Comparison of Indian Constitution with that of other Countries

Features

Parliamentary Sovereignty & Judicial Supremacy

The doctrine of the sovereignty of the parliament is associated with the British Parliament while the American constitution stipulates judicial supremacy. The Indian constitution occupies the middle ground by synthesizing both aspects to advocate constitutional supremacy.

The scope of Judicial review is narrower in the case of Indian constitution whereas it is elaborate for U.S. This is because the Indian constitution stipulates procedure established by law as opposed to due process of law. Hence the judiciary cannot look into the justness, fairness and extent of arbitrariness of the law it can only comment on the concurrence of the procedure so defined

The parliamentary sovereignty of the Indian parliament is limited by the

1. Federal Framework
2. Constitutional Supremacy
3. Fundamental Rights
4. Judicial Review

Federal Unitarian Balance

The Indian Constitution has a mix of federal and unitary characteristics with a bias towards Unitarian features and is thus intended to exhibit cooperative federalism (Granville Austin) or quasi-federalism (K C Wheare).

It establishes a federal form of government, advocates supremacy of the constitution, exclusive subjects for state legislatures and executive, independent judiciary and bicameralism

However, there also exist certain unitary features like a strong centre, single constitution, integrated judiciary, single citizenship, flexibility of the constitution, provision for emergency, predominance of parliament over state legislatures in concurrent and residue list, All India Services etc.

India is identified as a ‘Union of States’ and not as a federation in American constitution. This means 2 things:

• Indian Union is not an agreement between different states coming together like the American Federation
• States hence have no right to secede from the Union unlike the American Constitution

Hence the federal-unitary balance of the Indian constitution is weighed towards the unitary side as opposed to federations of Australia and U.S. In these countries, federal governments have equal powers as the centre and are able to function with greater autonomy

India’s quasi-federal structure is similar to Belgium and Spain as the union government holds greater power and regulation of federal governments. All of these countries have adopted a bias towards unitary form due to vast inherent ethnic, religious and social diversity that caused secessionist fears among drafters of the constitution. Hence to consolidate the unity of the country, they adopted a quasi-federal structure in a harmonious balance of stability and ease of administration.

Idea of Secularism

Indian constitution stipulates a positive affinity for all religions as opposed to the negative affinity for secularism in some western countries. Hence it keeps all religions equidistant from the state.

The constitution grants freedom of religion for individuals recognizing their conscience and for groups recognizing their right to manage religious affairs.

It also provides safeguards for religious minorities in matters of setting up education centres and administering them in accordance with the law.

The state has hence limited opportunities to intervene in religious affairs by regulating economic, political and social activity and also providing for reform in religion in India.

In France and several other western countries, the secularism exhibited is of negative affinity as the state completely absolves from interfering in matters of religion. Even the public display of religious symbols is prohibited in these countries.

The secularism embedded in the constitution evolved out of the need to protect religious pluralism in India whereas it evolved out of fear of religious authoritarianism in western countries. Hence Indian constitution seeks to give equal respect and protection to all religions because of the multi religious nature of Indian society

Protection to Minorities

Indian constitution uniquely recognizes the discrimination suffered by certain minority sections and accords specific protections for the same.

The abolishment of untouchability and provision for reservation as well as the cultural and educational rights ensured for religious and linguistic minorities are evidence of the same.

The Indian constitution is unique in recognizing the need to protect minorities and its diverse culture from forced homogenization by the dominant and majority sections. Such a provision arose out of the need to protect a multicultural society that celebrates plurality with the motto of ‘Unity in Diversity’

Preventive Detention

The idea of preventive detention and emergency provisions are often described by critics as regressive ideals that are remnants of the colonial era.

No other country or constitution calls for preventive detention while the Constitution of India empowers the parliament or state legislatures to make any law which can give effect to preventive detention. The Constitution makers also found it pertinent to include such a regressive restriction on individuals under fundamental rights part of the constitution which also entailed questions by several critics labelling fundamental rights as being highly restrictive in nature.

Emergency Provisions

India borrowed from Government of India Act, 1935 the provisions for emergency which would place serious restrictions on the fundamental rights of individuals. Such a provision was deemed necessary to protect unity, sovereignty and integrity of the country in the event of armed rebellion, external war or aggression

A Borrowed Constitution

Ambedkar proudly proclaimed that the ‘Indian Constitution had been framed after ransacking all the known constitutions in the world’

The Indian constitution borrowed several features from its Western counterparts as illustrated by the following:

• Political Part from Britain: The organization of polity in the country, the parliamentary form of government, balance between executive and legislature and the idea of principle cabinet government
• Philosophical Part from U.S and Irish: Fundamental rights was mainly inspired by Bill of Rights and DPSP was guided by the Irish Constitution
• Structural Part: The federal system of administration, the judiciary, governors, emergency powers, public service commission are derived from Government of India Act, 1935
• Fundamental Duties and Ideal of Justice in Preamble: USSR
• Amendment of Constitution: South Africa

Why Borrowed Constitution?  How is it justified?

Although the Indian constitution makers borrowed heavily from their counterpart constitutions of various countries, the amalgamation was harmoniously adapted into the Indian context. The Indian constitution is not merely a blind copy of these constitutions, but is a reflection of global values of equality, liberty and democracy that India too shares with the world community.

As Ambedkar rightly noted, in the 11^th hour of formation of the Indian state, it is difficult to imagine an original constitution given that several democracies had already grown and several constitutions were already written and adopted many years ago. This meant our constitution makers enjoyed the luxury of knowledge of practice of these constitutions and how successful they were in respective democracies. Hence they were able to selectively borrow and adapt features of this constitution keeping in mind Indian society and polity.

Eg: The constitution-makers adopted a harmonious synthesis of parliamentary sovereignty (advocated by the British Constitution) and judicial supremacy (advocated by the U.S constitution yielding constitutional supremacy.

Indian constitution also possessed unique features among all world constitutions. Its concept of secularism is positive affinity for all religions to protect religious plurality given the multi-religious nature of Indian society. The western concept of secularism is one of negative affinity that takes root in protection from religious authoritarianism of the church.

Thus, at the 11^th hour in the history of democracy, an original constitution was unwarranted for a new-born nation that sought to consolidate unity among fractious forces in the country. The fact that more than 60 years after its framing, it remains the foremost document of law in the country is a testament to its completeness and stability.

The Debate on Presidential Form of Government

Why not?

• Responsibility over Stability: The parliamentary form of government is built on the idea of parliamentary control on executive through questioning and confidence. Hence it augurs to bring a responsible government at the cost of stability. While the American constitution makers preferred stability of administration, India’s constitution makers opted for greater responsibility
• Harmonious Balance between Executive and Legislature: America has complete separation of executive and legislature which means both wings act independently which may lead to a lack of synergy and cooperation. Indian constitution prescribes double membership which promotes a harmonious balance between 2 organs with less disputes and conflicts
• Wide Representation: Indian society’s heterogeneous nature with social, economic, ethnic, linguistic, caste dimensions necessitate wider representation from different sections of society. Only parliamentary form of government is suited to that. The American society is much more homogeneous and can hence make do with the Presidential system
• Familiarity with the System: The parliamentary system has been operational since the British rule in India. Even more than 70 years since independence, it has functioned effectively barring few isolated instances of dismissal of governments.

Why Presidential Form?

• Increasing role of Prime Minister: The parliamentary form of government in India has seen the PM acquire greater power and significance in administration with many describing it as Prime ministerial form of government. A presidential form of government places greater onus and responsibility on individual executive heads as is practically the case today
• Accountability in voting: People voting in elections for parliament vote for the Prime Ministers of parties and hence presidential form of government is a better realisation of the people’s mandate as they directly choose the head of the state
• Stability over Responsibility: In the period of 1990s, India witnessed several governments come and go without lasting the course. A presidential form of government would ensure greater stability and continuity in policies and administration
• Domain Expertise: The presidential system allows experts from various fields to assume control over specific departments while the parliamentary system has directly elected representatives who in most cases do not have knowledge in the domain assigned to them.