Comparison of Indian Constitutional Scheme with other countries
Thomas Paine: Where a constitution cannot be produced in a visible form, there is none
Evolution:
Montesquieus 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 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
British Constitution:
Product of history and the result of evolution
There is a difference between theory and practice
Flexible and unitary constitution
Parliamentary government and two party system
Rule of law and civil liberties applicable
Indian British
Written Unwritten
Quasi Federal Union Constitution
Power is divided between centre and state Power is the with the centre
No monarchy/Republic Has King/Queen
Indian Constitution Vs Written Constitution
American Constitution:
Works on Checks and balances concept
Presidential type of government
Rigid Constitution
Federal System
Indian American
Not a result of agreement between states Result of an agreement between states
Single Citizenship Dual citizenship
Representatives are sent to the parliament Each state sends equal number of representatives to
depending on the population of the state the senate
No principle of equality between the states Principle of equality between the states
The states are not sovereign Union and each Unit is sovereign in its sphere
No state can separate from Indian territory State can separate from the federation
Only centre has residuary powers States have residuary powers
Supreme Court has appellate jurisdiction No appellate jurisdiction for the Supreme Court
No referendum is necessary for amending the For amendment of Constitution a referendum is
Constitution 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 be studies
Dynamic Constitution (protection of individual, welfare state)
Indian Switzerland
Executive vested in the President Executive vested in the Federal Council
President elected by electoral college Federal Council Elected by Federal Assembly
Party Government Absent
States cannot conclude treaties Cantons can conclude treaties
Supremacy of Judiciary Judiciary cannot rule invalid a federal law
No referendum Referendum 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
Quasi
Parlimentary Parlimentary Presidential/Quasi Parlimentary
Democracy Semi Presidential Democracy Prime ministerial Republic
Supremacy of Supremacy of Parliament with
Constitution Constitution limited powers
Constitutional
Republic Republic Monarchy Republic Republic
President -Indirect
election Direct Election Direct election Indirect Election
Single
Single Citizenship Dual Citizenship Citizenship Dual Citizenship In principle
Procedure
Procedure established by
established by law law
The price of freedom is eternal vigilance Thomas Jefferson
References:
Oxford handbook of Comparative Law Mathias Reimann & Reinhard Zimmermann
Select Constitutions Anup Chand Kapur & K.K Mishra
Full Name: Hepzibah Beulah
