NATURE OF CONSTITUTION

India

In India, the Centre-States relations constitute the core elements of the federalism. The
Central Government and State Government cooperate for the well-being and safety of the
citizens of India. The work together in the field of environmental protection, terror control,
family control and socio-economic planning. The Indian constitution aim at reconciling the
national unity while giving the power to maintain state to the State governments. It is true
that the union has been assigned larger powers than the state governments, but this is a
question of degree and not quality, since all the essential features of a federation are present
in the Indian constitution.

Switzerland:

Art 1 of the 1874 Swiss constitution describe Switzerland as a Confederation. But in reality,
It was a Federation with 23 cantons (20 full & 6 half cantons) constituting the federation. The
1999 total revision of the constitution has further given strength to the federation. Switzerland
is now a federation both in name as well as on reality. The Federal character of the Swiss
Constitution is reflected by its following features; Non-Sovereign status of Cantons,
Supremacy of Swiss Constitution, Existence of Written and rigid constitution affecting a
division of powers between the Swiss Federation and the cantons, the cantons have their
separate constitution etc. All these features clearly established the existence of a federation in
Switzerland.

United States of America

The American constitution is federal in character. America was originally a federation of 13

States but due to admission of new states, it is now a federation of 50 States. A constitutional
division of powers has been made between the centre and the federating units. The
constitution enumerates the powers of the centre and leaves the residuary powers to be
exercised by the federating states. The constitution thus creates a weak Centre and because
residuary powers have been given to the units. However, in practice, federals centre in
American has become very powerful due to the application of the doctrine of "Implied
Powers" as propounded by the Supreme Court of the U.S.A.

SUPREMACY OF CONSTITUTION

United States Of America

The US Constitution states within it that it is the supreme law of the land. The states have
ratified it, which means that it is in force. Neither Congress, nor a state, nor any smaller
jurisdiction can pass a law or implement a policy that violates the Constitution. Nor can they
ignore the Constitution.

India

The constitution in supreme in India. But the power of Parliament to amend provisions of the
Constitution came up for judicial review in many cases; most important of them being
Keshavananda Bharati Vs State of Kerala, the famous decision of 13 judges’ Bench in
1973.The majority in this case held that the power of amendment under Article 368 is not
absolute but subject to various implied and inherent restrictions imposed by the basic
structure of the frame-work of the Constitution. In other words, the power to amend under
Article 368 is subject to the qualification that the basic structure of the framework of
Constitution cannot be altered.

Indira Gandhi Vs Raj Narain (1975) is another case where Supreme Court struck down a
constitutional amendment that sought to exclude certain electoral process from the judicial
review. Readers may know that the genesis of Emergency (the black days of Indian
democracy) was in the same incidences that led to this case.

The Parliament in its efforts to regain the ‘supremacy’ in amending Constitution, added
clauses (4) and (5) to Article 368, trying to make the amending power of Parliament
unlimited and to limit the judicial review over such amendments. However, this amendment
was also struck down by Supreme Court in Minerva Mills Vs Union of India (1980) case.

Switzerland
Article 49 of the constitution provides for the supremacy of and respect for federal laws

Article 49: Supremacy of and Respect for Federal Law

1. Federal law takes precedence over contrary cantonal law.

2. The Confederation shall ensure that the Cantons respect federal law.

AMENDABILITY OF CONSTITUTION

India

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. In some cases, the Union Parliament
can amend some parts of the Constitution by passing a simple law.

Article 368, of the Constitution provides for two special methods of amendment:
(i) Most of the provisions of the Constitution can be amended by the Union Parliament by
passing an Amendment Bill by a majority of total membership and 2/3rd majority of
members present and voting in each of its two Houses.

(ii) For the amendment of some specified parts, a very rigid method has been provided.
Under it, first the Union Parliament passes the Amendment Bill by a majority of total
membership and 2/3rd majority of members present and voting in each house , 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. Thus the Constitution of
India is partly rigid and partly flexible.

United States Of America

American constitution is probably the most rigid constitution in the world. It can be amended
by a very lengthy and difficult process. Because of the complicated nature of the amendment
procedure, sometimes it takes years before an amendment becomes operative after it has been
proposed. Every amendment, which can be moved in two different ways, must be ratified by
3/4th of the states. The rigidity of the constitution is obvious from the fact that during more
than 200 years it has been in operation; only 27 amendments have been made in the
constitution.

Switzerland

The Swiss constitution is a rigid constitution. The constitution cannot be amended by

ordinary law making process. The process of amending the constitution is complicated.An
amendment can become law only when it is approved by majority of the Swiss voters and by
a majority of the cantons.

JUDICIAL REVIEW

Switzerland
The Swiss judiciary play a less vital role then the judiciary in India or USA. The Swiss
Federal Tribunal has only limited judicial review authority. It can declare only cantonal law
unconstitutional. But it does not exercise judicial review of the laws passed by the central
government.

United States Of America

The best-known power of the Supreme Court is judicial review, or the ability of the Court to
declare a Legislative or Executive act in violation of the Constitution, is not found within the
text of the Constitution itself. The Court established this doctrine in the case of Marbury v.
Madison (1803).

In this case, the Court had to decide whether an Act of Congress or the Constitution was the
supreme law of the land. The Judiciary Act of 1789 gave the Supreme Court original
jurisdiction to issue writs of mandamus (legal orders compelling government officials to act
in accordance with the law). A suit was brought under this Act, but the Supreme Court noted
that the Constitution did not permit the Court to have original jurisdiction in this matter.
Since Article VI of the Constitution establishes the Constitution as the Supreme Law of the
Land, the Court held that an Act of Congress that is contrary to the Constitution could not
stand. In subsequent cases, the Court also established its authority to strike down state laws
found to be in violation of the Constitution.
Before the passage of the Fourteenth Amendment (1869), the provisions of the Bill of Rights
were only applicable to the federal government. After the Amendment's passage, the
Supreme Court began ruling that most of its provisions were applicable to the states as well.
Therefore, the Court has the final say over when a right is protected by the Constitution or
when a Constitutional right is violated.

India

The Supreme Court has been vested with the power of judicial review. It means that the

Supreme Court may review its own Judgement order. Judicial review can be defined as the

competence of a court of law to declare the constitutionality or otherwise of a legislative

enactment.

Being the guardian of the Fundamental Rights and arbiter of the constitutional conflicts

between the Union and the States with respect to the division of powers between them, the

Supreme Court enjoys the competence to exercise the power of reviewing legislative
enactments both of Parliament and the State’s legislatures.

The power of the court to declare legislative enactments invalid is expressively provided by

the Constitution under Article 13, which declares that every law in force, or every future law

inconsistent with or in derogation of the Fundamental Rights, shall be void. Other Articles of

the Constitution (131-136) have also expressively vested in the Supreme Court the power of
reviewing legislative enactments of the Union and the States.

SYSTEM OF GOVERNMENT

India

The Constitution of India provides for a parliamentary system of government at the Centre as
well as in every state of the Union. The President of India is the constitutional head of state
with nominal powers. The Union Council of Ministers headed by the Prime Minister is the
real executive. Ministers are essentially the members of the Union Parliament.
For all its policies and decisions the Council of Ministers is collectively responsible before
the Lok Sabha. The Lok Sabha can remove the Ministry by passing a vote of no-confidence.
The Cabinet, in fact the Prime Minister has the power to get the Lok Sabha dissolved by the
President. On similar lines a parliamentary government is also at work in each state.

Switzerland

Art 1 of the 1874 Swiss constitution describe Switzerland as a Confederation. But in reality,
It was a Federation with 23 cantons (20 full & 6 half cantons) constituting the federation. The
1999 total revision of the constitution has further given strength to the federation. Switzerland
is now a federation both in name as well as on reality.

The Federal character of the Swiss Constitution is reflected by its following features; Non-
Sovereign status of Cantons, Supremacy of Swiss Constitution, Existence of Written and
rigid constitution affecting a division of powers between the Swiss Federation and the
cantons, the cantons have their separate constitution etc. All these features clearly established
the existence of a federation in Switzerland.

United States Of America

The constitution provides for the presidential type of government in the U.S.A. All powers
are vested in the President. He is elected for a fixed period or 4 years and cannot be removed
before the expiry or his tenure. Though the constitution provides indirect election of the
President but in practice his election has become direct. The President is not politically
responsible to the Congress. He has nothing to do with the Congress. The member of his
Cabinet are neither members of the Congress nor answerable to it.