Abstract
This essay is on the Indian constitution and extends and responds to the work of Singh (Constitutional Political Economy 17:17, 2006) in the analysis of economic rights. The veto player framework is used to analyze the development of economic rights which was diminished and civil rights (through Public Interest Litigation) which was expanded since Indian independence. The Congleton Model (Constitutional Political Economy 12:193–215, 2001) and Tsebelis Model (British Journal of Political Science 25(3):298–325, 1995) on veto players are used to develop the hypotheses and analyze the evolution of the Indian constitution.
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Notes
In Indian politics, the ideology of a few key players in a party (or in this instance the Constituent Assembly) results in determining the ideal point of a political party on an issue.
The point of enforcement by the courts was vigorously debated during the Constituent Assembly.
The total number of justices has increased from 8 to 26 presently. This is due to a backlog of cases and the need for handling cases expeditiously.
With India’s life expectancy being low, the retirement age of 65 years was one tool that ensured judicial independence.
The President typically consults with the Prime Minister on most executive decisions.
Since the total number of the state legislatures is greater than the total number of the members of parliament, the weight given to the vote of a state legislator is based on the population of his/her state.
Shocks change the ideal points of both king and council (Parliament and Supreme Court).
Due to cycling the non-decisive council cannot have agenda control.
The idea of the basic structure doctrine is that certain key parts of the constitution (e.g. Fundamental Rights, independence of the judiciary, secularism etc.) cannot be changed by a constitutional amendment even though there is nothing in the original constitution that limits the right of parliament to amend any part of the constitution.
The agreement of cooperation between the Congress led parties and the Communist parties fractured in the summer of 2008.
Slow policy changes towards a free market might actually be the best for India as it allows for the education of the median voter to occur, further economic disruption is slower, and institutional changes can keep pace with economic reforms.
The slow movement of economic reforms has been lamented by some sections in India (Kripalani 2008).
1950 is the year when the constitution (with property rights as a fundamental right) took effect and 1980 is when the basic structure doctrine is settled and property rights is no longer is a fundamental right.
The death of influential property proponent Sardar Patel paved the way for anti-property members of Parliament to move quickly as Parliament’s ideal position changed.
The Seventeenth Amendment broadened the definition of ‘estate’. It also added many state land reform acts in the Ninth Schedule including the Punjab Act (Austin 1999: 197). It came into force in 1964.
The ability to amend the constitution occurred during the 5th Lok Sabha (1971–1977) when Congress regained 2/3 majority.
The Twenty-Ninth Amendment put the Kerala Land Reform Act in the Ninth Schedule, hence this Act was considered beyond judicial review. It came into force in 1972.
This decision has been reconfirmed recently by the Supreme Court in a unanimous verdict. In their decision they state: “The power to grant absolute immunity at will is not compatible with the basic structure doctrine and, therefore, after April 24, 1973 the laws included in the Ninth Schedule would not have absolute immunity. The validity of such laws can be challenged on the touchstone of basic structure such as reflected in Article 21 read with Article 14 and Article 19, Article 15 and the principles underlying these Articles” (The Hindu, January 12, 2007).
There are various reasons for delinking the elections. One reason was so that the Lok Sabha elections can be effectively run on national issues and not on state issues and another reason was that in the 4th Lok Sabha (1967–1971) Congress was weak. The surprise in the 1971 election was that Congress won a super majority which allowed it to be decisive in its conflict with the Supreme Court (Weiner 1971).
1991 is the year that India started liberalising the economy.
The law is not “settled” in this area. Further, the move towards a stronger property right regime has again been driven by a few key players in the majority coalition. Today most political parties in India are moving away from a position favoring a command and control economy (Cran 2002).
While I have delinked economic and civil rights, it is becoming clearer in the Indian context that they may be linked. The linkage between property rights and other rights has been written about by Alchian (2008). The common law also saw property rights tied to civil rights/liberties. For example James Madison says, “Government is instituted to protect property of every sort; as well that which lies in the various rights of individuals, as that which the term particularly expresses. This being the end of government, that alone is a just government, which impartially secures to every man, whatever is his own” (italics in original; Kurland and Lerner 1987). Macey also shows how other rights are diminished when property rights are diminished; for example, if one’s economic welfare is tied to the state giving one favors, then one is less likely to speak out against the state (1992: 148f). Further the work of DeSoto (2003) illustrates how insecure property rights results in diminished rights in other areas.
It is also known as Social Action Litigation.
This includes the right to equality, right to freedom, right to life and personal liberty, right against exploitation, cultural and educational rights, and right to constitutional remedies.
There are additional avenues of PIL and different authors categorize PILs differently.
The Environmental Protection Act of 1986 gave the central government power to shut down polluting industries and established the “Ministry of Environments and Forests.” Amendments to the Air Act of 1987 allowed Pollution Control Boards (PCBs) to shut down polluting industries.
The courts have used Articles from the Directive Principles and have tied them to Articles in the Fundamental Rights making portions of Directive Principles enforceable by the courts. The right to free legal aid (Article 39A) and environmental protection (Article 48-A) from the Directive Principles has been tied to Article 21 (right to life) of the Fundamental Rights.
Article 348 (2) of the Constitution permits court proceedings to be held in regional languages if approved by the president. At present five High Courts in India use proceedings in the regional language (The Hindu, December 2, 2006).
This is beyond what is authorized in the constitution as it assigns the Chief Justice only a consultative role.
Many times Parliament is ineffective as a veto player and the decision of the Supreme Court tends to be supported by the majority of the voters.
No Judges have been impeached since independence.
References
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Austin, G. (1966). The Indian constitution: Cornerstone of a nation. London: Clarendon Press.
Austin, G. (1999). Working a democratic constitution: The Indian experience. New Delhi: Oxford University Press.
Cameron, C. M. (2000). Veto bargaining: Presidents and the politics of negative power. New York: Cambridge University Press.
Cassels, J. (1989). Judicial activism and public interest litigation in India: Attempting the impossible? The American Journal of Comparative Law, 37(3), 495–519.
Congleton, R. D. (2001). On the durability of king and council: The continuum between dictatorship and democracy. Constitutional Political Economy, 12, 193–215.
Cran, W. (2002). The agony of reform. In Commanding heights: The battle for the world economy. Pp. 120 mins. USA.
Dembowski, H. (2001). Taking the state to court–public interest litigation and the public sphere in Metropolitan India. Asia House: E-Book.
Desai, A. H., & Muralidhar, S. (2000). Public interest litigation: Potential and problems. In B. N. Kirpal, A. H. Desai, G. Subramanium, & R. Dhavan (Eds.), Supreme but not infallible—essays in honour of the Supreme Court of India. New Delhi: Oxford University Press.
DeSoto, H. (2003). The mystery of capital: Why capitalism triumphs in the West and fails everywhere else. New York, NY: Basic Books.
Epstein, R. A. (1985). Takings: Private property and the power of eminent domain. Cambridge, MA: Harvard University Press.
George, J. V. (2005). Social change and public interest litigation in India. Web: http://india.indymedia.org/en/2005/03/210205.shtml.
Kripalani, M. (2008). India’s economy hits the wall. In Business Week.
Kurland, P. B., & Ralph L. (eds.) (1987). (online version) The founders’ constitution. University of Chicago Press & Liberty Fund.
Macey, J. R. (1992). Some causes and consequences of the bifurcated treatment of economic rights and “other” rights under the United States constitution. Social Philosophy and Policy, 9(1), 141–170.
Pelinka, A. (2003). Democracy Indian style: Subhas Chandra Bose and the creation of India’s political culture. (R. Schell, Trans.). New Brunswick (USA): Transaction Publishers.
Pylee, M. V. (2004). Constitutional government in India. New Delhi: S. Chand & Company Ltd.
Ravi, N. (2005). Can judicial ascendancy be rolled back? In The Hindu.
Salian, S. (2002). History of the removal of the fundamental right to property. Center for Civil Society Working Paper No. 0041:232–255.
Sathe, S. P. (2002). Judicial activism in India. New Delhi: Oxford University Press.
Shavell, S. (2004). Foundations of economic analysis of law. Cambridge, MA: The Belknap Press of Harvard University Press.
Singh, J. (2006). Separation of powers and the erosion of the ‘right to property’ in India. Constitutional Political Economy, 17, 17.
Siwach, J. R. (1985). Dynamics of Indian government and politics. New Delhi: Sterling Publishers.
Tsebelis, G. (1995). Decision making in political systems: Veto players in Presidentialism, Parliamentarism, Multicameralism and Multipartyism. British Journal of Political Science, 25(3), 298–325.
Weiner, M. (1971). The 1971 elections and the Indian Party System Asian Survey 11(12):The 1971 Indian Parliamentary Elections: A Symposium 1153–1166.
Websites used:
Newspaper: www.hindu.com.
Official website of Supreme Court of India: http://www.supremecourtofindia.nic.in/.
Online Encyclopedia: www.Wikipedia.com.
Indian Constitution: http://www.constitution.org/cons/india/const.html.
Supreme court cases:
Anil Yadav & Ors. v. The State of Bihar, and Anr., (1982) 3 S.C.R. 533.
Bandhua Mukti Morcha v. Union of India, (1984) 2 S.C.R. 67.
Charan Lal Sahu Etc. Etc. v. Union of India and Ors., (1989) 2 S.C.R. Supl. 597.
Francis Coralie Mullin v. The Administrator, Union Territory of Delhi & Ors., (1981) 2 S.C.R. 516.
His Holiness Kesavananda Bharati Sripadagalvaru v. State of Kerala and Another, (1973) 4 S.C.C. 225.
Hussainara Khatoon & Ors v. Home Secretary, State of Bihar, Govt. of Bihar, Patna, (1979) 3 S.C.R. 169.
I.C. Golak Nath and Ors. v. State of Punjab and Anrs, (1967) 2 S.C.R. 762.
M.C. Mehta v. Union of India, A.I.R. 1988 S.C. 1037.
Minerva Mills Ltd. & Ors v. Union of India & Ors., (1980) 1 S.C.R. 206.
Municipal Council, Ratlam v. Shri Vardhichand & Ors., (1981) 1 S.C.R. 97.
Olga Tellis & ORS. v. Bombay Municipal Corporation & Ors. Etc., (1985) 2 S.C.R. Supl. 51.
Rural Litigation & Entitlement Kendra v. State of Uttar Pradesh, A.I.R. 1989 S.C. 594.
S.P. Gupta v. Union of India, A.I.R. 1982 S.C. 149.
Supreme Court Advocates-on-Record Association and another v. Union of India, A.I.R. 1994 S.C. 268.
Waman Rao & Ors. Etc. Etc. v. Union of India and Ors., (1981) 2 S.C.R. 1.
Acknowledgments
The author thanks Charles Rowley, Richard Wagner, Todd Zywicki, and three anonymous referees for helpful advice on earlier versions of the paper. Further, thanks to Roger Congleton for initially encouraging me to work on this topic.
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Appendix
Appendix
This appendix contains some of the main articles in the Indian constitution. It was obtained from this website: http://www.constitution.org/cons/india/const.html. Some of the articles below are just summaries or just the titles.
1.1 Fundamental rights
13. Laws inconsistent with or in derogation of the Fundamental Rights.-
-
(1)
All laws in force in the territory of India immediately before the commencement of this Constitution, in so far as they are inconsistent with the provisions of this Part, shall, to the extent of such inconsistency, be void.
-
(2)
The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void.
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(3)
In this article, unless the context otherwise requires,-
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a. “law” includes any Ordinance, order, bye-law, rule, regulation, notification, custom or usage having in the territory of India the force of law;
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b. laws in force” includes laws passed or made by a Legislature or other competent authority in the territory of India before the commencement of this Constitution and not previously repealed, notwithstanding that any such law or any part thereof may not be then in operation either at all or in particular areas.
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9[(4) Nothing in this article shall apply to any amendment of this Constitution made under article 368.]
14. Equality before law.-
The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.
19*. Protection of certain rights regarding freedom of speech, etc.-
1. All citizens shall have the right-
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to freedom of speech and expression;
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to assemble peaceably and without arms;
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to form associations or unions;
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to move freely throughout the territory of India;
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to reside and settle in any part of the territory of India;
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to practise any profession, or to carry on any occupation, trade or business.
21. Protection of life and personal liberty.-
No person shall be deprived of his life or personal liberty except according to procedure established by law.
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.
31. [Compulsory acquisition of property.]
Repealed by the Constitution (Forty-fourth Amendment) Act, 1978, s. 6 (w.e.f. 20-6-1979).
31C. Saving of laws giving effect to certain directive principles.-
Notwithstanding anything contained in article 13, no law giving effect to the policy of the State towards securing 32 [all or any of the principles laid down in Part IV] shall be deemed to be void on the ground that it is inconsistent with, or takes away or abridges any of the rights conferred by 33 [article 14 or article 19]; 34 and no law containing a declaration that it is for giving effect to such policy shall be called in question in any court on the ground that it does not give effect to such policy:
Provided that where such law is made by the Legislature of a State, the provisions of this article shall not apply thereto unless such law, having been reserved for the consideration of the President, has received his assent.]
[32A. [Constitutional validity of State laws not to be considered in proceedings under article 32.]
Repealed by the Constitution (Forty-third Amendment) Act, 1977, s. 3 (w.e.f. 13-4-1978).
1.2 Directive principles of state policy
38. State to secure a social order for the promotion of welfare of the people.
39. Certain principles of policy to be followed by the State.-
The State shall, in particular, direct its policy towards securing-
-
a.
that the citizens, men and women equally, have the right to an adequate means of livelihood;
-
b.
that the ownership and control of the material resources of the community are so distributed as best to subserve the common good;
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c.
that the operation of the economic system does not result in the concentration of wealth and means of production to the common detriment;
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d.
that there is equal pay for equal work for both men and women;
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e.
that the health and strength of workers, men and women, and the tender age of children are not abused and that citizens are not forced by economic necessity to enter avocations unsuited to their age or strength; 40[
-
f.
that children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and that childhood and youth are protected against exploitation and against moral and material abandonment.]
41. Right to work, to education and to public assistance in certain cases.
42. Provision for just and humane conditions of work and maternity relief.
43. Living wage, etc., for workers.
45. Provision for free and compulsory education for children.
46. Promotion of educational and economic interests of Scheduled Castes, Scheduled Tribes and other weaker sections.
47. Duty of the State to raise the level of nutrition and the standard of living and to improve public health.
48A. Protection and improvement of environment and safeguarding of forests and wild life.
1.3 Miscellaneous
300A. Persons not to be deprived of property save by authority of law
No person shall be deprived of his property save by authority of law (added by the 44th amendment).
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Bose, F. Parliament vs. Supreme court: a veto player framework of the Indian constitutional experiment in the area of economic and civil rights. Const Polit Econ 21, 336–359 (2010). https://doi.org/10.1007/s10602-010-9088-2
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DOI: https://doi.org/10.1007/s10602-010-9088-2
Keywords
- Indian constitution
- Property rights
- Civil rights
- Basic structure doctrine
- Public interest litigation
- Veto bargaining model
- Veto player framework
- Supreme Court
- Parliament