Comparison of Indian Constitutional Scheme with other countries

“The price of freedom is eternal vigilance” – Thomas Jefferson

Evolution

  • Montesquieu’s “Spirit of the Laws” is the predecessor to all contemporary comparative legal Scholarship
  • Before adopting the U.S. Constitution, John Adams & James Madison surveyed the constitutions of different nations
  • In the same way, different countries analysed various constitutions and adopted the provisions which were suitable to their territory. Eg., Irish Constitution mentions Directive Principles of state policy, Argentine Constitution – the reflection on U.S. Constitution
  • Study of comparative law includes the study of the constitutions of totalitarian governments

Constitutional Structures

An overview of the parliamentary system and emergency conditions in the different constitutions suggest the following differences:

  • Parlimentary – Federal/Presidential/Semi-Presidential/Purely parliamentary
  • Condition for Emergencies –Natural disasters, terrorist threats, sustained or sporadic domestic disorder, economic distress etc.,
    • U.S. Constitution refers only to ‘rebellion or invasion’
    • French Constitution ‘serious and immediate threat’
    • Indian Constitution ‘armed rebellion or external aggression’
  • Political Systems – Dictatorship/Democracy/Republic/Anarchy

Indian Constitution Vs Unwritten Constitutions:

Unwritten Constitutions: e.g., Britain, New Zealand, Saudi Arabia, Israel, Canada, etc

British Constitution:

  • of history and the result of evolution
  • There is a difference between theory and practice
  • Flexible and unitary constitution
  • Parliamentary government and system
  • Rule of law and civil liberties applicable
IndianBritish
WrittenUnwritten
Quasi FederalUnion Constitution
Power is divided between centre and statePower is the with the centre
No monarchy/RepublicHas King/Queen

Indian Constitution Vs Written Constitution

American Constitution:

  • Works on Checks and balances concept
  • Presidential type of government
  • Rigid Constitution
  • Federal System
IndianAmerican
Not a result of agreement between statesResult of an agreement between states
Single CitizenshipDual citizenship
Representatives are sent to the parliament depending on the population of the stateEach state sends equal number of representatives to the senate
No principle of equality between the statesPrinciple of equality between the states
The states are not sovereignUnion and each Unit is sovereign in its sphere
No state can separate from Indian territoryState can separate from the federation
Only centre has residuary powersStates have residuary powers
Supreme Court has appellate jurisdictionNo appellate jurisdiction for the Supreme Court
No referendum is necessary for amending the ConstitutionFor amendment of Constitution a referendum is necessary

Indian Constitution Vs Dynamic Constitution

Switzerland:

  • A comparatively longer document
  • Spirit of Republicanism
  • Federalism
  • James Bryce “Among modern democracies, which are true democracies, Switzerland has the highest claim to ”
  • Dynamic Constitution (protection of individual, welfare state)
IndianSwitzerland
Executive vested in the PresidentExecutive vested in the Federal Council
President elected by electoral collegeFederal Council Elected by Federal Assembly
Party GovernmentAbsent
States cannot conclude treatiesCantons can conclude treaties
Supremacy of JudiciaryJudiciary cannot rule invalid a federal law
No referendumReferendum possible

Comparative Constitutional law and national identity:

The Constitution incorporates a national identity which is evident from the statements in some of the constitutions below:

  • Preamble to Irish Constitution – ‘The Most Holy Trinity’
  • Preamble to South African Constitution – ‘recognise the injustices of our past’
  • Art 9 of Japanese Constitution – “The Japanese people forever renounce war as a sovereign right of the nation and purports to ban the maintenance of land, sea, airforces”
  • Preamble to Indian Constitution – ‘We, the people of India having solemnly resolved to constitute India into a sovereign, socialist, secular, democratic, republic….”

General Comparison with other countries

India Russia Japan France Germany
Written Written Written Written
Flexible/Rigid Rigid Rigid Rigid Rigid
Federal with Unitary Bias Federal Unitary Unitary Federal
Parlimentary Democracy Semi Presidential Parlimentary Democracy Quasi Presidential/Quasi Prime ministerial Parlimentary Republic
Supremacy of Constitution Supremacy of Constitution Parliament with limited powers
Republic Republic Constitutional Monarchy Republic Republic
President -Indirect election Direct Election Direct election Indirect Election
Single Citizenship Dual Citizenship Single Citizenship Dual Citizenship In principle
Procedure established by law Procedure established by law