UPSC IAS exam preparation - India's Constitution - Lecture 11

Excellent study material for all civil services aspirants - being learning - Kar ke dikhayenge!

Constitutional systems of the world

[हिंदी में पढ़ें ]

---

1.0 INTRODUCTION

"If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself”.

The above statement defines the importance and need of a constitution for a country. A constitution is the highest law of a country and reflects the fundamental principles on which a system of government and administration of a country is based.

A constitution is a set of fundamental principles or established precedents according to which a state or other organization is governed. These rules together make up, i.e. constitute, what the entity is.

A constitution of a country needs to reinvent itself to keep pace with the global changes. Hence, comparative analysis gains importance in this respect. However, before going into the details of that, a cursory glance at various political systems in the world needs attention.

2.0 POLITICAL SYSTEMS ACROSS THE WORLD

There are various political systems prevalent in different parts of the world today. The major ones among them are:

1. Dictatorship - is a form of government in which the ruler is an absolute dictator [not restricted by a constitution or laws or opposition from the people].
2. Democracy - is the government by the people, exercised either directly or through elected representatives.
3. Republic - is slightly different from a democracy and is a government in which supreme power resides in a body of citizens entitled to vote and is exercised by elected officers and representatives responsible to them and governed according to law.
4. Anarchy - is the absence of government; the state of society where there is no law or supreme power; a state of lawlessness; political confusion.

Societies choose as per their own situations and circumstances, and a governing system evolves.

3.0 SALIENT FEATURES OF THE CONSTITUTIONS OF VARIOUS DEMOCRATIC COUNTRIES

3.1 Constitution of USA

The United States of America is a federal republic consisting of fifty states and a federal district. Main features of its constitution are:

1. USA has a Presidential form of Democracy where the President is the head of state and head of government.
2. It is a federal state that emerged from an initial agreement between a numbers of separate states.
3. In the United States, the Constitution is “king”. Only laws   passed   through   the   mechanisms   established   by   the   Constitution   are   valid. Furthermore, any law that is inconsistent with the limitations, structures or principles established by the Constitution is considered, by definition, invalid.
4. Another prominent feature of the U.S. Constitution is the Separation of Powers and Checks and Balances. In the constitutional  scheme of the US there is a clear separation of powers. The Framers were well aware of the need to preserve liberty while establishing order with the new Constitution.

3.2 Constitution of UK

The United Kingdom of Great Britain and Northern Ireland, commonly known as the United Kingdom [UK] and Britain, is a sovereign state located off the north-western coast of continental Europe. The country includes the island of Great Britain, the north-eastern part of the island of Ireland and many smaller islands.

The UK's form of government is a constitutional monarchy with a parliamentary system and its capital city is London. It consists of four countries: England, Scotland, Wales and Northern Ireland. Main features of its constitution are:

1. The Constitution is not ‘written’ in the sense of having a single document defining the powers  of government and rights  of individuals.  Nevertheless  many sources of constitutional law are written and these together with the non-legal rules make up the British Government.
2. The constitution is flexible and based on continuity of development.
3. In the absence of a written constitution having the status of fundamental, or higher law, the concept of Parliamentary sovereignty, or legislative supremacy represents the cornerstone of the constitution.
4. There is no strict separation of powers between the executive, legislature and judiciary, although a separation of functions exists and the concept retains importance under the constitution.
5. The United Kingdom has a constitutional monarchy.
6. The United Kingdom is a unitary state as opposed to a federal state.
7. The legislature is bicameral in nature.
8. The judiciary is independent.

3.3 Constitution of France

France is a unitary semi-presidential republic located mostly in Western Europe. The current constitution of France was adopted on 4 October 1958. It is typically called the Constitution of the Fifth Republic, and replaced that of the Fourth Republic dating from 1946. Since then the constitution has been amended eighteen times, most recently in 2008. Salient features of its constitution are:

1. The preamble of the constitution recalls the Declaration of the Rights of Man and of the Citizen from 1789 and establishes France as a secular and democratic country, deriving its sovereignty from the people.
2. It provides for the election of the President and the Parliament, the selection of the Government, and the powers of each and the relations between them.
3. It ensures judicial authority and creates a High Court (a never convened court for judging the President], a Constitutional Council, and an Economic and Social Council. It was designed to create a politically strong President.
4. It enables the ratification of international treaties and those associated with the European Union.
5. The Constitution also sets out methods for its own amendment either by referendum or through a Parliamentary process with Presidential consent.

3.4 Constitution of Russia

Russia is a federal semi-presidential republic, comprising 83 federal subjects. Salient features of its constitution are:

1. The Russian Constitution is based on world standards for human rights and basic principles of democratic state-building such as ideological neutrality of the state, political pluralism, competitive elections and separation of powers.
2. The constitution establishes a semi-presidential system, resembling the French system but with stronger executive power, due to the increased independence of the president in comparison to the French model.
3. The President of the Russian Federation holds primary power in the Russian political system.  The   President,  who   is   elected  for a  six year term (following the 2008 Amendments to the constitution), is the head of state and the Supreme Commander-in-Chief of the Armed Forces of the Russian Federation.
4. The constitution prescribes that the Government of Russia, is the executive branch of state power and is consisting of a prime minister (chairman of the Government), deputy prime ministers, and federal ministers and their ministries and departments.
5. The legislature's innate checks and balances are reflected in the ability of the Federal Council to examine and subsequently revise or reject legislation passed by the Duma.
6. The Russian Constitution provides for a Constitutional Court, a Supreme Court, a Supreme Court of Arbitration, and for the development of various lower courts. In contrast, the Constitution withholds several areas of traditional court jurisdiction from the Court and instead gives them to the President.

3.5 Constitution of Germany

Germany is a federal parliamentary republic in western-central Europe. The country consists of 16 states. Salient features of its constitution are:

1. The Basic Law for the Federal Republic of Germany (German: Grundgesetz fur die Bundesrepublik Deutschland) is the Constitution of Germany. It was approved on 8 May 1949, and, with the signature of the western Allies of World War II on 12 May, came into effect on 23 May.
2. Basic rights are fundamental to the Basic Law, in contrast to the Weimar Constitution, which listed them merely as "state objectives".
3. The Basic Law established Germany as a parliamentary democracy with separation of powers into executive, legislative, and judicial branches.
4. The executive branch consists of the largely ceremonial Federal President as head of state and the Federal Chancellor, the head of government, normally (but not necessarily) the leader of the largest grouping in the Bundestag.
5. The legislative branch is represented by the Bundestag, elected directly through a mixture of proportional representation and direct mandates.
6. The judicial branch is headed by the Federal Constitutional Court, which oversees the constitutionality of laws.
7. Basic Law may be amended by an absolute two-thirds majority of the Bundestag along with a simple two-thirds majority of the Bundesrat
8. Germany has switched between confederal, federal and unitary rule, since the German Confederation was founded in 1815. The current Germany is a federal system of states.

3.6 Constitution of Japan

Japan is a constitutional monarchy where the power of the Emperor is very limited. As a ceremonial figurehead, he is defined by the constitution as "the symbol of the state and of the unity of the people". Salient features of its constitution are:

1. The constitution provides for a parliamentary system of government and guarantees certain fundamental rights.
2. The constitution, also known as the "Postwar Constitution" is most characteristic and famous for the renunciation of the right to wage war contained in Article 9 and to a lesser extent, the provision for de jure popular sovereignty in conjunction with the monarchy.
3. It is a rigid document and no subsequent amendment has been made to it since its adoption.
4. Legislative authority is vested in a bicameral National Diet and, whereas previously the upper house had consisted of members of the nobility, the new constitution provided that both chambers be directly elected.
5. Executive authority is exercised by a Prime Minister and cabinet answerable to the legislature, while the judiciary is headed by a Supreme Court.

4.0 FEATURES OF INDIAN CONSTITUTION COMPARED WITH OTHER COUNTRIES

4.1 Written Constitution

A written constitution is a formal document defining the nature of the constitutional settlement, the rules that govern the political system and the rights of citizens and governments in a codified form.

1. India has a written constitution. It is also known as the longest constitution in the world.
2. USA has a written constitution. It is a product of the 1787 constitutional documents and subsequent amendments, the congressional statutes, executive orders, judicial interpretations and the political conventions.
3. British constitution is unwritten. Only a small portion of British constitution is covered by written documents. The British constitution is an evolved one and not enacted one. Various sources of British constitution are: Conventions, Great Charters, Statutes, Common Law, Legal Commentaries.
4. Since the French revolution, France has changed its constitution quite often. The present French constitution which established   the Fifth republic is a written constitution.     
5. Japan has a written constitution. The present constitution of Japan became operative in 1947.

4.2 Flexible or Rigid

A flexible Constitution is one that can be changed by ordinary law - making process, but the one which requires a special procedure for amendment is called rigid.

1. India: The Indian constitution is more flexible than rigid. Amendment of only a few of the provisions of the constitution require ratification by state legislatures and even then legislation by half of the states would suffice. The rest of the constitution could be amended by a special majority by union parliament. But with the rise of regional parties and coalition governments,even getting the legislation by half of the states is difficult.
2. USA: It has a rigid constitution. It can be amended by the Congress by means of a special process provided by the constitution for that purpose.
3. Britain: It has a flexible constitution. It requires no special procedure for its amendment and can be amended by the parliament in the same manner as ordinary laws are made.
4. France: Rigid Constitution of France needs special procedure for amending. 60% majority votes in both the houses of parliament are needed. Alternatively, President can call a national referendum on constitutional amendment.
5. Japan: In Japan, the amendment shall be initiated by the Diet. Such a proposal must be passed by a majority of two-thirds of its membership. After that it is submitted to the people for ratification at a special referendum or special election.
6. Germany: Article 79 of the German Constitution states the Basic Law may be amended by an absolute two-thirds majority of the Bundestag along with a simple two-thirds majority of the Bundesrat, excluding amendment of those areas defined by the eternity clause.

4.3 Unitary or Federal

Federalism is a system of government in which sovereignty is constitutionally divided between a central governing authority and constituent political units (like states or provinces). A unitary system is governed constitutionally as one single unit, with one constitutionally created legislature.

India: It is federal system with unitary bias. Though normally the system of govt is federal; the constitution enables the federation to transform itself into unitary state in emergencies.

USA: It is a federal state. The constitution

provides for division of power between

central govt and state govt. Residuary

powers are vested in the states. Each state

has its own constitution, elected legislature,

governor and Supreme Court.

Great Britain: It is a unitary state and all powers are vested in a single supreme central govt. The local govts are created only for administrative convenience and they derive their authority from central govt. which can also abolish them altogether at any time.

France: France is a unitary state. The local govts. are created and abolished by central govt. only for administrative convenience.

Japan: Japanese constitution provides for a unitary state.

4.4 Type of Government (Parliamentary v/s Presidential)

In a parliamentary form of government, the executive is responsible to legislature for its policies and acts. In a presidential form of government, the executive is completely separated from the legislature and is not accountable to legislature.

India: The constitution of India provides for a parliamentary form of governement both at the centre and in states. The Indian parliamentary system  is largely based on the British parliamentary system.

Principles of parliamentary govt of India:

1. Nominal and Real executives: President is the nominal executive and prime minister is real executive. 
2. Majority party rule: The political party which secures majority seats in the Lok Sabha forms the govt. 
3. Collective responsibility: The  ministers are collectively responsible to the parliament/Lok sabha.
4. Double membership: Ministers are members of both, legislature and executive. 
5. Dissolution of the lower house: The lower house can be dissolved on the recommendation of prime minister.

USA: The US constitution provides for a presidential form of government. Important principles of the Presidential system are: 

1. The President is both head of state and head of government.
2. The President is elected by an electoral college for a fixed tenure of four years and can't be removed by Congress except by process of impeachment for a grave unconstitutional act. 
3. The President governs with the help of a Cabinet, an advisory body whose members are selected and appointed by him and can be removed by him at any time. 
4. The President cannot dissolve the 'house of representatives' i.e lower house of congress. 
5. The President and his secretaries are not responsible to congress for their acts.

France: The Government of France is quasi - presidential and quasi - prime ministerial. On one hand, it provides for a powerful president who is directly elected by the people for a seven year term. On the other hand, there is a nominated council of ministers headed by prime minister which is responsible to the parliament.

Japan: Has a parliamentary system with largely British parliamentary features. But one major area of difference is that in Britain the prime minister is chosen as well as appointed by King or the Queen but in Japan the Prime Minister is chosen by Diet but appointed by emperor. Moreover, in Britain, the ministers are appointed by the crown but in Japan by they are appointed by the Prime Minister. 

Hence, the  British PM can't remove ministers but in Japan the PM can remove them. In Britain all ministers must be members of parliament, in Japan only majority must be members of Diet.

4.5 Sovereignty of Parliament

Parliamentary sovereignty (also called parliamentary supremacy or legislative supremacy) is a concept in the constitutional law of some parliamentary democracies. It holds that the legislative body has absolute sovereignty, and is supreme over all other government institutions, including executive or judicial bodies. The concept also holds that the legislative body may change or repeal any previous legislation, and so it is not bound by written law (in some cases, even a constitution) or by precedent. 

Britain: Parliament has the supreme power:

1. It can make, amend, substitute, and repeal any law.
2. The parliament can make constitutional laws by the same procedure as ordinary laws. 
3. There is no system of judicial review in UK i.e. parliamentary laws cannot be declared as invalid by judiciary for being unconstitutional.

France: It has a parliament with limited powers vis a vis political executive. It can only make laws on those items which are defined in the constitution. On all other matters the government is empowered to legislate by executive decree.  France also has a constitutional council with nine members who are appointed for a term of nine years. It functions as a judicial watchdog. It is only an advisory body.

Supremacy of constitution and judicial review- India, Japan and USA: In all three countries the written constitution is regarded as the highest law of the land and Supreme Court acts as custodian of the constitution through its power of judicial review. But there is a difference. American Supreme Court does not derive its power of judicial review from constitution but Indian and Japanese Supreme Court does so.

4.6 Republic v/s Constitutional Monarchy

A Republic is a form of government, and in any state so governed, where the Monarch (King or Queen) is not in fact or by law or constitutionally the head of state. In essence, the word REPUBLIC connotes ownership and control of a given state by the population at large. The post of head of state of a Republic is usually held by one person, a President (e.g.: the U.S.A., Trinidad, France, Guyana) who may be appointed or elected by the Prime Minister or the populace at large respectively; depending on the constitutional arrangements and essentials.

A constitutional monarchy is a form of government established under a constitutional system which acknowledges a hereditary or elected monarch as head of state.

Examples

1. Republic Countries - India. USA, France, Germany, Russia etc.
2. Constitutional Monarchies - UK, Japan etc.

4.7 President

India: The President of India is the nominal head of state of the Republic of India.

1. The real executive being council of ministers headed by Prime minister. He/She has to exercise his powers and functions with the aid and advice of council of ministers headed by P.M. (Art 53, 74, 75)
2. The President is indirectly elected by the people through elected members of the Parliament of India (Lok Sabha and Rajya Sabha) as well as of the state legislatures (Vidhan Sabhas), and serves for a term of five years.
3. President can be removed from his/her office before completion of term by impeachment for violation of constitution.

USA: The President of the United States  of America is the head of state and head of government of the United States.

1. The president leads the executive branch of the federal government and is the commander-in-chief of the United States Armed Forces.
2. Constitutionally president is elected by an electoral college constituted for the purpose. The members of this college are elected directly by the people of all the states. The College is a special body which is formed only for electing the president and gets dissolved after elections. The American presidency is one of the strongest democratic offices in the world.

The President holds his office for a fixed term of 4 years. He is eligible for re-election but only once. He can be removed from his office before expiry of his term through impeachment proceedings for treason, bribery or other high crimes. The house of representatives initiates the impeachment proceedings by a majority vote. The case is then tried by Senate. If the senate also passes the impeachment resolution by a two-thirds majority, president stands impeached.

Article II of the U.S. Constitution vests the executive power of the United States in the president and charges him with the execution of federal law, alongside the responsibility of appointing federal executive, diplomatic, regulatory, and judicial officers,  and concluding treaties with foreign powers, with the advice and consent of the Senate. The president is further empowered to grant federal pardons and reprieves, and to convene and adjourn either or both houses of Congress under extraordinary circumstances

France: The president is the pivot of the constitution and occupies a dominant position in the system of govt. He is the real head of the state.

1. The President is directly elected by suffrage.
2. The length of the term was reduced from 7 yrs. A president cannot serve more than two consecutive terms.  The president  can   be  removed from the office through an impeachment process for high treason.
3. The impeachment resolution should be passed by both houses of parliament by an absolute majority. After this the president is tried by high court of justice.

Germany: As Germany has a parliamentary system of government with the Chancellor running the government, the President has mainly ceremonial and supervisory duties.

1. President can give direction to general political and societal debates and has some important "reserve powers" in case of political instability. 
2. All federal laws must be signed by the President before they can come into effect; he can only refuse to sign a law that he believes to violate the constitution.
3. The President is elected by the Federal Convention, a body established solely for that purpose.
4. While in office the president enjoys immunity from prosecution and cannot be voted out of office or recalled. The only mechanism for removing the president is impeachment by the Bundestag or Bundesrat for willfully violating German law. Once the Bundestag impeaches the president, the Federal Constitutional Court is charged with determining if he or she is guilty of the offence. If the charge is sustained the court has authority to remove the president from office.

4.8 Citizenship

India: The Indian citizenship and nationality law and the Constitution of India provide single citizenship for all of India. The provisions relating to citizenship upon adoption of the constitution are contained in Articles 5 to 11 in Part II of the Constitution of India. It does not allow dual citizenship. But the government is increasingly becoming more flexible with regards to its dual citizenship rules for persons with Indian origin (PIOs) and overseas citizens of India.

USA: A U.S. citizen may acquire foreign citizenship by marriage, or a person naturalized as a U.S. citizen may not lose the citizenship of the country of birth. U.S. law does not mention dual nationality or require a person to choose one citizenship or another. Also, a person who is automatically granted another citizenship does not risk losing U.S. citizenship. However, a person who acquires a foreign citizenship by applying for it may lose U.S. citizenship. In order to lose U.S. citizenship, the law requires that the person must apply for the foreign citizenship voluntarily, by free choice, and with the intention to give up U.S. citizenship.

Britain: When becoming a British citizen one does not need to give up their present citizenship or nationality. One will not normally lose British nationality if he/she becomes a citizen or national of another country.

France: Dual citizenship has been permitted since 1973. Possession of one or more other nationalities, does not, in principle, affect the French nationality.

Germany: Dual citizenship is allowed under certain circumstances.

Australia: With effect from 4 April 2002, there are no restrictions [under Australian Law] on Australians holding the citizenship of another country.

4.9 Fundamental Rights, Directive Principles and Fundamental Duties

4.9.1 Fundamental Rights

India: Indian constitution has certain fundamental rights modelled on American Bill of Rights. But unlike USA, fundamental rights in India are not absolute and hence the government can impose reasonable restrictions on them. Whether the restrictions are reasonable or not is to be decided by the courts. The six fundamental rights recognised by the constitution are:

1. Right to equality, including equality before law, prohibition of discrimination on grounds of religion, race, caste, sex or place of birth, and equality of opportunity in matters of employment, abolition of untouchability and abolition of titles.
2. Right to freedom which includes speech and expression, assembly, association or union or   cooperatives,   movement,   residence,   and   right   to   practice   any  profession or occupation (some of these rights are subject to security of the State, friendly relations with foreign countries, public order, decency or morality), right to life and liberty, right to education, protection in respect to conviction in offences and protection against arrest and detention in certain cases.
3. Right against exploitation, prohibiting all forms of forced labour, child labour and traffic in human beings.
4. Right to freedom of religion, including freedom of conscience and free profession, practice, and propagation of religion, freedom to manage religious affairs, freedom from certain taxes and freedom from religious instructions in certain educational institutes.
5. Cultural and Educational rights preserving rights of any section of citizens to conserve their culture, language or script, and right of minorities to establish and administer educational institutions of their choice.
6. Right to constitutional remedies for enforcement of Fundamental Rights.

USA: The Bill of Rights lists specifically enumerated rights. The Supreme Court has extended fundamental rights by recognizing several fundamental rights not specifically enumerated in the Constitution.

Similarly the constitutions of USSR and Japan also guarantees certain fundamental rights. But there are no such rights enumerated in the constitution of Great Britain.

5.0 Emergency provisions

India - Part XVIII of the Constitution of India contains Articles 352-360 which deals with Emergency Provisions.

There are three kinds of provisions according to the Constitution: National Emergency, State Emergency and Financial Emergency. 

Before the 44th amendment to the Constitution of India, the following are the grounds under which the President can proclaim national emergency: war and internal disturbance (changed to armed rebellion by the 44th ammendment)

Canada - The federal government of Canada can use the Emergencies Act to invoke a state of emergency. A national state of emergency automatically expires after 90 days, unless extended by the Governor-in-Council. There are different levels of emergencies: Public Welfare Emergency, Public Order Emergency, International Emergency, and War Emergency.

France - Three main dispositions concern various kinds of "state of emergency" in France: article 16 of the Constitution of 1958 allows, in time of crisis, "extraordinary powers" to the president. Article 36 of the same constitution regulates "state of siege". Finally, the April 3, 1955 Act allows the proclamation, by the Council of Ministers, of the "state of emergency". The state of emergency in France is framed by the Constitution of 1958, which states that it can be decreed by the president in the Council of Ministers, but must be confirmed by Parliament in order to be held after 12 days.

Germany - ln the post-war Federal Republic of Germany, the Emergency Acts states that some of the basic constitutional rights of the Basic Law may be limited in case of a state of defence, a state of tension, or an internal state of emergency or disaster (catastrophe).

United States - In the United States, there are several methods for government response to emergency situations.

A state governor or local mayor may declare  a state of emergency within his  or her jurisdiction. This is common at the state level in response to natural disasters.

The president of the United States, as head of the executive branch, has the authority to declare a federal state of emergency. The only emergency provisions in the U.S. Constitution are: “The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it”.

Join PT courses | PT Youtube | PT App | Contribute |  Testimonials