COMPARATIVE CONSTITUTIONAL LAW

1. COMPARATIVE CONSTITUTIONAL LAW Class 19 October 25 2006

2. External Aids to Interpretation • Compare to U.S., Australia, Canada, Germany: • Legislative History • Foreign case law • Academic Writings

3. Federalism and Enumeration of Powers • Compare how powers are distributed in the Indian Constitution to the constitutions of Australia, Germany, Canada, and the U.S.

4. Pith and Substance Test • What is this doctrine? • Does India recognize it?

5. Pith and Substance Test • What is this doctrine? • Does India recognize it? Yes, see, e.g.,Prafulla Kuman Mukherjee v. Bank of Khulna, (1947) (PC)

6. Occupied Field Doctrine • What is this?

7. Rule of Harmonious Construction • Is this positivist or structuralist? • How was it applied in Sri Venkataramana Devaru v. Mysore, AIR 1958 SC 255 • Was it really necessary for the court to resort to the rule of harmonious construction?

8. Art. 25 Freedom of conscience and free profession, practice and propagation of religion.- • (1) Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion. • (2) Nothing in this article shall affect the operation of any existing law or prevent the State from making any law- • (a) regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice; • (b) providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus.

9. Art 26 Freedom to Manage Religious Affairs • Subject to public order, morality and health, every religious denomination or any section thereof shall have the right- • (a) to establish and maintain institutions for religious and charitable purposes; • (b) to manage its own affairs in matters of religion; • (c) to own and acquire movable and immovable property; and • (d) to administer such property in accordance with law.

10. Legislative Privilege/Freedom of Speech • MSM Sharma v. Sri Krishna Sinha, AIR 1959 SC 395 • In re, Under Article 143, of te Constitution of India, AIR 1965 SC 745

11. Move towards More Structuralist Interpretation • Property (we discussed in last class) • Affirmative Action

12. Affirmative Action • 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

13. A 15 • 15. Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth.- • (1) The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them. • (2) No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be subject to any disability, liability, restriction or condition with regard to- • (a) access to shops, public restaurants, hotels and places of public entertainment; or (b) the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of State funds or dedicated to the use of the general public. (3) Nothing in this article shall prevent the State from making any special provision for women and children.

14. A 29 • 29. Protection of interests of minorities.- • (1) Any section of the citizens residing in the territory of India or any part thereof having a distinct language, script or culture of its own shall have the right to conserve the same. • (2) No citizen shall be denied admission into any educational institution maintained by the State or receiving aid out of State funds on grounds only of religion, race, caste, language or any of them.

15. Conflict between FR and DP • Which was held to prevail in 1951? • Madras v. Champakam Dorairajan AIR 1951 SC 226

16. Amendment: A 15(4) • 4) Nothing in this article or in clause (2) of article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes.]

17. Article 16 • 16. Equality of opportunity in matters of public employment.-  • (1) There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State.  • (2) No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect of, any employment or office under the State.  • (3) Nothing in this article shall prevent Parliament from making any law prescribing, in regard to a class or classes of employment or appointment to an office _11[under the Government of, or any local or other authority within, a State or Union territory, any requirement as to residence within that State or Union territory] prior to such employment or appointment.  • _12[(4A)  Nothing in this article shall prevent the State from making any provision for reservation in matters of promotion to any class or classes of posts in the services under the State in favour of the Scheduled Castes and the Scheduled Tribes which, in the opinion of the State, are not adequately represented in the services under the State.]  • _12A[(4B) Nothing in this article shall prevent the State from considering any unfilled vacancies of a year which are reserved for being filled up in that year in accordance with any provision for reservation made under clause (4) or clause (4A) as a separate class of vacancies to be filled up in any succeeding year or years and such class of vacancies shall not be considered together with the vacancies of the year in which they are being filled up for determining the ceiling of fifty per cent. reservation on total number of vacancies of that year.] • (5) Nothing in this article shall affect the operation of any law which provides that the incumbent of an office in connection with the affairs of any religious or denominational institution or any member of the governing body thereof shall be a person professing a particular religion or belonging to a particular denomination. 

18. Total number of reservations • In education Balaji v. Mysore, AIR 1963 SC 649 • In government jobs Chitraleka v. Mysore, AIR 1964 SC 1823

19. Total number of reservations for backward classes • In education Balaji v. Mysore, AIR 1963 SC 649 no more than 50% • In government jobs Chitraleka v. Mysore, AIR 1964 SC 1823 no more than 50% • 1989: following 1980 recommendations of Mandal Commission, Government reserved 27% of government jobs for backward classes (total including reservations for Scheduled Castes and Tribes 49.5%). Cause of resignation of then PM V.P Singh (Janata Dal coalition) • Were the Government reservations constitutional?

20. Constitutional? • Yes – see Indra Sawney v. India AIR 1993 SC 417 • Creamy layers should be eventually excluded from reservations; no reservations in promotion

21. Enormous Protests in September 1990 • Current debate: • Reservations in university places • Reservations in private sector jobs

22. Freedom of Speech • Sakal Newspapers (Private Ltd) v. India AIR 1962 SC 305

23. 19. Protection of certain rights regarding freedom of speech, etc.- • (1) All citizens shall have the right- • (a) to freedom of speech and expression; • g) to practise any profession, or to carry on any occupation, trade or business • 2) Nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause in the interests of _16[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.] • 6) Nothing in sub-clause (g) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of the general public, reasonable restrictions on the exercise of the right conferred by the said sub-clause, . . .

24. Emergencies • What does Article 352 authorize?

25. Suspension of Fundamental Rights • Compare A 358 • A 359

26. Historical Emergencies • 1962 • Crisis somewhat ignored by the world due to Cuban Missile Crisis • These Ladekh children are carrying signs proclaiming their allegiance to India

27. Another emergency: 1971 • War with Pakistan over East Bengal

28. Third State of Emergency 1975 • Indira Gandi v. Rajnarain, AIR 1975 SC 2299 (39th Amendment) • ADM Jubbalpur v. Shiv Kant Shukla AIR 1976 SC 1207 • What reaction to Jubbalpur?

29. Activism • E.g. Liberal interpretation of fundamental rights: see Maneka Gandhi v. India 1978 – liberal interpretation of A 21 (unlike approach of Gopalan) • Are they following the “living tree” approach like Canada?

30. Standing • Public Interest Litigation

31. Article 32 • Remedies for enforcement of rights conferred by this Part.- (1) The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed. • (2) The Supreme Court shall have power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of any of • (3) Without prejudice to the powers conferred on the Supreme Court by clauses (1) and (2), Parliament may by law empower any other court to exercise within the local limits of its jurisdiction all or any of the powers exercisable by the Supreme Court under clause (2). • (4) The right guaranteed by this article shall not be suspended except as otherwise provided for by this Constition.

32. Quasi-Legislation • E.g. directions

33. Preservation of Judicial Independence • E,g . Second and Third Judges Cases (1993) and (1998)

34. Backsliding on Rights? • Is this due to class bias of judges?