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An experience in India

Thursday, May 17, 2018   (0 Comments)
Posted by: Tom Towe
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I was invited by the Rajiv Gandhi National University Law School in India, to lecture on American law in February. It was a once in a lifetime experience. The arrangements were made through the Senior Lawyers Program of the Center for International Legal Studies of Salzburg, Austria.

The RGNUL is a new law school in Patiala, about 150 miles north of Delhi in the state of Punjab. It has only been in existence for 10 years and is largely supported by the state of Punjab. There are currently 850 students; by the time the new buildings are complete, they expect to have 1,000 students. All of them are law students. The curriculum includes general studies for the first two years; it is a five-year course and students come in from high school and graduate ready to take the bar exam so they can become a lawyer authorized to practice anywhere in India.

I taught one class for 1½ hours each day for two weeks. It was a voluntary, non-credit class with about 20 students who merely received a certificate of completion at the end. In addition, I was invited to give one lecture to all of the approximately 170 students first-year students and another to most of the second-year students. Then I had two more large lectures when some of the other faculty wanted their classes to attend after learning of my discussion of the politics of Marbury v. Madison and some other important cases in American law. 

In addition to several lectures on the development of American jurisprudence, the American court system, and the importance of the Bill of Rights, I lectured on class actions, and I picked out probate and human rights enforcement in Montana as examples of how specific issues are handled in the United States.

Actually, I probably learned more than my students did. I had assumed that since India was a British colony just as the United States was before the Indian Constitution was adopted, the legal systems would be very similar. I was wrong. In fact, I was quite surprised at the many differences. 

My first surprise was the length of the constitution India adopted in 1947 when it became independent. The vice chancellor of the university gave me a copy; it is 451 pages long. Part III containing The Fundamental Rights runs 16 pages.

In 1947, the drafters of the Indian Constitution contacted then-U.S. Supreme Court Felix Frankfurter to help them draft some portions of it, including the Fundamental Rights. I think that was a mistake — he encouraged them to list all of the exceptions to the fundamental rights immediately following the fundamental rights. For example, freedom of speech has eight exceptions. The right to assemble must be peaceable and without arms and pursuant to laws passed to protect the public order.

The most interesting change is the way Frankfurter convinced them to draft the due process of law clause. It reads, “No person shall be deprived of his life or personal liberty except according to procedure established by law.” Frankfurter thought this would prevent too many lawsuits interpreting the meaning of “due process of law.”  Of course, that eliminates the protection against bad laws. In fact the faculty informed me that the India Supreme Court has, in effect, rewritten that section to take care of bad laws just as if due process had been used in the beginning.

On the other hand, another fundamental right not found in either our federal or Montana Constitutions is the right to a free and compulsory education for every child between ages 6 and 14. In some ways this is the key to modern India. Not only is education genuinely provided to all, but there is a real focus on the importance of education at all levels. Many go on to college and there even seems to be a real effort to obtain post-graduate education. India is becoming a highly educated country. 

The biggest difference in India’s Constitution, is the concept of federalism. The federal government is much stronger and has many more powers than the federal government in the United States. While there are 19 separate states, they far less sovereignty and power than our states do. One of the reasons their Constitution is so long is that the state constitutions are essentially written into it. The governor is a political appointee appointed by the president and serves at the pleasure of the president. In effect, his job is to do the bidding of the party of the prime minister. The “chief minister,” elected by the people in each State, has some authority but not much compared to our elected chief executive.

As Professor Anand Pawar told me, “You had only 13 colonies and each one was very concerned about protecting its own sovereignty; they did not want to give up any more power to the central government than absolutely necessary to run the federal government. In India, we had 550 kingdoms, some of whom would not join voluntarily. We had to have a stronger federal government to preserve order.”

Another thing that is much different in the Indian Constitution is the selection of the Supreme Court. Although the Supreme Court judges are appointed by the president it is only after consulting with the other judges of the Supreme Court and the state high courts. Instead of appointment upon the advice and consent of the Senate as our Supreme Court justices are selected, in India they are appointed upon the advice of the remaining judges of the Supreme Court. The result is that the executive or the legislative branches have very little input in the selection of the Supreme Court judges. The president of India also appoints the judges of the high court of each state. He also must consult with the chief judge of India as well as the governor of that state and the chief judge of the high court of that state. They, also, are not political appointments. 

One more thing. The judges of the Supreme Court and all other High Court judges are not appointed for life but until they reach age 65 for the Supreme Court and 62 for the High Court of each state. I question why that is not discrimination on the basis of age; but the ages are written into the Constitution.

Vice Chancellor Paramjit Jaswal (CEO of the law school—the chancellor is a ceremonial position held by the chief judge of the Punjab State High Court) told me he believes the Indian Constitution is the best constitution in the world. In fact, the people of India do not celebrate an independence day as we do; instead each year they celebrate Indian Constitution Day, the day the Constitution was adopted.

When I got into probate laws, it was even more interesting. First a little back ground. India has 1.3 billion people — about four times the number of people in the United States living in a third of the area. We are told 79 percent of the people are Hindu, 14.5 percent are Muslim, 4.6 percent are Christian and the rest are Sikhs, Jans, or other. Religion is very important to virtually all Indians. The marriage ceremony is clearly the most important event in every Indian’s life. But about 75 percent of the married people in India are the product of an arranged marriage. Even the highly educated people with post-graduate degrees leave it to their parents to arrange their marriages. Although, it is probably true that most people nowadays believe they have a right to veto their parents’ choice, it is generally accepted that selection of a marriage partner is the function of the parents. If you don’t believe it, just look at the classified ads in any local newspaper. 

In the little country villages, marriages are arranged when the children are as young  as 8 or 9 years of age. Before we arrived at the law school we visited a rural school about 60 miles southeast of Jaipur with about 300 students in grades 1 through 10. We asked the principal how many of these 5- to 16-year-old students were married, and she said about one half of them were. They do live with their parents until they finish school.  The question, of course, is whether they are happy. The divorce rate is very low, less than 5 percent. But some will admit they do not have a happy marriage.

Next, however, the question is what happens when one spouse dies. In both Hindu and Muslim tradition, the wife joins the husband’s family at marriage and the dower acts as the wife’s inheritance. The new wife joins the husband’s family and has no further claim to her natural parents’ inheritance. Once the husband dies, particularly if he dies young, the widow is really in a bad way. She no longer has any means of support from her old family and if she has not established herself she may have no support from her husband’s family. Some go to a home for widows in the cities and shave their heads and become beggars on the streets. In an attempt to break this system, dower is strictly prohibited by law, but a “wedding gift” is still legal. Widows are now better cared for than they used to be.

Inheritance is governed by religious law. So if the family is Hindu, the widow will receive half of the family property. However, if the family is Muslim, sharia law will apply and the widow will receive nothing. All others are considered “secular” and under the law, the widow receives one half.

As I said earlier, the people of India are generally well educated. Unfortunately, however, there are a lot of well-educated people who cannot find a good job. And, furthermore, a good job does not pay very well. When I asked my students how much they would earn once they graduate and pass the bar, they indicated they would be very happy to receive a steady job that would pay 45,000 rupees a month. At 64 rupees per dollar, that is approximately $700 a month. No wonder Westlaw hires most of their researchers from India. In the United States, $700 per month or $8,400 per year, is well below the poverty level. Granted the cost of living is less than in the United States, but it is not that much less.

We noticed an article in the local newspaper that reported a survey of 1,562 street vendors in a nearby city. Typically each street vendor has a wagon or stall that is parked along the street for selling fruits, vegetables or other foods. Some sell clothing, pots, or handicrafts. Of the 1,562 street vendors surveyed, 58 were college graduates and four had post-graduate degrees. If the people of India are generally well educated, a very large number are not employed to their full capacity.

India is still struggling with the caste system. Although the Indian Constitution guarantees equal protection of the laws as the first fundamental right in the constitution and makes discrimination against untouchables, it is hard to abolish a practice that has been around for thousands of years. The “children of God” as Mahatma Gandhi called them, make up over one-third of the population. The law is enforced extremely well as it relates to any discrimination by the government, but enforcement against private individuals or companies is not well enforced. Your parents, for example, would never arrange a marriage for you with someone below your class. Nevertheless, remarkable progress has been made in this area in the last 71 years.

I also learned that the Court system is hopelessly over-burdened. There are just too many people and not enough judges and courts. One of the reasons there aren’t many divorces is because it takes too long if there is a dispute that must be resolved by a court.

With an educated population, many of whom are employed far below their potential, India itself has huge potential. Its economy is just now coming of age. It has the third largest army in the world and it is a nuclear power. That alone makes it very important as a world power. However, its real power is in its educated populace which makes it truly a force to be reckoned with.