UPSC IAS exam preparation - India's Constitution - Lecture 14

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Comparison of basic features of various constitution

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1.0 American Constitution and Government

The American Constitution is the constitution of the United States of America which was formed in 1787 following the American Revolution (1775-83). The Constitution was adopted in 1787 at the Philadelphia Convention and came into force in 1789. The salient features of the American Constitution are explained below.

1.1 Written Constitution 

The American Constitution is usually cited as a classic example of a written constitution. In fact, it is the oldest among the existing written constitutions of the world. It is contained in a document of some 12 pages and consists of a preamble, 7 Articles and 27 amendments. However, the actual working constitutional system includes, apart from the 'Constitutional Document,' the following.

1. The statutes of the Congress (i.e. the legislature of the USA) which determine the organisation and functions of a number of government agencies.
2. The orders issued by the President on some occasions for giving practical shape to the statutes made by the Congress.
3. The judicial decisions interpreting the Constitution through a system of judicial review. For example, the Supreme Court has increased the scope of federal jurisdiction through the doctrine of 'implied powers'.
4. The political conventions which have grown gradually around the Constitution. For example, the Cabinet of the President is totally a product of convention.

Thus, the American Constitution or constitutional system, as it exists today, is a product of the 1787 constitutional documents and subsequent amendments, the Congressional statutes, executive orders, judicial interpretations and the political conventions. 

1.2 Rigid Constitution

Unlike the British Constitution, the American Constitution is a rigid one. It cannot be amended by the Congress in the same manner as the ordinary laws are made. It can be amended by the Congress only by means of a special process provided by the Constitution for that purpose. Therefore, in the USA, there exists a distinction between a constitutional law and an ordinary law.

The American Constitution, the most rigid constitution in the world, lays down the following two methods for its amendment.

1. An amendment can be proposed by two-third votes of both the houses of the Congress. It should be ratified by the legislatures of three-fourths (38 out of 50) of the states within a seven-year time span.
2. Alternatively, an amendment can be proposed by a constitutional convention called by the Congress on the petition of two-thirds (34 out of 50) of the state legislatures. It should be ratified by the convention in three-fourths (38 out of 50) of state legislatures.

Hence, the procedure prescribed by the American Constitution for its amendment is very difficult, complicated and slow. Its rigid character is evident from the fact that it has been amended only 27 times since its promulgation in 1789.

1.3 Federal Constitution 

USA is a federal state. In fact, the USA is the first and the oldest federal state in the modern world. It is a federal republic comprising 50 states (originally 13 states) and the District of Columbia (D.C). The Constitution provides for division of powers between the federal (central) government and the state governments. It confers limited and specified powers on the Centre and vests the residuary powers (which are not enumerated in the Constitution) in the states. Each state has its own constitution, elected legislature, governor and supreme court.

1.4 Presidential government 

Unlike the British Constitution, the American Constitution provides for the presidential form of government. The features of the American presidential system of government are as follows:

1. The American President is both the head of state and the head of government (unlike in India where President and PM perform these two separate functions). As the head of state, he occupies a ceremonial position. As the head of government, he leads the executive organ of government. The President of the USA is the chief real executive. (It’s the PM in India)
2. The President is elected by an electoral college for a fixed tenure of four years. He cannot be removed by the Congress except by impeachment for a grave unconstitutional act.
3. The President governs with the help of the Cabinet or a smaller body called 'Kitchen' Cabinet. It is only an advisory body and consists of non-elected departmental secretaries. They are selected and appointed by him and are responsible only to him. They can also be removed by him any time. (In India they are all elected members of Parliament - either RS or LS)
4. The President and his secretaries are not responsible to the Congress for their acts. They neither possess membership in the Congress nor attend its sessions. (In India it is the exact reverse)
5. The President cannot dissolve the House of Representatives - the lower house of the Congress.

1.5 Separation of powers 

The doctrine of separation of powers is the basis of the American constitutional system. The legislative, executive and judicial powers of the government are separated and vested in the three independent organs of the government. The first three articles of the Constitution clearly manifest this feature of the Constitution. Article I says that all legislative powers herein granted shall be vested in the Congress. Article II states that the executive powers shall be vested in the President. Article III provides that the judicial powers shall be vested in one Supreme Court and in such inferior courts as the Congress may from time to time ordain and establish.

(In India, we have a theoretically strong checks and balances system, but often the executive become subordinate to the legislature, though the judiciary remains independent to a great extent)

1.6 Checks and Balances   

The system of checks and balances in the American Constitution is an outcome of the adoption of the principle of separation of powers. It enables each organ of the government to exercise partial control on others so that no organ becomes autocratic and irresponsible. This means that no organ of government has unrestricted powers even in its own sphere.

Some aspects of the working of the system of checks and balances in the American Constitutional system are:

1. The President can veto the bills passed by the Congress. He enjoys two kinds of vetos - Pocket veto and Qualified veto.                                                     
2. The Senate confirms the higher appointments made and international treaties concluded by the President. 
3. The Congress determines the organisation and appellate jurisdiction of the judiciary.
4. The President appoints the judges with the consent of the Senate.
5. The Supreme Court can declare the congressional laws and Presidential orders as ultra vires.

2.0 French Constitution and Government

The French Revolution (1789-1799) had a significant impact on the growth of the French constitutional system. Since the revolution, France has changed its constitution on an average after every 12 years. It adopted three monarchic, two dictatorial, three imperial and four republican constitutions. (Remember, India has had only 1 constitution since 1947!) The present French Constitution, which established the Fifth Republic, came into force in 1958. It was prepared under the instructions of General de Gaulle. It was designed to give France a strong and stable government. The salient features of the Constitution of the Fifth French Republic are:

2.1 Written Constitution

Like the American Constitution, the French Constitution is a written Constitution containing a Preamble and 92 Articles divided into 15 chapters. It declares 'Liberty, Equality and Fraternity' as the motto of the Fifth Republic. Article 2 of the Constitution states that "France is a republic, indivisible, secular, democratic and social."

Article 1 deals with the adoption of the Constitution by the Republic and the Overseas Territories to set up a community. It is placed under the Preamble itself.

2.2 Rigid Constitution

Unlike the British Constitution, the French Constitution is rigid in nature. It contains a special procedure for amendment. It can be amended by the Parliament by 60 per cent majority vote in both the houses. Alternatively, the President can call a national referendum on constitutional amendment. However, the republican form of government in France is not subject to amendment. Thus there is no place for monarchy in France.

2.3 Unitary Constitution 

France is a unitary state (India is a quasi-federal state with a unitary bias). There is no division of powers between the central and local or provincial governments. All powers are vested in the single supreme Central Government located at Paris. The local governments are created and abolished by the Central Government only for administrative convenience. In fact, France is more unitary than Britain.

2.4 Quasi-Presidential and Quasi-Parliamentary

The French Constitution provides neither presidential nor parliamentary government. Rather, it combines the elements of both. On one hand, it provides for a powerful President who is directly elected by the people for a five-year term, on the other, there is a nominated council of ministers headed by the Prime Minister, which is responsible to the Parliament. However, the ministers shall not be the members of the Parliament.

2.5 Bicameralism

The French Parliament comprises the National Assembly (the lower house) and the Senate (upper house). The National Assembly has 577 members who are directly elected for a five-year term. The Senate has 321 members who are indirectly elected for a nine-year term. The National Assembly is more dominant and powerful than the Senate.

2.6 Rationalised Parliament 

The Constitution of France established a rationalised parliament, that is, a Parliament with restricted and limited powers. The powers of the French Parliament are restricted vis a vis the political executive. It can make laws only on those items which are defined in the Constitution. On all other matters, the government is empowered to legislate by executive decree. The Parliament can also delegate law-making power to the executive branch. These limitations on parliamentary authority were imposed to provide for a strong executive.

2.7 The Constitutional Council 

France has a Constitutional Council. It consists of nine members who are appointed for a term of nine years. It functions as a judicial watchdog and ensures that the executive decrees and parliamentary laws conform to the provisions of the Constitution. However, it is only an advisory body and its opinion is not binding.

2.8 Recognition of Political Parties 

The Constitution of France gives recognition to political parties and their role. It is for the first time in France that a Republican constitution not only mentions parties but also acknowledges them as a normal part of political life. Article 4 of the constitution states that the "parties must respect the principles of nationat sovereignty and democracy."

2.9 French President

Originally, the Constitution provided for an indirect election of the president. He was to be elected by an electoral college consisting of three types of members:

1. National representatives (members of two Houses of Parliament); 
2. Representatives of the local authorities; and 
3. Representatives of the overseas territories. But, in 1962, the Constitution was amended through a referendum.

The President is now directly elected by universal suffrage (In India this is not the case). In order to win the election, a candidate has to obtain an absolute majority of the votes cast. In case no candidate obtains the requisite majority in the first ballot, then a second ballot is held. Only the two candidates who have received the highest number of votes in the first ballot may stand in the second ballot.

2.10 Tenure and removal 

The President is elected for a term of five years. He is eligible for re-election; as many times as he may like. Moreover, the constitution has not prescribed any qualifications (including the minimum age limit) for the presidential office.

If the presidency falls vacant, the functions of the president (except submitting a bill to a referendum and dissolution of the National Assembly) are performed temporarily by the president of the Senate and if he is also not in a position, the functions are performed by the government. (In India, the post of Vice President takes care of this problem)

The president can be removed from the office before the expiry of his normal tenure of five years through an impeachment for high treason. The impeachment resolution should be passed by both the Houses of Parliament by an absolute majority. After this indictment by the Parliament, the president is tried by the High Court of Justice.

2.11 Powers and functions 

The president is the pivot of the Constitution and occupies a dominant position in the system of government. He is the real head of the state, the leader of the nation and the symbol of national unity. His powers and functions are as follows:

1. He appoints the prime minister and accepts his resignation. (Same in India)
2. He appoints and dismisses the other members of the government (Council of Ministers) on the advice of the prime minister.
3. He presides over the meetings of Council of Ministers. This provides him a direct opportunity to influence, guide, direct and control the policies of the government. (This is not the case in India)
4.  He makes appointments to civil and military posts of the state. (Some appointments in India too are made by the President)
5. He is the commander-in-chief of the armed forces of the country. (Same in India)
6. He negotiates and ratifies treaties; and sends and receives diplomats. (To some extent same in India)
7. He is kept informed of all the negotiations leading to the conclusion of an international agreement not subject to ratification.
8. He presides over the higher councils and committees of national defence. (To some extent same in India)
9.  He presides over and represents the French community.
10. He appoints the president and three members of the Constitutional Council.
11. He promulgates the laws within 15 days following their final adoption by the Parliament and transmission to the government. However, before the end of this period, he can ask the Parliament to reconsider a law. This reconsideration cannot be refused by the Parliament. (In India we have the system of Presidential ordinances that can be used by the PM and government)
12. He can send messages to the Parliament and summon its special sessions. (Same as in India)
13. He can submit to a referendum any government bill on the proposal of the government during the parliamentary sessions or on the joint proposal of the two Houses of the Parliament. If the bill is approved in the referendum, the President should promulgate it within 15 days.
14. He signs the ordinances and decrees that they have been considered by the Council of Ministers.
15. He has the right to pardon. (Same as in India)
16. He presides over the Higher Council of the judiciary. He also appoints nine members to it. (Same as in India)
17. He is the protector of the independence of the judicial authority. 
18. He is vested with special powers to deal with emergencies. During this period, he can take the required measures after consulting the Prime Minister, the presidents of the two Assemblies (Houses) of the Parliament and the Constitutional Council.
19. He can dissolve the National Assembly, after consulting the Prime Minister and the Presidents of the two Assemblies (Houses of the Parliament). The Constitution, however, imposes two limitations: 

• He cannot dissolve the National Assembly more than once in twelve months; and 
• the National Assembly cannot be dissolved during an emergency. Notably, the president is not required to follow the advice of the prime minister and the presidents of the two Assemblies. Further, (he president can refuse dissolution when asked by the prime minister.

3.0 Japanese Constitution and Government

The modern state of Japan came into existence with the Meiji Restoration in 1868 and the fall of the Tokugawa shogunate that had ruled for 200 years. The Meiji Constitution remained in force for 58 years (i.e., from 1889 to 1947). This constitution was based on the ideals of autocracy, authoritarianism, and monarchy.

After the second world war (1939-45), Japan was placed under Allied Occupation from 1945 to 1952. The U.S. General Douglas MacArthur was the Supreme Commander of the Allied Powers in Japan. Under his direction, Japan adopted a new democratic pacifist constitution in 1946-47. This constitution is based on the ideals of democracy and peace, as conceived by the Occupation Authorities (US and UN).

The new and the present constitution of Japan became operative in 1947. It came to be known both as the MacArthur constitution as well as the Showa constitution. Showa is the title of the reign of Emperor Hirohito and means 'Radiant Peace.' At the time of adoption of the new constitution, Hirohito was the Emperor and Shidehara was the Prime Minister of Japan. Now Akihito is the emperor and Shinzo Abe is the PM (2014).

3.1 A written Constitution 

Like the American Constitution, the Japanese Constitution is a written constitution. It contains a Preamble and 103 Articles divided into 11 chapters. It is a unique blend of the American and the British system. The Preamble emphasises the principle of the sovereignty of the people.

3.2 Rigid Constitution 

Like the American Constitution, the Japanese Constitution is a rigid one. It cannot be amended by the Diet (Japanese Parliament) in the same manner as the ordinaiy laws are made. It can be amended only by means of a special process provided by the constitution for that purpose. Hence, in Japan, there exists a distinction between a constitutional law and an ordinary law.

The Japanese constitution lays down the following procedure for its amendment: 

1. The amendment shall be initiated by the Diet. Such a proposal must be passed by a majority of two-thirds of its membership.
2. After that, it is submitted to the people for ratification at a special referendum or a specific election. It must be approved by the majority of the people.
3. Amendment when so ratified shall immediately be promulgated by the Emperor in the name of the people, as an integral part of the constitution.

It must be mentioned here that the Japanese constitution has not been amended till July 2014 even once. Thus, the constitution reads today as it did in 1947. This is quite remarkable! [But Shinzo Abe’s government has moved to make Japan less pacifist.

3.3 Unitary Constitution 

Like the British Constitution, the Japanese constitution provides for a unitary state. There is no division of powers between the central and provincial governments. All powers are vested in the single supreme central government located at Tokyo. The provinces derive their authority from the central government. The Diet can expand or diminish the authority and jurisdiction of the provinces. Thus the provinces are subordinate units of government and enjoy only those powers which are delegated to them by the supreme central government. (This is not the case in India. We are a quasi-federal state with a unitary bias)

3.4 Parliamentary Government 

Japan has shown a preference for the British Parliamentary System rather than the American Presidential System of Government. 

The constitution has made the Emperor merely a constitutional head. His authority is strictly limited to ceremonial functions of a constitutional monarch. Like his British counterpart, he only reigns and does not rule. (India has no monarch)

3.5 Supremacy of Constitution and Judicial Review 

The Japanese constitution establishes the principle of supremacy of constitution. The constitution is regarded as the supreme (highest or fundamental) law of the land. The laws, ordinances, imperial rescript and official acts must conform to this supreme law. If these are against the provisions of the constitution, they can be declared by the supreme court as ultra-vires and hence, null and void.  (This is the case in India as well - the Supreme Court mandates that the basic structure of the constitution cannot be altered)

Thus, the American principle of judicial review is adopted in Japan. But there is a difference. The American Supreme Court does not derive its power of judicial review from the Constitution, whereas the Japanese Supreme Court derives its power of judicial review directly from the constitution. Article 81 of the Japanese Constitution specifically says that the Supreme Court is the court of last resort with power to determine the constitutionality of any law, order, regulation, or official act.

3.6 Fundamental Rights 

The Japanese Constitution provides for rights on the model of the Bill of Rights in the USA. It guarantees a large number of civil, political and economic rights to the people of Japan and declares them as 'eternal and inviolate'. The judiciary headed by the Supreme Court acts as the protector of these rights through its power of judicial review.

The rights provided by the Japanese Constitution are more elaborate and definite than the American Bill of Rights. Out of a total of 103 Articles in the Constitution, 31 Articles (i.e., 10 to 40) are devoted to the rights and duties of the people. The rights provided for in the constitution are: 

1. Right to equality
2. Right to freedom
3. Right to freedom of religion
4. Right to private property
5. Economic rights
6. Right to education 
7. Cultural rights 
8. Right to constitutional remedies

(Indian constitution provides for 6 groups of fundamental rights)

3.7 Renunciation of War 

The Japanese Constitution renounces war as a sovereign right of the nation and the threat or use of force as means of settling international disputes. It prohibits Japan from maintaining land, sea, and air forces, as well as other war potential. It also does not recognise the right of belligerency of the state. Japan is the only modern state which has constitutionally renounced war forever. It is the most peculiar as well as the most controversial feature of the Japanese Constitution. 

This provision was got inserted into the Constitution by General MacArthur to see that Japan would never again be allowed to act as a military nation as it did during the period of 1931 to 1945 and to abolish forever the power of Japan as a rival to the US in the far east. However, it does not mean that Japan cannot use arms and other forces for its security and defence. Like any other modern state. Japan has its defence capabilities but the term used is 'self-defence forces' to look constitutionally correct. They are justified on the ground that every state has an inherent right to defend itself against foreign aggression.

4.0 THE BRITISH CONSTITUTION

4.1 Organic & evolutionary growth

British Constitution is the result of more than fifteen centuries of evolution, and is still growing. It would be precise to call it a child of wisdom and chance. It has grown gradually and no fixed time or a fixed number of people created it.

4.2 Non-codified

This is the most distinguishing feature of it. It is based on Conventions and Customs that have been prevailing from a long time in UK. Such unwritten sources form the major part of the constitution.

There are many Acts, Treaties which are in written form and they make it partly written and even then non-codified. These were also gradually added and adopted. The first written piece being “Magna Carta 1215”, “Bill of Rights 1689”, “Parliamentary Acts of 1911 & 1949”, and many others. (In India, the Constituent Assembly spent more than 2 years creating the constitution)

4.3 Difference between theory & appearance

This is another significant feature of British Constitution. Theory states that no Law is effective without the assent of Queen, while in practice, Queen must sign all the bills presented to her.

According to Ogg: "The Government in UK is in ultimate theory an absolute Monarchy, in form a limited constitutional Monarchy and in actual character a Democratic Republic".

The King in theory has all the powers and can exercise them but in reality he is a mere signatory figure. He works on the advice of Prime Minister. As Walter Bagehot quotes, "The British Queen reigns but does not rule."

4.4 Unreality

Apart from disparity between theory and practice, there is also an element of 'unreality'. Things are not what they look like. There exists a great divergence in its theory.

4.5 Nature of conventions

Conventions are deeply rooted in the British Constitution. If anyone wants to know the British Constitution, they must study the conventions carefully. There are many conventions which are only known to the Cabinet, Judiciary and Parliament. These form the excessive unwritten part and being an important feature are also a major source of Constitution.

E.g.

1. Prime Minister is chosen from House of Commons.
2. Queen must give her assent to all the bills passed by Parliament.
3. House of Lords benches are red, while House of Commons benches are Green.

4.6 Flexibility of Constitution

Though the constitution is not in a proper codified form, it has a character of great adaptability. It is very easy to amend and make new laws. It requires a simple majority to pass an amendment. Regardless of its flexibility, there have been a very few changes made till date.

4.7 Unitary State

It is called a Unitary state because there are no units in Britain. All powers are concentrated into one Single central Authority.

4.8 Bicameralism

It literally means divided into two parts. British Legislative authority, the Parliament is divided as follows:

1. House of Lords
2. House of Commons

House of Lords: It consists of 26 Bishops and Archbishops of Church of England called as 'Spiritual Peers. There are 92 Hereditary Peers, 1 Irish Peer, 16 Scottish Peers and several hundred Life Peers.

These are nominated by the Crown on the advice of PM.

House of Commons: It consists of 650 members elected by citizens of Britain. This house is more powerful than the House of Lords. Money bills can only originate from House of Commons. PM is also selected from House of Commons.

4.9 Sovereignty of Parliament 

British Parliament is very powerful and Supreme. Following are the major points that describe it and clarify its character:

1. There is no Law which British Parliament cannot make or undo.  (Exactly as in India)
2. No Court can challenge the acts or laws passed by the parliament.  (The Supreme Court of India can do so in India)
3. It rules the monarch and can decide its fortune and acts. (India has no monarch)
4. It can prohibit the King to marry a woman of his choice.
5. It can change the hereditary rule of throne by just one simple act.
6. It can abolish monarchy, abolish House of Lords and distribute powers to its Citizens.
7. It can do anything, except make a man a woman and conversely!

4.10 Rule of Law

It is said that Law is above everyone and applies to everybody. It is a very fundamental concept having following aspects:

1. Legality: All state actions must be authorized. Laws should not be arbitrary.   (Same as in India, at least in theory!)
2. Certainty: Laws should be clear, certain and predictable.  (Same as in India)
3. Consistency: The Laws should be applied equally to all, no one is above the Law. (Same as in India)
4. Accountability: Laws are necessary to provide a standard to measure the action of the state. (Same as in India)
5. Due Process and Access to Justice: No one should be punished without a trial. It must be a fair trial and held before an independent and impartial tribunal.   (Same as in India)
6. Merger of Powers: UK is a good example of merger of powers. There are three pillars of its government.
7. Executive: It is the body which executes Laws, proposes and enforces them. It comprises the Monarch and the Prime Minister.
8. Legislative: It is the body which makes or amends Law.
9. Judiciary: It interprets Laws.  (These are the 3 pillars of Indian democracy as well)

In Britain, Executive and Legislative are fused into one and another forming "Cabinet".

Before 2009, UK could be seen as a complete merger of powers. Now Supreme Court is also established separately in UK. Earlier, Executive (the Crown & PM), the Judiciary and the Legislative bodies were combined together in Westminister, UK.

4.11 Blended Constitution

This is a unique feature of the British Constitution. It is a mixture of Monarchy, Aristocracy and Democracy. (A nice khichdi !)

4.12 Element of adjustability

Adaptability and adjustability of the British political institutions are remarkable traits of her political life. Transition from Feudalism to Capitalism, Absolute Monarchy to Constitutional Monarchy and from a Police State to a Welfare State have been peaceful and gradual. Although the same cannot be said of her colonies, which were brutalised for centuries across the world, including India!

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