COMPARISON OF INDIAN CONSTITUTION-(GS: PAPER III)

COMPARISON OF INDIAN CONSTITUTION

 (GS: PAPER III)

Section A                            Introduction

Section B                            Political Systems around the World

Section C                            Salient features of constitution of various democratic countries

Section D                            Borrowed Features of Indian Constitution

Section E                            Comparison of Indian Constitution with that of others

             

Section F                             Conclusion

Section G                            Model Questions

SECTION A: INTRODUCTION

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

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

The term constitution comes through French from the Latin word constitutio, used for regulations and orders, such as the imperial enactments.

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

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

SECTION B: POLITICAL SYSTEMS ACROSS THE WORLD

Various Political systems prevalent across the world are explained below:

1.                   Dictatorship is a form of government in which the ruler is an absolute dictator (not restricted by a constitution or laws or opposition from the people).

2.                   Democracy is the government by the people, exercised either directly or through elected representatives.

3.                   Republic is slightly different from a democracy and is a government in which supreme power resides in a body of citizens entitled to vote and is exercised by elected officers and representatives responsible to them and governed according to law.

4.                   Anarchy is the absence of government; the state of society where there is no law or supreme power; a state of lawlessness; political confusion.

SECTION             C:SALIENT         FEATURES         OF          THE       CONSTITUTIONS            OF          VARIOUS

DEMOCRATIC COUNTRIES

Salient Features of the American Constitution

“The American Constitution is the horse and buggy affair projected into a motorized era”.                              - Munro

Introduction

• As stated earlier, the present Constitution of the United States of America was adopted at the Philadelphia Convention held in 1787.
•  It came into force in 1789, after it had been ratified by the minimum required number of states.
• The Constitution is unique in many respects.
• It is one of the briefest Constitutions in the world. Originally it consisted of seven Articles but twenty-seven  amendments have been effected in it during the succeeding years.
• The Constitution presents a classic example of its rigidity. The ‘Separation of Powers’—a doctrine propounded by Montesquieu, has found favour in the American Constitution in a way unknown to any other Constitution of the world.
•  The application of the theory of separation of powers has been combined with a remarkable system of checks and balances in the US administration.
• Again, the judiciary occupies a pivotal position in the American political system.
•  It exercises judicial review. It interprets the Constitution and has developed it.
• To quote an instance, the Constitution created a weak Federal Government but the Supreme Court has made the Central Government sufficiently strong in order to meet the needs of modern America through its doctrine of implied powers.

Summing up the novelties and distinctive features of the US Constitution, Lord Bryce aptly remarks, " ... yet, after all deductions, it ranks above every other written Constitution for the intrinsic excellence of its scheme, its adaptation to the circumstances of the people, its simplicity, and precision of language, its judicious mixture of definiteness in principle with elasticity in details."

Following are some of the salient features the Constitution of the United States:

(1)     Written Character

                Like other Federal Constitutions in the world, the American Constitution is written in form. It is a brief document consisting of seven Articles and twenty-seven amendments,Indeed it was a skeleton Constitution, since framers of the Constitution left the details to be filled in by the Acts of the Congress. The Constitution was thus a starting point of taking off ground. It has been adequately clothed with conventions, customs, judicial decisions and legislative measures. The unwritten element in the form of conventions has played a vital role so much so that the very nature of the Constitution stands changed considerably. To take one example, the Fathers of the Constitution provided for indirect election of the President but as a matter of Convention the election has now become direct.

(2)     Rigidity

                The American Constitution is the most rigid Constitution in the world. It can be amended by a lengthy and cumbersome process. Because of the  complicated nature of the amendment procedure, sometimes it takes years before an amendment becomes operative after it has been proposed. Every  amendment which can be moved in two different ways must be ratified by three-fourth of the states.

First –an amendment can be proposed by two -third vote of both houses of the congress .It should be ratified by the legislature of thee –fourth states with in a seven year time span.

Second – alternatively , an amendment can be proposed by a constitutional convention called by comgress on the petition of two – third state legislature . It should be ratified by the convention in three – fourth of state legislature. 

• The rigidity of the Constitution is evident from the fact that during all these years, it has been in operation; only twenty-seven amendments have been effected in the Constitution.
• Despite its rigidity, the Constitution has been able to adapt itself to the changing circumstances. It has consequently stood the rigours of industrial devolution and democratic upsurge, the turmoils of the civil and global wars, economic crisis of the last century and the global Recession of 2009 and the terrorist attack on its World Trade Centre in New York in the recent past.

(3)     Federal Character

• The American Constitution is federal in character.
•  It was originally a Federation of thirteen States but due to admission of new states, it is now a Federation of fifty States.
• A constitutional division of powers has been made between the Centre and e federating units.
• The Constitution enumerates e powers of the Centre and leaves the residue of powers to be exercised by the federating states.
• The powers not delegated to the centre are exercised by the States.
• The Constitution thus creates a weak Centre because residuary powers have been given to the units.
• However, in practice, the Federal centre in America has become very powerful due to the application of the doctrine of "Implied Powers" as propounded by the Supreme Court of the USA.
• Had e Centre been weak, the Federal system would not have survived the onslaught of civil war and other eventualities of baffling nature.

(4)     Supremacy of the Constitution

• The Constitution is the supreme law of the land. Neither the Centre, nor the States can override it.
•  A law or an executive order repugnant to the Constitution can be declared unconstitutional and invalid by the American Supreme Court.

(5)     Separation of Powers

• The US Constitution is based on the doctrine of ‘Separation of Powers’ though there is no direct statement of the doctrine of separation of power.
• However, the three wings of administration viz, the executive, the legislature and the judiciary are inter-dependent and cannot be separated entirely in the interests of good Government yet an attempt has been made in the American Constitution to separate them as much as possible.
• The Congress is the legislative organ.
• The President is the head of the executive.
• He is elected indirectly by the people and has nothing to do with the Congress.
• He enjoys a fixed tenure of four years and is not a member of the Congress and cannot be removed by vote of no-confidence before the expiry of his tenure of office.
• He does not participate in debates, nor can he dissolve the Congress. Both are independent of each other. The Supreme Court heads the federal judiciary and enjoys freedom in its work.
• However, the separation of powers, in actual practice, has been limited to a very large extent. The President, today, controls the legislative policy.
•  This fact was established during Rooseveltian era.
• The President is impeachable by the Congress. This ensures coordination between the executive and legislative branches of the Government.
•  Likewise, the other branches of the Government also have been earmarked a slice of functions of entrusted to other branches of the government.

(6)     Checks and Balances

• Recognising the importance of close coordination among three organs of the Government, the Fathers of the Constitution introduced 'Checks and Balances'.
• The powers of an organ were so devised as to exercise a check upon the powers of others.
• As for example, the President can veto the bills passed by the Congress.
• The Senate shares with the President his powers of making appointments to the various federal offices and conclusion of treaties with foreign States.
• All such treaties must be ratified by two-thirds majority in the Senate. Through this power, the Senate controls the internal administration and external policy of the President.
•  The organisation of judiciary is determined by the Congress and the judges of Supreme Court are appointed by the President with the consent of the Senate.
• The Supreme Court can declare the laws passed by the Congress and executive action taken by the President ultra vires.
•  In this way, the three organs of the Government have been interlocked and interchecked.
•  Eulogising this feature, Ogg remarks, "No feature of American Government is more characteristic than the separation of powers combined with precautionary checks and balances. Nothing quite like it can be found in any other leading country of the world."

(7)     Bill of Rights

The Constitution guarantees Fundamental Rights of person, property and liberty.

It is, however, noteworthy that these Rights were incorporated in the Constitution by a number of amendments effected after the Constitution was promulgated.

• They were not enumerated in the original draft of the Constitution. But by subsequent amendments (first ten), individual liberty has been effectively safeguarded.
• The Rights of citizens are enforceable by recourse to the judiciary.
• These Rights cannot be modified or, suspended except by a constitutional amendment. Freedom of speech, of worship, of habeas corpus, no unreasonable search, and seizure which constitute the hallmark of a just society, are now part and parcel of the Constitution. As such, they are ensured to the Americans.

(8)     Judicial Review

• The Supreme Court and lower federal courts possess power of judicial review of the legislative enactments.
• The federal judiciary can declare any legislation or executive action null and void if the same is found to be inconsistent with the provisions of the Constitution.
•  The judiciary thus acts as the guardian and custodian of the Constitution and Fundamental Rights of citizens.
• The Supreme Court has so interpreted the Constitution that it has adapted it to the changing needs of society.
• It has enlarged the powers of the Congress.
• The supremacy of the judiciary over the executive and the legislature has led to the remark that the Government of USA is governed by the judges and that the American Constitution is what the judges make of it.
• The critics describe the Supreme Court as a third chamber itself and its judicial review as judicial veto.

(9)     Republicanism

• Unlike UK where a hereditary monarch is the head of the State, the USA is a Republic with the President as the elected head of the State.
• The Constitution derives its authority from the people, Moreover, the Constitution makes it binding upon every constituent State to opt for the Republican form of Government.

(10)  Presidential Form of Government

• The Constitution provides for the Presidential type of Government in the USA. All executive powers are vested in the President.
• The President is not constitutionally responsible to the Congress in the manner in which the executive is responsible to the legislature in England or India.
•  He does not attend its sessions, nor initiates legislation directly, nor answers questions.
• The Congress cannot remove him during the term of his office which is fixed for four years.
•  On the other hand,' the President cannot dissolve the Congress. The members of his Cabinet are neither members of the Congress nor answerable to it.
• They are his 'errand boys' who have been rightly termed as the 'family' of the President or his `kitchen' Cabinet.

(11)  Dual Citizenship

• The US Constitution provides for dual citizenship for the people of the United States.
• An American is the citizen of the USA as also of the state where he or she is domiciled.
• It is in contrast with the idea of single citizenship as incorporated in the constitution of India which establishes a federal form of Government as well.

(12)  Popular Sovereignty

·         The American Constitution is based on popular sovereignty.

·         The ultimate sovereignty in the USA is  attributed to the people.

·         The doctrine of popular sovereignty attributes ultimate sovereignty to the people and substitutes constitutional system of Government for arbitrariness.

(13)  Spoils System

• Spoils System has been an important ingredient of the American Constitution since the inception of American Constitution.
•  It prevailed in the USA in its worst form during the nineteenth century.
• According to this system, a Government office was considered as a spoil for the services rendered to the prospective President at the time of presidential election.
• Hence, so long as a particular President was in office, he had his supporters in all offices ''—and they strove their best to ensure his election or re-election. If their party was ousted in the next, election, they had to tender their resignation and the new President had to keep their substitutes in those key offices.
•  It led to inefficiency and corruption.
• Hence, an act known as Pendleton Act (1883) was passed to put a stop to this system.
•  Henceforth, about 80% of such offices were to be filled through competitive examinations. Thus Spoils System persists only in 20% cases. These offices still fall under the patronage of the American President.

(14)  Bicameral Legislature

• Like UK, USA too has a bicameral legislature. Its Lower House is termed as the House of Representatives whereas the Upper House is known as the Senate.
• The Upper House of USA, unlike other upper chambers in the world, 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.
• Its tenure is six years unlike that of the lower House which is elected only for two years.
•  Moreover, it is a compact House consisting of 100 members, whereas the lower House consists of 435 members.

                Thus it can be concluded that the American Constitution is a unique Constitution presenting a constitutional model entirely different from that of the UK.

·         Its stability and strength is the envy of the world constitutions.

Constitution of UK

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

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

 Nature of the English Constitution

                “The British Constitution is just like a river which glides slowly past one’s feet curving in and out and almost lost to view in foliage”.                                 -A Satirist

Does Britain Have a Constitution?

·         Thomas Paine and Alexis De Tocqueville are of the opinion that 'England has no Constitution'.

·          Thomas Paine declared that "where a Constitution cannot be produced in a visible font, there is none".

·         In a spirited reply to Broke who defended the existence of the British Constitution, Paine asked, "Can Mr Burke produce the English Constitution?

·          If he cannot, we may fairly conclude that though it has been so much talked about, no such thing as a Constitution exists or ever did exist."

·         Similarly, De Tocqueville said that "in England, the Constitution may go on changing continually or rather it does not exist."

·         But both these writers are wrong in their opinions.

·         They have misconceived the meaning of the term "Constitution" and also the real situation in England.

·         The students of political science know that there can be no State without a Constitution--a body of fundamental rules and principles, determining the structure of the State.

·         They also know that such rules and principles may be written or unwritten.

·         The Constitution of England is unwritten as most of the rules and principles controlling the distribution and regulating the exercise of governmental power have never been reduced to writing in a single document.

·         As we have noticed, most of the constitutional principles and rules in England have grown by experience.

·          The English Constitution is a product of many centuries of political growth.

·         It is not the handiwork of any Constituent Assembly but a consequence of a Convention. Much of it has never been formally adopted at all.

·          It can be amended at any time to any extent by a simple action of Parliament.

·          "If Constitution means institution and not the paper which describes them, then the British Constitution has not been enacted but has evolved."

·          Looking to all this it may be said that 'England has it Constitution but mostly of an unwritten type'.

It may not however, be presumed that the English Constitution is entirely unwritten.

• There are certain charters, petitions and statutes in which some of the principles of the Constitution have been embodied in writing.
• The Englishmen have shrunk from any effort to reduce their Constitution to a systematic codified form.
• They have "left the different parts of their Constitution where the waves of history have deposited them", without ever attempting "to bring them together to classify or complete them, or to make it a consistent or coherent whole".
• According to Munro, "The British Constitution is a complex amalgam of institutions. principles and practices.
• It is a composite of charters and statutes, of judicial decisions, of common law, of precedence, usages and traditions.
• It is not one document but hundreds of them.
• It is not derived from one source but from several ... It is a child of wisdom and chance."

Sources of the English Constitution

                From what has been written in the preceding pages, it is clear that the British Constitution has been derived not from a single source but from different sources. We can divide these sources into six groups:

(1)     Conventions

·         Conventions constitute a major element of British constitution.

·         These  are unwritten principles of political practices and customary principles of constitutional behavior which have developed in course of time.

·         They are backed tradition and public opinion.

The most important conventions in England are as follows:

1. The Queen or King must accept the advice of the Cabinet.
2. No tax can be levied without the sanction of Parliament.
3. The Parliament must meet at least once a year.
4. The leader of the majority party in the House of Commons must be appointed as the Prime Minister.
5. The Cabinet is collectively responsible to Parliament.
6. The Parliament shall consist of two chambers.
7. Only the law-lords shall attend the meetings of the House of Lords for deciding judicial cases.
8. Once a speaker always a speaker.
9. Pairing Convention.
10. Mandate Convention.

(2)     Charters

The second important source of the English Constitution is discernible from the great charters and agreements which define and regulate the powers of the Crown and the rights of citizens, etc.

Such charters have become historic documents and, therefore, constitute an important part of the British Constitution. Among these documents, the important ones are the following:

(i)                   Magna Carta (1215): It defined the organisation and powers of the Great Council in England and prohibited the imposition of certain taxes without the consent of the. Great Council.

(ii)                 Petition of Rights (1628): It laid down that no person in England can be compelled to pay any loan, gift or tax without the previous sanction of Parliament.

(iii)                Bill of Rights (1689): It made the Parliament the supreme law-making body and declared that it should be called regularly. It also provided a list of individual rights.

(iv)               Act of Settlement (1701): It fixed certain rules regulating the order of succession to the British throne.

(v)                 Act of Union with Scotland (1707): It contains some provisions that have permanently united Scotland with England under one common Government.

(3)     Statutes

• The third important source of the English Constitution lies in the statutes (laws) passed by the Parliament from time to time.
•  It may be noted that the British Parliament is fully empowered to repeal or amend these statutes whenever it likes.

(4)     Judicial Decisions

• Judicial decisions constitute another source, which refers to the judgments and interpretations of the British courts that define the scope and limitations of the different charters, statutes and common law & England.
•  So great is the importance of judicial decisions that Dicey termed the British Constitution as a judge-made Constitution.
• Quoting a few illustrations are the decisions in Bushell's case (1670) establishing the independence of juries, and the Howell's case (1678) vindicating the immunity of judges.

(5)     Eminent Works

• Some of the eminent works written by authorities on the subject also form a part and parcel of the Constitution.
• May's Parliament Practice, Dicey's Law and Constitution, Blackstone's Commentaries on English Constitution are some of the notable examples of such work of great eminence.

(6)     Common Law

• Common Law may be defined as an "assemblage of all those rules and important principles, which are the product of slow process of long historical growth, being based upon the customs and traditions of English society, and later at recognised by the Courts of the country".
• Such rule are apart altogether form any Act of Parliament an (include many of the most important features of the governmental and legal systems and are fully accepted and enforced as law.
• The prerogatives of the Crown,, the right of trial by jury, the right of freedom of speech and of Assembly, the right of redress for tortuous acts 'of governmental officers rest almost entirely on Common Law.
•  Ogg point out Common Law in course of centuries "acquired binding and almost immutable character".

Thus, the English Constitution is composed of not one element; but varied elements.

 However its major part is unwritten. Hence, a French writer compares it "with 'a river whose surface glide, slowly, past one's feet curving in and out and almost lost to view in foliage".

Lord Bryce has summed up the sources and nature of the English Constitution in the words-

 "It is a mass of precedents carried men's mind& or recorded in Writing, dicta of lawyers and statesmen, cultom, usages, understandings and beliefs, a number of statutes mixed up with customs and all covered with a parasitic growth of legal decisions and political habits".

SALIENT FEATURES OF The ENGLISH CONSTITUTION

                An appraisal of the nature and sources of the English Constitution and its gradual evolution enables to derive the following important features of the British Constitution:

(1)     Partly Written and Partly Unwritten

• The first important feature of the British Constitution is its unwritten character.
•  But by unwritten we do not mean that none of its principles are written.
• There are several written parts of the British Constitution, like the Magna Carta, Bill of Rights (1689), Reforms Acts, Parliamentary Act of 1911, etc., but the unwritten part is more conspicuous and impressive than the written one.
• However, by unwritten we mean that (i) the written part of the British Constitution is lesser than the unwritten one; (ii) the written part was not written at one time; (iii) whenever an Act was made, the purpose was not to improve the whole of the Constitution.
• The English Constitution is largely based upon the customs and conventions of the British society.

(2)     Evolutionary

• The British Constitution is a child of wisdom and chance.
• It has evolved itself gradually, expressing itself in different charters, statutes, precedents, usages and traditions. It has grown like an organism from age to age.
• It is the oldest among existing Constitutions.
• Its general framework has undergone no revolutionary overhauling for at least the past three centuries with the exception of the half dozen years in which Oliver Cromwell served as the "Protector of the Commonwealth."
• England has not witnessed a revolution comparable with the French Revolution of 1789, or the Russian Revolution of 1917.
• The British Constitution has not undergone sudden transformations at specific times and whatever changes have come from time to time, have not deflected the main current of political development.
• In the words of Freeman, "At no time has the tie between the present and the past been rent asunder; at no moment have Englishmen sat down to put together a wholly new Constitution in obedience to some dazzling theory".
• The political changes "have as a rule been so gradual, deference to traditions so habitual, and the disposition to cling to accustomed names and forms even when the spirit has changed, so deep-seated, that the Constitutional history of Britain displays a continuity hardly paralleled in any other land".

(3)     Difference between Theory and Practice

• One of the unique features of the British Constitution is the gap that exists between constitutional theory and governmental practices.
• In theory, the Government of England is vested in the Crown.
• All officers of Government are the servants of the Crown, summoned and dismissed at royal discretion.
• No law is effective without the Crown's consent; no appointment is ever made save in the name of the Crown.
• No parliamentary election can be held save in obedience to the King's writ.
•  The King is the Commander-in-Chief of all the British forces.
• The King alone can declare war and conclude peace and treaties. If is the Royal Navy, His Majesty's judges, His Majesty's Government, His Majesty's "loyal opposition" and even His Majesty's subjects.
• Apparently it reflects that, the King is the source of all power and fountain of justice.
• But all this is in theory.
• As Ogg remarks, "The Government of the United Kingdom is in ultimate theory an absolute monarchy, in form a limited Constitutional monarchy and in actual character democratic republic."
• In practice, the King has become merely a figurehead.
• He reigns but does not rule.
• Through gradual stages, all political power has shifted from the King to the people's representatives in Parliament.
•  The King has now long ceased to be a directing factor in Government and he virtually performs no official acts on his own initiative. Practice has quite overturned theory.
•  Ogg remarks, "There have come to be, in a sense, two Constitutions rather than one—the Constitution that represents the system as it is supposed to be and the Constitution that represents it as it actually is."'
• The truth is that the King, if he acts at all, acts only through Ministers.
• England has become today not only a 'limited monarchy' but to use the phrase of Mr. and Mrs. Webb's a "crowned republic".

(4)     Parliamentary Sovereignty

• The sovereignty of the Parliament forms another important feature of the British Constitution.
•  There is no law which the British Parliament cannot make or unmake.
• No court can question the legality of its Acts.
• There is no legal difference between the constituent authority and law-making authority in England as it exists in the United States or India.
• The British Parliament is both the law-making and constituent authority.
• It can even change the succession to the throne by a simple Act and even prohibit the King to marry a woman of his choice.
• It can abolish the monarchy, deprive all peers of seats in the House of Lords, or abolish that chamber altogether.
• It can, in fact, do any or all of a score of other things that would amaze any student of the British Constitution.
• . A critic remarked, 'Parliament can do everything but make a man a woman and woman a man'.
• A harsher critic opined, 'it can do that also'. So far as legality is concerned, the British Parliament is supreme and sovereign.
• As Ogg remarks, "The truth is that while Parliament operates under plenty of practical restraints—moral inhibitions, public opinions, international law, and international agreements, it nevertheless is legally unfettered, with any and of all its actions, immune from annulment except by its over action."

(5)     A Unitary Constitution

• The British Constitution is a unitary and not a federal one.
• A federal Constitution is one wherein the governmental powers are distributed among certain agencies, federal and divisional, neither of which has a power to alter the constitutional provisions.
• The important thing is that the distribution is done by authority superior to both federal and divisional Governments.
• The United States has a federal Constitution. Hence, some powers are retained by the Centre whereas the rest of the powers are with the—the Units.
•  But in England, the Government is unitary. The entire power is concentrated in a single Government of the Centre, at London. The local areas derive their powers from London Government.
• The latter has endowed them with such powers as it chooses to bestow and can change their powers at any time or even abolish them altogether and arrogate the authority in entirety.
• Thus, the British Constitution is unitary both in form and spirit.

(6)     A Flexible Constitution

• The British Constitution is flexible in nature.
• There is no difference between the procedure for the passage of a constitutional law and that of an ordinary law in England.
• The British Parliament is empowered to pass and amend the ordinary law as well as the constitutional law through the same ordinary procedure. There is no special procedure for passing a constitutional law in England.
• This flexibility of the Constitution permits it to be adapted more readily to the new conditions than is possible in any federal country.
• It may however, be noted that the flexibility of a Constitution does not depend primarily on the breadth of its provisions.
• Though legally the Constitution of England is the most flexible in the world, yet actually "it is considerably less fluid than might be inferred from what the writers say".
• If the Constitution is couched in broad terms so as to permit changes in governmental practice without any formal amendments, there will be little need of amending the Constitution.
• This is true of the Constitution of the United States. But surprisingly the same is the case with the British Constitution.
• The English people are conservative and tradition loving having a Constitution broad enough to permit changes in governmental practice if at all they so like.
• Hence, few changes in it have been made over considerable period of time as people are fondly satisfied with precedents already set.

(7)     Rule of Law

                The doctrine of rule of law is one of the fundamental characteristics of British constitutional system. It lays down that the law is supreme and hence the government must act according to law and within the limits of the law.  A.V. Dicey in his book The Law of the Constitution (1885), has given the following three implications of the doctrine of rule of law

(i)                   Absence of arbitrary power, that is, no man can be punished except for a breach of law.

(ii)                 Equality before the law, that is, equal subjection of all citizens (rich or poor, high or low, official or non-official) to the ordinary law of the land administered by the ordinary law courts.

(iii)                The primacy of the rights of the individual, that is, the Constitution is the result of the rights of individual as defined and enforced by the courts of law, rather that the Constitution being the source of the individual rights. The rights of the citizens of Great Britain flow from judicial decisions, not from the Constitution.

(8)     A Parliamentary Form of Government

• England has a parliamentary form of Government as distinct from the presidential type of Government.
• The King is the nominal head of the State.
• The real functionaries are the Ministers who belong to the majority party in the House of Commons and remain in office so long as they enjoy its confidence.
• As the Ministers are also the members of the Parliament, so there is coordination between the executive and legislative wings of the Government.
• In the words of Bagehot, the Cabinet in England is a "hyphen that joins, the buckle that binds the executive and legislative departments together".
• In England, there is little risk of conflict between the executive and legislature and the work of the Government, therefore, goes on smoothly.
• It is on account of the parliamentary system prevailing in England that the British Constitution has been called the "Mother of Parliaments".

(9)     Separation of Powers combined with Concentration of Responsibility

• Montesquieu found the British governmental structure based on the principle of separation of powers. Apparently, it is so.
• The Crown is the executive; Parliament is the legislature; the Courts form the judiciary.
• The executive in its purely executive and administrative capacity is not subject to so much control by the legislature as it is in the United States.
• In England the judiciary also takes no part in determining the law as does the American judiciary through the process of judicial review.
• Nevertheless, the Cabinet in England has assumed a dominating role not only in administration, but even in legislation and to some extent in judiciary as well. In the United States, the role of the Cabinet is not so dominating as it is in England.
• The British Cabinet has become the steering wheel of the ship of State, reducing the Parliament to a tool in its hands.
•  As Ogg remarks, "At London, concentration of responsibility, implicit in the Cabinet system and held back by no constitutional barriers, cuts through every obstacle and brings the Prime Minister and his colleagues into the position of an all powerful Government, leaving it to Parliament and the Courts merely to regulate and check its action."

(10)  A Blend of Monarchy, Aristocracy and Democracy

• The British Constitution has harmoniously blended within itself the three somewhat incongruous features of monarchy, aristocracy and democracy.
• The British King represents the monarchy which rests on the hereditary principle. The House of Lords is the aristocracy, representing the lords and nobles of the land.
• The House of Commons is the democracy representing the people of the land. It is true that neither the King nor the.
• House of Lords plays an effective role in the political set-up of the country, yet their continuance appears hardly reconcilable with democracy.
•  And yet the Englishmen had never been in a mood to abolish these historic institutions, though attempts have been made to denigrate the position of the Monarch and curtail the powers and change the method of constituting the House of Lords. In case of Monarchy perks of sovereign have been curbed.

(11) Bicameral Legislature

• The Parliament is bicameral.
• The House of Commons, the Lower House, is a directly elected chamber composed of 651 members" and the House of Lords is a hereditary chamber presently comprising over 746 members.
• The Lower House is much more powerful than the House of Lords. Hence, the, latter is portrayed as a 'secondary chamber' and Westminster Abbey of living Celebrities

ADMINISTRATIVE SYSTEM OF JAPAN

Japanese Constitution and Government

• The modern state of Japan came into existence with the Meiji Restoration in 1868.
• The Meiji Constitution remained in force for 58 years (i.e., from 1889 to 1947).
•  This constitution was basil' 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. Und his direction, Japan adopted a new democratic constitution in 1946.
•  This constitution is based on the ideals of democracy and peace, as conceived by the Occupation Authorities.
•  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 Shidehara was the Prime Minister of Japan.

                The salient features of the present constitution of Japan are as follows:

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 .
• 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 ordinary 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 so far been amended even once. Thus, constitution reads today as it did in 1947

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 e single supreme central government located at Tokyo.
• The provinces derive their authority from the 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.

Parliamentary Government

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

The features of the Japanese Parliamentary system of government are as follows:

1. The Emperor is the nominal executive while the Cabinet is the real executive. The cabinet consists of the Prime Minister as its head and twenty Ministers of State. The Emperor is the head of the state while the Prime Minister is head of that government.
2. The party which secures majority seats in the House of Representatives forms the government. The leader of the majority party or majority coalition invariably becomes the Prime Minister.
3. The Prime Minister is designated from among the members of the Diet by a resolution of the Diet. The Emperor appoints the Prime Minister as designated by the Diet.
4. The Prime Minister appoints the Ministers of State. But, a majority of them should be chosen from among the members of the Diet.
5. The Prime Minister can remove the Ministers of state as he chooses.
6. The Cabinet, in the exercise of the executive power, is collectively responsible to the Diet. It must resign when the House of Representatives passes a no-confidence resolution.
7. The Emperor can dissolve the House of Representatives on the advice of the Prime Minister.

An analysis of the above points makes it clear that Japan (though adopted the British Parliamentary pattern) differed from Britain in the following four respects:

1. In Britain, the Prime Minister is chosen as well as appointed by the King/Queen, while in Japan, the Prime Minister is chosen by the Diet but appointed by the Emperor.
2. In Britain, the Ministers are appointed by the King/Queen, while in Japan, the Ministers are appointed by the Prime Minister.
3. In Britain, the Prime Minister cannot remove the Ministers, while in Japan, the Prime Minister can remove the Ministers at his will.
4. In Britain, all the Ministers must be members of the Parliament, while in Japan, only a majority of the Ministers must be members of the Diet.

Constitutional Monarchy

• Japan is a monarchical state. It is described as a limited hereditary monarchy.
• The constitution, though it preserves the institution of the Emperor, it deprives him of all powers, privileges and prerogatives he formerly exercised and enjoyed.

It makes the following provisions with regard to the institution of that Emperor:

1. The Emperor is the symbol of the state and of the unity of the people. He derives his position from the will of the people with whom resides sovereign power. Thus, the sovereignty of the Emperor is absolished.
2. The Imperial. Throne is dynastic and succeeded to in accordance with the law passed by the Diet.
3. The advice and approval of the Cabinet is required for all acts of the Emperor.
4. The Emperor performs only those acts which are enumerated in the constitution and he has:' powers related to government.
5. The Emperor can neither give nor receive imperial property without the authorisation of the Diet.

                Thus, 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 not rule.

Supremacy of Constitution and Judicial Review

·         The Japanese constitution establishes 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.

Thus, the American principle of judicial review is adopted in Japan. But there is a difference. The Amen Supreme Court does not derive its power of judicial review from the Constitution, whereas the Japan 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.

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 an declares them as 'eternal and inviolate'.
• The judiciary headed by the Supreme Court acts as the protector o 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 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.

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 o 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.

Bicameralism

• The Japanese Diet is bicameral, that is, it consists of two houses namely the House of Councillors (upper house) and the House of Representatives (lower house).
•  The House of Councillors consists of 252 members elected for a term of six years. Out of the total 252 members, 152 are elected on a geographical basis (local constituencies) and the remaining 100 are elected by the nation at large (national constituency). Viet-House of Representatives consists of 512 members elected for a term of four years.
• The House of Representatives has more powers than the House of Councillors, especially in financial matters.

                Constitutionally, the Diet is the highest organ of state power and is the sole law-making organ of the state.

Salient Features of  Russian the Constitution

                “…If one cannot gain heaven it is foolish to despair if there still remains in one’s hand the means of avoiding hell”.

                Some of the salient features of the Constitution of Russian Federation (equivalent to Russia) are as follows:

Written

• Like that of erstwhile Soviet Union, USA, India, France, Canada, Switzerland, etc., the Constitution of Russia's Federation is a written one comprising 137 Articles.
•  The Constitution was approved by President Yeltsin and adopted by referendum on December 12, 1993. Minor textual changes to Article 65 were added by order of the President on January 9, 1996.
•  Evidently, it is a brief document.

A Sovereign Democratic Federal Republic.

• Articles 3 and 5 declare Russia as "a Democratic Federal Republic.
•  They have made a provision - democratic election on adult suffrage basis. Any-body who is twenty one who is twenty-one years of age has right elect his representative.
• Referendum and free elections are the direct manifestation of the power of the people."
• Its federal character is evident from its constituent

units—republics, territories, regions, federal cities, autonomous region, and autonomous areas which compose it.

• Further, its federal structure founded on the State integrity, the uniform system of State power, determination of scope of authority and powers between the bodies of State power and Russian Federation and the bodies of State power of the subjects of the Russian Federation.

·         All the subjects of the Russian Federation enjoy equality among themselves in relation with the federal bodies of State power.'

·         The sovereign character of the Federation is evident from the supremacy of the Constitution of Russian Federation and Federal laws throughout the entire territory of the Russian Federation.

·         The Russian Federation is to ensure the integrity and inviolability of its territory.'

·         The Federation is headed by a President who is an elected functionary and can be removed through a cumbersome procedure of Impeachment.

·          He cannot contest for third time (as is the case with the American President). Each tenure of 6 years , amended in 2008.

Incorporation of Rights and Duties' (Articles 57-59)

(a)     Rights: The earlier Constitution of erstwhile Soviet Union also contained the impressive Chapter of Rights though civic rights existed only on paper. Economic rights were no doubt impressive.

·         The Constitution of Russian Federation assures full democratic rights to the citizens. Article 2 of the Constitution states, "Humans, their rights and freedom; are the supreme value."

·          It is the duty of the State to recognise, respect and protect the rights and liberties of humans and citizens.

·         The basic rights and liberties which are supposed to conform to the commonly recognised principles and norms of the international law are recognised and guaranteed in the Russian Federation and under the Constitution.

·         Articles 17 to 56 deal with Rights—right to life; right to liberty; equality before law; right to privacy; inviolability of home; right to religion; right to speech and expression; right to form association, and -take to demonstrations; right to elect and be elected; right to equal access to State service; right to private property; right to work and statutory minimum wages; right to family; right to a house; right to health care and medical assistance; right to education; freedom of literary, artistic, scientific, intellectual and creative activity; guaranteed protection of law for safeguarding liberties; the right to qualified legal Council; right to compensation by the State for damage caused by unlawful action of the State, etc.

·          These are prominent rights.

·         The list of Rights is indeed impressive. Its safeguards also have been assured. Civil, economic and political liberties have been guaranteed.

(b)     Provision of Duties:

·         Articles 57 to 59 refer to duties, viz. payment of lawful taxes and fees; preservation of nature and the environment; defence of homeland; and rendering of military service.

·          These duties make the citizen's law abiding and patriotic.

Presidential Form of Government

• Russian Federation has opted for Presidential form of Government because the Constitution makes the President omnipotent.
• His powers are numerous and authority onerous.
• Only on grounds of health or in the event of impeachment, on account of treason or other grave crime, he is removable from the office.
• The procedure of his removal is very cumbersome. He appoints the Chairman of State Duma.
• He presides over the meetings of the Government of the Russian Federation and plays an assertive role.
• Is the head of state, Supreme Commander-in-chief and holder of the highest office within the Russian Federation.
• However, he is not the head of the executive branch.

Prime minister

·         It  is the President who appoints and dismisses the Prime Minister and other members of the Government;

·          the President may chair the meetings of the cabinet and give obligatory orders to the Prime Minister and other members of the Government, the President may also revoke any act of the Government.

Bicameral Legislature

• The Federal Assembly which may be termed as Parliament of the Russian Federation consists of $ two chambers—the Federal Council (Upper House) and the State Duma (Lower House).
• The State Duma is to consist of 450 Deputies who are to be elected on the basis of universal adult franchise.
• The Federal Council is to consist of two Deputies from each subject of the Federation—one from the representatives and one from the executives bodies of a State authority.
• The State Duma is elected for a period of four years.
• The procedure for forming the Federal Council and the procedure for electing the Deputies to the Duma was to be established by Federal law as per constitution.
• The State Duma is comparatively more powerful than the Federal Council so far as control over legislation is concerned.
•  President's rejection of the Federal bill passed by the Federal Assembly can be overruled, if both the Houses of the Assembly, by a majority of not less than two-thirds of the total members of the Deputies, pass the bill for a second time.
• The President in such case's will have no other option but to pass the bill within seven days.
•  However, this may be an uphill task and it may virtually prove to be veto of the President.

Russian Government

• The Russian Cabinet and its Chairman are no the creatures of the Russian President alone.
•  The Chairman of the Government of the Russian Federation is to be appointed by the President with the consent of the State Duma.
• After the State Duma rejects candidates for the office of the Chairman of the Government nominated by the President three times, the President can nominate the Chairman of the Government, dissolve the State Duma and call fresh elections.
• Thus, checks and counterchecks have been provided though eventual, ascendancy of the President in the formation of Government is clearly discernible'.
• The State Duma also may express no confidence in the Government of the Russian Federation. The Government can by itself hand over its resignation to the President which may or may not be accepted.
• However, if the State Duma again persists for no-confidence within three months, the President shall announce the resignation of the Government or dissolve the State Duma.
• Obviously, mutual checks and balances have been conceived to restrain arbitrariness.

Significant Role of Judiciary

• There is a provision of Supreme Court, the apex of judicial system in civil, criminal, administrative and other matters triable by general jurisdiction courts.'
• Besides, there is a provision for the Supreme Arbitration Court—the highest judicial body for resolving economic disputes and other cases considered by arbitration courts.
• Apart from, the Supreme Court and Supreme Arbitration Court, a Constitutional Court comprising nineteen judges has also been provided.
• It resolves cases (a) about compliance with the Constitution of the Russian Federal, (b) of Federal laws, (c) normative acts of the President of the Federation; the Federation Council; State Duma; and the Government of Russian Federation; Republican Constitution, charters, laws and other normative Acts.
• The Constitution Court is the interpreter of the Constitution, though it will take up such cases on the advice of the President of Federal Council, State Duma, the Government Russian Federation and the legislative bodies subjects of the Russian Federation.'

Rigidity of the Constitution

• The Constitution is rigid in character.
• The proposals itbr amendments are to be made by the President of Russian Federation, the Federal Council, the State puma, the Government of Russian Federation as well as one-fifth of the Deputies of the Federal Council or the State Duma.
• The revision of the provisions of chapters 1, 2 and 9 of the Constitution to be supported by three-fifth of the total number of Deputies of the Federal Council and the State Duma.
• Thereafter, a special Constitutional Assembly will be convened in accordance with the federal constitution law.
•  Two-third members of the Constitutional Assembly or popular voting can approve it.
• Amendments to chapters 3-8 of the constitution can be adopted in, accordance with the procedures envisaged for the adoption of Federal constitutional law.'
• Amendments in Article 65 of the Constitution which determines the position of the Russian Federation shall be made on the basis of the Federal Constitutional law.
• The above provisions clearly reflect that amendment procedure is fairly cumbersome and quite complicated.

Supremacy of Constitution

• In the erstwhile Soviet Union, the Communist Party enjoyed supreme position. Constitution was handmaid of the party and it could be manipulated the way the Politburo of the Communist Party or its General Secretary so wanted.
•  However, constitution of 1993 has been accorded supreme legal position. It is applicable throughout the entire territory of Russian Federation.
•  The laws and other legal acts adopted by the Russian Federation may not contravene the Constitution. The organs of State bower, local self-Government officials, citizens and their associations are required to comply with the Constitution.
• The provisions of the Constitution constitute the foundations of the constitutional system of the Russian Federation and cannot be changed except as provided in the Constitution.
•  It has been clearly laid down that no other provision of this Constitution may contravene the foundation of constitutional system of the Russian Federation!' Like that of American Constitution, the Constitution of Russian Federation enjoys supremacy.

Sovereignty of People

• Article 3 emphasises sovereignty of people. The multinational people of the Russian Federation constitute the vehicle of sovereignty and the only source of power in the Russian Federation.
•  The Russian people exercise their power directly and also through organs of State power and local Self-Government.
•  The provision of referendum and free election reflect the supreme direct manifestation of the power of the people.
•  The sovereignty of the Russian Federation as derived from people applies to its entire territory. The Russian Federation ensures the integrity and inviolability of its territory.

Provision of State Principles

(1)     The Russian Federation is a social State whose policies aim at creating conditions which ensure a dignified life and free development of man.

(2)     The Russian Federation protects the work and health of its people; establishes a guaranteed minimum wage, provides State support for family, motherhood, fatherhood and childhood; and for the disabled and elderly citizens, develops a system of social services; and establishes Government pensions, benefits and other social security guarantees.”

Conclusion

The Constitution of the Russian Federation is a democratic Constitution. One-party dominance has since been replaced. Rights incorporated are not mere musty parchments. They exist in theory as well as in practice. The President of the Republic has been made all powerful; still his wings have been clipped to some extent.

ADMINISTRATIVE SYSTEM OF FRANCE

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.
• 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:

Written Constitution.

• Like the American Constitution, the French Constitution is a written Constitution.
•  It contains 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. The chapters of the Constitution are mentioned in Table 6.1.

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.

Unitary Constitution

• France is a unitary state. 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.

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 seven-year term, on the other, there is 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.

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.

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 t provide for a strong executive.

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.

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 national sovereignty and democracy."

Main Features of AUSTRALIAN  constitution

“If any country and its Government were to be selected as showing the course which a self-governing people pursue free from all external influences and little trammelled by intellectual influences descending from the past, Australia would be that country. It is the newest of the democracies."

—Lord Bryce

Intoduction         

• The present Constitution of Australia is to be found in the Commonwealth of Australia Act, 1900, which came into force on January 1, 1901.
• It is a statute of the British Parliament containing nine clauses.
•  The first  clauses are commonly called the 'covering causes'; they contain introductory, explanatory and consequential provisions.
• The ninth clause contains, ‘The Constitution’. The Constitution is divided into 8 Chapters and contains 128 Sections. Its main features are as follows:

Preamble

• The opening words of the Australian Constitution proclaim: "Whereas the People of the New South Wales, Victoria, South Australia, Queensland and Tasmania, humbly relying on the blessing of Almighty God, have agreed to unite into one indissoluble Federal Commonwealth under the Crown of the United Kingdom of Great Britain and Ireland, and under the Constitution hereby established ..."
• This means that although the Australian Constitution was enacted by the British Parliament, it however, is the product of the efforts Of the Australian people.
• The word 'Commonwealth' shows its democratic nature in a better way.
•  The `Federation is indissoluble' implies, no state has the tight to secession.
• Speaking on the Commonwealth of Australia Bill, 1900, in the House of Commons, Joseph Chamberlain, Colonial Secretary, observed: "The Bill has been prepared without reference to us, it represents substantially in most of its features the general opinion of the best judges in their own case, and we are quite content that the views of their representatives should be in these matters final."
• Quick and Ganan say: "The opening words o, the Preamble proclaim that the Constitution of the Commonwealth of Australia is founded the on the will of the people, it is clothed with the form of law by an Act of the Imperial Parliament of the Government of Britain and Ireland."
• Lord Bryce observes: "If any country and its Government were to be selected showing the course which a self-governing people pursue free from all external influences and little trammelled by intellectual influences descending from the past, Australia would be that country.
•  It is the newest of all the democracies."

A Union between Independent States

• Before the Federation came into being in 1901, present Australian states were self-governing British colonies:
•  At the conventions, an overwhelming majority of the delegates were in favour of the rights of the states.
• There was a strong emphasis on preserving the structure and powers of the states, so far as consistent with the union for specific and limited purposes.
•  The federal scheme proposed in the Commonwealth Act does not go very far in the centralising direction. Section 106 of the Act continues the constitution of the states, and. Section 107 emphasises this by continuing the powers Of the State Parliaments.
• The States have the power to amend their own constitutions. They derive their constitutions and powers from British statutes, just as much as the Australian Government derives its structure and powers from the British statute embodying the constitution.
• The Governors of the states are appointed by the Crown without any reference to the Federal Government and the latter has no power to interfere with the laws passed by the state legislatures.

A Federal Constitution

• The Constitution declares Australia a federation. All the requisites of a federation—written and rigid Constitution, division of powers and judicial review—are found in the Constitution.
• The powers of the Federal Government have been specified, the residuary being left to the states. The Federation is indissoluble.
• No state has a right to secede. In 1934, Western Australia submitted a petition to the British Parliament for secession from the Commonwealth of Australia and "A select Committee of the Lords and Commons decided that Parliament was by constitutional convention not competent to deal with such a matter merely upon the petition of a single state of Australia."
•  This decision emphasises the fact that in practice as well as in law, no right of secession vests with any state acting alone.
• The Australian federation is akin more to American federation than to Canadian.

Parliamentary Government

• The Constitution of Australia provides for a Parliamentary Government at the Centre.
• The powers of the Governor General are exercised by him only on the advice of Federal Ministers or the Executive Council.
•  He is appointed by the Crown on the advice of the Ministers of the Commonwealth and is an Australian citizen.
• He is liable tote recalled on the same advice". He is merely' a constitutional head.
•  The real power vests in the 'Federal Executive Council headed by the Prime Minister who is the leader of the party in majority in the Lower House.
• The ministers are jointly responsible to the House of Representatives and they remain in office so long as they enjoy the confidence of that House.
• The members are free to ask questions to the Ministers.
•  The House of Representatives and the Senate are elected directly by the people.
•  Each adult citizen, who is eighteen years of age or above, has the right to vote. In the states also parliamentary system exists.
• The head of the Council of Ministers in the states is called the Premier.

Civil Liberties

• Although the Australian Constitution does not contain any separate chapter on the fundamental rights of the people, the persons living in Australia are guaranteed their basic rights and liberties.
•  So far as the Constitution is concerned, it has only three provisions directly relevant to this topic: the guarantee of religious tolerance in Section 116, the requirement of non-discrimination in Section 117, and the requirement of just terms on acquisition of property in Section 51.
•  The other fundamental guarantees—liberty and security of persons, freedom of association, freedom of expression, freedom of movement, liberty to petition, fair trial, freedom from arbitrary arrest, are not included in the Constitution.
•  But it does not imply that the Australian people do not possess these rights. It is a general assumption of the Australian system that no interference by one person in another person's' affairs is lawful unless there is a specific rule of law which authorises the interference in question.
• There is no presumption that Governments or officials have powers merely because they exist. An often' to interfere in civil liberty will have to be justified by reference to a statute or regulation, etc., m under a statute.
•  As in Britain, people's liberties Australia are protected more by tradition than constitutional guarantees.
• In this respect, the Australian Constitution differs from the American and Indian Constitution which enumerate the basic rights of their citizens' is said that liberty is better protected under sys of Australian types than in the countries which have powerful constitutional guarantees of individual rights.
• Three main arguments are advanced support this view, first, when a liberty has a constitutional guarantee, it is easily destroyed in, by suspending the guarantee (in India it has often, happened); whereas in the absence of a guarantee, if would be necessary to repeal all the detailed laws relating to the question—a much more difficult anal complicated operation; second, that in the absence of a 'constitutional guarantee, the political grouping of the country will be more on the alert to resist infringements through demonstrations, etc, thus that effective Government is not possible without some limitations on liberty and if these limitations Fare stated in rigid legal form, the result is either too much or too little liberty at a particular time.
•  It may remarked that a completely comprehensive set of fundamental guarantees indubitably valid and binding on both Australian and state parliaments, as to the future can be created only by an amendment of the Constitution under section 128.

Rigid Constitution

• The Australian Constitution is a rigid one. Section 28 provides that only law proposing an amendment passed by an absolute majority in both the Houses of parliament must be submitted to the electors of the use of Representatives in each state and territory vote upon it by means of referendum within not than two nor more than one month after its passage through both the Houses.
•  If any such law passed by one House and rejected by the other, d is passed again by the same House after a lapse of three months or in the next session, the Governor General may submit the proposed law as last posed by the first-mentioned House, and either with or without any amendments subsequently to by both the Houses, to the electors in each for referendum.
•  If in a majority of the states the majority of the electors voting approve the proposed law, and if a majority of all the electors voting also rove the proposed law, it shall be presented to the Governor General for the Queen's assent.
• However, the amendment proposes an alteration of the its of any state or a diminishing of its proportion members in each House or a change of any sort its separate rights under the Constitution, it shall become law unless the majority of electors ling in that state approve it.
• Thus, an amending must first be passed in the Federal Parliament, d then at the referendum by a "double majority" the electors as a whole, and by the electors in a majority (four) of the states.
•  In some circumstances, amendment may require majority approval in state.
• Very few constitutional proposals have referred to the people in referendum and the substance of the Constitution remains much as it in 1901.
•  The amendments are rejected because they fail to receive the requisite state majority.
•  In report submitted in 1958, the Joint Committee on Constitutional Review suggested that in future if the overall majority in referendum was in favour of the proposal submitted, then only in three out of the six states and not a majority of the states, should a majority be required.
• The suggestion was repeated by the Committee in 1959. However, no action was taken on these reports.
• Even if the majority in three states instead of the four is provided, the Constitution of Australia would still remain very rigid.

Equal Representation in the Senate

• Like the American Constitution, the Australian Constitution also provides for equal representation of the states in the Upper House.
•  Original every state had six senators. However by the Representation Act of 1948, the membership tees increased from 36 to 60, and each state was given the right to send 10 representatives.
• The senators are elected by the people directly. In the composition of the Senate, the Australian Constitution follows the American pattern.

Independent Judiciary

• In the organisation of judiciary, the Australian Constitution follows the American model.
• The High Court of Australia has been given the power of judicial review. It can declare any law unconstitutional.
• It is the final court of appeal in all Federal cases. It can also hear appeals from the Supreme Courts of the States.
• The judges cannot be removed except by the Governor-General-in-Council, on an address from both the Houses Parliament in the same session, praying for removal on the ground of proved misbehaviour or incapacity.

Separation of Powers

• The Australian Constitution follows the basic tripartite 'separation of powers' made familiar by the British and Colonial practice.
• The Constitution vests Federal Parliament in which legislative power is vested (Section 1), a body of Ministers acting in the name of the Queen and Governor General, in whom the executive power is vested (Section 61), and Federal Judiciary, exercising the power of judicial review.
• In virtually all matters, the Governor General acts as advised by his Ministers, but can be rare cases in which he has to exercise personal discretion.

States’ Constitutions

• Like the American Constitution but unlike the Indian, the Australian Constitution does not include the structure of the state governments. It only makes some general provisions in regard the states.
• Section 106 says: "The Constitution each state of the Commonwealth shall, subject Constitution, continue as at the admission sir establishment of the state, as the case may be, until altered in accordance with the Constitution of the State."
• The states Constitutions take their origin in British statutes, and differ materially in constitutional type from the Federal Constitution.
• In order to get a complete picture of the six state Constitutions, one has to go back over a series of British statutes. The states have from time to time order to consolidate the whole of their statute produced a single 'Constitution Act.'
• Thus, the South Australia Constitution Act, was reprinted as amended in 1961, Tasmanian Constitution Act in 1959, New South Wales in 1957, Victoria's in 1958, Queensland's in 1962, Western Australia's in 1967—these state Constitutions vary in length and in the statutes they include. If the Tasmanian Constitution Act has 46 Sections,' Victorian Constitution has 478 Sections.
• The Constitutions are simpler and more flexible thaw Federal Constitution.

Inter-State Commission

• The Australian Constitution provides for Inter-State Commission, with such powers adjudication and administration as the Parham deems necessary for the execution and maintenance within the Commonwealth, of the provision the Constitution relating to trade and commerce and of all laws made there under.
• The members the Inter-State Commission are appointed by Governor General-in -Council for a period of s years removable on an address from both Houses of Parliament on the ground of proved misbehaviour or incapacity.

Therefore, the Australian Constitution like Indian Constitution is a mixed form of the British and the American Constitutions. It is a parliamentary democracy with federal scheme but unlike the Indian Constitution, the states in Australia have their own, Constitutions with the power to amend them. It is more federal than the Indian Constitution.

Salient Features of the 1982 Chinese Constitution

"The new Constitution sums up the historical experience of China's socialist development, reflects the common will and fundamental interests of all nationalities in the country, conforms to the situation in China and meets the needs of socialist modernization."     -Peng Zhen

As referred in Chapter 1, the Constitution as adopted on December 4, 1982, and later amended in 1993 and 1999 affected a few minor and a few substantial amendments in the Constitution of 1978.

The salient features of 1982 are as follows:

A Written Document

• Like the previous Constitution, it is a written document, presently consisting of 138 Articles.
•  It is not as brief as the Constitution of 1975 that consisted of 30 Articles and more elaborate than the Constitution of 1954, which comprises 116 Articles and a long Preamble.

Flexibility

• The present Constitution like the earlier Constitution is flexible. According to Article 64, amendment may be moved either by the Standing Committee or by more than one-fifth of the total members of the National People's Congress.
• Amendment so moved can be effected only if more than two-thirds of all the members of the Congress accord approval. Keeping in view the dominance of the Communist Party, such a majority to support the amendment is a foregone conclusion.
•  The other statutes and resolutions can be adopted by a majority vote of more than a half of all deputies to the National People's Congress.

Unitary State

• China is a multinational unitary State. Though a vast country inhabited by the largest population, it is not divided into autonomous provinces or States on the pattern of India or Canada.
• Nor it is a ‘Federation in Federation’ like that of former Soviet Union.
•  The Chinese Constitution does not even pay lip homage to the federal concept. It, however, emphasised freedom and equality of nationalities though they are devoid of power.
• According to the Preamble of the Constitution, "China is a unitary multinational state built up jointly by the People of all its nationalities"
• It is claimed that the unity of the country has been achieved against imperialism and public enemies of the people, As such, the state promotes the unity of the nation though allows diversity of nationalities. None of the nationalities is, however, allowed to pose a threat to the nation through chauvinism or secessionism.
• A strong Central Government has been established though limited autonomy to the provinces has been guaranteed.
• For administrative convenience, the country has been divided into twenty-one provinces, five autonomous regions and two cities-—Beijing and Shanghai—under the Central Government.
• The provinces work as mere agents of the centre and their autonomy is a mere farce.
• The provinces are also divided into autonomous chou, counties, autonomous counties and municipalities.
• They are mere local administrative units which enjoy such powers as are delegated to then by provincial and regional authorities. The national minorities in fact enjoy only cultural autonomy and that too to a limited extent.
•  The control of the party is all-pervasive. Even cultural autonomy is manipulated to serve the interests of the party.
•  For instance in Tibet, the non-Tibetans are being settled to merge their cultural entity into Chinese culture.
• The Tibetans are neither allowed equality nor any freedom to run their own affairs.
• A violent current in Tibet in 1989 for the attainment of autonomy is a witness to this hard fact.
•  Even now Dalai Lama talks of full autonomy of Tibet though the Chinese leaders consider it as 'cry in the wilderness'.
• Thus it can be concluded that China is a highly Unitarian State.
• The so-called equality of all nationalities as provided in Article 4 and the assertion of their lawful rights is a mere figment of imagination.
•  The nationalities do, however, speak their own language and preserve or reform their own ways and customs.
• The National People's Congress the exclusive legislative authority and Beijing—the national capital, the centre of authority.

Power with the People

• All power in China belongs to the people. It is exercised through the National People's Congress and the Local People's Congresses elected by the people at different levels.
• All organs of State power are supposed to rely, on the masses of the people, maintain close contact with them, heed their opinions and accept their supervision.
•  The feudal lords and the capitalists have been divested of all political rights.
• However, they have been allowed to earn a living in order to enable them to reform themselves through work and learn to become citizens who earn their livelihood by their own labour.

People's Democratic Dictatorship

• The People's Republic of China can neither be categorised as Parliamentary nor Presidential type of democracy.
• The Republic is now headed by the President who is only a nominal head and performs ceremonial functions. There is a State Council headed by the Prime Minister who is supposed to be the real executive authority in China.
• The State Council is responsible to the National People's Congress—the unicameral legislature and a duly elected body. Now the Prime Minister cannot hold office for more than two terms, i.e. ten years. All this reflects a democratic character of the polity.
• However, dictatorship is discernible from the fact that the State Council functions under the guidance of the Communist Party of China.
• The chairman of the Communist Party holds the sway. Chou En-lie the first Prime Minister who remained in office from 1949 to 1976 (the earlier constitution did not impose restriction of tenure) was playing second fiddle to Mao, the Chairman of the Communist Party.
•  Now the Chairman is designated as the General Secretary of the Party.
• It was Zhao Ziyang later Jiang Zamin who formerly held and xi xingpin who now holds the reins of authority in the real sense as General Secretary and since March 2012, holds dual charge as President of the country and General Secretary of the Party,  Li Keqiang has been the Prime Minister since March 2012.
•  It is the Party and its top leadership which governs the country with iron hand.
• The Preamble of the 1982 Constitution rightly proclaims, "Under the leadership of the Communist Party of China and the guidance of Marxism-Leninism and Mao Zedong thought, the Chines People of all nationalities will continue to adhere to the people's democratic dictatorship and follow the socialist, road ... " What was said earlier is true till date.
• However, the leaders have been changing but not their overall policy.

Democratic Centralism

• The principle of democratic centralism—a Soviet innovation has been portrayed by the critics as superior to bureaucratic centralism.
•  The Communist Party of China had adopted the democratic centralism in its organisation and working even before the occurrence of the Revolution.
• The principle was adopted according to the organic w of 1949 which declared. "The Government of people's Republic of China is a Government of the people's congress system based on the principle of `democratic centralism."
• The same idea was asserted the Constitution of 1954, 1978 and now 1982. The National People's Congress and other organs of State, practice democratic centralism.
• The participation of adults (now of 18 years) in the election of National people's Congress and other organs of State power acceptance of principle of accountability of higher governmental organ to the lower elected y reflects adoption of democracy. Centralism is ever, predominant.
• All policy formulation and supervision of its implementation is done by the central organs like the Standing Committee of the National People's Congress and the State Council. e preponderating role of the Communist Party, Secretary-General, in particular, is all-pervasive d of overwhelming nature.
• This combination if democratic participation and accountability at I levels and centralised policy making and its implementation by the central organs or according the dictates of the apex of the Communist Party termed as democratic centralism.
• This principle been the basis of erstwhile Soviet Union's governmental system and it presently constitutes very foundation of the Government of the Communist China.
• However, in both the countries, centralism had been of primary significance.

                The planned economy has enabled China to maintain its position as Number I economy in the Id during the global recession. Chinas' growth remains on the top. It has excelled even USA, UK, France during Recession period.

A Chapter of Rights

• Chapter 2 comprising Articles 33-51 of the Constitution incorporates fundamental rights and Articles 52-56 describe the duties.
•  Broadly speaking, rights can be categorised as economic, social, cultural, political and civil and personal liberties.
• Article 33 signifies that all persons holding the nationality of People's Republic of China are citizens of the country.
• As such, they enjoy equality before law and are guaranteed all fundamental rights.
• They are also required to perform the duties prescribed by the Constitution. Right to work, right to rest, and right to material security in the old age and in case of physical incapacity are important economic rights.
• Right to education, freedom to engage in scientific research, and other cultural pursuits are salient social and cultural rights. Political rights comprise right to vote and seek election, right to criticise and make suggestions to any state organ or functionary.
•  Civil Rights and personal /liberties include right to freedom of speech, of press, of Assembly, of association, of procession and demonstration and freedom of religion. Besides, personal freedom is promised in China.
• Unlawful detention or deprivation is prohibited. The personal dignity of the citizens is inviolable.
• Women enjoy parity with men in all fields—economic, political, cultural and. family life.
•  The right to personal property and inheritance has been recognised through Article 13 of the Constitution.
• The Fundamental Rights seem to be imposing but in a communist country legal truth is a political untruth. According to Article 51 of the Constitution, the enjoyment of these rights should not mean infringement upon the interests of the State, society, collectives or lawful freedoms and rights of other citizens.
• The existence of this Article has resulted the negation of fundamental rights and freedom.
• Besides these rights as per Constitution an impressive list of fundamental duties to be performed by each citizen has been provided.
• These duties comprise: to safeguard the unity of the country and all its nationalities; to defend the motherland and resist aggression; to abide by the Constitution and the laws; to pay taxes; to practise family planning; to work if person is able-bodied and to perform military service and join militia in accordance with law.

A Socialist State

• The Constitution is based on the definite ideology of Marx, Engels and Lenin as interpreted by Mao Zedong.
• The Chinese democracy is a four-class dictatorship over three enemies—the feudalists, the imperialists and bureaucrat-capitalists.
• The Constitution, in fact, 'establishes a peoples' democratic state, led by the working class and based on the alliance of workers and peasants.
•  All power belongs to the people though it is exercised by and under the guidance of the Communist Party of China.
• Article 1 declares, "China is a socialist state under which the people's democratic dictatorship is led by the working class and based on the alliance of workers and peasants."

Unicameral Legislature (NPC)

• Unlike the now defunct Soviet Union Russian Federation, China has opted for a unicameral legislature-National People's Congress. According to Article 58, legislative power of the State is exercised by the National People's Congress and its Standing Committee.
•  The number of deputies and manner of their election are prescribed by law. In the first plenary session of NPC convened in March 1998, 2,974 deputies attended.
• The NPC elected for a period of five years. At least one session of NPC is convened every year by the Standing Committee or one-fifth of the members of the NPC.
•  The NPC is the sole law-making body for the country.
• However, during its recess, legislation is enacted by its Standing Committee. Economic and social planning is also controlled by the NPC.
•  It approves the budget and elects the Prime Minister, the President and the Vice-President of China, the President of the Supreme Court and Procurator General of the Supreme People's Procuratorate.
• It possesses the power of removal of all these incumbents as well.
•  Though its powers seem fairly impressive yet in practice it is only a formal body. it functions under the control and guidance of the Communist Party of China.

Provision of Standing Committee

• The 1982 Constitution like the earlier Constitutions has made a provision for the Standing Committee of the National People's Congress. Like its prototype Soviet Presidium, it is a continuous functioning legislature. The Constitution does not specify the composition of the Standing Committee.
•  It is elected by the National People's Congress and its composition varies from election to election. It comprises one Chairman, several Vice Chairmen, one Secretary General and a number of members.
•  In March 1998, 34 members were elected to the Standing Committee with Li Peng as its Chairman.
• The tenure of the Stand Committee is coterminous with the National, People's Congress. The Standing Committee is described as the permanent executive agency of than National People's Congress.
•  However, the powers exercised by it, according to the 1954 Constitution have been curtailed by the new Constitution.
•  With the reintroduction of office of the President in 19 the Standing Committee has been reverted to pre-1975 position.
•  Thus, it has lost its old glam In the process of gradual advance towards communism, the role of the Communist Party adversely affected the position and effective power of the Standing Committee.
• Thus, its old pos. has suffered a setback, due to the creation of office of President in 1982 and the overwhelming influence of the Communist Party.

Implicit faith in Marxist-Leninist-M thought though with renewed approach

• The New Constitution reflects the embodiment of Marx, Lenin and Mao's thought with modification. The past mistakes during C Revolution have been duly accepted.
• However, the institutional framework of Post Mao pen been streamlined and strengthened. Retreat the Cultural Revolution was tactfully present new political norms and principles were The concepts of de-centralization, liberal the economy and incorporation of Private in the Socialist economy were now to be parcel of the Chinese Economic System as led to modernization of Chinese environment the words of the Vice Chairman of Constitutional Revision Committee, "The New Constitution sums up the historical experience of o" socialist development, reflects the common will and fundamental interests of all nationalities in the country, conforms to the situation in China d meets the needs of socialist modernization. Evidently, New China is a glaring example of complex of three thoughts—Marxism–Leninism, Mao Zhedong and Deng Xthopnig.

Peculiar Role of Judiciary

• The role of judiciary in a socialist country is entirely different from the Western democratic judiciary. China is no exception.
• The Supreme People's Court—the highest organ of Chinese judiciary—is le guarantor of the socialist legality.
• It possesses original and appellate jurisdiction as well.
• It is with cases of national importance in original jurisdiction and hears appeals against the decisions the higher People's Courts in the provinces and autonomous regions. The Court consists of President, Vice-Presidents and other judges.
• The President is elected by the National People's Congress for five years and is removable by it.
•  The Vice President and other judges are elected by the Standing Committee for five years on the recommendation of the President and are removable by the same authority.
•  The President, Vice-President and other judges are re-eligible for election only once.
• The judicial structure is pyramidical, local peoples' Courts constitute the base and Supreme People's Court is the apex of the judicial system.
• Unlike that of the USA, China has opted for single judiciary whose main task as already said is to establish socialist legality under the leadership of the Communist Party.
• The courts are also part of the apparatus of the democratic dictatorship managed according to the dictates of the leadership of the Communist Party.

Constitution of India

The constitution of India was framed by the Constituent Assembly, set up in 1946 under the provisions of cabinet mission plan. Dr. Rajendra Prasad was the president of Constituent assembly and Dr. B.R. Ambedkar was the Chairman of the seven –member Drafting Committee which drafted the constitution.

The Indian constitution is the lengthiest and most detailed written constitution in the world. Though most of the features of our constitution are substantially borrowed from others, the framers gathered the best features of each of the existing constitutions and modified them according to the existing needs and conditions of the country.

The preamble of the constitution declares India a sovereign, Socialist, Secular, and democratic republic. It highlights justice, liberty, equality and fraternity as objectives of the constitution.

The Constitution of India consists of a preamble, 22 parts and 12 schedules. Although it is federal in nature it also has a strong unitary bias.

Parts

The individual Articles of the Constitution are grouped together into the following Parts:

Part I	Union and its Territory
Part II	Citizenship
Part III	Fundamental Rights
Part IV	Directive Principles of State Policy
Part IVA	Fundamental Duties
Part V	The Union
Part VI	The States
Part VII	States in the B part of the I schedule
Part VIII	The Union Territories Part IX – The Panchayats
Part IXA	The Municipalities
Part IXB	The Cooperative Societies
Part X	The scheduled and Tribal Areas
Part XI	Relations between the Union and the States
Part XII	Finance, Property, Contracts and suits
Part XIII	Trade and Commerce within the territory of India
Part XIV	Services under the Union, the States.
Part XIVA	Tribunals
Part XV	Elections
Part XVI	Special Provisions Relating to certain Classes.
Part XVII	Languages
Part XVIII	Emergency Provisions
Part XIX	Miscellaneous
Part XX	Amendment of the Constitution
Part XXI	Temporary, Transitional and Special Provisions
Part XXII	Short title, date of commencement, Authoritative text in Hindi and Repeals

Schedules

Schedules are lists in the Constitution that categorize and tabulate bureaucratic activity and policy of the Government.

First Schedule (Articles 1 and 4)	This lists the states and territories of India
Second Schedule (Articles 59(3), 65(3), 75(6), 97, 125, 148(3), 158(3), 164(5), 186 and 221)	This lists the salaries of officials holding public office, judges, and CAG
Third Schedule (Articles 75(4), 99, 124(6), 148(2), 164(3), 188 and 219)	Forms of Oaths – This lists the oaths of offices for elected officials and judges
Fourth Schedule (Articles 4(1) and 80(2))	This details the allocation of seats in the Rajya Sabha (the upper house of Parliament) per State or Union Territory
Fifth Schedule (Article 244(1))	This provides for the administration and control of Scheduled Areas and Scheduled Tribes
Sixth Schedule (Articles 244(2) and 275(1))	Provisions for the administration of tribal areas in Assam, Meghalaya, Tripura, and Mizoram
Seventh Schedule (Article 246)	The union (central government), state, and concurrent lists of responsibilities
Eighth Schedule (Articles 344(1) and 351)	The official languages.
Ninth Schedule (Article 31-B)	Originally Articles mentioned here were immune from judicial review on the ground that they violated fundamental rights. but in a landmark judgement in 2007, the Supreme Court of India held in I.R. Coelho v. State of Tamil Nadu and others that laws included in the 9th schedule can be subject to judicial review if they violated the fundamental rights guaranteed under Article 14, 15, 19, 21 or the basic structure of the Constitution.
Tenth Schedule (Articles 102(2) and 191(2))	"Anti-defection" provisions for Members of Parliament and Members of the State Legislatures
Eleventh Schedule (Article 243-D)	Panchayati Raj (rural local government)
Twelfth Schedule (Article 243-W)	Municipalities (urban local government)

SECTION D: BORROWED FEATURES OF INDIAN CONSTITUTION

Indian constitution has assimilated various features from other countries into its domain which imparts it a special character.

Following are the borrowed features of constitution from different countries.

From U.K.	Ø  Nominal Head – President (like Queen) Ø  Cabinet System of Ministers Ø  Post of PM Ø  Parliamentary Type of Govt. Ø  Bicameral Parliament Ø  Lower House more powerful Ø  Council of Ministers responsible to Lowe House Ø  Speaker in Lok Sabha
From U.S	Ø  Written Constitution Ø  Executive head of state known as President and his being the Supreme Commander of the Armed Forces Ø  Vice- President as the ex-officio Chairman of Rajya Sabha Ø  Fundamental Rights Ø  Supreme Court Ø  Provision of States Ø  Independence of Judiciary and judicial review Ø  Preamble Ø  Removal of Supreme court and High court Judges
From USSR	Ø  Fundamental Duties Ø  Five year Plan
From AUSTRALIA	Ø  Concurrent list Ø  Language of the preamble Ø  Provision regarding trade, commerce and intercourse
From JAPAN	Ø  Law on which the Supreme Court function
From WEIMAR CONSTITUION OF GERMANY	Ø  Suspension of Fundamental Rights during the emergency
From CANADA	Ø  Scheme of federation with a strong centre Ø  Distribution of powers between centre and the states and placing. Residuary Powers with the centre
From IRELAND	Ø  Concept of Directive Principles of States Policy(Ireland borrowed it from SPAIN) Ø  Method of election of President Ø  Nomination of members in the Rajya Sabha by the President

SECTION E: FEATURES OF INDIAN CONSTITUTION COMPARED WITH OTHER

COUNTRIES

1)       Written Constitution

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

·         India-Written and longest known constitution

·         USA-Written. It’s a product of 1787 constitutional document and subsequent amendments, the congressional statutes, executive orders, judicial interpretations and the political conventions.

·         Great Britain: British constitution is unwritten. Only small portion of British constitution is covered by written documents. The British constitution is an evolved one and not enacted one. Various sources of British constitution are: Conventions, Great Charters, Statutes, Common Law, Legal Commentaries.

·         France: Since French revolution France has changed its constitution quite often. The present French constitution which established the Fifth republic is a written constitution.

·         Japan: Present constitution of JAPAN became operative in 1947.It is also a written constitution.

2)       Flexible or Rigid

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

·         India: constitution is more flexible than rigid. It is only few the amendment of few of the provisions of the constitution that requires ratification by state legislatures and even then legislation by ½ states would suffice. The rest of the constitution could be amended by a special majority by union parliament. But with the rise of regional parties and coalition govt. even getting the legislation by half of the states is becoming difficult as is evident in the issue relating to NCTC.

·         USA: It has a rigid constitution. It can be amended by the congress by means of a special process provided by the constitution for that purpose.

·         Britain: Has flexible constitution. It requires no special procedure for its amendment and can be amended by the parliament in the same manner as ordinary laws are made.

·         France: Rigid Constitution-Needs Special procedure-60% majority votes in both the house of parliament is needed. Alternatively President can call a national referendum on constitutional amendment.

·         Japan: Rigid- Requires special process:

o    The amendment shall be initiated by the diet. Such a proposal must be passed by a majority of two-thirds of its membership.

o    After that it is submitted to the people for ratification at a special referendum or special election.

·         Germany: Rigid- Article 79 states the Basic Law may be amended by an absolute two- thirds majority of the Bundestag along with a simple two-thirds majority of the Bundesrat, excluding amendment of those areas defined by the eternity clause.

3)       Unitary or Federal

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

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

·         Federal features: Division of power, written constitution, Supremacy of constitution, Rigid constitution, Independent judiciary, bicameralism.

·         Some Non- Federal features:

o    Single constitution

o    Contitution has made centre very strong by vesting more powers in it such as governor is appointed by president, parliament can change the territories, borders and names of states by simple majority(article 3).

o    Constitution more flexible than rigid.

o    Single citizenship

o    Single integrated judicial system

2.       USA: It is a federal state. The constitution provides for division of power between central govt and state govt. residuary powers are vested in the states. Each state has its own constitution, elected legislature, governor and Supreme Court.

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

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

5.       Japan: Japanese constitution provides for a unitary state.

4)       Type of Govt (Parliamentary v/s Presidential)

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

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

·         Principles of parliamentary govt of India:

o    Nominal and Real executives: President is the nominal executive and prime minister is real executive.

o    Majority party rule: The political party which secures majority seats in lok sabha forms the govt.

o    Collective responsibility: The ministers are collectively responsible to the parliament/Lok sabha.

o    Double membership: Ministers are members of both, legislature and executive.

o    Dissolution of the lower house: The lower house can be dissolved on the recommendation of prime minister.

2.       USA: Has presidential form of govt. with following features:

o    President is both head of state and head of govt.

o    The president is elected by an electoral college for a fixed tenure of four years and can’t be removed by congress except by process of impeachment for a grave unconstitutional act.

o    President governs with the help of a Cabinet, an advisory body whose members are selected and appointed by him and can be removed by him at any time.

o    The president cannot dissolve the ‘house of representatives’ – lower house of congress.

o    The president and his secretaries are not responsible to congress for their acts.

3.       Great Britain: Has parliamentary form of govt where King is the nominal executive.

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

5.       Japan: Has parliamentary system with largely British parliamentary features except for the following:

o    The prime minister is chosen as well as appointed by king/queen but in Japan PM is chosen by Diet but appointed by emperor.

o    In Britain ministers are appointed by king/queen but in Japan by PM.

o    Britain-PM can’t remove ministers but in Japan PM can remove.

o    Britain-All ministers must be members of parliament, in Japan only majority must be members of Diet.

5)       Sovereignty of Parliament

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

1.       UK: Parliament has the supreme power:

o    It can make, amend, substitute, and repeal any law.

o    The parliament can make constitutional laws by the same procedure as ordinary laws.

o    There is no system of judicial review in UK i.e. parliamentary laws cannot be declared as invalid by judiciary as being unconstitutional.

2.       France: Has a parliament with limited powers vis a vis political executive. It can only make laws on those items which are defined in the constitution. On all other matters govt is empowered to legislate by executive decree.

·         Constitutional council: France has a constitutional council with nine members who are appointed for a term of nine years. It functions as a judicial watchdog. It is only an advisory body.

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

6)       Republic v/s Constitutional Monarchy

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

·         Republic Countries-India, USA, France, Germany, Russia

·         Constitutional Monarchy- UK, Japan

7)       President

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

·         The real executive being council of ministers headed by Prime minister. He/She has to exercise his powers and functions with the aid and advice of council of ministers headed by PM.(Art 53, 74,75)

·         The President is indirectly elected by the people through elected members of the Parliament of India (Lok Sabha and Rajya Sabha) as well as of the state legislatures (Vidhan Sabhas), and serves for a term of five years.

·         President can be removed from his/her office before completion of term by impeachment for violation of constitution.

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

·         The president leads     the executive branch of     the federal government and is the commander-in-chief of the United States Armed Forces.

·         Constitutionally president is elected by an electoral college constituted by an electoral college constituted for the purpose. The members of this college are elected directly by the people of all the states .The College is a special body which is formed only for electing the president and gets dissolved after elections. The American presidency is one of the strongest democratic office in the world.

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

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

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

·         The President is directly elected by suffrage.

·         The length of the term was reduced from 7 yrs. A president cannot serve more than two consecutive terms. The president can be removed from the office through an impeachment process for high treason.

·         The impeachment resolution should be passed by both houses of parliament by an absolute majority.After this president is tried by high court of justice.

4.       Germany-The President of the Federal Republic of Germany As Germany has a parliamentary system of government with the Chancellor running the government, the President has mainly ceremonial and supervisory duties.

·         President can give direction to general political and societal debates and has some important "reserve powers" in case of political instability

·         All federal laws must be signed by the President before they can come into effect; he can only refuse to sign a law that he believes to violate the constitution.

·         The President is elected by the Federal Convention, a body established solely for that purpose.

·         While in office the president enjoys immunity from prosecution and cannot be voted out of office or recalled. The only mechanism for removing the president is impeachment by the Bundestag orBundesrat for willfully violating German law. Once the Bundestag impeaches the president, the Federal Constitutional Court is charged with determining if he or she is guilty of the offence. If the charge is sustained the court has authority to remove the president from office.

8)       Citizenship

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

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

3.       UK-When becoming a British citizen one does not need to give up your present citizenship or nationality to become a British citizen.One will not normally lose British nationality if he/she becomes a citizen or national of another country.

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

5.       Germany- Dual citizenship is allowed under certain circumstances

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

9)       Fundamental Rights , Directive Principles and Fundamental Duties

Fundamental Rights

1.       India- Indian constitution has certain fundamental rights modelled on American Bill of Rights. But unlike USA fundamental rights in india are not absolute and hence govt can impose reasonable restrictions on them. Whether the restrictions are reasonable or not is to be decided by the courts.

The six fundamental rights recognised by the constitution are:

·         Right to equality, including equality before law, prohibition of discrimination on grounds of religion, race, caste, sex or place of birth, and equality of opportunity in matters of employment, abolition of untouchability and abolition of titles.

·         Right to freedom which includes speech and expression, assembly, association or union or cooperatives, movement, residence, and right to practice any profession or occupation (some of these rights are subject to security of the State, friendly relations with foreign countries, public order, decency or morality), right to life and liberty, right to education, protection in respect to conviction in offences and protection against arrest and detention in certain cases.

·         Right against exploitation, prohibiting all forms of forced labour, child labour and traffic in human beings;

·         Right to freedom of religion, including freedom of conscience and free profession, practice, and propagation of religion, freedom to manage religious affairs, freedom from certain taxes and freedom from religious instructions in certain educational institutes.

·         Cultural and Educational rights preserving Right of any section of citizens to conserve their culture, language or script, and right of minorities to establish and administer educational institutions of their choice.

·         Right to constitutional remedies for enforcement of Fundamental Rights.

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

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

Fundamental duties

1.       India- Fundamental duties have been taken from USSR. No other major country has it. Fundamental Duties are the ones that are recognized as moral obligations the citizens are expected to perform. Article 51A under Part IV A of the Constitution of India speaks of the Fundamental duties. One cannot enforce these fundamental duties legally. It was through the 42nd Amendment that these duties were introduced in the Constitution.

There are 10 Fundamental duties that the citizens are expected to discharge. They are:

·         The citizens of India are expected to be abide by the Constitution and respect all its ideals. Likewise, the citizens are expected to respect the National Flag and the National Anthem.

·         The noble ideals that inspired our freedom struggle have to be cherished and followed.

·         The sovereignty, unity and integrity of India needs to be upheld and protected.

·         Citizens should be ready to defend and render national service towards India.

·         The spirits of common brotherhood and harmony have to be promoted by all the citizens wherein they need to transcend all forms of diversities pertaining to religion, language and region. All the practices that are derogatory to the dignity of women have to be renounced.

·         India has a rich, varied and composite culture and one needs to preserve it.

·         Natural environment including the forests, lakes, rivers and wildlife are expected to be preserved by the citizens.

·         People of India are expected to develop within themselves humanism, scientific temperament, and spirits of inquiry and reform.

·         Public property is expected to be safeguarded and violence needs to be avoided.

·         People are expected to strive for the excellence of all the individuals and collective activities to help in the development of the country.

Directive principles

The constitution of India contains certain directive principles (Part 4) which confer no justiciable rights on individuals but are regarded to be fundamental in the governance of the country-being in the nature of principles of social policy as contained in the Constitution of Republic of Ireland.

10)   Due process of law/Procedure established by law

DUE PROCESS - It is the legal requirement that the state must respect all of the legal rights that are owed to a person and laws that states enact must confirm to the laws of the land like - fairness, fundamental rights, liberty etc. It also gives the judiciary to access the fundamental fairness, justice, and liberty of any legislation.

PROCEDURE ESTABLISHED BY LAW - It means that a law that is duly enacted by legislature or the concerned body is valid if it has followed the correct procedure. Say a law enacted by Indian legislature. Article 21 of Indian Constitution says that- 'No person shall be deprived of his life or personal liberty except according to procedure established by law'.

Situation in India

In India, there is no mention of the word 'Due Process'. A strict literal interpretation of Procedure established by Law give the legislative authority an upper hand and they may enact laws which may not be fair from a liberal perspective.

However, in India a liberal interpretation is made by judiciary after 1978 and it has tried to make the term 'Procedure established by law' as synonymous with 'Due process' when it comes to protect individual rights. In Maneka Gandhi vs Union of India case (1978) SC held that - 'Procedure established by law' within the meaning of article 21 must be 'right and just and fair' and 'not arbitrary, fanciful or oppressive' otherwise, it would be no procedure at all and the requirement of Article 21 would not be satisfied. Thus, the 'procedure established by law' has acquired the same significance in India as the 'due process of law' clause in America.

Due process is not used in contemporary English law, though two similar concepts are natural justice (which generally applies only to decisions of administrative agencies and some types of private bodies like trade unions) and the British constitutional concept of the rule of law as articulated by A. V. Dicey and others. However, neither concept lines up perfectly with the American theory of due process.

11)   Emergency provisions

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

·         There are three kinds of provisions according to the Constitution:

o    National Emergency

o    State Emergency-Earlier it was misused quite often but with judicial ruling in SR BOMMAI case and rise of regional parties its no longer misused.

o    Financial Emergency-This type of emergency has never been declared so far.

·         Grounds for Proclamation of Emergency: Before the 44th amendment to the Constitution of India, the following are the grounds under which the President can proclaim emergency:

o    War

o    External Aggression

o    Armed Rebellion

2)       Australia-Unlike India, State-of-emergency legislation differs in each state of Australia.

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

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

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

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

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

o    The president of the United States, as head of the executive branch, has the authority to declare a federal state of emergency. The only emergency provisions in the U.S. Constitution are: "The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.

SECTION F: WORKING OF INDIAN CONSTITUTION: ANALYSIS (Conclusion)

The working of the constitution has stood the test of the time but certain recent developments such as fragmented polity, rise of regional political parties and governments formed by regional parties in the states, for eg in Tamil Nadu, Bihar, W Bengal etc has posed new challenges for the centre-state relations. Similarly, the advent of coalition govt post late 1980’s has raised certain questions for which constitution provides either ambiguous answers or no answers at all.

Considering the complexities and huge quantum of the task of modern day govt and changing nature of Indian politics there is a need to review and amend the constitution. Some of the areas in which changes are required are:

1)       Eligibility of legislators: Those candidates facing corruption and criminal charges should not be allowed to contest the elections.

2)       Frequent disruptions of parliamentary sessions have become the norm of the day. Minimum hours for which parliament have to work should be incorporated in the constitution.

3)       Changes in civil services rules to ensure impartiality and neutrality.

4)       The fundamental rights under part III of our constitution too need to include many of those rights that have developed over a history of various judicial pronouncements. These rights though not really stated in part III have been recognized as fundamental in nature and are better known as ‘implied fundamental rights’. For eg: Right to food, right to livelihood, right to clean potable drinking water, right to fresh and clean environment.

Hence, today if it’s getting harder to run the constitution then the problem does not lie in the constitution but in the “working” of the constitution. As the architect of Indian Constitution said that:

“Indeed, if I may say so, if things go wrong under the new Constitution, the reason will not be that we had a bad Constitution. What we will have to say is, that Man was vile.”                                                                                  – Dr. B.R. Ambedkar, November 4, 1948

SECTION G: MODEL QUESTIONS

1)       Indian constitution is a borrowed constitution. Discuss.

2)       Indian constitution is a ‘slavish imitation of the west’. Do you agree? Give reasons with examples.

3)       Inspite of borrowing majority of features from other constitutions, Indian constitution has failed to survive the present day complexities of the India’s political and administrative situation. Do you agree? Give examples.

4)       India should shift from Parliamentary form of governance to presidential form of governance. Critically analyse.

5)       India is a quasi federal state. Do you agree?

Sources:

1. D D Basu                                          2. M Laxmikanth                                                3. Fadia and Fadia                              4. Wikipedia