Comparison of Indian constitutional scheme with that of other countries

BY:- BHASKAR JYOTI

RESEARCH SCHOLAR
CENTRE FOR EUROPEAN STUDIES
SCHOOL OF INTERNTIONAL STUDIES
JAWAHAR LAL NEHRU UNIVERSITY
NEW DELHI
Phn:- 9015753660
The Indian Constitution is unique in its contents and spirit. Though borrowed from almost every
constitution of the world, the constitution of India has several salient features that distinguish it
from the constitutions of other countries.
Constitution consists of those fundamental written rules which outline the structure of the
government and define the relationship and powers of the three departments of the government,
viz., executive, legislature and the judiciary. The constitution of India, US, Srilanka, and Japan
can be cited as examples. But in a broad sense, constitution also includes a large collection of
unwritten parts- such as customs, practices and conventions. According to Munro a constitution
is A complex amalgam of institution principles and practices, it a composite of charters statutes
of judicial decisions, of common law, of precedents, usage and traditions.
Comparative analysis of the salient features of Indian constitution with other constitutions
of the world, as it stands today, are as follows:Lengthiest Written Constitution
Constitutions are classified into written, like the American Constitution, or unwritten, like the
British constitution. The Constitution of India is the lengthiest of all the written constitutions of
the world. It is a very comprehensive, elaborate and detailed document. Originally (1949), the
Constitution contained a Preamble, 395 Articles (divided into 22 Parts) and 8 Schedules.
Presently, it consists of a Preamble, about 465 Articles (divided into 25 Parts) and 12 Schedules.
The various amendments carried out since 1951 have deleted about 20 Articles and one Part
(VII) and added about 85 Articles, four Parts (IVA, IXA, IXB and XIVA) and four Schedules (9,
10, 11 and 12). No other Constitution in the world has so many Articles and Schedules. Four
factors have contributed to the elephantine size of our Constitution. They are:(a) Geographical factors, that is, the vastness of the country and its diversity.
(b) Historical factors, e.g., the influence of the Government of India Act of 1935, which was
bulky.
(c) Single Constitution for both the Centre and the states except Jammu and Kashmir.
(d) Dominance of legal luminaries in the Constituent Assembly.
The Constitution contains not only the fundamental principles of governance but also detailed
administrative provisions. Further, those matters which in other modern democratic countries
have been left to the ordinary legislation or established political conventions have also been
included in the constitutional document itself in India.

Drawn From Various Sources

The Constitution of India has borrowed most of its provisions from the constitutions of various
other countries as well as from the Government of India Act5 of 1935. Dr B R Ambedkar
proudly acclaimed that the Constitution of India has been framed after ransacking all the known
Constitutions of the World. The structural part of the Constitution is, to a large extent, derived
from the Government of India Act of 1935. The philosophical part of the Constitution (the
Fundamental Rights and the Directive Principles of State Policy) derive their inspiration from the
American and Irish Constitutions respectively. The political part of the Constitution (the
principle of Cabinet Government and the relations between the executive and the legislature)
have been largely drawn from the British
Constitution. The other provisions of the Constitution have been drawn from the constitutions of
Canada, Australia, Germany, USSR (now Russia), France, South Africa, Japan, and so on.
However, the criticism that the Indian Constitution is a borrowed Constitution, a patchwork
and contains nothing new and original is unfair and illogical. This is because, the framers of the
Constitution made necessary modifications in the features borrowed from other constitutions for
their suitability to the Indian conditions, at the same time avoiding their faults.
Federal System with Unitary Bias
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, supermacy of Constitution, rigidity of Constitution, independent judiciary and bicameralism.
However, the Indian Constitution also contains a large 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, emergency provisions,
and so on. Moreover, the term Federation has nowhere been used in the Constitution. Article 1,
on the other hand, describes 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. Hence, the Indian Constitution has been variously described as federal in
form but unitary in spirit, quasi-federal by K C Wheare, bargaining federalism by Morris
Jones, co-operative federalism by Granville Austin, federation with a centralizing tendency
by Ivor Jennings, and so on.
Parliamentary Form of Government
The Constitution of India has opted for the British parliamentary System of Government rather
than American Presidential System of Government. The parliamentary system is based on the
principle of cooperation and co-ordination between the legislative and executive organs while the
presidential system is based on the doctrine of separation of powers between the two organs. The
parliamentary system is also known as the Westminster model of government, res-ponsible
government and cabinet government. The Constitution establishes the parliamentary system not
only at the Centre but also in the states. The features of parliamentary government in India are:(a) Presence of nominal and real executives;
(b) Majority party rule,

(c) Collective responsibility of the executive to the legislature,

(d) Membership of the ministers in the legislature,
(e) Leadership of the prime minister or the chief minister,
(f) Dissolution of the lower House (Lok Sabha or Assembly).
Even though the Indian Parliamentary System is largely based on the British pattern, there
are some fundamental differences between the two. For example, the Indian Parliament is not
a sovereign body like the British Parliament. Further, the Indian State has an elected head
(republic) while the British State has hereditary head (monarchy). In a parliamentary system
whether in India or Britain, the role of the Prime Minister has become so significant and crucial
that the political scientists like to call it a Prime Ministerial Government.
Synthesis of Parliamentary Sovereignty and Judicial Supremacy:The doctrine of sovereignty of Parliament is associated with the British Parliament while the
principle of judicial supremacy with that of the American Supreme Court. Just as the Indian
parliamentary system differs from the British system, the scope of judicial review power of the
Supreme Court in India is narrower than that of what exists in US. This is because the American
Constitution provides for due process of law against that of procedure established by law
contained in the Indian Constitution (Article 21). Therefore, the framers of the Indian
Constitution have preferred a proper synthesis between the British principle of parliamentary
sovereignty and the American principle of judicial supremacy. The Supreme Court, on the one
hand, can declare the parliamentary laws as unconstitutional through its power of judicial review.
The Parliament, on the other hand, can amend the major portion of the Constitution through its
constituent power.
Integrated and Independent Judiciary
The Indian Constitution establishes a judicial system that is integrated as well as independent.
The Supreme Court stands at the top of the integrated judicial system in the country. Below it,
there are high courts at the state level. Under a high court, there is a hierarchy of subordinate
courts, that is, district courts and other lower courts. This single system of courts enforces both
the central laws as well as the state laws, unlike in USA, where the federal laws are enforced by
the federal judiciary and the state laws are enforced by the state judiciary.
The Supreme Court is a federal court, the highest court of appeal, the guarantor of the
fundamental rights of the citizens and the guardian of the Constitution. Hence, the Constitution
has made various provisions to ensure its independencesecurity of tenure of the judges, fixed
service conditions for the judges, all the expenses of the Supreme Court charged on the
Consolidated Fund of India, prohibition on discussion on the conduct of judges in the
legislatures, ban on practice after retirement, power to punish for its contempt vested in the
Supreme Court, separation of the judiciary from the executive, and so on.
Universal Adult Franchise
The Indian Constitution adopts universal adult franchise as a basis of elections to the Lok Sabha
and the state legislative assemblies. Every citizen 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. The introduction of universal adult franchise by the Constitution-makers was a bold
experiment and highly remarkable in view of the vast size of the country, its huge population,
high poverty, social inequality and overwhelming illiteracy. Universal adult franchise makes
democracy broad-based, enhances the self-respect and prestige of the common people, upholds
the principle of equality, enables minorities to protect their interests and opens up new hopes and
vistas for weaker sections.
Single Citizenship
Though the Indian Constitution is federal and envisages a dual polity (Centre and states), it
provides for only a single citizenship, that is, the Indian citizenship. In countries like USA, on
the other hand, 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 rightsone
conferred by the National government and another by the state government. In India, all citizens
irrespective 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, and so on. Despite the
constitutional provision for a single citizenship and uniform rights for all the people, India has
been witnessing the communal riots, class conflicts, caste wars, linguistic clashes and ethnic
disputes. This means that the cherished goal of the Constitution-makers to build an united and
integrated Indian nation has not been fully realised.
Independent Bodies
The Indian Constitution not only provides for the legislative, executive and judicial organs of the
government (Central and state) but also establishes certain independent bodies. They are
envisaged by the Constitution as the bulworks of the democratic system of Government in India.
These are:(a) Election Commission to ensure free and fair elections to the Parliament, the state legislatures,
the office of President of India and the office of Vice-president of India.
(b) Comptroller and Auditor-General of India to audit the accounts of the Central and state
governments. He acts as the guardian of public purse and comments on the legality and propriety
of government expenditure.
(c) Union Public Service Commission to conduct examinations for recruitment to all-India
services and higher Central services and to advise the President on disciplinary matters.
(d) State Public Service Commission in every state to conduct examinations for recruitment to
state services and to advice the governor on disciplinary matters.
The Constitution ensures the independence of these bodies through various provisions like
security of tenure, fixed service conditions, expenses being charged on the Consolidated Fund of
India, and so on.
SALIENT FEATURES OF BRITISH CONSTITUTION:-

1)
2)
3)
4)
5)
6)

The British constitution is the oldest constitution. It is mother of all other constitutions.
It is the product of slow development and was not enacted at any particular time.
It is mainly based on conventions or political practices and is also unwritten in nature.
Unlike the USA and India which are federal, England has unitary form of government.
It is flexible constitution and can be amended like any other ordinary law of the land.
It is a judge-made constitution. Many unwritten portions of the constitution are
supplemented by judicial divisions.
7) Parliament is sovereign in England. No act of parliament can be declared illegal by the
judiciary.
8) In England there is a parliamentary system. The executive is responsible to the parliament
and remains in office as long as it enjoys the confidence of the majority of the members
of lower house of parliament which is the house of commons.
9) The king doesnt rule but only resigns and as such the constitution has provided for
limited monarchy.
10) There is a definite difference between theory and practice. In British constitution
nothing is what it seems to be and what it is.
11) There is rule of law in Britain. In other words, everybody from the policemen to the
prime minister is equal before law.
12) There are two major political parties in the country-one forms the government and the
other opposes it.
13) The existence of monarchy and house of lords represent the hereditary principles. Though
undemocratic these have been retained.
14) The judges are impartial, they do not discriminate between the high and the low, the rich
and the poor.
15) Britain is the best example of bi-party system.
16) In contrast to American and Indian practice, there is no judicial review in the sense of
testing the constitutional validity of laws.
17) According to Munro: The English constitution is not a completed thing but a process of
growth. It is the child of wisdom and chance whose course has sometimes been guided by
accident and some times by high design.
SALIENT FEATURES OF THE ONSTITUTION OF UNITED STATES OF AMERICA:1) Unlike the British constitution which is the result of slow evolution and is un codified,
the American constitution was framed by a constitutional convention specially chosen for
this purpose and thus is codified.
2) Unlike the bulky Indian constitution, the American one is a brief document consisting of
about 18 pages.
3) It lays down, in broad outlines the structure of federal government and leaves to each
state the organization of its government.
4) Another feature of American constitution is its rigidity. It cannot be amended by congress
according to ordinary process of law making. In this respect it differs from British
constitution which being flexible, can be easily amended by parliament. The present
constitution includes 24 amendments only.
5) The constitution gives recognition to the principle of popular sovereignty.
6) The devise of initiative, referendum and recall are not provided in the constitution.

7) The constitution provides for representative democracy and not direct democracy.
8) The American constitution manifests in practice the theory of separation of powers
advocated by Montesqieu. Even though the constitution does not contain any formal
statement of the theory, yet the structure of the government provided there in is based on
it.
9) The senate shares the power of appointments and treaty making with the President. The
President appoints the judges of the Supreme Court. The organization of federal judiciary
is determined by the congress.
10) The Supreme Court reviews legislation and the acts of the executive.
11) Residuary powers are given to the constituent units or states.
12) The constitution of USA is presidential in character. This means that the powers which
are given to the President are real. There is no difference between theory and practice of
powers. There is no post of prime minister.
13) The executive is not responsible to the legislature as in the case of India or Britain. The
U.S. President and his ministers do not sit in the congress.
14) The President is elected for a fixed period and he goes by the calendar. The President
does not have the powers of dissolution. He cannot dissolve the congress.
15) The people enjoy double citizenship. They will be the citizens of the state to which they
belong and also the citizens of the USA.
16) The constitution has also provided for bi-cameralism, which means that the US congress
will consist of the houses of legislature namely the senate and the house of
representatives. The former represents the federating state and is very powerful. On the
other hand the later represents the masses and is comparatively less powerful.
17) The judiciary has the power to declare null and void any act of the legislature or the
executive which in its opinion is against any provision of the constitution.
18) The Supreme Court as interpreter and guardian of the constitution secures respect for its
provisions through its power of judicial review.
SALIENT FEATURES OF THE ONSTITUTIONOF FRANCE:1) A written constitution.
2) A rigid constitution.
3) A child of emergency.
4) Republican nature of the constitution
5) Democratic form of government.
6) Popular sovereignty.
7) Secularism
8) Guarantee of social and political rights.
9) Strong Presidency.
10) Bi-cameral legislature.
11) Two governmental systems.
The constitution has established two governmental systems- one for France proper and the other
for the French community. The government of the French community is formed with the idea of
appeasing the overseas territories of France. The overseas territories have been given autonomy
and a separate set of government consisting of a President, an executive council and a senate.

SALIENT FEATURES OF THE CONSTITUTION OF GERMANY:1) The opening articles of the constitution guarantee the dignity of individual, the free
development of his personality, the equality of all persons before the law and freedom of
faith and conscience.
2) Both men and women have equal rights, and no one may be prejudiced because of sex,
descent, race, language, homeland and origin, faith or religion or political opinion.
3) No one may be compelled against his conscience to perform war service as a combatant.
4) Freedom of press and freedom of reporting bay radio and motion pictures are guaranteed
by article 5.
5) The state shall protect marriage and the family, property and the rights of inheritance.
6) Each land within the federal republic has its own constitution, which must however
conform to the principles laid down in the basic law.
7) The legislative organ of the federation is the Bundestag, to which bills are introduced by
the government, by members of the Bundestag or by the Bundesrat.
8) Judicial authority is vested in independent Judges, who are subject only to the law and
who may not be dismissed or transferred against their will.
9) Justice is exercised by the federal constitutional court, by the Supreme Courts and by the
court of the lander.
10) The federal government consists of the federal chancellor and the federal ministers. The
federal chancellor is elected by an absolute majority of the Bundestag on the proposal of
the federal President. Ministers are appointed and dismissed by the President upon the
proposal of the chancellor.
SALIENT FEATURES OF CHINESE CONSTITUTION:1)
2)
3)
4)
5)
6)
7)
8)
9)

It is a written document, though it has only 30 articles in all.

In the constitution maximum praise has been given to the communist party of china.
There is a separate chapter on Fundamental Rights in the constitution.
The constitution has specified certain fundamental duties for the citizens.
The constitution incorporates a preamble.
There will be no head of the state in China.
The constitution has made no arrangements for the separation of powers.
The constitution is more a political rather than a legal document.
Like the Soviet constitution, the present Chinese constitution also has theoretical base
and there is stress on Marxism- Leninism and on the thoughts and philosophy of Mao Tse
Tung.

The constitution of China (1975) has clearly said that from march to socialism we have now
come to socialism and that in the country now socialist society will be established in which
workers and peasants will have their own important and significant role to play.
SALIENT FEATURES OF RUSSIAN CONSTITUTION:-

The current Constitution of the Russian Federation was adopted by national referendum
on December 12, 1993. Russia's constitution came into force on December 25, 1993, at the
moment of its official publication, and abolished the Soviet system of government. The current
Constitution is the most long-lived in the history of Russia, except for the Stalin's constitution.
The 1993 Constitutional Conference was attended by over 800 participants. Serge
Alexeyev, Sergey Shakhray and sometimes Anatoly Sobchak are considered as co-authors of the
constitution. The text of the constitution was inspired by Mikhail Speranskys constitutional
project and current French constitution.
A constitutional referendum was held in Russia on 12 December 1993. Of all registered voters,
58,187,755 people (or 54.8%) participated in the referendum. Of those, 32,937,630 (54.5%)
voted for adoption of the Constitution. It replaced the previous Soviet-era of Russian Soviet
Federative Socialist Republic (which had already been amended in April 1992 to reflect the
dissolution of the Soviet Union and the sovereignty of the Russian Federation), following
the 1993 Russian constitutional crisis.
1) The Russian Federation - Russia is a democratic federal law-bound State with a
republican form of government. The names "Russian Federation" and "Russia" shall be
equal.
2) The bearer of sovereignty and the only source of power in the Russian Federation shall
be its multinational people.
3) The people shall exercise their power directly, and also through the bodies of state
power and local self-government.
4) The supreme direct expression of the power of the people shall be referenda and free
elections.
5) No one may usurp power in the Russian Federation. Seizure of power or usurping state
authority shall be prosecuted by federal law.
6) . The Russian Federation consists of Republics, territories, regions, cities of federal
importance, an autonomous region and autonomous areas - equal subjects of the Russian
Federation.
7) The Republic (State) shall have its own constitution and legislation. The territory,
region, city of federal importance, autonomous region and autonomous area shall have
its charter and legislation.
8) The federal structure of the Russian Federation is based on its state integrity, the unity
of the system of state authority, the division of subjects of authority and powers between
the bodies of state power of the Russian Federation and bodies of state power of the
subjects of the Russian Federation, the equality and self-determination of peoples in the
Russian Federation.
9) In relations with federal bodies of state authority all the subjects of the Russian
Federation shall be equal among themselves.
10) The citizenship of the Russian Federation shall be acquired and terminated according to
federal law; it shall be one and equal, irrespective of the grounds of acquisition. The
Russian Federation is a social State whose policy is aimed at creating conditions for a
worthy life and a free development of man.
11) In the Russian Federation the labour and health of people shall be protected, a
guaranteed minimum wages and salaries shall be established, state support ensured to
the family, maternity, paternity and childhood, to disabled persons and the elderly, the

system of social services developed, state pensions, allowances and other social security
guarantees shall be established.
12) The state power in the Russian Federation shall be exercised by the President of the
Russian Federation, the Federal Assembly (the Council of the Federation and the State
Duma), the Government of the Russian Federation, and the courts of the Russian
Federation.
13) The state power in the subjects of the Russian Federation shall be exercised by the
bodies of state authority created by them.
14) The division of subjects of authority and power among the bodies of state power of the
Russian Federation and the bodies of state power of the subjects of the Russian
Federation shall be fixed by the given Constitution, the Federal and other treaties on the
delimitation of the subjects of authority and powers.
15) The Russian Federation is a secular state. No religion may be established as a state or
obligatory one.
16) The provisions of the present chapter of the Constitution comprise the fundamental
principles of the constitutional system of the Russian Federation, and may not be
changed otherwise than according to the rules established by the present Constitution.
17) The universally-recognized norms of international law and international treaties and
agreements of the Russian Federation shall be a component part of its legal system. If an
international treaty or agreement of the Russian Federation fixes other rules than those
envisaged by law, the rules of the international agreement shall be applied.
DIFFERENT SOURCES OF INDIAN CONSTITUTION:i.)
Government of India Act, 1935:
Federal Scheme, Office of Governor, Judiciary, Public Service Commissions, Emergency
provisions, Administrative details.
ii.)
British Constitution:
Parliamentary government, Rule of Law, Legislative procedure, Single citizenship, Cabinet
System, Prerogative Writs.
iii.)
US Constitution:
Fundamental Rights, Independence of Judiciary, Judicial Review, Impeachment of the President,
Removal of Supreme Court and High Court judges and post of Vice-President.
iv.)
Irish Constitution:
Directive Principles of State Policy, nomination of members to Rajya Sabha and method of
election of President, Federation with a strong centre, Vesting of residuary powers in the Centre,
appointment of State Governors by the Centre and advisory jurisdiction of the Supreme Court.
v.)
Canadian Constitution:
Federation with a strong centre, residuary powers with the centre, appointment of state governors
by the centre and advisory jurisdiction of the Supreme Court.
vi.)

Australian Constitution:

Concurrent List, Freedom of trade, commerce and intercourse joint sitting of the two Houses of
Parliament.
vii.)
Weimar Constitution:
Suspension of Fundamental Rights during Emergency.
viii.) Soviet Constitution:
Fundamental duties, the ideal of justice (social, economic and political) in the Preamble.
ix.)
French Constitution:
Republic and the ideals of liberty equality and fraternity in the Preamble.
x.)
South African Constitution:
Procedure for amendment, the Constitution and election of the members of Rajya Sabha.
xi.)

Japanese Constitution:

Procedure established by law. The drafted Constitution was finally adopted on November 26,
1949.
BY:- BHASKAR JYOTI
RESEARCH SCHOLAR
CENTRE FOR EUROPEAN STUDIES
SCHOOL OF INTERNTIONAL STUDIES
JAWAHAR LAL NEHRU UNIVERSITY
NEW DELHI
Phn:- 9015753660