Author(s): Venika Sharma
Paper Details: Volume 3, Issue 1
Citation: IJLSSS 3(1) 55
Page No: 601 – 612
ABSTRACT
This study intends to focus on constitutional developments around the globe to contrast the Indian Constitution with other modern constitutions. It aims to analyse the key elements of multiple constitutional frameworks, fundamental legal principles, and ideologies. This research employs a doctrinal research methodology and utilizes primary sources to facilitate the analysis. The study aims to act as a cross national comparative examination.
By scrutinizing key elements of multiple constitutional models, the research seeks to identify similarities and differences across nations that are at the forefront of these aspects. This comparative approach establishes a robust foundation for the study, enabling a nuanced exploration of specific factors and their implications for constitutional evolution. These nations include, United States of America, United Kingdom, France, and Russia.
Keywords: Constitutional Framework, Cross National Comparative Examination, Constitutional Ideologies, etc.
INTRODUCTION
The first facet of the study contrasts between the Indian Constitution and the laws of the United Kingdom where there exists no singular codified document but a series of statutes, judicial decisions and legal precedents, conventions and legal treatises that include all Acts of the Parliament and documents significant in legal history like the Magna Carta and the Bill of Rights, 1689. It is this nation that contributes to the foundation of the Indian Parliamentary system.
This section is then followed by an analysis of the Constitution of the United States that parents fundamental rights as well as the independent judicial system in India. Both of these elements represent the true heart and soul of the Indian Constitution and are thereupon an inseparable part of the study.
The third section of the study focuses on the Constitution of October 4, 1958, in essence, the French Constitution. France follows an analogous constitutional framework with respect to its being a written constitution like the Indian counterpart as well as in its identity as a republic, and its amendment procedure. France, also being the nation to bring forth democratic ideals of liberty, equality, and fraternity in its Charter of Rights of Man makes the nation an essential organ of the research. The quasi-federal structure of the Indian Constitution with respect to the provision of the concurrent list is borrowed from the Australian Constitution. The Indian constitution is a blend of federal and unitary features like the Australian Constitution. It includes chunks of federal features that are necessary for an effective system of sharing powers as well as unitary features that gives powers to the state for effective functioning.
The last nation to be considered in this study is Russia which employs a framework very different from the Indian one; it follows a semi-presidential form of government as compared to the Indian parliamentary form of government. Russia also follows a legislative framework and a judicial setup dissimilar to that of India.
Overall, this comparative study sheds light on the diverse constitutional landscapes and influences shaping modern governance, offering a comprehensive understanding of constitutional development across nations.
CONSTITUTION – A BAG OF BORROWINGS
The Indian constitution mirrors the ideas, beliefs, and aspirations of the people. It brings forth the essential features of society that are inseparable from the development of law and order. The formation of such a document requires that it meets the needs of the society, accepts its diversity, and unites its people. It has to be respectful of the customs, societal norms, and the heritage of its people.
The Indian constitution, being a document drafted for the people, by the people is a true reflection of the shared dissent of the country. Post-colonial India was to be a land free of suppression and colonial mindsets and it is this document that was responsible for ensuring the sense of belonging and equality amongst individuals. Keeping this in mind, constitution makers deliberated upon a multitude of principles and constitutional ideals that were followed across the globe.
Indian constitution has been regarded by Dr BR Ambedkar as not merely a lawyer’s document but a vehicle of life whose spirit is always the spirit of age[1]. Therefore, its formation is a question of the principals of the modern constitutional frameworks contributing to its resilience in today’s age as well.
While the Indian constitution was framed much later in 1950, it is important to study the significance of the various texts of historical importance that act as a precursor to the document and lay down its foundational features. The Montagu- Chelmsford Reforms, more popularly known as The Government of India Act, 1919 is one such act consulted for its development, followed by The Government of India Act 1935. Concurrently, it is to be noted that both these acts have been regarded as the British version of Indian Constitution which are in essence, an attempt by the British to introduce the idea of self-governance in the country.
THE GOVERNMENT OF INDIA ACT, 1919
The act in itself, was a representation of the extent of authority the British was willing to give to the Indians for their own governance. The act was presented to be a progressive step in the direction of realising Indian government as a part of the British empire to instil a sense of belonging to the citizens who had started to take measures against the Crown. The growing insubordination to the British rule was a pressing issue and the act acted as a remedy to the British eyes.
The act introduced the concept of diarchy for the very first time to the Indians. It divided the powers between the Governor in Council and the ministers answerable to the legislature. This feature turned out to be a cornerstone in the formation of a blueprint for the modern federal structure and the division of powers practiced between the centre and the state.
Diarchy, the term, means a double government structure[2]. The principle of diarchy in the Indian context was a newly devised system of separation of powers where one was accountable and the other was not. A “transferred list” was constituted that was given to the ministers answerable to a Provincial Council. It included matters like agriculture, supervision of local government, health, and education. Consequently, another list was constituted called the “reserved list” that remained under the control of the Governor in Council and contained matters like foreign affairs, communication and defence.
Other significant step taken in the Government of India Act, 1919 was the expansion of legislative councils and introduction of indirect elections. This provision has manifested itself in the election of the President in the Indian Constitution. The Act also introduced the concept of communal representation by incorporating separate electorates for Muslims, Sikhs and other minorities. Modern liberals often argue that it is a departure from the thought of secularism, but it is reflected in the Indian Constitution in the provisions for reservation[3] as an affirmative action to uplift the minorities.
In conclusion, it is imperative that the Act, though regarded by the Congressmen as limited and cosmetic in its efforts to mitigate the fractures within Indian polity, did however lay down various foundational features in the constitutional development. Its provisions on governance, representation, federalism, and separation of powers helped shape the democratic framework of independent India.
GOVERNMENT OF INDIA ACT, 1935
The Government of India Act 1935 passed by the British parliament in 1935 led by Lord Linlithgow was a legal document based upon a number of parliamentary debates that discussed key features influencing the Indian Constitution.
It discarded the diarchy that was set up by The Government of India Act 1919 and introduced elected provincial legislature. However, dyarchy still existed at the central level placing various subjects like defence and foreign affairs under the Governor General, just as it was before. The Crown also established a federal court.
The Act played a vital role in the drafting of the Constitution as certain provisions given by the Act were directly incorporated like the administrative procedures and the formation of a bicameral legislature. It also established emergency provisions which was an arbitrary function of the Governor General appointed by His Majesty (Prince George V) that were to be availed in case of failure of constitutional machinery.
Schedule 7 corresponding to Centre-State relations ranging from Articles 256 to 253 of the Indian Constitution are based on the provisions of the Act. It introduced the concept of division of powers by dividing the functions of the government into three lists: the Federal list, the Provincial list and the Concurrent list. It also laid down the residuary powers of the Union government stating that the items not listed in any of the aforementioned lists were to be of concern to the Union which in 1935 constituted of the Governor General or the Viceroy.
The provision of no discussion in the Parliament with respect to the behaviour of any Supreme Court judge[4] or any High Court[5] judge in his exercise of duties corroborating the independence of judiciary was adopted from section 40 and section 86 of the 1935 Act.
The establishment of the Public Services Commission was also an essential feature of the 1935 Act that was brought into the Constitution.
The Act being one of the longest pieces of legislature formulated by the British Government was considered as a step to inflict further damage to the economy of the country. The procedure to conduct elections under the Act was actively criticised by the Indian leaders for its undermining nature. The act contributes significant features of the Indian Constitution, a fact that has been attacked by leaders even today to be an unauthentic adoption of colonial provisions and the addition of foreign features to the document paves way for alienation of Indian aspirations.
ARTICLE 13 AND ITS SIGNIFICANCE
Article 13 of the Indian Constitution provides with an essential condition to the adoption of laws formed before the formation of the Indian Constitution. It states the importance of consistency of all laws formed before the adoption of the Constitution to the Fundamental Rights mentioned in Part III of the Indian Constitution. It was imperative for the constitution makers to ensure that laws in derogation of part III shall not be in force in the territory of India but it was also to be kept in mind that all pre-constitutional laws cannot be declared as ineffective. Therefore, doctrine of eclipse was postulated that foreshadowed all inconsistent laws with respect to part III to be void to the extent of such inconsistency.
The Constitutional Bench of the Supreme Court held in Minoo Framroze Balsara vs The Union of India, 1991[6] that “A Pre-Constitution law which violates a fundamental right under Article 19 remains on the statute book because, while it is not enforceable against citizens, it is enforceable against non-citizens and its pre-Constitutional operation remains valid. The Constitution in so far as it embodies the fundamental right eclipses the pre-Constitutional law to the extent that it operates against citizens. When the Constitution stands amended so as to delete the fundamental right, the shadow cast by the fundamental right upon the pre-Constitutional law moves away and the pre-Constitutional law becomes effective. This is the theory of eclipse.”
It is also to be noted that in Madhava Menon v. State of Bombay[7] the honourable Supreme Court held that the Constitution does not make existing laws that are inconsistent with the fundamental rights void ab initio, but only renders such laws ineffectual and void with respect to the exercise of the fundamental rights. It was established that, as fundamental rights became operative only on, and from the date of the Constitution coming into force, the question of inconsistency of the existing laws with those rights must necessarily arise only on and from such date.
Therefore, it can be inferred that an existing law inconsistent with a fundamental right, though it becomes inoperative from the date of commencement of the Constitution, is not dead altogether.[8]
COMPARATIVE ANALYSIS BETWEEN THE INDIAN CONSTITUTION AND THE CONSTITUTION OF THE UNITED STATES
The Constitutions of both the nations; the United States as well as India are foundational documents recognised all over the world and command respect of scholars globally for their constitutional frameworks. They both represent the supreme laws of the land of two leading democracies inspiring the art of drafting from time immemorial.
It is the contemporary developments of each of these countries that form the basis of comparison between the two. While Indian Constitution was drafted as a living- breathing document[9] for the welfare of a nation is a testament to its objective to develop from a colony to the status of a developed nation whereas its American counterpart was designed free from issues of reconstruction of state identity, in its Part V establishes a provision for a double supermajority to bring about any amends.
IDEAS ADOPTED FROM THE CONSTITUTION OF UNITED STATES
FUNDAMENTAL RIGHTS
As Indian leaders studied constitutions around the world for inspiration to form an ideal democratic model, the American constitution was chosen as firstly, our political leaders, majority of whom got their education from foreign countries were familiar with the western political thought. Secondly, with the spread of democratic ideals and the formation of Universal Declaration of Human Rights by the United Nations played a role in emphasising the need for human rights.
ELECTION OF VICE PRESIDENT
The election of Vice president[10] as well as the impeachment procedure of President[11] were adopted by the American Constitution. In Brij Bhushan v. State of Delhi[12] the Court opined that Fundamental Right, the “freedom of speech and expression” has been taken from the 1st Amendment Act of the U.S. Impeachment of President[13] and removal of judges from Supreme Court and High Court[14] is a reflection from the Legal framework of U.S.
JUDICIAL REVIEW
The doctrine first postulated in Marbury v Madison[15], where it was conferred that the ability to strike down laws on grounds of unconstitutionality i.e. its non-conformity to the fundamental principles of the Constitution is an important feature of the courts which in turn helps solidify the independence of judiciary. In the case, Indira Gandhi v. Raj Narain[16], the Supreme Court of India upheld that judicial review is a part of this doctrine.
For the effective comprehension of the legal system of India and its evolution one must develop an understanding of the constitutional history of the United States. It is undoubted that the constitutional lassos footprinted by the United States’ constitution making process inspire the Indian constitution in a plethora of ways. It enabled the forefathers to dissect the socio- political essence of American laws and implement them in the Indian scenario subject to adjustments to better represent the needs of the Indian population.
COMPARATIVE ANALYSIS OF LAWS IN THE UNITED KINGDOM AND THE CONSTITUTION OF INDIA
Analysing the legal systems of United Kingdom and India provides intriguing insights to the culture, tradition and history of both these nations. The legal system of the United Kingdom has evolved over centuries deeply influenced by the Great Reforms Act 1832[17] and continued deliberations over parliamentary reforms and the powers of the monarch. The construction of the Constitution of the United Kingdom has been an evolutionary process whereby developments in the fields of common law legislation as per the requirement of the people have been given utmost importance throughout the course of history. The Constitution of United Kingdom is an uncodified one which makes it highly flexible, unitary, partially unwritten, parliamentary and a Constitutional monarchy. Whereas, the Indian Constitution is partially flexible, quasi-federal, codified, republican and parliamentary.
The principle of rule of law under the aegis of the Magna Carta[18] and the Bill of Rights[19] has been incorporated into the Indian Constitution. The Rule of Law stands as a cornerstone of just and democratic societies, providing a framework that upholds principles of justice, equality, and the protection of individual rights. Through its historical evolution and philosophical underpinnings, the Rule of Law has become a guiding principle for legal systems around the world.
The procedure for removal of judges on serious incompetency or misbehaviour, with the consent of both the houses of the Parliament[20] was also adopted from the British Constitution. Even though there is a distinct mechanism for the safeguard of people’s interest in terms of human rights in India through the institution of fundamental rights in the Constitution and prearrangement for Constitutional remedies through writ petitions, the Indian Constitution does not remain as fast-paced to change as the U.K. Constitution. This gives evidence that an unwritten Constitution provides for greater opportunities for human rights and helps in the evolution of the Constitution with time and societal change, as compared to the written Constitution. However, an unwritten Constitution is suitable for the unitary arrangement of the country as in the UK, and would not work well with the federal structure or the quasi-federal structure which is followed in India. Also, India is very different to the UK in terms of size, population; division of states, cultural diversity and religious beliefs, and thus, an unwritten Constitution may pose several problems for the country.
COMPARATIVE ANALYSIS OF THE INDIAN CONSTITUTION AND THE FRENCH CONSTITUTION
Both the countries being republics with elected head of states where leaders are chosen to serve respective terms are very similar in their ways of administration. It is interesting to note that the constitution of France, known as The Constitution of October 4, 1958 is the Fifth Constitution of France and has been subjected to rewriting four times. It is for this reason that France is called the ‘Laboratory of Political Experiment’.
The French Republic is the only democratic country wherein the principle of rule of law is not followed rather a supremacy of the executive is practiced placing the President above the laws because France has faced issues of political instability and public uprisings that requires a concentration of powers with the union for effective administration. Another fact is that France’s Constitution recognizes the principle of separation of powers. What makes French Administrative Law unique is its provision for two distinct sets of courts: one for civil disputes and another for administrative disputes. This arrangement ensures that administrative matters are handled within their designated domain, preventing them from encroaching into other areas. As a result, the workload on civil courts is reduced, leading to faster dispensation of justice. The legislative process takes place within the Parliament.
France has been a focal point of historical revolutions and evolutionary ideas from time immemorial, whether it be the seventeenth century French revolution or the formulation of the Napoleonic code. It is therefore, France that devised the terms “egalite, fraternite, liberte” in the Charter of Rights of Man that form core preambular principles in the Indian Constitution.
Secularism, another guiding principle for both the republics’ governance finds different manifestations of its identity in both of these constitutions. While both the countries actively pronounce themselves to be secular nations or Laicete[21] in France, they both have distinct meanings. Secularism for France[22] is the neutrality of the state to religious beliefs and the doctrine of isolation that it follows whereas in India, secularism provides equal respect for all religions and the states’ duty to recognise each of them and protect the religious beliefs of the people.
French notions of secularism although different from the Indian counterpart cannot be considered to be foolproof. In case of S.A.S. vs France[23], a young Muslim woman in her 20s, born and raised in France, who wished to voluntarily wear the full-face veil in public places challenged the law of 11 October 2010. After exhausting all domestic remedies, she appealed to the European Court of Human Rights. She was willing to show her face at airports and other security-sensitive places. She only wished to exercise the choice of wearing a niqab in public places where there is no security threat. Multiple questions as to the secular neutralism of the country have raised time and again as is the case in India as well.
Henceforth, it can be concluded that the Indian Constitution and the French Constitution both uphold democratic principles even though they differ in their structures and mechanisms for governance. Each of these documents provide valuable insights in the diverse approaches to constitutionalism ad governance.
COMPARATIVE ANALYSIS BETWEEN CONSTITUTION OF THE RUSSIAN FEDERATION AND THE CONSTITUTION OF INDIA
The Constitution of Russian Federation is a fairly new constitution adopted in 1993 following the fall of the Soviet Union and is representative of the transformation of the nation from a communist regime to a constitutional republic. Whereas the Indian Constitution marks the beginning of the country’s sovereign identity and is epitomised in its commitment to democracy and social justice.
Russian Federation follows a semi presidential system of governance wherein the President is the head of state and the Prime Minister, the head of government. India is a parliamentary democracy where the President is the ceremonial head of state and Prime Minister is the head of government.
The amendment procedures of both constitutions also reflect their respective political climates. Russia’s amendment process, requiring approval from both houses of the Federal Assembly and regional legislatures, appears to prioritize stability over adaptability. Conversely, India’s more elaborate amendment process, albeit sometimes criticized for its rigidity, underscores a commitment to consensus-building and democratic deliberation.
CONCLUSION
A country’s administration, rights, and identity are shaped by the creation of its constitution, which is a crucial period in its history. Studying the constitutions and legal systems of other nations can provide India with important insights as it advances as a democratic republic.
Because they represent different historical, cultural, and political settings, constitutional frameworks differ greatly throughout countries. For instance, many democracies around the world look to the United States Constitution as a model due to its emphasis on individual rights and federalism. In contrast, common law and parliamentary sovereignty are the cornerstones of the unwritten constitution of the United Kingdom. India can evaluate various approaches to institutional architecture, governance, and the protection of rights by analysing these frameworks.
Many constitutions include federalism, or the separation of powers between the federal and local governments, as a key component. The federal system of Canada, which is distinguished by substantial province autonomy and a minimally empowered central government, provides valuable insights into the management of diversity and the accommodation of regional desires. Similar to this, Germany’s federal system strikes a balance between central and state authority, offering a blueprint for successful cooperative federalism. By improving its own federal structure, India can ensure a just allocation of authority and resources while promoting national cohesion.
Any constitution must have fundamental rights as its cornerstone because they protect individual freedoms from interference by the state. The European Convention on Human Rights, which is enforced by the European Court of Human Rights, provides a strong framework for safeguarding human rights in many legal contexts. India’s dedication to equality and dignity can be inspired by the Constitution of South Africa, which is well-known for its progressive Bill of Rights and revolutionary approach to social justice. Through an examination of these frameworks, India can fortify its legal safeguards and augment the availability of justice for every individual.
Maintaining constitutional supremacy and defending the rule of law require an independent judiciary. A model for efficient judicial oversight is the Australian judicial review system, in which judges interpret and apply the constitution to protect rights and freedoms. A robust and unbiased judiciary is crucial for settling constitutional problems, as demonstrated by the Canadian Supreme Court’s involvement in deciding cases involving conflicting federal and provincial authority. India can learn from these models to maintain the principles of its constitution and strengthen judicial independence.
Maintaining constitutional supremacy and defending the rule of law require an independent judiciary. A model for efficient judicial oversight is the Australian judicial review system, in which judges interpret and apply the constitution to protect rights and freedoms. A robust and unbiased judiciary is crucial for settling constitutional problems, as demonstrated by the Canadian Supreme Court’s involvement in deciding cases involving conflicting federal and provincial authority. India can learn from these models to maintain the principles of its constitution and strengthen judicial independence.
While flexibility is necessary to address changing societal requirements and challenges, constitutional stability is crucial for maintaining continuity and predictability in governance. Since it was ratified in 1947, the Japanese Constitution has remained largely unaltered, reflecting a dedication to durability and stability. On the other hand, the South African Constitution showcases a readiness to change and progress, having undergone numerous amendments to tackle new concerns and enhance rights safeguards. India can use these models as a guide to balance stability and adaptability so that its constitution is current and flexible enough to change with the times.
Examining diverse constitutional systems and practices from other nations provides vital insights for the constitution-building process in India. India can improve its constitutional structure to better meet the requirements and ambitions of its diverse population by researching federalism, the preservation of fundamental rights, judicial independence, participatory democracy, and the harmony between stability and flexibility. Learning from the world’s experiences would help India’s democracy advance and its democratic institutions stand stronger as it continues on its democratic journey.
BIBLIOGRAPHY
- Chuni Lal Anand and Hriday Nath Seth, (1992) Constitutional Law and History of Government of India, Government of India Act 1935 and the Constitution of India, University Book Agency 7th Edition, Allahabad
- George Anastaplo, The Amendments to The Constitution: A Commentary (1995), Johns Hopkins Univ. Press
- Herman Belz, Emancipation and Equal Rights: Politics and Constitutionalism In The Civil War Era (1978), W.W. Norton & Co.
- J.A.P. Jones, King John and Magna Carta (1971), Harlow: Longman
- Thomas T. Lewis, The Bill of Rights, (2002)
- French Constitutional Law (Oxford, 1995; online edn, Oxford Academic, https://doi.org/
- Robert Ahdieh, Russia’s Constitutional Revolution – Legal Consciousness and the Transition to Democracy 1985–1996 (Pennsylvania State University Press, University Park 1997)
- Begari, Jagannatham, B.R. Ambedkar and Social Transformation: Revisiting the Philosophy and Reclaiming Social Justice, New Delhi: Routledge India, 2021
[1] Vasant Moon, “Dr. Babasaheb Ambedkar Writings and Speeches” Vol. 1
[2]Britannica, T. Editors of Encyclopaedia (2011, December 14). dyarchy. Encyclopaedia Britannica
[3] Article 16, Constitution of India 1950
[4] Art 121, Constitution of India, 1950
[5] Art 211, Constitution of India, 1950
[6] AIR1992BOM375
[7] 1951 AIR 128
[8] P. Ramanathan, Justice Y.V. Chandrachud et al. (eds.) The Law Lexicon 585, 2002
[9] Art 368(1), Constitution of India, 1950
[10] Art 66, Constitution of India, 1950
[11] Art 61, Constitution of India, 1950
[12] 1950 AIR 129
[13] Art II, Section 4, Constitution of United States 1789
[14] Art 124;218, Constitution of India, 1950
[15] 5 U.S. 137 (1803)
[16] AIR 1975 SUPREME COURT 2299
[17] Great Reforms Act, 1832
[18] Magna Carta, 1215
[19] Bill of Rights, 1689
[20] Art 124;218, Constitution of India, 1950
[21] Larousse, Larousse Dictionnaire available at https://www.larousse.fr/dictionnaires/francais/laïcité/
[22] Art 1, Constitution of October 4, 1958
[23] No. 43835/11