Constitution of India
Indian constitution is one of the unique constitutions with its content and spirit. The constitution of India was framed by constituent assembly under the scheme formulated by cabinet Mission plan in 1946 under the president of constituent assembly Dr Rajendra Prasad and chairman of the drafting committee Dr B.R. Ambedkar. The constitution was adopted on November 26, 1949.
The constitution of India is the lengthiest of all written constitution of the world. Although borrowed from almost every constitution of the world, the framers tried to borrow the best features of each of the existing constitution and modified that according to the conditions and needs of the country. Some of the important features of the Indian constitution include sources from the Government of India Act 1935. Presently, it consists of a Preamble, about 465 articles and 12 schedules.
The constitution of India describes India as a ‘Union of state’ and an independent Socialist Secular Democratic Republic with a parliamentary form of government.
Some of the salient features of the Constitution of India:
- Lengthiest Written Constitution- Due to geographical and historical factors, a single constitution for both the centre and the state and imaginative ambition of the nationalist leaders.
- Blend of Rigidity and Flexibility- Article 368 provides for two types of amendments, one with the special majority of the parliament and other special majorities of the Parliament and with the ratification by half of the total states.
- The federal system with unitary bias- Indian Constitution contains all the usual features of the federation such as two governments, division of powers, bicameralism etc. while unitary features like single citizenship, single constitution, emergency provision etc.
- Parliamentary Form of Government - The parliamentary system is based on the principle of cooperation and coordination between legislative and executive organs. President is the nominal executive and the prime minister is the real executive. It is also known as ‘Westminster’ model of government
- The sovereignty of Parliament- The doctrine of the sovereignty of parliament is associated with the British parliament with one difference where the British state has hereditary head called monarchy whereas in case of India has an elected head.
- Fundamental Rights – The fundamental Rights are meant for promoting the idea of political democracy and operate as limitations on the tyranny of the executive and arbitrary laws of the legislature.
- Citizenship- The Indian Constitution is although federal but it provides for only single citizenship.
As most of the features of the constitution of India borrowed from several countries. Here are some of the comparisons of the constitution with other countries:
1. Witten Constitution- A written constitution is a formal legal document defining the nature of the constitution, the rules that govern the political system, governments and the rights of the citizen in a codified manner. A written constitution is an absolute must for the rule of law.
- India- lengthiest Written constitution
- British- most important feature of the British constitution is its unwritten character because it is based on conventions, common law, statutes, charters and political traditions which have not been laid down in any document.
- USA- American constitution is the shortest and the first written constitution. The US constitution came through a convention in 1787.
- France- French constitution is the only Democratic constitution based on the principle of supremacy of Executive. Due to political instability, France has changed its constitution very often, presently the constitution of the 5th republic provides a strong president with a fixed term of 5 years.
2. Flexible or Rigid- A flexible constitution can be changed by simple majority or ordinary law while a rigid constitution is one which can be altered by a special procedure of amendment.
- India-The Indian constitution is more flexible than rigid as some provision of the constitution can be amended by a simple majority of parliament but due to regional parties, it is becoming difficult to amend the constitution as some of the amendment requires the consent of the half states.
- British- The British constitution is the most flexible constitution as it can be passed, amended and repealed by a simple majority of the parliament. There is no distinction between ordinary law and constitutional law. Due to its flexibility, it provided for the continuation of constitutional monarchy and virtue of adjustability and adaptability with the growing needs of the time.
- USA- American constitution is the most rigid constitution of the world which can be amended by congress by a special procedure.
- France- French constitution can be changed by a rigid procedure requiring a resolution to get passed by 60% majority in both the Houses of Parliament. However, the President has one special power to refer the amendment to people by referendum.
- Germany- German constitution is a rigid constitution. Germany has two houses one is Bundestag which is a lower house while the other one is Bundesrat which is the upper house. Basic law can be amended by an absolute two-thirds majority of Bundestag along with a simple two-third majority of Bundesrat.
- Japan- It has a rigid constitution. The two houses of Parliament are called Diet. Any amendment to the constitution initiated by diet passed by the special majority then submitted to the people for ratification at a special referendum.
3. Unitary or Federal: A unitary form of government is governed as a single constitutional unit, with one constitutionally created legislature while a federal form of government which function between a central government and constituent political units like states or provinces.
- India- The Indian constitution is federal in character with unitary bias.
- British- The British constitution has a unitary character. The British parliament is a sovereign body vested with all the powers of the government.
- USA- American constitution is truly a federal. It provides for complete independence between centre and state. Every state has its own constitution, governor, elected legislature and supreme court.
- France- France has a unitary feature.
- Germany- Germany is a federation and the residuary powers in Germany lie with the states.
4. Type of Government (Parliamentary or Presidential): In a parliamentary form of government executives are responsible and accountable to the legislature whereas in the presidential form of executive and legislature are entirely independent and executives are not responsible to the law-making members.
- India- Indian constitution provides for a parliamentary form of government both at the centre and the state. Some of the principles of parliamentary form are nominal and real executive, majority party rule, collective responsibility, double membership as ministers are executive as well as legislature.
- British- One of the major similarity between the British Constitution and the Indian constitution is both have a parliamentary form of government. British constitution provides de jure head in the form king who is sovereign but deprived of all his powers and the real functionaries are ministers who belong to the majority party in the parliament.
- USA- America has a presidential form of government in which the president is directly elected by people. President is not accountable to the House of Congress and head of the state as well as the government.
- France- France has some features of the parliamentary system and others of Presidential type and therefore it is called a semi-Presidential type of government. French President is directly elected by the people for the for a seven-year term and there are nominated council of ministers headed by the prime minister.
- Japan – Japan has a parliamentary form of government with some features of the British form of parliament like Japan has also a constitutional monarchy.
5. The sovereignty of Parliament: The term Sovereignty means Supreme Power. Parliament sovereignty means parliament has the supreme authority over all other government institution including judiciary and executive. Parliament is not bound by the written laws of the constitution. Some democracies have absolute sovereignty while some democracies have checks and balances through judicial supremacy.
- India- India parliament is not a sovereign body like the British Parliament. Any laws made by the parliament can be presented to the supreme court for the judicial review as the supreme court is the custodian of the constitution
- Some of the other countries that have similar features of Judicial Review of the parliamentary law are USA and Japan.
- British- One of the most important features of the British constitution is the sovereignty of the British parliament. The British parliament is the only legislative body with unrestricted power of legislation. It can amend, make or repeal any law without any question of the validity of the law.
- France- French Constitution has a sovereign parliament with limited powers. The legislature is clearly subordinate to the executive. Article37 of the French constitution put a limitation on the legislative power of the parliament.
- India- The President of India is the head of the Indian state. He is the nominal head of the government while the real power is vested with the Prime Minister of India with the aid and advice of the council of Ministers. Although all the executive actions of the government are formally taken in the name of the President.
- The USA- The President of the USA holds the real executive power. He is the head of state as well as head of the government. He is also the commander in chief of the United States Armed forces. President of USA holds office for a term of 4 years and can be re-elected twice.
- France- The French President is the most powerful within the French system as well as amongst all other executives across world democracies. France has PM as well as President but he is assistant to the President unlike that in India and Britain. The President is elected for a fixed term of currently 5 years.
- Germany- Germany has a parliamentary form of government and called as ‘ Chancellor’s Democracy’. Chancellor is the PM. President is the constitutional head of the government.
- India- The constitution f India provides for single citizenship for all over the country despite being a federal country.
- British- British citizenship is liberal in the sense that in order to get British nationality one doesn’t need to renounce his/her citizenship of that country.
- The USA- The American constitution provides for Dual Citizenship. One for the whole USA and one for the state one belongs to but USA law doesn’t mention dual nationality or require a person to choose one citizenship or another.
- France and Germany have dual citizenship.
8. Due Process of Law or Procedure established by law:
Due process of law is the legal necessity that the state must follow the principles of fairness, fundamental rights, liberty etc during legal requirement as these rights are owed to the person. The legality of law cannot be questioned on the ground that the law is unreasonable as this law follows the principle of natural justice. Example – American constitution provides for Due process of law
The procedure established by law – This law clearly states that the law is valid only if the legislature has followed the correct procedure and contrary to principles of justice and equity. Article 21 states that no person shall be deprived of his life or personal liberty except according to the procedure established by law.
9. Fundamental Rights, Fundamental Duties and Directive Principle:
Fundamental Rights- Fundamental Rights are meant for promoting the idea of political democracy It is meant for establishing a government of laws.
- India- Fundamental Rights are enshrined in Part III of the constitution from Article 12 to 35. Fundamental Rights are borrowed from the American Bill of Rights. The Fundamental Rights guaranteed by the constitution are Right to equality, Right to freedom, Right against exploitation, Right to freedom of Religion, Cultural and educational rights and Right to constitutional remedies.
- USA- Fundamental Rights in the USA are absolute not like India where the reasonable restriction is present.
- Japan have also Fundamental Rights but no such rights are mentioned in Britain constitution.
Fundamental Duties- Fundamental Duties and rights of the citizen are inseparable and correlative. The citizen must have some moral and civic duties toward their country.
Originally the Indian constitution does not contain Fundamental Duties. It has been borrowed from USSR and no major country has Fundamental Duties.
Directive Principle- The constitution of India contains the directive principle borrowed from the Irish Constitution. The Directive principles constitute a very comprehensive economic, social and political programme for a modern democratic state. Although directive principles are not enforceable in nature the state should keep in mind while formulating policies and enacting laws.
Recently the Indian Constitution completed 70 years of adoption. For newly independent nation making of the constitution and entering into force was a challenge for the framers of the constitution. Several Political scientists had criticized the newly adopted constitution that this will not be able to run the diversity of the nation and soon will collapse. But the working of the constitution has stood the test of time and made India one of the successful and largest democracy of the world.