To live by the rule of the
constitution, ought to be considered not slavery but a salvation”
-Aristotle
Each
modern state is ruled by the provisions of a constitution which represents the
sovereign will of its people. Constitutionalism is the order of the day. Constitutionalism,
as it has developed since times very ancient, has led to a universal
recognition in favour of the existence of a self-made constitution for each
state. It is in accordance with the provisions of the ‘Constitution’ that the
government of the state is organized and it exercises power over the people.
Constitution is the supreme legal system - a set of constitutional laws – which
is regarded fundamental in the governance of the state. It regulates
law-making, law-enforcement and adjudication on the part of the government. In
fact, the constitution defines the organization, nature and scope of the
governmental power of the people, the rights and the freedoms of the people and
the relations between the rulers and the ruled.
In
this following presentation, we are going to look into the features of the
Constitutions of India and the USA and draw comparisons in their provisions.
THE CONSTITUTION OF INDIA
In
several respects the Constitution of India is a unique constitution – its
voluminous size, the mixture of both federalism-unitarianism and flexibility
and rigidity. The attempt of the constitution-makers was to give to the nation
a workable Constitution capable of securing the unity and stability of the
nation and initiating the process of nation-building and socio-economic
reconstruction.
Speaking
in the Constituent Assembly, Dr.Ambedkar observed: “I feel it (The
Constitution) is workable, it is flexible and it is strong to hold the country
together both in peace and war time. Indeed if I may say so, if things go wrong
under the Constitution, the reason will not be that we have a bad constitution,
what we will have to say is that man was vile.”
SALIENT FEATURES:
·
Written and Detailed Constitution: The Constitution is wholly a written
document. It incorporates the constitutional law of India. It was drafted,
debated and enacted by the Constituent Assembly of India. It took 2 years, 11
months and 18 days to write and enact the Constitution. It is the largest
written constitution in the world. The Constitution framers did not want to
leave things to chance because they were aware of the socio-economic-politico
problems being faces by the country in the post-independence period. The
incorporation of several features such as the Fundamental Rights, Centre-State
relations, the Directive Principals of State Policy, Emergency provisions,
language provisions, protection of STs and SCs and also including special
provisions for special constitutional bodies such as the Election Commission,
the UPSC etc. naturally made the constitution very lengthy.
·
Preamble of the Constitution: The Preamble to the Constitution of
India states the philosophy of the constitution. It declares India to be a
Sovereign, Socialist, Secular, Democratic, Republic and welfare state committed
to secure justice, liberty, and equality for the people for promoting
fraternity, dignity to the individual and unity and integrity of the nation.
Initially the Preamble was not a part of the Constitution but since the Supreme
Court judgment in the Kesava Nanda Bharaticase, it stands accepted as a part of
the constitution.
·
Federal Structure with a Unitary
Spirit:While
describing India as a Union of States, the constitution provides for a federal
structure with a unitary sprit. It is also referred to as a ‘Quasi Federation’.
The constitution of India provides for division of powers, supremacy of the
Constitution, bicameralism, independent judiciary to settle Centre-state
disputes etc. showcasing federalism but by providing a strong Centre, common
constitution, single citizenship, common All India Services etc. the Constitution clearly reflects unitary
spirit. This was done specifically keeping in mind the pluralistic nature of
India society and the presence of regional diversities.
·
Mixture of Rigidity and Flexibility:the Constitution of India is rigid in
parts. Some of its provisions can be amended in a difficult way while others
can be amended very easily. It is the Article number 368 of the Constitution
that gives the Parliament the power to amend the constitution.
1. Most provisions of the constitution
can be amended by the Union Parliament by passing an amendment bill by a
majority of total membership and the 2/3rd majority of members
present and voting in each of its two houses.
2. For amendment of several specified
provisions, a very rigid method has been provided. Under it, firstly the Union
Parliament by passes an amendment bill by a majority of total membership and
the 2/3rd majority of members present and voting in each of its two
houses individually and then it goes to the State Legislatures for
ratification. The amendment gets passed only when it is approved by not less
than one half of the several states of the Union.
·
Fundamental Rights: Under it Part III, Articles 12-35,
the Constitution of India grants and guarantees fundamental rights to its
citizens. There are six fundamental rights of an Indian citizen-
1. Right to Equality (Arts. 14-18)
2. Right to Freedom (Arts. 19-22)
3. Right against Exploitation (Arts.
23-24)
4. Right to Freedom of Religion (Arts.
25-28)
5. Cultural and Educational Rights
(Arts. 29-30)
6. Right to Constitutional Remedies
(Art. 32)
Initially seven fundamental rights were granted but by the deletion of the
Right to Property (Art. 32), it is just six now. While granting and
guaranteeing these rights, the Constitution also describes several limitations
upon these in the interest of public order, morality, decency and security of
the State. They are also subject to amendment.
·
Directive Principles of State Policy: The Directive Principles (Part IV,
Articles 36-51), influenced by the Irish Constitution, are instructions to the
State for securing socio-economic developmental objectives through its policies
such as ensuring adequate means of livelihood for the people, ensuring fairer
distribution of wealth, equal pay for equal work, promotion of cottage
industries, rural development, old age pension etc.
·
Fundamental Duties: The constitution under its Part IV
A, Article 51 A (incorporated by the 42nd Amendment 1976) enumerates
a list of fundamental duties of the citizens of India. They are however, like
the Directive Principles, not enforceable by the courts. They both form a part
of constitutional morality.
·
Bicameral Union Parliament:The constitution provides for a bicameral
legislature. Its two houses are the Lok Sabha and the Rajya Sabha.
The Lok Sabha is the lower, popular and directly elected
house of the Parliament. It represents the people of India. Its maximum
strength stands fixed at 545-543 elected and 2 nominated members by the
President from the Anglo-Indian community if it is felt that the community is
not adequately represented in the house. The tenure of the house is 5 years but
the President can dissolve it earlier also under the advice of the Prime Minister.
The Rajya Sabha is the upper and
indirectly elected house which represents the states of the Union. Its total
membership is 250. Out of these, 238 are elected by all the State Legislative
Assemblies through a system of proportional representation by means of single
transferable vote and 12 members are nominated by the President who have
distinguished themselves in the fields of arts, science and literature. It is a
quasi-permanent house; it is never dissolved as a whole. 1/3rd of
its members retire every two years and each member has tenure of six years.
Of the two houses, Lok Sabha is the
more powerful. It alone has financial powers and it alone can remove the union
cabinet from office. The Council f Ministers is collectively responsible before
the Lok sabha.
·
Parliamentary System: The Constitution of India provides
for a parliamentary system of government at the centre and well as in every
state. It is modeled on the British pattern of parliamentary form of
government. The President is the head of the state with nominal powers. The
Union Council of Ministers headed by the Prime Minister constitutes the real
executive. The Council of Ministers are collectively responsible to the Lok
Sabha, who can remove the ministry by passing a vote of no-confidence and the
ministry, that is the PM, can get the Lok Sabha dissolved by the President.
·
Universal Adult Suffrage: All men and women above the age of
18 years are eligible to vote in elections. However it is compulsory that their
names must figure in the electoral lists.
·
Single Citizenship: All citizens of India are equal. All
citizens enjoy a common uniform citizenship which entitles them all to equal
rights and freedoms and equal protection of the state.
·
Single Integrated Judiciary: Though the constitution provides for
a federal structure, it establishes a single integrated judicial system common
for the Union and the states. The Supreme Court is the apex court, with high
Courts at the state level and subordinate courts under high courts. The Supreme
Court controls and runs the judicial administration in India.
·
Independence of the Judiciary: the Indian Constitution makes
Judiciary truly independent. Some of the facts that provide for this are that
judges are appointed by the President, the impeachment process of judges being
extremely difficult, the judiciary not being responsible to the executive or
the legislature etc.
·
Judicial Review: The Supreme Court acts as the
guardian protector and interpreter of the constitution. Through judicial
review, the Supreme Court has the power to check the constitutional validity of
all acts of the legislature and the executive and they can be strike down if
found to be unconstitutional. The High Courts can also exercise this power.
There are a few more features such as
provisions relating to Scheduled Castes and Scheduled Tribes, provisions
regarding language, emergencies, and judicial activism etc. also.
THE CONSTITUTION OF USA
Since 1789, the US Constitution has
been successfully guiding the destiny of the American nation. The evolution of
the USA from a small sate of 13 federating states into a big and most developed
federal system of 50 states with a super power status in the world, has been
possible mainly due to the continuous existence and operation of a strong and
efficient central government constituted under the US Constitution. The US
Constitution has demonstrated fully its ability to successfully guide the US political
system and provide it with solid legal foundations. Brogan has rightly
observed: “That it has survived so long is a tribute to the sagacity,
moderation and a sense of the possible shown by its makers.”
SALIENT FEATURES:
·
Written, Enacted and Ratified
Constitution: The US
Constitution is one of the oldest written constitutions of the world. It was
made by the Philadelphia Convention (1787) after extensive deliberations by the
representatives of the people of the 13 states. The ideas of Locke, Montesquieu
and Blackstone were accepted, but to these were added the views of the founding
fathers as well as the principals which the Americans regarded as necessary for
serving their interests and for meeting their aspirations. Before the
inauguration of the constitution, it was submitted for ratification by the 13
states, which were to join the federation and form the United States of America
as a single sovereign state.
·
A very brief constitution:The brevity of the US Constitution
has indeed been noticeable. It consists of only 7 articles, and only 27
amendments have been have been made in it in more than 225 years of its
existence. It is a booklet of just 15 pages containing only about 4000 words.
It is very short compared to constitutions of other nations. The makers of the
US Constitution believed that a lengthy constitution could become a source of
controversies resulting from varied interpretations. Another reason would be
that they just wanted to give the nation only the basic framework for organizing
the government of US because all the states of US would their own constitution
keeping in mind that it would not oppose the Constitution of United States.
·
The Preamble: The US Constitution places full faith
in popular sovereignty. It clearly affirms in its Preamble that people are the
real and ultimate source of all power. It is through free and fair elections
that people exercise their sovereign power to choose their representatives. The
representatives exercise authority on behalf of the people and that too for a
fixed term after which they have to seek fresh mandate.
·
A very rigid constitution: The American Constitution is a very
rigid constitution. It was made rigid for preventing unilateral and selfish
amendments by the federal government or the state governments. Only 27
amendments have occurred so far but this should not be taken to mean that the
constitution has not grown over the years.
·
Large number of Conventions: the brevity and rigidity of the US
Constitution have been responsible for creating situations which have given
rise to many conventions. Examples include the institution of the presidential
cabinet, the office the Speaker of the House of Representatives, Senatorial
Courtesy, direct election of the President etc. conventions have played a very
important role in the evolution of the US Constitution.
·
Constitution as the Supreme Law: The thesis of the supremacy of the
Constitution stands accepted by one and all. The government of the United
States of America derives all its powers from the constitution.it cannot work
against it; no law can be violated. The Supreme Court protects the supremacy of
the constitution through judicial review.
·
Bill of Rights: At the time of its making, the US
Constitution did not contain a formal Bill of Rights. It was on this account
that some states withheld ratification of the Constitution. Ten amendments were
made in the first two years and then the American Bill of Rights was
incorporated into the US Constitution. The rights and freedoms granted and
guaranteed in the Bill of rights have been made absolute; the government does
not have the power to limit them or take them away. The Supreme Court is the
guardian of these rights.
·
Federal Constitution:The United States is a federation of
50 states. The US Constitution has all the features of a federation- there is
division of powers between the federation and the states, written and rigid
constitution, supremacy of the constitution, independent judiciary, bicameral
federal legislature etc. Both the federal government and the state governments
exercise authority within their respective spheres as demarcated for them by
the Constitution.
·
Separation of Powers as the basic
principle:Highly
influenced by Montesquieu, the constitution makers adopted his concept of
separation of powers. Article I of the Constitution states that the legislative
powers of the federation are in the hands of the Congress (the US Parliament);
Article II lays down that the executive powers are with the President of US and
Article III gives all the judicial power to one Supreme Court and other
inferior courts created by the Congress. Each of these organs of the US
government has been kept separate from the other two.
·
Checks and Balances: While accepting and incorporating
the concept of separation of powers, the makers also realized that absolute separation
was neither possible nor desirable. It could lead to unhealthy division of
powers and arbitrary behavior of the organs of the government. Thus, the
Constitution provides for a network of checks and balances among the three
organs of the government. Each organ was given checking powers over the other
two such as the appointments and treaties made by the President had to be
approved by the Senate, or bills passed by the Congress would become laws only
when signed by the President, with the power of suspensory veto and pocket veto
in the hands of the President.
·
Presidential form of Government:By accepting the views of Locke and
Montesquieu of having a limited government and having separation of powers between
the organs of the government with a system of checks and balances and by
rejecting the British model of parliament, the US Constitution provides for a
presidential form of government. The membership of Congress is made
incompatible with the membership of the executive. Each organ is given a fixed
tenure and the right to dissolve or remove it is not given to any other organ.
Neither the President is responsible to the Congress nor is the latter made
subordinate to the former.
·
Bicameral Legislature: The Constitution accepts
bicameralism. The lower house, the House of Representatives, is a directly
elected house and consists of 435 representatives of the people. It has a fixed
but short tenure of just 2 years. The upper house is the Senate which consists
of 100 members (two senators elected from each of the 50 states of the
federation). It is a quasi-permanent house and 1/3rd of its members
retire every two years. Each senator has tenure of six years. Legislative power
is exercised by both the houses.
·
Senate as the stronger house: The Senate, despite being the upper
house of the US Congress, is more powerful than the lower house- the House of
Representatives.in spheres of ordinary law making and amendments, both the
houses have equal power. But in financial matters, Senate has the final say.
The Senate is also given a special role in checking the exercise of powers by
the President. The appointments and treaties made by the President require
senatorial consent. The Senate sits as the court of impeachment. Comparing to
the second chambers of other nations, the Senate is the strongest upper house.
·
Dual Judicial System:The Constitution provides for a dual
judicial system, a two-tier judicial system. The federal judiciary is headed by
the US Supreme Court consisting of other federal courts. Apart from that, each
state has its own judicial system.
·
Independence of Judiciary:The courts in USA, whether federal or
state courts, are independent of the control of the legislatures and
executives.
·
Judicial Review Power of the Supreme
Court: Being the guardian and final interpreter of
the constitution, the Supreme Court has the power to determine the meaning and
scope of the constitutional provisions. Through the power of judicial review,
the court can review the laws made by the Congress and the measures of the
President and can reject them on grounds of unconstitutionality.
·
Dual Citizenship: Like a true federation, the US
Constitution provides for dual citizenship, that is, the common citizenship of
the United States of America as well as the citizenship of the state of the
federation to which he or she belongs to.
·
Separate Constitution for each state
of the Federation:The
US Constitution recognizes the right of each state of the federation to have
its own constitution with the imposition of only two conditions: firstly that
the constitution of each state should be Republican both in letter and in
spirit and secondly, that it should not be against the Constitution of the
United States in any way.
POINTS OF DIFFERENCE IN THE TWO CONSTITUTIONS:
Although
there are a number of similarities between the constitutions of India and
America with features such as the written nature of both the constitutions,
federal structure of working, inclusion of a preamble in the constitution,
constitutional supremacy, both nations being democratic-republican,
bicameralism and independence of judiciary with the power of judicial review
etc., there are major differences in the structure of the constitutions.
1. Firstly, there is a vast difference
in the length of the two constitutions. The Indian Constitution is the longest
written constitution in the world consisting of 444 articles in 22 parts, 12
schedules and 118 amendments as of June 2013 while the American Constitution is
short document of just 7 articles with only 27 amendments making a small
booklet of just 15 pages containing about 4000 words; approximately 6000 words
if we add the amendments.
2. In terms of flexibility, the Indian
Constitution is partly rigid and partly flexible, mostly inclining towards the
‘flexible’ side as the amendment history suggests whereas the US constitution
is absolutely rigid. Only 27 amendments till date after 225 years of existence
is an absolute proof of its rigidity. The amendment process in US has two very
rigid stages. First, the proposal has to be initiated and passed either by 2/3rd
majority in both houses of the Congress or by a special constitutional
convention called by the Congress when asked to do by 2/3rd of all
the state legislatures. Secondly, after clearing the first stage, the amendment
has to secure a ratification either by 3/4th of the several state
legislatures or by special conventions in 3/4th states. Thus the
rigidity of the US Constitution is explained.
3. In case of the granted and guaranteed
rights in both the constitutions, the fundamental rights in India are subject
to restriction and amendment. They can be revoked during an emergency as well.
But the rightsenshrined in the American Bill of Rights are absolute and the
government does not have the power to take them away in no situation what so
ever.
4. India has a parliamentary system,
with the President being the nominal head and the Prime Minister with his
Council of Ministers as the real executive that is responsible to the Lok Sabha
whereas USA has a presidential form of government with the US President
exercising all the executive powers and with the inclusion of concept of
separation of powers between the organs of the government with the system of
checks and balances.
5. With different parliament system, the
working of both the governments is different. In the Indian Parliament, the
executive is responsible to the Lok Sabha, that is, the lower house of the
Parliament. The Lok Sabha can oust the ministry by passing a vote of
no-confidence whereas in the USA, all the organs have fixed tenures and no
organ is responsible to any other organ.
6. The Senate, even though being the
upper house, is the more powerful house. All the major powers lie in the hands
of the Senate. Here, the Lok Sabha (lower house) is more powerful than the
Rajya Sabha which is the upper house of the Parliament.
7. In India, there is only one
constitution and both the Centre and the State legislatures derive their powers
and functions from one common constitution. The US Constitution allows its
states to have a constitution of their own with the condition that it does not
go against the US constitution. So there is a system of dual constitutions in
USA.
8. Unlike India, USA offers dual
citizenship to the people of America. The American people enjoy citizenship of
their nation as well as of the state they belong to but in India, the
constitution provides for single, unified citizenship of the nation for all.
9. Contrary to the India judicial
system, the US has two-tier judicial system. Apart from the Supreme Court
leading the Judiciary in US, each state has its own judicial system enshrined
in their own state constitutions.
These were a few of the differences
in the constitutions of India and the USA. Apart from these, there are a number
of other differences in working of the governments between these two nations.
Despite these differences, the prevailing systems in both the countries have
been successful for both of them.
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