CONSTITUTION A BRIEF DEFINITION

The constitution is a fundamental law of a country that reflects the fundamental principles on which the government of the country is based.

A standard operational definition of written constitutions is the one developed by the principal investigators of the Comparative Constitutions Project (CCP), which involves a set of three conditions to assess a law’s status as a “Constitution”:

  1. The document is identified explicitly as the Constitution, Fundamental Law, or Basic Law of a country
  2. The document contains explicit provisions that establish it as the highest law, either through entrenchment or limits on future law
  3. The document defines the basic pattern of authority by establishing or suspending an executive or legislative branch of government.

The first condition is sufficient to qualify a document as a constitution, whereas the others are applied as supplementary tests if the first is not met.

According to this operational definition, the United Kingdom is the only country in the world without a written constitution.

IMPORTANCE OF CONSTITUTION:

The role of a constitution is to make certain that the government operates efficiently and in a fair and responsible manner. It does this in three ways:

  1. The primary function of a constitution is to lay out the basic structure of the government according to which the people are to be governed.
  2. It holds the government to the law. The constitution does not simply provide a recipe for an efficient government, but also deals with limitations on power.
  3. It provides distinction of power so that no one part of the government is any more powerful than another.It effectively regulates the relationship between these organs as well as the relationship between the government and its people.
  4. It provides a series of checks and balances so that when laws are made or amended, the government follows the correct procedure to pass a Bill.
  5. A constitution is an aggregate of fundamental principles or established precedents that constitute the legal basis of a polity
  6. The constitution of a particular country lays down the national goals which form the basic edifice on which the nation rests upon.
  7. The constitution of a country guarantees some rights and provision for any individual or group of people on behalf of which they can ensure their well-being and dignity.

SALIENT FEATURES OF THE INDIAN CONSTITUTION

  • Indian Constitution is a constitution made by the people of India acting through their duly elected and representative body—the Constituent Assembly that was organized in December 1946. Its first session was held on 9th December, 1946. It passed the Objectives Resolution on 22 January, 1947.
  • Thereafter, it initiated the process of constitution-making in the right earnest and was in a position to finally pass and adopt the constitution on 26th November, 1949. The constitution became fully operational with effect from 26th January 1950. We celebrate this day as our Republic Day.

A) Main Features

  • Written constitution
    The Indian constitution is one of the bulkiest constitution of the world, comprising of 395 articles, 22 parts and 12 schedules.
  • Mix of Rigid and flexible
    The Indian constitution is combination of rigidity and flexibility, which means some parts of it can be amended by the Parliament by a simple majority, whereas some parts require a two-third majority as well as not less than one-half of the state legislatures.
  • Parliamentary system of governance
    The Indian constitution provides for a parliamentary system of government, i.e., the real executive power rests with the council of ministers and the President is only a nominal ruler (Article 74).
  • Preamble
    The Preamble to the Constitution of India is a well drafted document which states the philosophy of the constitution. It states in nutshell the nature of Indian state and the objectives it is committed to secure for the people.
  • Unitary State with a Federal character
    The Indian constitution described India as a ‘Union of States’ (Article 1), which implies that Indian federation is not the result of any agreement among the units and the units cannot secede from it.
    While describing India as a Union of States, the Constitution provides for a federal structure with a unitary spirit. Scholars describe India as a ‘Quasi-Federation’ (K.C. Wheare) or as ‘a federation with a unitary bias, or even as ‘a Unitarian federation.’
  • Fundamental Rights and Duties
    The Indian constitution provides an elaborate list of Fundamental Rights to the citizens of India, which cannot be taken away or abridged by any law made by the states (Article 12–35). Similarly, the constitution also provides a list of 10 duties of the citizens, known as the Fundamental Duties (Article 51A). The Indian constitution mentions certain Directive Principles of State Policy (Article 36–51) which that government has to keep in mind while formulating new policy.
  • India a Socialist and Secular State:
    In 1976 that the Preamble was amended to include the terms ‘Socialist’ and “Secular. It is now regarded as a prime feature of Indian state. India is committed to secure social, economic and political justice for its entire people by ending all forms of exploitation and by securing equitable distribution of income, resources and wealth. The constitution makes India a secular state by detaching from religious dogmas. Indian secularism guarantees equal freedom to all religions. The Constitution grants the Right to Religious Freedom to all the citizens.
  • India a Democratic Republic
    The Constitution of India provides for a democratic system. The authority of the government rests upon the sovereignty of the people. Free fair and regular elections are held for electing governments. India is world’s largest working democracy.
    The Preamble declares India to be a Republic. India is not ruled by a monarch or a nominated head of state. India has an elected head of state (President of India) who wields power for a fixed term of 5 years.
  • Independent Judiciary
    The constitution provides an independent judiciary (Article 76) which ensures that the government is carried on in accordance with the provisions of the constitution and acts as a guardian of the liberties and fundamental rights of the citizens.
  • Single Citizenship
    The Indian constitution provides a single citizenship for all the people residing different parts of the country.
  • Bicameral Legislature
    The Indian constitution provides a bicameral legislatures at centre consisting of Rajya Sabha (Council of States) and Lok Sabha (House of the People)(Article 79).
  • Emergency provisions
    The constitution vests extraordinary powers, known as Emergency Powers in the President during emergencies out of armed rebellion or external aggression or due to failure of constitutional machinery in the state (Article 352–360).
  • Special Provisions
    The constitution makes special provisions for minorities, Scheduled castes, Scheduled Tribes, etc. by granting them certain special rights and provisions. Basically those are some of the interesting features of Indian constitution. Moreover, the constitution also has many other features such as, Panchayati Raj, Rule of Law, Provisions for Independent Bodies, etc. which are very unique in nature.
  • Judicial Review
    The Constitution is the supreme law of the land. The Supreme Court acts as the guardian protector and interpreter of the Constitution. It is also the guardian of the Fundamental Rights of the people (Article 32). For this purpose it exercises the power of judicial review. By it, the Supreme Court determines the constitutional validity of all laws made by the legislatures. It can reject any law which is found to be unconstitutional. (Article 136 and Article 226(High courts)).
  • Constitution Drawn from several Sources
    In formulating the Constitution of India, the founding fathers used several sources. The values and ideals of the national movement guided their path. Some provisions of Government of India Act 1935 were used by them and several features of foreign constitutions influenced them, and were adopted by them.

OTHER MAJOR CONSTITUTIONS

A) U.S.A

The  present  constitution  of  United  States  of  America  was  adopted  at  the  famous Philadelphia  convention  held  in  1787.  It  came  into  force  in  1789.It  is  the  oldest  written constitution  of  the  world.

Following are some of the specific features of the Constitution of USA.

  1. Written character:-
    American constitution is written in form. It was the product of the Philadelphia convention. It established a federal government allowing maximum liberty to the states. At the time of adoption of the constitution, 13 states joined the federation and later the number has arisen from 13 to 50.
  2. Rigid in Nature
    The  constitution  of  USA  is  the  most  rigid  constitution  of  the  world.  A lengthy and complicated process can amend it. The amendment necessitates the participation of both the sets of government. Only 26 amendments have been made so far.
  3. Federal character:-The American constitution is federal in character. Originally it was 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.
  4. Supremacy of the Constitution:-The constitution is the supreme law of the land. Neither the Centre nor the states can override the constitution. The Supreme Court of America can declare a  law  or  an  executive  order  repugnant  to  the  constitution  unconstitutional  and invalid.
  5. Separation of Powers
    This is also a feature of the American constitution. It is based on the  doctrine  of  the  ‘separation  of  powers’  as expounded  by  Montesquieu  in  his  ‘Spirit  of Laws’.
  6. Checks and balances
    The framers of the constitution introduced a new doctrine called‘checks and balances’. The  powers  of  one  organ  were  so  devised  as  to  exercise  a check  upon  the  powers  of  others.

    1. The President  through  his  veto  power  checks  the  Congress  but  the  Congress  can override  his  veto  by  a  two-thirds
    2. The President has also another power known as ‘pocket veto’. By using this power he can kill a bill presented to him.The Congress,in turn, checks the President through its power to appropriate money and to impeach the President.
    3. The Supreme   Court   depends   upon   the   Congress   in   several   In  turn  the  SC  enjoys  the  power  to  supervise  over  the legislature and executive. The SC can declare a law passed by the Congress, or an executive order of the President as unconstitutional and invalid, if it violates the any provisions of the constitution.
  7. Bill of rights
    The Constitution guarantees fundamental rights of person, property and liberty. These rights were not enumerated in the original constitution but incorporated in it by a number of amendments.  The rights of citizens are enforceable by recourse to the judiciary. These rights cannot be suspended except by a constitutional amendment
  8. Judicial review
    The  SC  and  the  lower  federal  courts  possess  the  power  of  judicial review. It can declare any legislation or executive order null and void if the same is found to be inconsistent with the constitution.
  9. Republic
    The USA is a republic with the President as its elected head. The Constitution derives its authority from the people. Moreover, every federal state of USA has a republican form of government.
  10. Presidential form of government
    The constitution provides for a presidential form of government in USA. All executive powers are vested with the president.  Constitutionally his  election  is  indirect  but  in  practice  it  has  become  direct.
  11. Dual citizenship:-The US  constitution  provides  for  dual  citizenship  for  the  people  of USA.
  12. Popular Sovereignty:-The American constitution is based on popular sovereignty. The ultimate sovereignty in USA is attributed to the people.
  13. Rule of Law
    The US Constitutional Doctrine is Due Process of Law as opposed to the Procedure Established by Law doctrine of the Indian constitution
    The former is Indian constitutional doctrine and the latter is American
  14. Bicameral Legislature
    USA has a bicameral legislature:  House of Representatives (lower house) and Senate (Upper house). Unlike other upper houses in the world, the upper house of USA, senate, is more powerful than the lower. It is equipped with legislative, executive and judicial powers. It  is  described  as  the  most  powerful  upper chamber  in  the  world.  It is a compact house consisting of 100 members.  Its tenure is six years. The lower house consists of 435 members and they are elected for only two years.

B) United Kingdom

The official designation of GREAT BRITAIN is “United Kingdom of Great Britain and Northern Ireland.” The British constitution is the product of evolution. It  is  derived  from  different  sources:  conventions,  charters, statutes,  judicial  decisions  and  eminent  works  done  by  scholars  on  the  subject.

Some important characteristics of the British constitution are:

  1. Evolved constitution
    British  constitution  is  the  result  of  evolution  of  political institutions  over  centuries.  It  is  based  on  conventions  which  are  modified  by  judicial decisions  and  laws  of  parliament.
  2. Unwritten
    It has an unwritten character.  The  rules  and principles  controlling  the  distribution  and  regulation  of  governmental  powers  have  never been   written   anywhere   else.   Most   of   the   constitutional   principles   have   grown   by experiences. The  unwritten  nature  of  the  British  constitution  does  not  mean  that  none  of the principles are  written. There are several written parts, like Magna Carta, Bill of rights, Reforms Acts, and Parliamentary Acts of 1911 and 1949.
  3. Flexible character
    In   Britain   there   is   no   difference   between   ordinary   law   and constitutional law .The British parliament is supreme.  The power to make and amend the constitution is vested with it. By the simple process of law making anything can be added and deleted from it.  Since  the  method  of  amendment  is  simple;  British  constitution  isflexible in nature.
  4. Difference between   theory   and   practice
    There   exist   a   great   gap   between   the constitutional theory and governmental practice in Britain. Theoretically the government of Britain is vested with the Crown. All of the government are the servants of the Crown. No law is effective without the Crown’s consent. The King is the commander in chief of all armed forces. The King alone can declare war and peace treatises  In  practice  the  King  has  become  merely  a  figurehead.
  5. Parliamentary sovereignty
    In Britain the parliament is sovereign to make or unmake any law. No institution in England is competent to challenge the Acts of parliament. There is no judicial review. Whatever the parliament does is legal and constitutional.
  6. Unitary Constitution
    British political system is unitary and not federal in form. In Britain all functions of the government are exercised by one single Central government. There is no division of powers between central and provincial governments
  7. Parliamentary form  of  government
    England is the mother of parliamentary form of government. The Executive (Cabinet) is always responsible to the parliament. The cabinet  (council  of  ministers)  constitute  the  real  executive  and  they  are  selected  from  the parliament.   The   cabinet   is   always   collectively   and   individually   responsible   to   the parliament.
  8. Rule of law
    Another unique feature of the British constitution is the system of rule of law, It means that the government acts according to the system of laws.  It  has  never  been  enacted  as  a  statute  but  implicit  in  the  various  acts  of  the parliament; judicial decisions and in the common law. It actually implies the supremacy of law in England. There is no act which lays down the fundamental rights of the people. The fundamental  rights  of  the  citizens  are  protected  by  the  principle  of  rule  of  law.
  9. Independence of judiciary
    Independence of judiciary has been assured in British constitution. Appointed  judges,  rather  than  elected  judges,  enjoying  security  of  tenure  and emoluments, have  been  accepted,  as  factors  responsible  for  the  maintenance  of  judicial independence.
  10. Checks and balances
    British constitution is based on the principle of Checks and Balances. The parliament can pass a law but no law can be implemented unless and until the Queen signs it. Likewise no order of the queen is valid unless and until it is counter signed by  some  minister  .The  cabinet  is  always  responsible  to  the  parliament  and  the  parliament can vacate the cabinet by passing a no-confidence motion.
  11. Absence of the  doctrine  of  separation  of  powers:-The  doctrine  of  the  separation  of powers  does  not  apply  completely  in    The Queen is the head of the executive and judiciary and is also an integral part of the legislature. The Lord Chancellor is a member of the cabinet; president of the House of Lords and the head of the judiciary. The cabinet is the chief executive and the cabinet ministers head all the departments of the government. At the same time, the ministers are the members of the parliament.  Hence under the British constitution   the   cabinet,   the   legislature   and   judiciary   are   closely   and   continuously associated. Their relation is not in the nature of separation.
  12. Blend of Monarchy,  Aristocracy  and  democracy
    British constitution   has   harmoniously   blended   within   itself   the   three   different   features   of Monarchy, Aristocracy and Democracy. The King represents the Monarchy, which rests on the hereditary principle.  The  House  of  Lords  is  Aristocratic  representing  the  lords  and nobles  of  the  land.  The  House  of  Commons,  the  lower  house  of  the  parliament  is democratic, representing the people of the country.
  13. Cabinet system:-The cabinet is the real executive in Britain. The cabinet has become the supreme directing authority and the pivot of the whole political machinery

C) FRANCE

A  small  ministerial  committee  headed  by  Michel  Debre  under  the  authority  of General  De  Gaulle  drafted  the  constitution of French  Republic.  It came into force after a referendum held on   28thSeptember, 1958.

The features of the constitution are as follows

  1. Preamble
    The constitution contains a preamble which affirms the Declaration of human rights of 1789.TheDeclaration was based on the doctrine of ‘natural law and ‘general will’ and  was  guaranteed  by  the  right  of  free  speech,  press,  assembly,  and  religion. But the Preamble is only a statement of principles without any legal basis
  2. Written Constitution
    The constitution of Vth Republic is a written document, enacted by a constitutional committee under the leader of Gen De Gaulle. It consists of 92 articles grouped into XV titles.  The constitution   incorporates   five   principles:-universal   suffrage,   responsibility   of   the government to the parliament, separation of the legislature and the executive, independence of judiciary, and the provision of organising the relationship between the Republic and the associated people.
  3. Rigid Constitution
    This constitution includes a special procedure for amendment.-Article 89.According  to  this  Article,  a  proposal  for  revision must,  to  be  effective,  to  be  voted  first  in  identical  terms  by  both  the  houses  of  parliament and  then  ratified  by  a  referendum  or,  if  the  president  decides  otherwise,  by  a  three-fifth(3/5) majority of both houses meeting in joint session. The republican form of government is not subject to revision.
  4. A mixture  of  parliamentary  and  Presidential  forms
    The  constitution  seeks  to  combine  two  different  principles–the  principle  of  parliamentary democracy  and  the  principles  of  presidential  democracy.  The head of the state and the head of the government are different. The Prime Minister and his colleagues are responsible to the parliament. The President is the real executive like the president of America.  The decisions of the government are taken in accordance with his wishes. It shows the traits of presidential government.
  5. Popular sovereignty
    The constitution declares France as an indivisible,secular, democratic, and social republic. The motto of the republic is ‘liberty, equality, and fraternity’  and      its  principle,  is  the  government  of  the  people,by  the  people  and  for  the people.
  6. Republican form of government
    France is indivisible, secular and democratic republic. It assumes equality before law of all citizens without distinction of race, origin and religion.It respects all beliefs. The head of the state-the President-is elected directly by the people.
  7. Separation of  legislative  and  executive  powers
    Another  important  feature  of  the  1958constitution  is  the  separation  of  legislative  and  executive  powers.
  8. Constitutional council:-
    The constitutional council is a unique institution of France.   It   has   given   the   function   of   deciding   the   constitutionality   of governmental or parliamentary acts. The constitutional council supervises the election of the president of the Republic.  It examines electoral petitions.
  9. Recognition of  political  parties
    The constitution recognises the existence of political parties. Act 4 of the constitution says that political parties and groups may compete for the expression of the suffrage.
  10. Advisory and judicial  organs
    One  of  the  advisory  organs  set  up  by  the constitution  is  Economic  and  Social  Council.  It gives opinion on the government bills,ordinances and orders and private member’s bills submitted to it by the government. Another advisory body is the High Council of Judges and Public Prosecutors. Its function is to  advice  the  government  on  appointments  to  a  limited  number  of higher  judicial  posts.
  11. Untidy, vague and Ambiguous
    The 1958 constitution of France has been called as an untidy  constitution  which  is  in some  places  vague,  and  in  others  ambiguous. It does not completely describe the system of government and has omitted provisions for a number of extremely important institutions.

D) SWITZERLAND

The  Republic  of  Switzerland is  a  small  country,  situated  in  the  heart  of  Western Europe. They speak four different languages. In 1938 Romansh was adopted as the official language. There is no uniformity of religious belief as well. Despite all these differences on the basis of religion, language and race, the Swiss constitute a coherent nation Apart from being a home of direct democracy, all of the institutions are based on democratic principles. Another distinctive fact of Switzerland is its dynamic neutrality. This policy of neutrality has brought peace and prosperity to the country.

Following are the salient features of the Swiss constitution.

  1. A written and a lengthy Constitution.
    This  is  Swiss  constitution  of 1874  is  a  written  document  like  that  of  USA.  It  is double  in  size  of  American  constitution  and  consists  of  three  chapters  containing  123 articles.
  2. Rigid Nature.
    Swiss  constitution  is  rigid  in  character,  though  not  so  rigid  as  the  US constitution.  The  procedure  laid  down  for  its  amendment  is  difficult  and  complicated.  Evidently this constitution is far more rigid than the Indian constitution but less so than US constitution.
  3. Republican constitution
    Switzerland is one of the oldest Republics of Europe.  The constitution establishes Republic not only at the centre but also in various cantons. Republicanism is infact the breath of the Swiss way of life. All political institutions in Switzerland are elective in character.
  4. Federal form of government
    The   Republic   of   Switzerland is a Federation.  The  powers  of  the  government  have  been  divided between  National  and  Cantonal  governments  on  the   American  pattern.  The Federal government has been vested with powers of National importance and the residuary powers have been given to Cantons. The Cantons, however enjoy supremacy in the own sphere. But the  union  of  Cantons  is  permanent  and  the  secession  is  not  permitted.
  5. Democratic character
    Switzerland and Democracy have in recent years become almost synonyms. This statement is justified because as a form of government the people have direct or indirect share in it and it is under their control. The constitution made all citizens equal before the law and introduced to universal adult suffrage. Initiative and referendum are used more extensively in Switzerland than in any other company and plays effective sovereignty in the Swiss people
  6. Rights of the citizens
    The Swiss constitution doesn’t contain a formal Bill of rights as we find in India. Instead of  being consolidated  in  a  single  chapter  of  the  constitution,  references  to  specific  rights  of  the citizens  are  scattered  all  over  the  constitutions.
  7. Plural Executive
    The  constitutions  vest  the  executive  with  the  Federal  council,  which  consists  of seven  members,  elected  by  the  Federal  assembly  for  four  years.  The president of the constitution who is elected by the Federal assembly for a period of one year only is simply first among equals.  He  in  no  way  enjoys  a  superior  position  to  that  of  the  rest  of  the colleagues.
  8. Position of Judiciary
    The Swiss judiciary plays a less vital role than the judiciary in the US or in   India. The Swiss Federal Judiciary has limited judicial review. It can only declare a cantonal law unconstitutional. The court shall apply laws voted by the Federal Assembly. The election of judges  by  the  Federal  Assembly  further  establishes  the  inferior  position  of  judiciary  in Switzerland
  9. Bicameral legislature.
    The Swiss legislature is bicameral in character.  The  upper  house-Council  of  states represents  the  cantons  on  equal  basis  as  that  of  the  Senate  of  USA.  It is a small house consists of 44 members. The lower chamber is the National Council, which consists of 200members. Both these houses are kept on a par with each other in respect of their powers.
  10. Dynamic constitution
    The constitution of Switzerland is dynamic in character. It has been adapting itself to the exigencies of time and keeping pace with the social aspirations of people. For instance, the traditional freedom of speech and association were curtailed to some extent during the two World Wars.

E) CHINA

It was in 1954 that All China People’s National Congress was elected. The work of drafting a new constitution had started two years earlier and the first draft was completed in March 1954  and  after  further  discussions  and  deliberations  in  various  forums  the  final  draft  was approved on September 1954.After  two  intervening  versions  enacted  in  1975  and  1978,  the  current  Constitution was declared in 1982 and was adopted by the 5th National People’s Congress on December4,  1982

The Chinese constitution has five sections, which are

  • Preamble,
  • General principles,
  • Fundamental rights  and  duties  of  citizens, 
  • Structure of  the  state  (which  includes  such  state organs  as  the  National  People’s  Congress,  the  State  Council,  the  Local  People’s  Congress and Local People’s Governments and the  People’s  Courts and the  People’s Procuratorates),
  • The national flag, the National anthem, the national emblem and the Capital

The salient features of the Chinese constitution are summarized as follows:

  1. Enacted constitution
    The  new  constitution  of  People’s  Republic  of  China  (PRC),  1982  is  an  enacted constitution   having   138   articles   grouped   into   four   chapters.   The   Preamble   of   the constitution  throws  light  on  the  achievements  of  the  past  and  the  goals  of  the  future.
  2. Rigid Constitution
    The constitution of PRC is famous for its rigidity.National People’s Congress (the Parliament) has been empowered to make any amendment in it by two–thirds majority.
  3. Unitary state
    The constitution provides for a unitary system ofgovernment. There is no division or distribution of power between National and Provincial powers.  All the powers are with the Central government.
  4. Unicameral system.
    The constitution of China provides for a unicameral legislature.
  5. Fundamental Rights and Duties
    The  new  constitution  of  PRC  provides  for  a  set  of fundamental  rights  and  duties  to the citizens. Chapter II (Articles 33 to 56) deals with the fundamental rights and duties. The  Constitution  also  incorporates  a  set  of  fundamental  duties  like  the  supporting  of  the leadership  of  the  communist  party,  strengthening  the  socialist  system  and  abiding  by  the constitution and the laws of the country.
  6. Democratic Centralism:
    The  constitution  adopts  the  principle  of  the democratic  centralism  to  the  organization  of  the  communist  party  and  the  government. The   leading   roles   of   the   party   at   all   levels   shall   be   elected   through   democratic consultation.  The whole party must observe strict discipline.  The individual is subordinate to the organization; the minority is subordinate to majority. The lower level is subordinate to the higher level and the entire party is subordinate to the central committee.
  7. Central military commission
    Another salient feature of the constitution is the provision for the establishment of  a  Central  Military  Commission  consisting  of  a Chairman,  Vice–Chairman  and  some members.  The basic function of the body is maintenance of the armed forces of the country. Its members shall be elected by the NPC and shall be accountable to it.
  8. A Socialist State
    The constitution declares that China is a Communist state. It is people’s democratic dictatorship led by the working class and based on the alliance of workers and peasants.  There  shall  be  two  kinds  of  ownership  of  the  means  of  production-socialist ownership by the whole people and socialist collective ownership by the working people.

FEATURES OF THE INDIAN CONSTITUTION COMPARED WITH OTHER COUNTRIES

A) Listed below are some comparisons between of Indian, UK, US, Swiss and French constitution

a

COMPARISON BETWEEN INDIAN AND AUSTRALIAN CONSTITUTION

A) CONSTITUTIONAL SIMILARITIES

  1. Constitutional Democracies:
    Both India and Australia are parliamentary democracies. Their national governments are elected by direct popular vote in national polls conducted by secret ballot
  2. Federal System:
    India and Australia have federal systems of government. Although the federal character is more clearly stamped on the Australian constitutional system as in India, the Union Parliament has exclusive powers to make laws with respect to any of the matters enumerated in the ‘Union List’ in the schedule. Although the federal division of powers in India is an important feature of the Constitution, its federal character is not amongst the stated essential characteristics
  3. Rule of Law:
    In both India and Australia, the rule of law is a strong feature of constitutionalism. In India the law declared by the Supreme Court of India is binding on all courts in the territory of India and the law declared by a High Court is binding on all subordinate courts within the state. In the Australian Constitution, there is a separate chapter of the Constitution, Ch. III, and dealing with ‘the Judicature’. This separate treatment has been held to have important consequences for the independence, work and role of the courts in Australia.
  4. Character of Supreme Court
    In both India and Australia, the appellate jurisdiction is integrated. The Supreme Court is not confined substantially to federal constitutional and legal issues and orders. The final national court is a general court of law, resolving both constitutional and general legal disputes and those arising in state as well as federal jurisdiction.
  5. Responsible and Representative Government
    Both in India and Australia, the Prime Minister is formally appointed by the Head of State (the President or in Australia Governor-General representing the Queen. In neither Constitution is there an express power in the President or the Governor-General to dismiss a Prime Minister for a perceived breach of duty.
  6. Separating head of state and government
    The Indian and Australian forms of constitutional government separate the ceremonial, military and bureaucratic functions of the chief executive from the functions of Head of Government.
  7. Legal traditions
    Many of the distinctive legal traditions of India and Australia are identical or similar. Under the provisions of the respective constitutions, the appointment of superior court judges is made by the Executive Government.
  8. Territories
    Both in India and Australia, territories are generally the constitutional responsibility of the Federal Government, with an administrator appointed to be the Chief Executive.
  9. Common market
    One of the most important provisions of the Australian Constitution was that which ensured that throughout the continental nation there would be a common single market. In the Australian case, the provision (which became one of the most litigated under the Constitution), s.92, declared that ‘on the imposition of uniform duties of customs, trade, commerce and intercourse among the states, whether by means of internal carriage or ocean navigation, shall be absolutely free’. This provision was influential in the drafting of article 301 of the Indian Constitution. This declared that ‘subject to the other provisions of this Part, trade, commerce and intercourse throughout the territory of India shall be free’. The adoption of a common market in both the countries has been an extremely important contribution by the constitution and lawyers to the economic advancement of each country.
  10. Specially vulnerable citizens
    Both in India and Australia, it was recognized that there were specially disadvantaged groups and individuals who might need extra protection under the constitution and legal differentiation for that purpose. The vulnerable communities were, in each case, a product of history. In Australia, the point of differentiation was generally race, skin color and ethnic culture. In India the points of differentiation were caste, religion and associated prejudices.

B) CONSTITUTIONAL DIFFERENCES

  1. Autochthonous law
    The Australian Constitution is, historically, a product of an Imperial statute enacted by the UK Parliament. The Constitution of India was prepared by the Constituent Assembly and derives its power from the Citizens of India
  2. Crown and republic
    A fundamental feature of the basic structure of the Constitution of India is that it is a sovereign, democratic Republic. Australia, on the other hand, is a constitutional monarchy. ‘
  3. Subject and citizen
    At the time of Federation, Australians enjoyed a single nationality, namely that of British subject. This had also been the status of all persons in British India. Upon the advent of the republic in India, the status of subject of the British Crown was terminated. Provision was made for the citizenship of persons born in the territory of India or either of whose parents had been born in that territory. The status of citizenship of Australia was not expressly mentioned in its Constitution. No power was conferred expressly to enact a law on citizenship;
  4. Fundamental rights
    ‘Fundamental Rights’ are collected in Part. III of the Indian Constitution. They include the rights to equality; to freedom; to protection against exploitation; to freedom of religion; and to cultural and educational rights. By way of contrast, the Australian document basically leaves the protection of such rights to the enactments of the Parliament
  5. Secularism
    The commitment to a ‘secular’ republic in the Preamble to the Constitution of India confirms that the Indian State has no official religion. Reinforcing this ideal, article 25 of the Constitution declares that ‘all persons are equally entitled to freedom of conscience and the right freely to profess, practice and propagate religion being available to all religions equally’.
    In Australia, because of the narrow interpretation of the prohibitions in of the Australian Constitution, controversial decisions have sometimes upheld contested taxation advantages for religious institutions.
  6. Emergency provisions
    There is no express provision in the Australian Constitution for the suspension of the Parliament or any other constitutional institution and the substitution of emergency rule. In the Indian Constitution, express provision is made for the proclamation of an emergency.
  7. Amendment provisions
    In the 117 year history of the Australian Commonwealth only 8 amendments have succeeded. Constitutionally speaking, Australia is therefore a nation where it is extremely difficult to secure a formal amendment to the Constitution. The amendment of the Indian Constitution is markedly simpler and more flexible. A power is granted to the Parliament of India, to add to, vary or repeal any provision subject to the ‘Basic Structure’ of the Constitution

CONCLUSION

  • Constitutions, written or unwritten, form the backbone of governance in any state. They are an archive of all the laws, principles and guidelines that are required to maintain law and order in the country and prevent internal or external fallouts.
  • Each nation has constructed its constitution on the basis of efficiency of governance. Over the decades, it has continuously been amended to keep up with the times, the transforming demographics and modern ideologies.
  • No matter the differences or similarities between the different constitutions of the world, each nation wants to secure the interests of its citizens prior to everything else. In doing so, they are prioritizing the nation’s interest in growth, security and stability. Constitution provides the basis of decisions and policies that are made to support this.
  • A good constitution is a prerequisite of an empowered nation. India, with its extensive written constitution in place, already possesses this prerequisite.
  • The Indian constitution finds many similarities with the other constitutions in the world, yet it has its own unique features which make itself special in its own way.
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