India will celebrate its 75th birthday on August 15, 2022.
Its independence from British colonial rule followed a complex process, including Partition: the division of India into Muslim-majority Pakistan and Hindu-majority India. Partition displaced tens of millions of people and caused loss of life and property that remain in the living memory of many.
India’s future remained unresolved for more than two years after Partition. Although the country achieved its independence on August 15, 1947, it only became a fully sovereign republic with its own head of state on January 26, 1950.RELATED
Between those dates, the 299 men and women of the Constituent Assembly of India worked to envision their emerging country and to inscribe its vision and fundamental legal principles in a national constitution. The result of their efforts is a remarkable document that remains a source of inspiration and controversy today.
Here are some things you should know about the Indian Constitution.
1: Longest build
Perhaps appropriately, the world’s most populous democracy has the world’s longest national constitution.
At the time of its adoption in 1949, the Indian Constitution contained 395 articles and was approximately 145,000 words long. The only longest written constitution belongs to the state of Alabama.
By comparison, the US Constitution, generally considered the oldest national charter in the world, originally contained just seven articles and about 4,200 words. The shortest constitution in the world belongs to its second smallest country, Monaco. It is around 3,800 words.
2: Early Example
When the Indian Constitution was ratified, constitutions were not as common as they are today. India’s was only the world’s 23rd national constitution. By comparison, Pakistan did not ratify its constitution until 1956.
Consequently, the ratification was in itself an important achievement. In societies like India, with many deep cultural, religious, and socioeconomic divides, the process of drafting and ratifying a shared founding document can serve a valuable symbolic function.
Some countries, faced with the challenges of drafting a constitution for a deeply heterogeneous population, never agree on a single unifying document. Israel is an example.
3: Collaborative Inspiration
Because constitutions were still relatively rare in the 1940s, the Drafting Committee of the Indian Constituent Assembly looked wherever they could for inspiration.
The committee’s chairman, B.R. Ambedkar, drew on his education in the United States and the United Kingdom. Consultant BN Rau traveled in the fall of 1947 to Canada, the USA, Ireland and the UK to learn from his experiences.
Rau even indicated which country had inspired each element of the draft constitution he prepared for the Assembly. For example, India’s 1947 constitution did not contain a “due process” clause like its American counterpart: the United States Supreme Court Justice, the Judiciary.
However, the Indian constitution contains non-justiciable “Guiding Principles”. The term non-justiciable means that the courts cannot enforce these constitutional provisions. This feature was borrowed from the 1937 Irish Constitution to give legislators and judges a set of values to consider.
4: Simple Settings
Today, the Indian Constitution is among the most amended in the world. It has 105 amendments with the last one approved in August 2021.
Easy change was intentionally codified in the Indian Constitution. “[N]or there is permanence in the Constitutions”, declared the first Prime Minister of India, Jawaharlal Nehru. “There has to be some flexibility.”
Consequently, article 368 only requires that a single member of parliament propose a bill to change the constitution and that parliament approve the proposed changes by a simple majority to approve them.
In contrast, the US requires two-thirds of Congress to propose a constitutional amendment or two-thirds of the states to propose a constitutional convention to consider amendments. Ratification requires two-thirds of the states. Consequently, only 27 of approximately 12,000 amendments to the Constitution proposed since 1787 have been adopted.
“Easy Change” is credited with being one of the contributors to the longevity of the Indian Constitution, which at 75 years far exceeds the world average lifespan of 17 years. In Asia, only two other countries that gained independence shortly after World War II still retain their original constitutions: Taiwan and South Korea. Thailand, by contrast, has had around 20 constitutions since 1932.
5: eye-catching features
Two provisions have received widespread praise.
Article 17 responded to pervasive and debilitating caste discrimination by abolishing untouchability, the practice of segregating and persecuting certain groups because they are considered “impure”, “in any form”.
And Article 21, which protects life and personal liberty, has directly contributed to the right of Indians to free public primary education and was cited in the 2018 Indian Supreme Court decision to decriminalize consensual conduct between people of the same sex.
Other parts of the Indian Constitution, such as a pre-trial detention provision that allows the government to jail people before they commit a crime, have drawn considerable criticism from scholars, activists and lawyers.
Finally, some features of the Indian Constitution are unusual, but not necessarily good or bad.
The constitution has two provisions on religious freedom. Article 25 establishes “the right to freely profess, practice and propagate religion” for all people. That is, the article grants religious freedom to people. More unusually, article 26 recognizes that “religious denominations” also have specific rights with respect to ownership, institutional management, and “matters of religion.”
These two rights, the individual and the collective, often come into conflict. What matters, when these two rights collide, is what limitations apply to Article 25 and which communities count as religious denominations for Article 26.
In 1991, after reviewing articles 25 and 26, a higher court decided that Sabarimala could bar women at all times, despite good reason to believe that women had historically been allowed entry under certain conditions. Then in 2018, the Supreme Court of India overturned that decision, stating that because some women had probably always visited Sabarimala, all women should be allowed to enter. The Supreme Court ruling was also based on an interpretation of Articles 25 and 26.
Future of Indian democracy
Despite its long and generally promising history, India’s constitutional democracy faces turbulent times.
Several recent scandals, including a chief justice accused of sexual harassment and another chief justice accused of abuse of power by his own colleagues, have compromised the Supreme Court’s reputation as a steward 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 India’s constitution 75 years ago, the drafters of 299 intended to create a charter that would serve all Indians, regardless of religion, caste or gender. Whether that democratic tradition continues for another 75 years will depend on whether legislators and judges stay true to that vision.
Editor’s Note: This story has been corrected to accurately reflect the status of India’s constitution as one of the most amended in the world.
This article is republished from The Conversation under a Creative Commons license. Read the original article here: https://theconversation.com/india-turns-75-fast-facts-about-the-unusual-constitution-guiding-the-worlds-most-populous-democracy-188096 .