Paper – II
(Governance, Constitution, Polity, Social Justice and International relations)
A constitution is a set of rules through which a country or state operates. Some countries have unwritten constitutions which means there is no formal constitution written in one particular document. Their constitutional rules are originated from a number of sources. Britain sources its constitution from a number of important statutes, or laws, as well as principles decided in legal cases and conventions. New Zealand and Israel are two other countries that do not have formal written constitutions. Other nations have formal written constitutions in which the structure of government is defined and the respective powers of the nation and the states are written in one single document. These systems may also include unwritten conventions and constitutional law which can inform how the constitution is interpreted. Australia, India and the United States are examples of countries with a written constitution.
Some constitutions may be modified without any special process. The documents that make up the New Zealand Constitution may be amended simply by a majority vote of its Parliament. In other countries a special procedure is adopted before their constitution can be changed. Australia has a constitution which requires a referendum in order to change it.
Indian Constitution has many sources that include the imaginative ambitions of the nationalist leaders, the actual working of the Government of India Act, 1935, and the experience gained from the genuine working of some of the Constitutions of significant countries of the world. Its sources include not only the sources upon which the founding fathers of our Constitution drew but also the developmental sources such as the judicial decisions, constitutional amendments, constitutional practices and others.
Importance of constitution:
The role of a constitution is to make certain that the government operates efficiently and in a fair and responsible manner. It does this in three ways:
-It holds the government to the law.
-It provides distinction of power so that no one part of the government is any more powerful than another.
-It provides a series of checks and balances so that when laws are made or amended, the government follows the correct procedure to pass a Bill.
Constitution of India-At a glance:
The Indian Constitution is inimitable in its contents and spirit. India, also called Bharat, is a Union of States. It is an Independent Socialist Secular Democratic Republic with a parliamentary system of government. The Republic is governed in terms of the Constitution of India which was accepted by the Constituent Assembly on 26th November, 1949 and came into force on 26th January, 1950. The Constitution offers for a Parliamentary form of government which is federal in structure with certain unitary characteristics. The constitutional head of the Executive of the Union is the President. As per Article 79 of the Constitution of India, the council of the Parliament of the Union consists of the President and two Houses known as the Council of States (Rajya Sabha) and the House of the People (Lok Sabha). Article 74(1) of the Constitution provides that there shall be a Council of Ministers with the Prime Minister as its head to help and advise the President, who shall exercise his/her functions in accordance to the advice. The real executive power is vested in the Council of Ministers with the Prime Minister as its head.
Though, constitution borrowed from every constitution of the world, the constitution of India has numerous salient attributes that differentiate it from the constitutions of other countries. It isprominent at the beginning that a number of original features of the Constitution have undergone a considerable change, on account of several amendments, particularly 7th, 42nd, 44th, 73rd and 74th Amendments. In fact, the 42nd Amendment Act (1976) is known as ‘Mini Constitution’ due to the important and large number of changes made by it in various parts of the Constitution. However, in the KesavanandaBharati easel (1973), the Supreme Court ruled that the constituent power of Parliament under Article 368 does not enable it to alter the ‘basic structure’ of the Constitution.
Text of the Constitution-Preamble:
The American Constitution was the first to initiate with a Preamble. Many countries, including India, followed this practice. The term ‘preamble’ is described as the introduction or preface to the Constitution. It contains the summary of the Constitution. N APalkhivala, renowned jurist and constitutional expert, called the Preamble as the ‘identity card of the Constitution.’ The Preamble to the Indian Constitution is based on the ‘Objectives Resolution’, drafted and moved by Pandit Nehru, and adopted by the Constituent Assembly. It has been revised by the 42nd Constitutional Amendment Act (1976), which added three new words such as socialist, secular and integrity.
Ingredients of the Preamble:
The Preamble reveals four ingredients or components:
Source of authority of the Constitution:
The Preamble states that the Constitution derives its authority from the people of India.
Nature of Indian State: It declares India to be of a sovereign, socialist, secular democratic and republican polity.
Objectives of the Constitution: It postulates justice, liberty, equality and fraternity as the objectives.
Date of adoption of the Constitution: It stipulates November 26, 1949 as the date.
Striking Features of the Constitution:
The Constitution of India establishes a federal system of government. It contains all the usual features of a federation, viz., two government, division of powers, written Constitution, supremacy of Constitution, rigidity of Constitution, independent judiciary, and bicameralism.
Though, the Indian Constitution also covershuge number of unitary or non-federal features, viz., a strong Centre, single Constitution, single citizenship, flexibility of Constitution, integrated judiciary, appointment of state governor by the Centre, all-India services, and emergency provisions.
Furthermore, the term ‘Federation’ has nowhere been used in the Constitution. Article 1, on the other hand, defines India as a ‘Union of States’ which implies two things: one, Indian Federation is not the result of an agreement by the states; and two, no state has the right to secede from the federation.
Parliamentary Form of Government:
The Constitution of India has chosen the British parliamentary System of Government instead of American Presidential System of Government. The parliamentary system is based on the principle of collaboration and coordination between the legislative and executive organs while the presidential system is based on the principle of separation of powers between the two organs.
The parliamentary system is also called the ‘Westminster’ model of government, responsible government and cabinet government. The Constitution establishes the parliamentary system not only at the Centre but also in the states. The basic attributes of parliamentary government in India are:
- Presence of nominal and real executives
- Majority party rule
- Collective responsibility of the executive to the legislature
- Membership of the ministers in the legislature
- Leadership of the prime minister or the chief minister
- Dissolution of the lower House (Lok Sabha or Assembly)
Though the Indian Parliamentary System is mainly based on the British system, there are some important differences between the two. For example, the Indian Parliament is not anindependent body like the British Parliament. Additionally, the Indian State has an elected head (republic) while the British State has hereditary head (monarchy).
Parliament: Structural and Functional Dimensions:
Under article 79 of the Indian Constitution, there is a Parliament consists of the President and two chambers/houses called the Council of States or the Rajya Sabha and the House of People or the Lok Sabha. The President of India is not only the head of the executive but anessential part of the legislature as he/she performs numerous functions vis-a-vis the Parliament. He/she does not sit or participate in the dialogs in either of the two houses. The President summons and prorogues the two houses of the Parliament from time to time. He/she is a crucial part of the legislation process, for every bill has to be signed by him, after its passage in the Parliament, in order to become a law. The power to dissolve the Lok Sabha vests in him. He/she has the right to address one or both the houses and send messages to them. At the beginning of the first session after each general election to the Lok Sabha and at the commencement of the first session each year, the President addresses both the chambers which is called the special address. Under article 123, when the Parliament is not in session and the President is satisfied that circumstances exist which render it necessary for him to take immediate action, the President can promulgate an ordinance which has the same force and effect as a law made by the Parliament.
Synthesis of parliamentary sovereignty and judicial supremacy:
The principle of sovereignty of Parliament is related with the British Parliament while the principle of judicial supremacy with the American Supreme Court.
The Indian parliamentary system differs from the British system and the scope of judicial review power of the Supreme Court in India is narrower than US.
Therefore, the developers of the Indian Constitution have chosen a proper synthesis between the British principle of parliamentary sovereignty and the American principle of judicial authority.
The Supreme Court can declare the parliamentary laws as unconstitutional through its power of judicial review. The Parliament can modify the major portion of the Constitution through its constituent power.
Power of Judicial Review:
Judicial review is the power of the Supreme Court to scrutinize the constitutionality of legislative enactments and executive orders of both the Central and state governments. While investigation, if they are found to be violation of the Constitution (ultra-vires), they can be declared as illegal, unconstitutional and invalid by the Supreme Court. Consequently, they cannot be enforced by the Government.
There is great significance of Judicial review due to following reasons:
- To uphold the principle of the supremacy of the Constitution.
- To maintain federal equilibrium (balance between Centre and states).
- To protect the fundamental rights of the citizens.
The Supreme Court used the power of judicial review in several cases, such as, the Golaknath case (1967), the Bank Nationalisation case (1970), the Privy Purses Abolition case (1971), the KesavanandaBharati case (1973), the Minerva Mills case (1980) and others.
Though the phrase ‘Judicial Review’ has been used in the Constitution, the provisions of several articles 12 clearlydiscuss the power of judicial review on the Supreme Court. The constitutional validity of a legislative enactment or an executive order can be challenged in the Supreme Court on the following three grounds:
- It infringes the Fundamental Rights (Part III).
- It is outside the competence of the authority which has framed it.
- It is repugnant to the constitutional provisions.
Universal Adult Franchise: The Indian Constitution espouses universal adult franchise as a basis of elections to the Lok Sabha and the state legislative assemblies. Every inhabitant who is not less than 18 years of age has a right to vote without any discrimination of caste, race, religion, sex, literacy, wealth, and so on. The voting age was reduced to 18 years from 21 years in 1989 by the 61st Constitutional Amendment Act of 1988.
Though the Indian Constitution is federal and foresees a dual polity (Centre and states), it provides for only a single citizenship, that is, the Indian citizenship.
In many nations like USA, each person is not only a citizen of USA but also a citizen of the particular state to which he belongs.Thus, he owes allegiance to both and enjoys dual sets of rights-one conferred by the National government and another by the state government.
In India, all citizens regardless of the state in which they are born or reside enjoy the same political and civil rights of citizenship all over the country and no discrimination is made between them excepting in few cases like tribal areas, Jammu and Kashmir.
Despite the constitutional establishment for a single citizenship and uniform rights for all the people, India has been beholding the communal riots, class conflicts, caste wars, linguistic clashes and ethnic disputes.This means that the valued goal of the Constitution-makers to build united and integrated Indian nation has not been fully realized.
Parliamentary Sovereignty: Transcendental and Absolute Authority
The sovereignty of Parliament develops exceptional unique feature of the British Constitution. The British Parliament is composed of three parts such as the House of Commons, the House of Lords, and the Monarch. But no one part can make law on its own. Today the Monarch’s function is purely ceremonial, while the powers of the House of Lords have been greatly reduced. Hence the real legislative authority lies in the House of Commons and parliamentary sovereignty, thus refers to the authority of the House of Commons.
There is, under the British constitution, no difference between ordinary and constitutional law. It can be said that the Parliament possess unlimited constituent powers. It can pass any constitutional act in the same way as ordinary law can be passed. The Parliament can pass a simple law which may change the whole structure of the constitutional fabric.
There is no “Judicial Review” in England. The judiciary has recognized every act of the Parliament as valid law. The British Judiciary does not interfere with the supreme authority of the Parliament. The Parliament is free to conduct with its own business and the court has no power to interfere with its proceedings.
Parliamentary form of Government:
Great Britain is the characteristic home of parliamentary form of government. The Prime Minister, as the head of the cabinet, is the most powerful ruler in a parliamentary system of government. The Cabinet dominates in this system. Collective responsibility and political homogeneity are also essential features of the Cabinet system. All the ministers are collectively responsible to the House of Commons. The Ministers are also preferably from a homogeneous political party, or a combination of political parties having similar views and policies. The latter course is known as coalition, but it is very infrequent in British political history. Absence of strict separation of powers is another important feature on parliamentary form of government. There is harmonious co-operation between the executive and the legislature and both work hand-in-hand. Parliamentary forms of government is not based on strict separation of powers. The theory has been in principle in Great Britain, but in practice the cabinet being omnipotent and all powerful in executive as well as legislative arena, denies the theory in principle.
Major principle represented in the Constitution of India is federalism. Powers are split between the central government, state governments, and local governments. The central government has exclusive power that involves in the foreign policy, defence of the country, communications, the building of railroads, taxation on corporations, and currency. The state and local governments have the sole power to legislate on some subjects that include law and order, public health and sanitation, entertainment, taxation on agriculture income, betting and gambling, and alcoholic beverages. All of the governments can concern themselves into the criminal law, contracts, population control, social security, education, and marriage and divorce of an area. The Constitution of India also involves the theory of checks and balances. The president has three veto powers which include that he can refuse to agree to a law, which would mean an absolute veto. He can also send the bill back to the parliament for changes, or he could take no action on the bill. If the president refuses to agree or sends the bill back for changes he can be overridden by a simple majority vote in the legislature. The Supreme Court of India can rule laws invalid if they are not following the Constitution. This way all the branches keep each other in check.
Constitutional System in UK:
The constitution of the United Kingdom includes laws and principles that form the body politic of the United Kingdom. It concerns both the relationship between the individual and the state, and the functioning of the legislature, the executive and judiciary. Different to other nations, the UK has no single constitutional document. Much of the British constitution is exemplified in written documents, within statutes, court judgments, works of authority and treaties. The constitution has other unwritten sources, including parliamentary constitutional conventions.
Executive Branch in UK:
Executive branch: chief of state
Head of government: Prime Minister
Cabinet: Cabinet of Ministers appointed by the prime minister
Elections: the monarchy is hereditary; following legislative elections, the leader of the majority party or the leader of the majority coalition usually becomes the prime minister.
Constitutional System in Switzerland:
The Federal Constitution of the Swiss Confederation of 18 April 1999 is the third and current federal constitution of Switzerland. It creates the Swiss Confederation as a federal republic of 26 cantons (states). The document contains a catalogue of individual and popular rights (including the right to call for popular referenda on federal laws and constitutional amendments), delineates the responsibilities of the regions and the confederation and establishes the federal authorities of government.
Switzerland is a federal state consisting of 26 districts. Government, parliament and courts are structured on three levels that include federal, cantonal and communal. The federal constitution describes the areas where federal legislation defines standardised solutions, sets guidelines only or leaves things to cantonal autonomy.
Switzerland has a two-chamber parliament on national level: The National Council, consisting of 200 members elected under the Proportional Representation System while the Council of States (46 members) represents the cantons.
Both chambers of parliament form several commissions. Some to control the work of the administration, some commissionsdiscuss new laws in depth. Specialists in fields like health, military and others are elected to represent their party in these commissions. All parties of minimal size (5 members of parliament) are embodied at least in a few commissions and smaller parties may join to form a fraction giving them the right to work in commissions.
The National Council is Switzerland’s “house of representatives”. The 200 members are chosen every four years according to a refined proportional representation system in principle, but since every canton forms a constituency and cantons have extremely different numbers of populaces, five smaller cantons may only send one deputy to the national council, which results in majority elections for these deputies.
Council of States: The Council of States characterises the cantons. Most regions may send two members. For historical reasons, six cantons are considered half-cantons and may send only, giving a total of 46 members. The rules how to elect the members are made under cantonal legislation, so they may differ from region to region. A majority of regions does elect their members of the Council of States every four years on the same day as the members of the National Council.
The National Assembly: While modified laws are to be discussed in both chambers of parliament separately, they unite in common sessions in special occasions for the purpose of elections (government members, judges of the federal court).
Militia System: The phrase “militia” usually means a military force recruited from among the civilian population, supplementing the regular, expert army in emergency. The Swiss Army, not having professional soldiers relies completely on militia-men and the same term is used in Switzerland for members of parliament as well, because they do not legislate as a full-time job.
The four parliamentary sessions per year last for a few weeks only and members of parliament are not paid corresponding to a full time job. Between sessions, each representative has to read proposals for new laws individually and to attend one-day conferences of commissions.
However, most members of parliament do indeed work in a normal profession in parallel to their parliamentary directive and most of the time they live in their constituency, not in the federal capital. This results in more intense informal contacts with the electorate than in other nations. Because of the huge burden, several attempts have been madesince last decades to change the system and introduce a full-time parliament in Switzerland. All of them have been rejected, however, with the main dispute that the militia system would guarantee for much better contacts between representatives and population.
Switzerland’s Legislation Process:
In Switzerland, laws are formed in four steps:
- Draft by the administration
- Consultation of federal states, political parties, entrepreneurs, unions and other interested groups.
- Parliamentary debate and final version passed
- Possibility of a referendum
The formal consultation results in comments, demands for changes and even alternate propositions. Normally, they are made public so that the electorate is informed what is going on and what are the advantages and disadvantages of the new law. If a strong party or lobby intimidates to call for a referendum in a later stage if their demands are not met, a new law may be completely revised by the administration after the consultation.
Commissions of both chambers of parliament study and converse the proposal as well as the arguments put forward during consultation in detail and prepare a recommendation to their chamber. Sometimes, the commissions find a compromise, sometimes they do not. A speaker for the commission presents the new law to the parliament chamber to start the public debate.
Both chambers debate new laws separately. Sometimes, they have to repeat a dialogue if the other chamber has passed a different version of a law. Which chamber is discussing a new proposal first is not determined by the constitution but results from the time the chambers spend discussing on each law.
If National Council and Council of States pass the same version of a change to the constitution or decide to join an international union, a date is fixed for the mandatory referendum. In case of all other laws and international treaties citizens have three months’ time to collect 50,000 signatures among the electorate to demand for a referendum. The result of a referendum is compulsory. The constitution may only be changed if both a majority of the votes and a majority of the results in the regions favour it. Therefore, smaller cantons may block changes to the constitution with comparatively few votes. Normal laws do only need a majority of the total votes. Laws making procedure is slow in Switzerland, which may be a handicap with more technically oriented laws.
Constitutional System in Germany:
The current German political system is based on the constitution dating from 1949 when the American, British and French zones of occupation were consolidated into the Federal Republic of Germany (West Germany). In 1990, the former German Democratic Republic (East Germany) joined the Federal Republic.
Though, the 1949 constitution holds a central feature of the original German constitution of 1871 which brought together Prussia with Europe’s other German states (except Austria) and the Weimar Constitution of 1919. Constitution involved a sharing of power between the central government and local Lander (states) namely a dispersal of authority between different levels of government. So the Basic Law (Grundgesetz) of 1949 deliberately distributes power between the central government and the Lander.
The strength of Germany’s democratic system and the quality of its political leadership Chancellors such as Konrad Adenauer (1949-1963), Willy Brandt (1969-1974), Helmut Schmidt (1974-1982) and Helmut Kohl (1982-1998) have been enormously inspiring.
The Executive: The head of state is the President, a mainly ceremonial position, elected for a maximum of two five-year terms. The voters in the election for President are known collectively as the Federal Convention, which consists of all members of the Bundestag and an equal number of members nominated by the state legislatures. It is a total of 1,244.The head of the government is the Chancellor (equivalent to the British Prime Minister). Every four years, after national elections and the convocation of the newly elected members of the Bundestag, the chancellor is elected by a majority of the members of the Bundestag upon the proposal of the President. This vote is one of the few cases where a majority of all elected members of the Bundestag must be achieved, as opposed to a mere majority of those that are currently assembled. This is referred to as the Kanzlermehrheit (Chancellor’s majority) and is designed to ensure the establishment of a stable government.
Most notably, the Chancellor cannot be dismissed by a vote of no confidence.
Since Germany has a system of proportional representation for the election of its lower house, no one party wins an absolute majority of the seats and all German governments are therefore coalitions.
The lower house in the German political system is the Bundestag. Its members are chosen for four-year terms. The process of election is called mixed member proportional representation (MMPR). It is a complicated system than first-past-post but one which gives a more proportional result (a variant of this system known as the additional member system is used for the Scottish Parliament and the Welsh Assembly).
Half of the members of the Bundestag are chosen directly from 299 constituencies using the first past the post method of election. Then the other half another299 are elected from the list of the parties on the basis of each Land (the 16 regions that make up Germany). This entails that each voter has two votes in the elections to the Bundestag. The first vote allows voters to elect their local representatives to the Parliament and decides which candidates are sent to Parliament from the constituencies. The second vote is cast for a party list and it is this second vote that decides the comparative power of the parties represented in the Bundestag.
The 598 seats are only distributed among the parties that have gained more than 5% of the second votes or at least 3 direct mandates. Each of these parties is allocated seats in the Bundestag in proportion to the number of votes it has received. This system is intended to block membership of the Bundestag to small, extremist parties. As a result, there are always a small number of parties with representation in the Bundestag.
At least 598 members of the Bundestag are chosen in this procedure. Additionally, there are certain circumstances in which some candidates win what are known as an overhang seat when the seats are being distributed. This situation occurs if a party has gained more direct mandates in a land than it is entitled to according to the results of the second vote, when it does not forfeit these mandates because all directly elected candidates are guaranteed a seat in the Bundestag.This electoral system results in a varying number of seats in the Bundestag.
One remarkable difference between the Bundestag and the American Congress or the British House of Commons is the lack of time spent on serving constituents in Germany. In part, that difference results from the fact that only 50% of Bundestag members are directly elected to represent a specific geographic district. In part, it is because constituency service seems not to be perceived, either by the electorate or by the representatives, as a critical function of the legislator and a practical constraint on the expansion of constituent service is the limited personal staff of Bundestag members.The Bundestag elects the Chancellor for a four-year term and is the main legislative body.
The German Bundesrat is a governmental body that represents the sixteen Lander (federal states) of Germany at the national level. The upper house in the German political system is the Bundesrat. The Bundesrat partakes in legislation, alongside the Bundestag, the directly elected representation of the people of Germany, with laws affecting state competences and all constitutional changes requiring the consent of the body.
Apparently, the composition of the Bundesrat looks analogous to other upper houses in federal states such as the US Congress since the Bundestag is a body representing all the German Lander (or regional states). Nevertheless, there are two basic differences in the German system:
- Its members are not elected, neither by popular vote nor by the state parliaments but are members of the state cabinets which appoint them and can remove them at any time. Usually, a state delegation is headed by the head of government in that Land known in Germany as the Minister-President.
- The states are not represented by an equal number of delegates, since the population of the respective state is a major factor in the allocation of votes to each particular Land. The vote’s allocation can be approximated as 2.01 + the square root of the Land’s population in millions with the additional limit of a maximum of six votes so that it is consistent with something called the Penrose method based on game theory. This means that the 16 states have between three and six delegates.
This isatypical method of composition provides for a total of 69 votes (not seats) in the Bundesrat. The state cabinet then may appoint as many delegates as the state has votes, but is under no obligation to do so; it can limit the state delegation even to one single delegate. The number of members or delegates representing a particular Land does not matter formally since, in stark contrast to many other legislative bodies, the delegates to the Bundesrat from any one state are required to cast the votes of the state as a bloc (since the votes are not those of the respective delegate). This means that in practice it is possible that only one of the delegates casts all the votes of the respective state, even if the other members of the delegation are present in the chamber. The Bundesrat has the power to veto legislation that affects the powers of the states.
Germany’s Supreme Court is called the Federal Constitutional Court and itplays vital role as guardian of the constitution. There are 16 judges divided between two panels called Senates, each holding office for a non-renewable term of 12 years. Half the judges are elected by the Bundestag and half by the Bundesrat, in both cases by a two-thirds majority. Once appointed, a judge can only be removed by the Court itself.
While the Bundestag and the Bundesrat have moved from Bonn to Berlin, the Constitutional Court is located in Karlsruhe in the state of Baden-Württemberg.
As other nations such as Britain, France, and the USA, Germany has two major party groupings:
The Centre-Right group comprises of two political parties that operate in different parts of the country so that there is no direct electoral competition between them. The Christian Democratic Union (CDU) operates in all the Lander except Bavaria, while the Christian Social Union (CSU) operates only in Bavaria.
The Centre-Left party is the Social Democratic Party (SPD in German).
The other parties represented in the Bundestag are:
– The Free Democratic Party (FDP) – a Rightist party
– The Left Party – built on the former Communist Party
– The Alliance ’90/The Greens – the German Green party
The electoral system in the German political system is like coalition governments. The Social Democratic Party was in coalition with the Greens -the Red/Green coalition – from 1998-2005 and, from 2005-2009, there was a ‘grand coalition’ between the CDU/CSU and the SDP. Since 2009, the CDU/CSU has been in a coalition with the FDP.
Strangely political parties in Germany receive considerable public funds and the costs of election campaigns are substantially met from the public money.
The Lander: During the initial profession of Germany after the Second World War the territory in each Occupation Zone was restructured into new Lander (singular Land) to avoid any one Land from ever dominating Germany (as Prussia had done). Later the Lander in the western part of the former German Reich were constituted as administrative areas first and subsequently federated into the Bund or Federal Republic of Germany.
The Basic Law accords significant powers to the 16 Lander. Additionally, there is a strong system of state courts.
Politics at the state level often carries implications for federal politics. Opposition triumphs in elections for state parliaments, which take place throughout the federal government’s four-year term, can decline the federal government because state governments have assigned seats in the Bundesrat.
The German one has its strengths and limitations. The strength of the system is the consensual nature of its decision-making processes. The Bundesrat serves as a control mechanism on the Bundestag. Since the executive and legislative functions are closely intertwined in any parliamentary system, the Bundesrat’s ability to revisit and slow down legislative processes could be seen as making up for that loss of separation.
It can be argued that the system makes decision-making obscure. Some claim that the opposing majorities in the two chambers lead to an increase in politics where small groups of high-level leaders make all the important decisions and then the Bundestag representatives only have a choice between agreeing with them or not getting anything done at all.
The Constitution of South Africa: South Africa’s Constitution was the result of outstandingly detailed and inclusive negotiations that were carried out with an acute consciousness of the injustices of the country’s non-democratic past. It is extensively considered as the most progressive constitution in the world, with a Bill of Rights second to none.The Constitution of South Africa is the best law of the country of South Africa. It offers the legal foundation for the existence of the republic, sets out the rights and responsibility of its populace, and describes the structure of the government.The Constitution of the Republic of South Africa, 1996, was approved by the Constitutional Court (CC) on 4 December 1996 and took effect on 4 February 1997.
Characteristics of the South African Constitution:
– Promotion of Self-Determination
– National Democracy
– Universal Franchise
– Separation of Powers
– Regular Election
– Promotion of Basic Human Rights
– Promotion of Equality
– Ensuring Balance between Political Control and the Security Forces
– Promotion of Accountability and Transparency
– Respect for Cultural Diversity
The Constitution of Canada:
The Constitution of Canada is the utmost law in Canada.The country’s constitution is a combination of codified acts and un-codified traditions and conventions. It is one of the oldest working constitutions in the world, with a basis in Magna Carta. The constitution outlines Canada’s system of government, as well as the civil rights of all Canadian citizens and those in Canada. Canadian constitutional law relates to the interpretation and application of the constitution.
The Constitution is Canada’s premier political institution, demonstrating the basic “rulebook” by which Canadian politics operate. It is one of the nation’s more multifaceted political concepts to understand. Canada’s Constitution is not a single document as in the United States. It is made up of acts of the British and Canadian Parliaments, as well as legislation, judicial decisions and agreements between the federal and provincial governments.
It also includes unwritten elements such as British constitutional conventions, established custom, tradition and precedent. Responsible government, in which the Cabinet is jointly responsible to the elected House of Commons and must resign if it loses a vote of confidence, is a fundamental, but unwritten, element of Canadian parliamentary democracy at the federal and provincial levels.
The Constitution’s basic written foundations are the Constitution Act, 1867, which created a federation of four provinces Ontario, Quebec, Nova Scotia and New Brunswick under the British Crown, and the Constitution Act, 1982, which transferred formal control over the Constitution from Britain to Canada and entrenched a Canadian Charter of Rights and Freedoms and procedures for constitutional amendment.
The Constitution of Australia:
The Constitution of Australia is a law under which the government of the Commonwealth of Australia operates, including its relationship to the States of Australia. It comprises of several documents. The most significant is the Constitution of the Commonwealth of Australia, which is called the “Constitution” in the remainder of this article. The Constitution was accepted in a series of referendums held over 1898–1900 by the people of the Australian colonies, and the approved draft was enacted as a section of the Commonwealth of Australia Constitution Act 1900 (Imp), an Act of the Parliament of the United Kingdom.
The Australian Constitution is the set of rules by which Australia is governed. Australians voted for the national constitution in a series of referendums. The Australian Constitution creates the composition of the Australian Parliament, and explains how Parliament works, what powers it has, how federal and state Parliaments share power, and the roles of the Executive Government and the High Court. It took effect on 1 January 1901. In addition to the national Constitution, each Australian state has its own constitution. The Australian Capital Territory and Northern Territory have self-government Acts which were passed by the Australian Parliament. The politics of Australia happen within the framework of a federal constitutional parliamentary democracy and constitutional monarchy. Australians choose parliamentarians to the federal Parliament of Australia, a bicameral body which incorporates elements of the fused executive inherited from the Westminster system, and a strong federalist senate, adopted from the United States Congress. Australia mainly operates as a two-party system in which voting is necessary.
The Constitution of Russia:
The Russian Federation was the biggest nation to become known from the disintegration of the Soviet Union in December 1991. Following the constitutional catastrophe of 1993, Russia espoused a new constitution in a referendum of December 1993. Essentially, the country is described as a federal presidential republic.
1. Executive branch in Russia:
The Prime Minister is appointed by the President with the authorization of the Duma and is first-in-line to the presidency in the case of the President’s death or resignation.
Traditionally, the role of Prime Minister has been very much submissive to that of the President. However, this situation changed in March 2008 when Vladimir Putin stepped down as President as he was constitutionally required to do and became Prime Minister while the First Deputy Prime Minister Dmitry Medvedev stepped up to the Presidency.
In May 2012, Putin returned to the Presidency and former President Medvedev became Prime Minister in an exchange of roles.
The president: The constitution of 1993 provides strong powers for the President. The President has broad authority to issue verdicts and directives that have the force of law without legislative review, although the constitution notes that they must not disregard that document or other laws. Certainly, Russia’s strong presidency is sometimes compared with that of Charles de Gaulle in the French Fifth Republic (1958-69).
The Law on Presidential Elections requires that the winner receive more than 50% of the votes cast. If no candidate receives more than 50% of the vote, the top two candidates in term of votes must face each other in a run-off election. Under the original 1993 constitution, the President was chosen for a four-year term but, in November 2008, the constitution was amended to make this a six year term. The President is entitled for a second term but constitutionally he is barred from a third consecutive term.
2. Legislative branch in Russia:
The lower house in the Russian Federal Assembly is the State Duma. It is the more influential house, so all bills, even those proposed by the Federation Council, must first be considered by the Duma. However, the Duma’s power to force the resignation of the Government is severely limited. It may express a vote of no confidence in the Government by a majority vote of all members of the Duma, but the President is allowed to disregard this vote.
The Duma has 450 members who are known as deputies. Formerly seats in the Duma were elected half by proportional representation (with at least 5% of the vote to qualify for seats) and half by single member districts. Nevertheless, President Putin passed a verdict that from the November 2007 election all seats are to be elected by proportional representation with at least 7% of the vote to qualify for seats. This 7% threshold is one of the highest in Europe and, by introducing this, Putin eliminated independents and made it effectively impossible for small parties to be elected to the Duma. Also the registration process for candidates in elections is complicated, so that only very few of the parties that want to field candidates are allowed to do so. All these points have been highlighted by critics of the Russian system of politics.
The federation council: The upper house in the Russian Federal Assembly is the Federation Council. The Council has 168 members who are known as senators. Each of the 84 federal subjects of Russia sends two members to the Council.
The federal subjects are the 21 republics, the 47 oblasts, the eight krais, the two federal cities, the five autonomous okrugs and one autonomous oblast (each category of which has different powers). One senator is chosen by the provincial legislature and the other is nominated by the provincial governor and confirmed by the legislature.
As a result of the territorial nature of the upper house, terms to the Council are not nationally fixed, but instead are determined according to the regional bodies the senators represent.
The Council holds its sessions within the Main Building on BolshayaDmitrovka Street in Moscow, the former home of the Soviet State Building Agency (Gosstroi).
Under the original 1993 constitution, elections were held every four years but, in November 2008, the constitution was amended to make the Duma’s term five years. The last Duma election was held in December 2011, so the next one is to be held in December 2016.
3. Judicial Branch in Russia: The Constitutional Court of the Russian Federation comprises of 19 judges, one being the Chairman and another one being Deputy Chairman. Judges are appointed by the President with the consent of the Federation Council.
The Constitutional Court is a court of limited subject matter jurisdiction. The 1993 constitution authorized the Constitutional Court to adjudicate disputes between the executive and legislative branches and between Moscow and the regional and local governments. The court also is authorised to rule on infringement of constitutional rights, to inspect appeals from various bodies, and to participate in impeachment proceedings against the President.
Though in theoretical statement, the judiciary is independent but most evaluators believe that major elements of the judiciary along with the police and prosecution authorities are under the political control of the Kremlin and specially Vladimir Putin.
4. Local Government in Russia: Under the Russian constitution, the central government maintainsimportant authority, but regional and local governments have been given several powers. For example, they exercise authority over municipal property and policing, and they can impose regional taxes. Owing to a lack of assertiveness by the central government, Russia’s administrative divisions, oblasti(regions),minority republics, okruga (autonomous districts), kraya(territories), federal cities (Moscow and St. Petersburg), and the one autonomous oblastexerted considerable power in the initial years after the passage of the 1993 constitution. The constitution offers equal power to each of the country’s administrative divisions in the Federal Assembly. Nonetheless, the power of the divisions was diluted in 2000 when seven federal districts (Central, Far East, Northwest, Siberia, Southern, Urals, and Volga), each with its own presidential representative, were established by the central government. In 2010 the south-easternpart of the Southern district was modernized as an eighth federal district, North Caucasus. The districts’ presidential representatives were given the power to execute federal law and to synchronize communication between the president and the regional governors. Legally, the envoys in federal districts had solely the power of communicating the executive guidance of the federal president. Practically, the guidance served more as a directive, as the president was able to use the envoys to enforce presidential authority over the regional governments.
In comparison to the federal government, regional governments generally have insufficient tax revenue to support compulsory items in their budgets, which have barely been able to cover wages for teachers and police. The budgets of regional governments also are overloaded by pensions.
Many administrative divisions established constitutions that devolved power to local jurisdictions, and, though the 1993 constitution guaranteed local self-governance, the powers of local governments differsignificantly. Some local authorities, particularly in urban centres, exercise significant power and are responsible for taxation and the licensing of businesses. Moscow and St. Petersburg have particularly strong local governments, with both possessing a tax base and government structure that dwarf the country’s other regions. Local councils in smaller communities are commonly rubber-stamping agencies, responsible to the city administrator, who is appointed by the regional governor. In the mid-1990s, municipal government was reorganized. City councils (dumas), city mayors, and city administrators replaced former city soviets.
Legislation has further confirmed the power of the federal government over the regions. For example, the regional governors and their deputies were forbidden from representing their region in the Federation Council on the basis that their sitting in the Federation Council violated the principle of the separation of powers; however, under a compromise, both the legislative and executive branch of each region sent a member to the Federation Council. Legislation passed in 2004 legalized the president to appoint the regional governors, who were electedearlier. In the beginning of the 21st century, the country began to undergo administrative transformation aimed at subordinating smaller okruga to neighbouring members of the federation.
Underthese transformations in regional government, the new federal districts began to reinstate the 11 traditional economic regions, mainly for statistical purposes. The Central district unites the city of Moscow with all administrative divisions within the Central and Central Black Earth economic regions. The Northwest district combines the city of St. Petersburg with all areas in the North and Northwest regions, including Kaliningrad oblast. The Southern district includes portions of the Volga and North Caucasus economic regions; the North Caucasus district encompasses the remaining units of the latter economic region. The Volga district merges units of the Volga, Volga-Vyatka, and Ural economic regions. The Urals district consists of the remaining administrative divisions of the Ural economic region along with several from the West Siberia economic region. The Siberia district unites the remainder of the West Siberia economic region and all of East Siberia. At last, the Far East district is congruent with the Far East economic region.
5. Political party system in Russia:
The main political party is known as United Russia. It was established in April 2001 as a result of anamalgamation between several political parties. It illustrates itself as centrist, but it is essentially a creation of Vladimir Putin and supports him in the Duma and the Federation Council. In the last Duma elections of December 2011, even with the alleged voting irregularities, United Russia’s share of the vote fell by 15% to just over 49% and the number of its deputies fell by 77 to 238.
The main opposition party is the Communist Party of the Russian Federation led by Gennady Zyuganov. In the last election, it won 19% of the vote and took 92 seats.
The only other parties retaining seats in the Duma are the fake opposition party A Just Russia with 64 seats and the ultra-nationalist Liberal Democratic Party of Russia with 56 seats.
The Western-orientated reform party Yabloko, the next highest in ranking of votes won a mere 3.43% in the last election.
Constitutional System in France:
France is a republic and the institutions of governance of France are defined by the Constitution, more specifically by the current constitution, being that of the Fifth Republic. The Government of the French Republic exercises executive power in the French Republic. It is composed of the Prime Minister of the French Republic, who is the head of government, and both junior and senior ministers.The Constitution has been customized several times since the start of the Fifth Republic, most recently in July 2008, when the French “Congress” approved by 1 vote over the 60% majority required in constitutional changes proposed by President Sarkozy.
In France, The Prime Minister ensures the implementation of laws and exercises regulatory power, subject to the signature by the Head of State of ordinances and decrees which have been deliberated upon in the Council of Ministers. He may, in exceptional circumstances, replace the President of the Republic as chairman of the Council of Ministers. He is also responsible for national defence, even though the broad guidelines are often set by the President of the Republic.
The general policy statement is a tradition in the Fifth Republic but is not an obligation laid down by the Constitution. Article 49, paragraph 1 stipulates that the Prime Minister can commit the Government by means of a vote of approval by members of parliament on its programme or “potentially on a general policy statement”. The Prime Minister uses this speech to imprint a style and adopt the role of head of the parliamentary majority.
The Fifth Republic: The fifth republic was established in 1958, and was mainly the work of General de Gaulle its first president, and Michel Debre his prime minister. It has been amended 17 times. Though the French constitution is parliamentary, it gave relatively extensive powers to the executive (President and Ministers) compared to other western democracies.
The executive branch:
The head of state and head of the executive is the President, elected by universal suffrage. Since May 2012, France’s president is François Hollande. Originally, a president of the Fifth Republic was elected for a 7-year term (le septennat), renewable any number of times. Since 2002, the President has been elected for a 5-year term. Since the passing of the 2008 Constitutional reform, the maximum number of terms a president can serve has been limited to two.
The President, who is also supreme commander of the military, determines policy with the aid of his Council of Ministers. The residence of the President of the French Republic is the Elysee Palace in Paris.The President appoints a prime minister, who forms a government.
Traditionally, ministers are chosen by the PM in practice unless the President and the PM are from different sides of the political spectrum (a system known as la cohabitation), PM and president work together to form a government. The President must approve the appointment of government ministers.
The legislative branch:
The French parliament is made up of two houses or chambers. The lower and principal house of parliament is the Assembleenationale, or national assembly, the second chamber is the Senat or Senate. Members of Parliament, called Deputes, are elected by universal suffrage, in general elections that take place every five years. Senators are elected by “grand electors”, who are mostly other local elected representatives. The electoral system for parliamentary elections involves two rounds.A candidate can be chosen on the first round by obtaining an absolute majority of votes cast. The second round is a runoff between two or more candidates, usually two.
The judicial branch:
While the Minister of Justice, le Garde des Sceaux, has powers over the organization of the justice system and public prosecutors, the judiciary is powerfully independent of the executive and legislative branches. The official handbook of French civil law is theCode Civil.
Promulgation of Laws:
New bills proposed by government, and new private members bills must be approved by both chambers, before becoming law. However, by virtue of Article 49.3 of the French constitution, a government can make ineffective parliamentary opposition and pass a law without a parliamentary vote. This does not happen normally, and in the framework of constitutional amendments, president Sarkozy curtailed the possibility of using 49.3.
Laws and decrees are promulgated when the official text is published in the Official Journal of the French Republic, le Journal Officiel.
The Constitutional Council:
The Constitutional Council determine the constitutionality of new legislation or decrees. It has powers to strike down a bill before it passes into law, if it is deemed unconstitutional, or to demand the withdrawal of decrees even after promulgation. The Council is made up of nine members, appointed (three each) by the President of the Republic, the leader of the National Assembly, and the leader of the Senate, plus all surviving former heads of state.
In 2012, France is governed by the Socialist Party and allies. The main political parties are as under:
On the right: The Popular Union Movement (UMP – Union pour unMouvementPopulaire),
Centre right: the New Centre (Nouveau Centre), and the Union of Democrats and Independents (launched in 2012) l’Union des democratesetindependants,
Centre left: The Democratic Movement (MouvementDemocratique, MoDem)
On the left: the Socialist party (PartiSocialiste, PS) – since June 2012 the party in power.
The French Communist Party (partiCommunisteFrançais – PCF).
The Green Party (Europe Ecologie Les Verts.
France also has some surprisingly resilient extremist parties on the left and on the right, including the NPA (Nouveau partianticapitaliste) and the trotskyist Workers’ Party (Lutteouvriere), and the National Front (Front National).
The cabinet, le Conseil des ministres, meets on a weekly basis, and is presided over by the president. Ministers determine policy and put new legislation before Parliament in the form of bills within the framework of existing law, they apply policy through decrees.
The Constitution of Ireland: The Irish Constitution was enacted in 1937. It is the fundamental legal document that sets out how Ireland should be governed through a series of 50 Articles. Every part of the Constitution is set out in both the Irish and English language. It asserts the national autonomy of the Irish people. The Constitution of Ireland is the fundamental law of Ireland. The constitution falls broadly within the tradition of liberal democracy being based on a system of representative democracy. It guarantees certain fundamental rights, along with a popularly elected non-executive president, a bicameral parliament based on the Westminster system, a separation of powers and judicial review.
Features of the Constitution:
-National independence: The constitution emphasizes the “inalienable, indefeasible, and sovereign right” of the Irish people to self-determination (Article 1). The state is affirmed to be “sovereign, independent, and democratic” (Article 5).
-Popular sovereignty: It is stated that all powers of government “derive, under God, from the people” (Article 6.1). However, it is also stated that those powers “are exercisable only by or on the authority of the organs of State” established by the Constitution (Article 6.2).
-Name of the state: The Constitution declares that “the name of the State is Eire, or, in the English language, Ireland” (Article 4). Under the Republic of Ireland Act 1948, the term “Republic of Ireland” is the official “description” of the state; the Oireachtas, however, has left unaltered “Ireland” as the formal name of the state as defined by the Constitution.
-United Ireland: Article 2, as substituted after the Good Friday Agreement, emphasizes that “every person born in the island of Ireland” has the right “to be part of the Irish Nation”; however, Article 9.2 now limits this to persons having at least one parent as an Irish citizen. Article 3 declares that it is the “firm will of the Irish Nation” to bring about a united Ireland, provided that this occurs “only by peaceful means”, and only with the express consent of the majority of the people in Northern Ireland.
Organs of government:
The Constitution ascertains a government under a parliamentary system. It provides for a directly designated, largely ceremonial President of Ireland (Article 12), a head of government called the Taoiseach (Article 28), and a national parliament called the Oireachtas (Article 15). The Oireachtas has a dominant directly elected lower house known as DailEireann (Article 16) and an upper house Seanad Eireann (Article 18), which is partly appointed, partly indirectly elected and partly elected by a limited electorate. There is also an independent judiciary headed by the Supreme Court (Article 34).
The Constitution of Japan:
The Constitution of Japan is the primary law of Japan. It was passed on 3 May 1947 as a new constitution for post-war Japan. The constitution offers for a parliamentary system of government and assures certain fundamental rights. Under its terms, the ruler of Japan is “the symbol of the State and of the unity of the people” and exercises a solely ceremonial role without the control of sovereignty.
Preamble: In the LDP outline, the Preamble announces that Japan is reigned by the Emperor and espouses the popular sovereignty and triaspolitica principles. The current Preamble refers to the government as a trust of the people (implying the “natural rights codified into the Constitution by the social contract” model) and guarantees people “the right to live in peace, free from fear and want”, but both mentions are deleted in the LDP draft. The political affairs of Japan are conducted in a structure of a parliamentary representative democratic realm where the Prime Minister of Japan is the chief of government and the head of the Cabinet that directs the executive branch. Legislative power is vested in the Diet, which consists of the House of Representatives and the House of Councillors. Japanese politics includes the multi-party system. The judicial power is vested in the Supreme Court and lower courts. In educational studies, Japan is generally considered a constitutional kingdom with a system of civil law.
The Constitution of Japan describes the ruler to be “the symbol of the state and of the unity of the people.” He performs ceremonial duties and holds no real power, not even emergency reserve powers. Political power is held mainly by the Prime Minister and other elected members of the Diet. The Imperial Throne is succeeded by a member of the Imperial House of Japan as designated by the law. Independence is vested in the Japanese people by the constitution. Though his official status is doubtful, on diplomatic occasions, the ruler tends to behave as the head of state.
The chief of the executive branch, the Prime Minister, is appointed by the Emperor as directed by the Diet. He must be a member of either house of the Diet and a civilian. The Cabinet members are nominated by the Prime Minister, and they must also be inhabitant. Since the Liberal Democratic Party (the LDP) was in power, it has been convention that the President of the party serves as the prime minister.
The Cabinet is composed of Prime Minister and ministers of state, and is responsible to the Diet. The Prime Minister has the authority to appoint and remove the ministers, a majority of whom must be the Diet members. The liberal conservative LDP was in power from 1955 to 2009, except for a very short-lived coalition government formed from the likeminded opposition parties in 1993.The largest opposition party was the social liberal Democratic Party of Japan in the late 1990s and late 2000s. The constitution, also known as the “Postwar Constitution” or the “Peace Constitution”, is most characteristic and well-known for the rejection of the right to wage war contained in Article 9 and to a lesser extent, the provision for de jure popular dominion in combination with the monarchy. The constitution was drawn up under the Allied profession that followed World War II and was intended to reinstate Japan’s previous militaristic and absolute monarchy system with a form of liberal democratic system.
Prominent characteristics of its constitution are under:
- The constitution offers for a parliamentary system of government and guarantees certain fundamental rights.
- The constitution, also known as the “Postwar Constitution” is most characteristic and famous for the renunciation of the right to wage war contained in Article 9 and to a lesser extent, the provision for de jure popular sovereignty in conjunction with the monarchy.
- It is an inflexible document and no subsequent amendment has been made to it since its adoption.
- Legislative authority is vested in a bicameral National Diet and, whereas previously the upper house had consisted of members of the nobility, the new constitution provided that both chambers be directly elected.
- Executive authority is exercised by a Prime Minister and cabinet answerable to the legislature, while the judiciary is headed by a Supreme Court.
Impact and comparison of various constitutions:
In order to compare Indian constitutional scheme with other countries, it is crucial to assess the impact of various constitution on India and the subsequent features borrowed.
The founding members of the Indian Constitution were intelligent to borrow from the experience gained in working of various other Constitutions. It is well recognized that the Constitution of India is borrowed from the various working Constitutions.
1.Comparison of Indian Constitution Vs British Constitution: The British Constitution had immense impact in many respects such as (i) Constitutional head of State (ii) Lower House of Parliament (Lok Sabha) is more powerful than the Upper House; (iii) Responsibility of Council of Ministers towards Parliament; (iv) Parliamentary system of Government , and (v) Prevalence of Rule of Law.
UK, US and India countries are labelled as democratic countries of the world. United States is the oldest democratic country of the world and its constitution was made in 1789. WhereasIndia was the Colonial state of the United Kingdom till 1947 and the Indian Constitution came into force in 1950. But constitution of United Kingdom is dissimilar.
Although, UK is the self-governing country but the head of the state is monarch. Besides this one of the uniqueness of theUK‘s constitution is that it‘s not codified one like the US and India having. The UK Parliament can make any law or amendment by simply passing it by majority and then send to the monarch for his assent, which just the formality part. Other dissimilarities among these three countries is that United State is a true federal country, where each state has its own constitution; India is quasi federal there only one constitution for whole country but area of operation is divided between the Union and the State governments. Whereas UK is not having the federal structure, it has the unitary setup of government. In Federal system of governance, state legislatures have asay in amending the constitution but in unitary setup it‘s only the Parliament which hassupremacy for amending the constitution.
The British parliament has the power to change and amend the constitution by the ordinary process of legislation. In contrast to the UK, the constitution amendment has an important place under the written Constitution like that of the US and India. Its importance increases where the system is Federal. In Federal system, additional safeguards like the involvement of Legislatures at the state level, are also provided for with a view to ensure that the Federal set-up does not get changed only at the will of the Federal Legislature.
2. US and Indian Constitution: The Constitution of the United States had its impact in many ways such as
(i) Preamble of the Constitution
(ii) Provision of Fundamental Rights
(iii) Functions of the Vice-President
(iv) Amendment of the Constitution
(v) Nature andfunctions of the Supreme court
(vi) Independence of Judiciary
There are many differences between the Constitution of India, and United States of America. Major difference between the two constitutions is that India has a prime minister which is like the president but is actually the head of the legislative branch, whereas the U.S. Constitution has a president, who is the head of the government, and only works in the executive branch. Under the Indian Constitution, the head of state is the president while the actual head of the government is the prime minister. The prime minister and his cabinet has political power, while the president has more power in the name. Other major difference involves the number of terms a president can run. In America, a president can serve a maximum of two -four year terms, while in India a president and prime minister can serve an unlimited number of terms that each last five years.
Both constitutions also differ in power. In the United States, Constitution it makes clear that all the branches of government are equal in power, but in the Indian Constitution, the legislative branch has absolute independence, meaning that it is supreme to the executive and judicial branch. The Indian Constitution makes it mandatory that ministers in the Indian government which are senior members of the executive must also be members in the legislature, whereas the U.S. government does not permit members of legislature to hold office in the executive.
Another major difference between the two constitutions is that India does not have the right that individuals can bear arms, while the U.S. Constitution has that right in the 2nd amendment to the U.S. Constitution. The Constitution of India is longer than the U.S. Constitution, with 395 articles and 12 schedules, while the Constitution of the United States of America only has 7 schedules. In the Indian Constitution, although all the branches all can check each other to make sure either is not abusing their power, the Supreme Court is the main branch that checks the power of the two other branches. In the United States Constitution, that power is divided equally among the three branches. The Constitution of India is not the result of an agreement between the States, while the American Constitution is an agreement between the states.
Other major difference involves the number of ministers in India sent to the Parliament, which is depended on the populace of the state, compared to the number of representatives sent to the Senate, which is an equal amount from each state. In the Indian Constitution, there are the same basic criminal and civil laws in the whole country. But in the American Constitution, there are different criminal and civil laws differ in every state. In the Indian Constitution, there is no principle of equality between each state, while in the American Constitution; there is a principle of equality between each state, irrespective of its population.
The central government of India has the power to develop a new state, change the boundaries of any state, to expand the area of any state, to decrease the area of any state, to form a new state by uniting two or more states or parts of states, and it has the power to change the name of any state (Article 3). The American federal government has no power to exercise their power in this way. The Supreme Court of India has been given very broad powers, including powerful civil and criminal authority, while the Supreme Court in America has not been given broad powers that involve civil and criminal authority.
A key difference between the two constitutions is the way the modification process is conducted. In India, no referendum is needed for a proposal to become an amendment. For an amendment to be added to the Constitution of India, people do not have to give their approval. If a majority of the members of Parliament (2/3) agree to the amendment, then it is put into action. In the United States Constitution, consent of the people is needed before an amendment is passed and put into action. In the Indian Constitution, no state can separate from Indian Territory. In the American Constitution, a state can separate itself from the federal. In the American Constitution, all the states that are linked with the Federal Government have their own constitutions to control their own authority. In India, all the states associated with the Indian Union owe their commitment only to the Indian Constitution and do not have their own constitution, while each state is empowered to pass their own laws.
In India, the Lok Sabha or the Lower House is more influential than the Rajya Sabha or Upper House and its members are directly elected by the people. Whereas in the U.S, the House of Senate or the Upper House is more powerful than the Lower House. A member of the Rajya Sabha is indirectly elected, while a member of the Senate is directly elected. A judge in the U.S. can hold his position for life, while in India a district judge retires at the age of 58, a High Court and a Supreme Court judge retires at the age of 65. The United States Constitution has only been amended 27 times between the period 1989 and 1992, compared to the Indian Constitution, which has so far been amended 94 times since it came into force in the year 1950. The process to amend the Indian Constitution is easier since it involves more types of procedures in which an amendment could be put into action.
When comparing the constitutions of India and the U.S., some similarities are also found.Both constituencies havesame principles. There are many principles of government reflected in the Constitution of India and the United States Constitution. One principle of government that is reflected in both constitutions is popular sovereignty. A quotation from the Constitution of India that represents popular autonomy is “We, the people of India… in our constituent assembly… do here by adopt, enact and give to ourselves this constitution.” (India. Ministry, 1). This quote demonstrates that the decisive power lies with the people and they are the main source of power of the constitution.
Another conjecture that is mirrored in both constitutions is the separation of powers. There is a legislative, executive, and judicial branch that each has their own different but equally important duties. The legislature is a body of elected representatives that consists of the LokSabha and Rajya Sabha. They make the laws of the country. The executive branch consists of the president, prime minister, other ministers, and civil servants. They make sure that the laws created by the legislature are being executed correctly. The judicial branch consists of the Supreme Court, High Courts, and other lower courts. Their duties are to check if the laws are being correctly executed or not. If there something goes wrong that the law is being followed or if anyone violates a law, the judicial branch takes action.
Both constitutions have provisions to modify the constitution to fulfil the increasing social, political, and economic needs and demands of their countries. They are both the biggest democratic countries in the world and their political structure is based on federalism. When drafting the Indian Constitution, the drafting committee headed by Dr.Ambedkar, borrowed many things from many different constitutions including the United States Constitution and entrenched them in their constitution. They both have federal governments in which many states have acceded to. In both countries, the federal government can override a law enacted by the states. They both followed Montesquieu’s theory of division of labour and separation of powers, as both the United States and Indian constitutions have three basic divisions known as the executive, legislature, and judiciary branches.
In the United States, the general public can communicate their social problems through their elected county and state officials, while this process is not in practice in India. In India, politicians can directly provoke racial disgust without facing any consequences through public or private speeches or comments, while normal citizens can be under arrest for “liking” a Facebook post without making any hate speech.
In most states, the general public is authorized to bear arms, though they cannot show it in public. In India, this right does not exist, and people are not allowed to keep arms, though army officials and high ranking people in the Navy are authorized to carry small guns that must be hidden.
3. Comparison of Indian and Australian Constitution: The Indian Constitution, like that of Australia, espoused the federal arrangement and the creation of a judicial branch wholly independent of the other branches of government. Judicial review, to keep all recipients of pubic power within the Constitution and other applicable laws was faithfully imitated. But the Indian Constitution went further. Australian Constitution gave long list of concurrent powers and the procedure for solving deadlock over concurrent subjects between the Centre and the States.Under the Australian Constitution, the subjects in the concurrent list are 39. In India, the Concurrent list had 37 subjects to begin with. They were increased to 52 subsequently. The technique of resolution of disputes between the centre and the states has also been taken from Australia (Article 251) by the Indian Constitution.
4. Comparison of Indian and Irish Constitution: The Irish Constitution gave India the Directive Principles of StatePolicy and the method of nominating members of the Rajya Sabha.The directive principles of state policy have been taken from Irish constitution. The system of election of President of India through specially constituted Electoral College has been drawn from Irish constitution. Representation of ability in the Rajya Sabha (to the extent 12) has been borrowed from Irish Republic. In case of India, these 12 nominated members are to be drawn from persons having special knowledge or practical experience in respect of matters like science, art, literature or social service.
5. Comparison of Indian and Weimer Constitution of Germany: The Weimer Constitution of Germany had itsimpact upon the powers of the President.The Emergency powers vested with President of India are on the pattern of similar powers conferred on the President of German Republic according to Article 48 of Weimer constitution of Germany. Nonetheless, these powers were later battered by Hitler when he came to power and assumed dictatorial authority. In India, also emergency powers are said to have been badly treated during the Prime Minister ship of Mrs. Indira Gandhi. These emergency powers when integrated in the Indian Constitution led a member of the Constituent Assembly to remark “It is a day of shame, God save the Indian people.”
6. Comparison of Indian and Canadian Constitution: India borrowed the provisions of a strong nation, the name ofUnion of Indian and vesting residuary powers with the Union from Canada. India has opted for Federal structure of Government on Canadian pattern. Like Canada, India has made centre more powerful. Indian Federal structure is termed ‘Quasifederal’ i.e., Federal with unitary bias’. Canadian Centre is very influential, so is the case with Indian Union government. Special powers have been accorded to the Union government for meeting all possible eventualities.The division of subjects between the centre and the units and provision of lists is to a great extent on Canadian lines. The Canadian constitution provides for lists of legislative powers, central and provincial. The residuary powers have been given to the centre.
7. Comparison of Indian and South African Constitution: The procedure of amendment with a two-thirds majorityin Parliament and the election of the members of the Rajya Sabha on the basis ofproportional representation by the State Legislatures have been borrowed from the South African constituency.
8. Comparison of Indian and Japan Constitution: In India, a balance between Parliamentary sovereignty and judicial supremacy has been maintained on the pattern of constitution of Japan. The law making procedure laid down in the Indian Constitution has also been significantly influenced by the constitution of Japan.
Table: Indian constitution has assimilated various features from other countries into its domain
To summarize, Indian Constitution is represented differently by different authors. Some have explained that Indian constitution is made up from the principles of other countries like UK. Others labelled it mixed constitution. It is well established that there is immense influence of Foreign Constitutions in making of Indian constitution.