Samy Dumeix                                                                     Thursday, November the 17th 2005

 

 

Course point :

Democracy and Multiculturalism in India :
the Stakes and the State of the Indian Model 

 

 

Introduction :

 

I chose this course point from the lecture given by Mr Seiler on the Comparative analysis of political parties. I wanted to develop this short example of the lecture into a course point because I believe it has lots to show us on the validity of democracy in non-western parts of the World. As a debate has started in our english class having led to a forum I created, I wanted to present this course point on the situation of multiculturalism in India which claims to be the biggest democracy in the world. The lecture on Comparative analysis of political parties put forward the example of India as a Parliamentary system well inspired from the British system. However it showed local specificities due to the diversity of minorities and religions within the Indian State. Therefore, what does the Indian model show about the compatibility of Democracy with non western countries and what conclusions might emerge on the efficiency of India's political system ?

 

General presentation of the point :

 

The points I would like to introduce in this presentation are first of all , the explanation of the impact of the British colonization on India and what did the Indian State choose to maintain from it. Secondly, I would like to explain the specificities of the Indian model in terms of multiculturalism and democracy. Then eventually, I would like to try to analyze its efficiency and the main problems and main legitimacy it led to.

 

1)      The impact of British colonization :

 

When the British arrived in India, they started to impose their authority through the control of the Indian Economy notably. The East India Company was at first tightly associated with the settlement of the British Power in the region. One of the second major aspects of British colonization was the significant role of its military in imposing itself : they succeeded in defeating the French and Portuguese, but also powerful local empires and tribes. The Economy was to remain major because India was corrupted for most of its current authorities and Britain became a major diwan throughout its installation facing the multiplicity of inefficient existing diwans and their involvement in networks of corruption. (“diwan” : local person authorized to collect taxes). To implement its permanent settlement, Britain started to organize the land-owning. It introduced the right of property in 1973. British colonization in India was also characterized by the creation of Universities and schools. One of their main objective was the teaching of languages. Concerning the Law, if Britain easily introduced criminal law, it faced much difficulty in applying the civil law. The predominance of the caste system in India was a very rigid feature of the Indian society that led Britain to import and impose its law. One practice Sati, according to which widows are to burn alive with their dead husband during the funeral ceremony, led the British to define the rights of widows. The second example was the significance of human sacrifice in India, involving notably families who used to sacrifice children to Goddesses. The British pressurized the families to stop the phenomenon. In 1850, British law interfered with the Cast Disability Removal Act to prevent ostracism of individuals within the castes. This was indeed very common and led to the loss of social existence and recognition for many indian individuals, who were joining the ranks of the “untouchables”. If the colonization was truly meant to increase the power and supremacy of Britain in India, sometimes triggering very unequal situations between the British and the Indian citizens, it did however initiate the emergence and development of the Indian Economy, and it brought most of the modern India political system, because the Indian State was very disorganised. The Penal Code was established in India during British colonization.

 

2)      India : “The Biggest Democracy in the World” , a specific model of multiculturalism

 

India's political system was established by the November the 26th 1949 Constitution. The President of India is elected for a five-years-term by an electoral college. He has a moral authority and the Executive Power is detained by the Prime Minister and its government responsible before the Parliament. The Parliament is made up of two main chambers : The Council of the States (Rajya Sabha) and the Chamber of the People (Lok Sabha). The Council of the States includes 245 members elected for six years and nominated by the Legislative Assembly of the States and for eight members by the President. The Chamber of the People is made up of 545 members elected for five years at the universal suffrage. The main political parties are the Indian National Congress, the Bharatiya Janata Party (BJP) , the Communist Party of India Marxist, the Jana Sangh and the Rashtriya Sevak Sangh. The states government headed by a governor have the same political structure as the national system. The Local organization is overall constructed into cities, villages, quarters, and districts. The Penal Code is that inherited from the British colonization. There is a National Supreme Court.

          Indian multiculturalism is specific because there is a system that guarantees the maintaining of local rights. However, at the very beginning, the Indian constitution has tried very hard to impose a judicial system that would apply to all citizens whatever their religions and cultures were. Article 44 of the Constitution legislates a commitment to the gradual establishment of legal uniformity in India, the aim being that the state "shall endeavour to secure for the citizens a uniform civil code throughout the territory of India." It contains a Directive Provision. Indeed, Religious communities continue to be governed by their own personal laws (apart from Muslims, this applies to Christians, Zoroastrians, Jews and Hindus, as well as Buddhists and Sikhs who, for legal purposes, are classified as Hindus). Several Acts inherited from British colonization, are nowadays used as precedents in Indian Law to organize the personal laws of minorities in India. For example, The Muslim Personal Law (Shariat) Application Act 1937 directs the application of Muslim Personal Law to Muslims in a number of different areas mainly related to family law. The Act also directs the application of Muslim personal law in matters relating to intestate succession among Muslims. On the matter of Islamic inheritance law, as the Quran provides a systematic scheme for intestate succession, there has been no particular legislation in that area. The courts generally apply the classical rules relating to intestate succession. The courts are to apply these precedents of laws to individuals belonging to a minority group. These specific kinds of personal laws are dominant in the area of family law. There is a clear will from the Indian State not to interfere in the personal affairs of any Community without its initiative and consent. Article 30 of the Indian constitution aims at securing  to religious and linguistic minorities a right to establish and administer educational institutions of their choice. We see that in everyday life Indian Law is based on a blend of customary law,  judicial precedents and the state Law.

 

 

3)      Analysis on the Indian model :

One aspect of the Indian Constitution is that its preamble states that India is a "secular democratic republic" This means that there is no State religion. A secular State shall not discriminate against anyone on the ground of religion. However as we saw previously the Indian constitution and especially the article 44 are not genuinely applied in India. The main problem that emerges from the non-application of article 44, is in the case of Hindus, the rising situation for untouchables who, according to Hindu religion which is organized into castes are the lowest category of humans, which is de facto unpriviledged and discriminated. The Indian Constitution aimed at struggling against the discriminations that affected the untouchables in this case. The biggest obstacle in implementing article 44, apart from obtaining a consensus, is the drafting. Should UCC be a blend of all the personal laws or should it be a new law adhering to the constitutional mandate? There is a lot of literature churned out on UCC but there is no model law drafted. Many think that under the guise of UCC, the Hindu law will be imposed on all. The possibility of UCC being only a repackaged Hindu law was ruled out by Prime Minister Atal Bihari Vajpayee when he said that there will be a new code based on gender equality and comprising the best elements in all the personal laws.The UCC should strike a balance between protection of fundamental rights and the religious dogmas of individuals. It should be a code, which is just and proper according to a man of ordinary prudence, without any bias with regards to religious or political considerations. (UCC* : Uniform civil code). A second kind of examples have been reported about the status of women (the cases of polygamy) within the Muslim community in India. What would be the field of action of the Indian State facing discriminations which would affect women, while not contradicting the Muslim laws ? The Indian model however presents a clear specificity. It is not completely negative because minorities have their specific rights guaranteed and the Indian State by acknowledging their rights, is in conformity with the diversity of the Indian Society. It does not impose by force a form of universalism but tries to propose it and the Indian state still retains the possibility of discussing its proven attempts to create a uniform civil code. And that is what makes the system democratic, because political life in India is a compromise between its diverse society constituents and the Ideal of the Indian Nation. And of course in India itself the model is under criticism by nationalist forces and other opponents. It does lead to injustice and discriminatory situations. But that should be the stakes of the future proposals of the government.

 

Conclusions :

 

    To conclude, Democracy in India has been possible even if it was imposed by the force by the former British colonization. Of course, no credible political system could be imposed to populations if they belong to a total different culture by force. But in the case of India, paradoxically, at the time of its independance, India was unable to completely change the British law and influences within the institutions of the country. The current situation of minorities regarding law is inherited from British colonization. This situation would appear very anti-democratic because it creates diverse systems of laws in India. However, the mobilization of the government, the judicial life in India which is always confronted with dealing with minority claims and the secularist goals of the constitution shapes the framework of a democratic regime in India. Democracy will seem to be efficient when these two demands manage to find a compromise within India.