (R)--R for Requisition--and the Congress (O)--O for Organisation--in 1969, Indira Gandhi (who headed the Congress (R)) increasingly concentrated decision-making authority in the Office of the Prime Minister. When Rajiv Gandhi became prime minister in 1984, he promised to delegate more authority to his cabinet members. However, power rapidly shifted back to the Office of the Prime Minister and a small coterie of Rajiv's personal advisers. Rajiv's dissatisfaction with his cabinet ministers became manifest in his incessant reshuffling of his cabinet. During his five years in office, he changed his cabinet thirty-six times, about once every seven weeks. When P.V. Narasimha Rao became prime minister in June 1991, he decentralized power, giving Minister of Finance Manmohan Singh, in particular, a large measure of autonomy to develop a program for economic reform. After a year in office, Rao began again to centralize authority, and by the end of 1994, the Office of the Prime Minister had grown to be as powerful as it ever was under Rao's predecessors. As of August 1995, Rao himself held the portfolios in thirteen ministries, including those of defense, industry, and Kashmir affairs.

The Judiciary

Supreme Court

The Supreme Court is the ultimate interpreter of the constitution and the laws of the land. It has appellate jurisdiction over all civil and criminal proceedings involving substantial issues concerning the interpretation of the constitution. The court has the original and exclusive jurisdiction to resolve disputes between the central government and one or more states and union territories as well as between different states and union territories. And the Supreme Court is also empowered to issue advisory rulings on issues referred to it by the president. The Supreme Court has wide discretionary powers to hear special appeals on any matter from any court except those of the armed services. It also functions as a court of record and supervises every high court.

Twenty-five associate justices and one chief justice serve on the Supreme Court. The president appoints the chief justice. Associate justices are also appointed by the president after consultation with the chief justice and, if the president deems necessary, with other associate justices of the Supreme Court and high court judges in the states. The appointments do not require Parliament's concurrence. Justices may not be removed from office until they reach mandatory retirement at age sixty-five unless each house of Parliament passes, by a vote of two-thirds of the members in attendance and a majority of its total membership, a presidential order charging "proved misbehavior or incapacity."

The contradiction between the principles of parliamentary sovereignty and judicial review that is embedded in India's constitution has been a source of major controversy over the years. After the courts overturned state laws redistributing land from zamindar (see Glossary) estates on the grounds that the laws violated the zamindars' Fundamental Rights, Parliament passed the first (1951), fourth (1955), and seventeenth amendments (1964) to protect its authority to implement land redistribution. The Supreme Court countered these amendments in 1967 when it ruled in the Golaknath v State of Punjab case that Parliament did not have the power to abrogate the Fundamental Rights, including the provisions on private property. On February 1, 1970, the Supreme Court invalidated the government-sponsored Bank Nationalization Bill that had been passed by Parliament in August 1969. The Supreme Court also rejected as unconstitutional a presidential order of September 7, 1970, that abolished the titles, privileges, and privy purses of the former rulers of India's old princely states.

In reaction to Supreme Court decisions, in 1971 Parliament passed the Twenty-fourth Amendment empowering it to amend any provision of the constitution, including the Fundamental Rights; the Twenty-fifth Amendment, making legislative decisions concerning proper land compensation nonjusticiable; and the Twenty-sixth Amendment, which added a constitutional article abolishing princely privileges and privy purses. On April 24, 1973, the Supreme Court responded to the parliamentary offensive by ruling in the Keshavananda Bharati v the State of Kerala case that although these amendments were constitutional, the court still reserved for itself the discretion to reject any constitutional amendments passed by Parliament by declaring that the amendments cannot change the constitution's "basic structure."

During the 1975-77 Emergency, Parliament passed the Forty-second Amendment in January 1977, which essentially abrogated the Keshavananda ruling by preventing the Supreme Court from reviewing any constitutional amendment with the exception of procedural issues concerning ratification. The Forty-second Amendment's fifty-nine clauses stripped the Supreme Court of many of its powers and moved the political system toward parliamentary sovereignty. However, the Forty-third and Forty-fourth amendments, passed by the Janata government after the defeat of Indira Gandhi in March 1977, reversed these changes. In the Minerva Mills case of 1980, the Supreme Court reaffirmed its authority to protect the basic structure of the constitution. However, in the Judges Transfer case on December 31, 1981, the Supreme Court upheld the government's authority to dismiss temporary judges and transfer high court justices without the consent of the chief justice.

The Supreme Court continued to be embroiled in controversy in 1989, when its US$470 million judgment against Union Carbide for the Bhopal catastrophe resulted in public demonstrations protesting the inadequacy of the settlement (see The Growth of Cities, ch. 5). In 1991 the first-ever impeachment motion against a Supreme Court justice was signed by 108 members of Parliament. A year later, a high-profile inquiry found Associate Justice V. Ramaswamy "guilty of willful and gross misuses of office . . . and moral turpitude by using public funds for private purposes and reckless disregard of statutory rules" while serving as chief justice of Punjab and Haryana. Despite this strong indictment, Ramaswamy survived parliamentary impeachment proceedings and remained on the Supreme Court after only 196 members of Parliament, less than the required two-thirds, voted for his ouster.

During 1993 and 1994, the Supreme Court took measures to bolster the integrity of the courts and protect civil liberties in the face of state coercion. In an effort to avoid the appearance of conflict of interest in the judiciary, Chief Justice Manepalli Narayanrao Venkatachaliah initiated a controversial model code of conduct for judges that required the transfer of high court judges having children practicing as attorneys in their courts. Since 1993, the Supreme Court has implemented a policy to compensate the victims of violence while in police custody. On April 27, 1994, the Supreme Court issued a ruling that enhanced the rights of individuals placed under arrest by stipulating elaborate guidelines for arrest, detention, and interrogation.

High Courts

There are eighteen high courts for India's twenty-five states, six union territories, and one national capital territory. Some high courts serve more than one state or union territory. For example, the high court of the union territory of Chandigarh also serves Punjab and Haryana, and the high court in Gauhati (in Meghalaya) serves Assam, Nagaland, Meghalaya, Mizoram, Manipur, Tripura, and Arunachal Pradesh. As part of the judicial system, the high courts are institutionally independent of state legislatures and executives. The president appoints state high court chief justices after consulting with the chief justice of the Supreme Court and the governor of the state. The president also consults with the chief justice of the state high court before he appoints other high court justices. Furthermore, the president may also exercise the right to transfer high court justices without consultation. These personnel matters are becoming more politicized as chief ministers of states endeavor to exert their influence with New Delhi and the prime minister exerts influence over the president to secure politically advantageous appointments.

Each high court is a court of record exercising original and appellate jurisdiction within its respective state or territory. It also has the power to issue appropriate writs in cases involving constitutionally guaranteed Fundamental Rights. The high court supervises all courts within its jurisdiction, except for those dealing with the armed forces, and may transfer constitutional cases to itself from subordinate courts (see Criminal Law and Procedure, ch. 10). The high courts have original jurisdiction on revenue matters. They try original criminal cases by a jury, but not civil cases.

Lower Courts

States are divided into districts (zillas ), and within each a judge presides as a district judge over civil cases. A sessions judge presides over criminal cases. The judges are appointed by the governor in consultation with the state's high court. District courts are subordinate to the authority of their high court.

There is a hierarchy of judicial officials below the district level. Many officials are selected through competitive examination by the state's public service commission. Civil cases at the subdistrict level are filed in munsif (subdistrict) courts. Lesser criminal cases are entrusted to the courts of subordinate magistrates functioning under the supervisory authority of a district magistrate. All magistrates are under the supervision of the high court. At the village level, disputes are frequently resolved by panchayats or lok adalats (people's courts).

The judicial system retains substantial legitimacy in the eyes of many Indians despite its politicization since the 1970s. In fact, as illustrated by the rise of social action litigation in the 1980s and 1990s, many Indians turn to the courts to redress grievances with other social and political institutions. It is frequently observed that Indians are highly litigious, which has contributed to a growing backlog of cases. Indeed, the Supreme Court was reported to have more than 150,000 cases pending in 1990, the high courts had some 2 million cases pending, and the lower courts had a substantially greater backlog. Research findings in the early 1990s show that the backlogs at levels below the Supreme Court are the result of delays in the litigation process and the large number of decisions that are appealed and not the result of an increase in the number of new cases filed. Coupled with public perceptions of politicization, the growing inability of the courts to resolve disputes expeditiously threatens to erode the remaining legitimacy of the judicial system.

Election Commission

Article 324 of the constitution establishes an independent Election Commission to supervise parliamentary and state elections. Supervising elections in the world's largest democracy is by any standard an immense undertaking. Some 521 million people were eligible to vote in 1991. Efforts are made to see that polling booths are situated no more than two kilometers from a voter's place of residence. In 1991, this objective required some 600,000 polling stations for the country's 3,941 state legislative assembly and 543 parliamentary constituencies. To attempt to ensure fair elections, the Election Commission deployed more than 3.5 million officials, most of whom were temporarily seconded from the government bureaucracy, and 2 million police, paramilitary, and military forces.

Over the years, the Election Commission's enforcement of India's remarkably strict election laws grew increasingly lax. As a consequence, candidates flagrantly violated laws limiting campaign expenditures. Elections became increasingly violent (350 persons were killed during the 1991 campaign, including five Lok Sabha and twenty-one state assembly candidates), and voter intimidation and fraud proliferated.

The appointment of T.N. Seshan as chief election commissioner in 1991 reinvigorated the Election Commission and curbed the illegal manipulation of India's electoral system. By cancelling or repolling elections where improprieties had occurred, disciplining errant poll officers, and fighting for the right to deploy paramilitary forces in sensitive areas, Seshan forced candidates to take the Election Commission's code of conduct seriously and strengthened its supervisory machinery. In Uttar Pradesh, where more than 100 persons were killed in the 1991 elections, Seshan succeeded in reducing the number killed to two in the November 1993 assembly elections by enforcing compulsory deposit of all licensed firearms, banning unauthorized vehicular traffic, and supplementing local police with paramilitary units. In state assembly elections in Andhra Pradesh, Goa, Karnataka, and Sikkim, after raising ceilings for campaign expenditures to realistic levels, Seshan succeeded in getting candidates to comply with these limits by deploying 336 audit officers to keep daily accounts of the candidates' election expenditures. Although Seshan has received enthusiastic support from the public, he has stirred great controversy among the country's politicians. In October 1993, the Supreme Court issued a ruling that confirmed the supremacy of the chief election commissioner, thereby deflecting an effort to rein in Seshan by appointing an additional two election commissioners. Congress (I)'s attempt to curb Seshan's powers through a constitutional amendment was foiled after a public outcry weakened its support in Parliament.

State Governments and Territories

India has twenty-five states, six union territories, and one national capital territory, with populations ranging from 406,000 (Sikkim) to 139 million (Uttar Pradesh). Ten states each have more than 40 million people, making them countrylike in significance (see Structure and Dynamics, ch. 2). There are eighteen official Scheduled Languages (see Glossary), clearly defined since the reorganization of states along linguistic lines in the 1950s and 1960s (see The Social Context of Languages, ch. 4). Social structures within states vary considerably, and they encompass a great deal of cultural diversity, as those who have watched India's Republic Day (January 26) celebrations will attest (see Larger Kinship Groups, ch. 5).

The constitution provides for a legislature in each state and territory. Most states have unicameral legislatures, but Andhra Pradesh, Bihar, Jammu and Kashmir, Maharashtra, Tamil Nadu, and Uttar Pradesh have bicameral legislatures. The lower house, known as the vidhan sabha , or legislative assembly, is the real seat of legislative power. Where an upper house exists, it is known as the vidhan parishad , or legislative council; council functions are advisory, and any objections expressed to a bill may be overridden if the assembly passes the bill a second time. Members of the assembly serve five-year terms after being chosen by direct elections from local constituencies. Their numbers vary, from a minimum of sixty to a maximum of 500. Members of the council are selected through a combination of direct election, indirect election, and nomination. Their six-year terms are staggered so that one-third of the membership is renewed every two years. Whether in the upper or lower house, membership in the assembly has come to reflect the predominantly rural demography of most states and the distribution of social power resulting from the state's agrarian and caste structures.

The structure of state governments is similar to that of the central government. In the executive branch, the governor plays a role analogous to that of the president, and the elected chief minister presides over a council of ministers drawn from the legislature in a manner similar to the prime minister. Many of the governor's duties are honorific; however, the governor also has considerable power. Like the president, the governor selects who may attempt to form a government; he may also dismiss a state's government and dissolve its legislative assembly. All bills that the state legislature passes must receive the assent of the governor. The governor may return bills other than money bills to the assembly. The governor may also decide to send a bill for consideration to the president, who has the power to promulgate ordinances. The governor may also recommend to the president that President's Rule be invoked. Governors are appointed to office for a five-year term by the president on the advice of the prime minister, and their conduct is supposed to be above politics.

Since 1967 most state legislatures have come under the control of parties in opposition to the majority in Parliament, and governors have frequently acted as agents of the ruling party in New Delhi. Increasingly, governors are appointed more for their loyalty to the prime minister than for their distinguished achievements and discretion. The politicization of gubernatorial appointments has become such a widespread practice that in 1989, shortly after the National Front government replaced the Congress (I) government, Prime Minister V.P. Singh (1989-90) asked eighteen governors to resign so that he could replace them with his own choices. Governors not only attempt to keep opposition state governments in line, but also, while keeping the state bureaucracy in place, have exercised their power to dismiss the chief minister and his or her council of ministers.

The strength of the central government relative to the states is especially apparent in constitutional provisions for central intervention into state jurisdictions. Article 3 of the constitution authorizes Parliament, by a simple majority vote, to establish or eliminate states and union territories or change their boundaries and names. The emergency powers granted to the central government by the constitution enable it, under certain circumstances, to acquire the powers of a unitary state. The central government can also dismiss a state government through President's Rule. Article 249 of the constitution enables a two-thirds vote of the Rajya Sabha to empower Parliament to pass binding legislation for any of the subjects on the State List. Articles 256 and 257 require states to comply with laws passed by Parliament and with the executive authority of the central government. The articles empower the central government to issue directives instructing states on compliance in these matters. Article 200 also enables a state governor, under certain circumstances, to refuse to give assent to bills passed by the state legislature and instead refer them to the president for review.

The central government exerts control over state governments through the financial resources at its command. The central government distributes taxes and grants-in-aid through the decisions of finance commissions, usually convened every five years as stipulated by Article 275. The central government also distributes substantial grants through its development plans as elaborated by the Planning Commission. The dependence of state governments on grants and disbursements grew throughout the 1980s as states began to run up fiscal deficits and the share of transfers from New Delhi increased. The power and influence of central government finances also can be seen in the substantial funds allocated under the central government's five-year plans to such areas as public health and agriculture that are constitutionally under the State List (see Health Care, ch. 2; Development Programs, ch. 7).

Besides its twenty-five states, India has seven centrally supervised territories. Six are union territories; one is the National Capital Territory of Delhi. Jurisdictions for territories are smaller than states and less populous. The central government administers union territories through either a lieutenant governor or a chief commissioner who is appointed by the president on the advice of the prime minister. Each territory also has a council of ministers, a legislature, and a high court; however, Parliament may also pass legislation on issues in union territories that in the case of states are usually reserved for state assemblies. The Sixty-ninth Amendment, passed in December 1991, made Delhi the national capital territory effective February 1, 1992. Although not having the same status as statehood, Delhi was given the power of direct election of members of its legislative assembly and the power to pass its own laws.

https://en.wikipedia.org/wiki/Constitution_of_India
http://www.indiacode.nic.in/coiweb/welcome.html


Country Studies main page | India Country Studies main page