1.

INTRODUCTION:

In its broadest sense, a constitution can be defined as being a body of rules which
regulates the system of government within a state. It establishes the bodies and
institutions which form part of that system, it provides for the powers which they are to
exercise, it determines how they are to interact and coexist with one another and,
perhaps most importantly of all, it is concerned with the relationship between
government and the individual.

In his Five Constitutions, Finer defined constitutions as:

“Codes of rules which aspire to regulate the allocation of functions, powers and duties
among the various agencies and officers of government, and define the relationships
between them and the public.”

And Professor King in his Hamlyn Lecture offered the following definition:
“A constitution is the set of the most important rules that regulate the relations among
the different parts of the government of a given country and also the relations between
the different parts of the government and the people of the country.”

In a far narrower sense, a constitution amounts to the written statement of a state or

country’s constitutional rules in a documentary or codified form.

The United States of America has a written constitution, as does India, Australia, Canada,
and virtually every other state with the exception of the UK and Israel.

Thus a constitution is the fundamental law of a state by which a system of government is

created and from which it derives its power and authority. The fundamental law of a
state, written or unwritten, establishes a foundation of law , a framework of government,
ground rules, a relationship between the people and their government , It assigns the
powers and duties of government agencies and officials thereby setting up boundaries
for the government and empowers the government.
The basic role of a constitution is to give permanence and stability to the government
created by it.

2. Classifying Constitutions :

- 2.1 Written and unwritten :

Constitutions may be classified in a variety of different ways. As we have already

seen, constitutions may be written or unwritten, in the sense that they either exist
or do not exist in a documentary or codified form. Most constitutions consists of at least
partly of a special written document or group of documents that sets out what are
regarded as the most fundamental principles relating to government.
The UK has no such document but still considers itself to possess a constitution in the
sense of principles performing the same functions even though these cannot be
identified from any single document. Therefore, we must look to other ways in which
constitutions have been classified.

- 2.2 Federal and unitary :

Constitutions may also be classified on the basis that they are either federal or unitary. A
federal system entails government at both the national (or central) and state levels, with
national and state Parliaments, each of which has designated areas of legislative
competence under the constitution. The US constitution is therefore a two-tier federal
system, as are a number of other constitutions ,including those in Australia, Canada, and
South Africa.
A unitary system, by contrast, provides for government solely at the national level. E.g.
UK has an extreme unitary constitution since parliament is usually thought to have
unlimited lawmaking power not subject to any higher authority: the doctrine of
‘parliamentary supremacy’. . In a unitary state (such as the UK) there may be subordinate
units such as the devolved governments of Scotland and Wales but ultimate source of
power and authority (sovereignty).

- 2.3 Rigid and flexible :

This concerns whether it is easy for those in power to change the constitution to suit
their own interests. In legal terms some constitutions are rigid in them. This is known as
‘entrenchment’. In the UK no special process is required to change. However the courts
may resist interpreting laws so as to undermine what they regard as constitutionally
important matters. Whether a constitution is easy to change depends more on politics

than on law1.

One classification commonly used is to refer to constitutions as being either flexible

Or rigid. Flexible constitutions are generally considered to be those which can be
amended or altered with comparative ease. Rigid constitutions are those where
amendment is rather more difficult. Usually this will be because the constitution
requires that a special procedure is followed, as referred to above.
The UK constitution tends to be regarded as a flexible constitution in that it can be
amended simply by passing an Act of Parliament: there is no special procedure to be
followed. However, even though the process of amending may be straight forward,
reform is also dependent upon support for the proposed change. This may not always be
forthcoming.

- 2.4 Monarchical or republican:

A further classification which is adopted refers to a constitution as being either

Monarchical or republican. The UK constitution falls into the former category. A
republican constitution provides for the post of a President. In some states, the President
is effectively head of state and head of the government. This is the position in, for

1
Constitutional and administrative Law –John Alder
example, the United States and South Africa. In other states, however, the President may
be the head of state but may not have any real political power. India is an example of it ,
another example is Ireland, where though the President is the head of state, but the head
of government is the Taoiseach (Prime Minister).

 2.5 Parliamentary and Presidential :

Allied to the above classification is that which is made between constitutions that are
parliamentary and those that are presidential. In a parliamentary system, the head of the
executive branch of government is the Prime Minister. He or she will be a member of the
legislature and will be accountable to that body for the actions of the government. The
UK is therefore a good example of this system.
Under a presidential system, the President will be both head of state and head of the
executive branch of government. However, the President will not be a member of the
legislature and is therefore not directly accountable to that body.
The US system is a frequently cited example of a presidential system in that the elected
President is a member of neither the House of Representatives nor the Senate.

3. THE CONSTITUTION OF INDIA

The Constitution of India has some outstanding features which distinguishes it from other
constitutions. The framers of our constitution studied other constitutions, selected their
valuable features and put them with necessary modifications in our constitution.

The framers of the constitution of India did not aim at a completely new or original
constitution. They just wanted to produce "a good and workable" constitution. And they
succeeded doing this. The fact that the constitution, for last 65 years, has been working
satisfactorily is a testimony to its quality and utility. The salient features of the
constitution are analyzed below.

3.1. Constitution a ‘ Bag of Borrowing’:

Indian Constitution makers studied the Constitutions of several democratic countries (e.g.
UK, USA, Australia, Ireland , Canada) and adopted whatever material they could find
useful to suit the Indian circumstances and aspirations.

The fusion of the Theory of Fundamental Law – a concept basic to written Constitution of
the USA, with the philosophy of Parliamentary Sovereignty (unwritten Constitution of UK)
is a unique feature of the Indian Constitution.

- Parliamentary Form of Government :from U.K. viz. Bicameral Legislature; President as

the Constitutional head of the state; Cabinet and the Prime Minister. Also ,‘Rule of Law’.

- Federal structure/ distribution of subject matters of Legislature : From Canada viz.

strong centre, vesting of residuary powers in Centre.

- Concurrent list : From Australia.

- Directive Principles of State Policy: From Ireland.

- Powers of the President, position and duties of Vice- President: from USA.

- Preamble to the Constitution: Based on the model of the American Declaration of

Independence; and United Nations.

- Organization and Independence of the Supreme Court (including Judicial review): from
USA.

- Advisory opinion of the Supreme Court: from Canada.

- Fundamental Rights: From USA.

- Fundamental Duties: From USSR.

- Trade and Commerce: From Australia.

-Formation of Alternate Government: from Italy.

- Amendment of the Constitution: From U.S.A.

- Single Citizenship : From Canada.

- Procedure established by law: From Japan.

- Emergency Provisions: From German Reich, and , Government of India Act, 1935.

3.2. Preamble:

The Preamble, the preface to the constitution, describes the source nature, ideology,
goals and objectives of the constitution. Subba Rao, C.j observed “ the preamble contains
in a nutshell its ideals and its aspirations”2 . in the case of kesavananda Bharti
Sripadagalvaru and Ors.v. State of Kerala and Anr. 3 the constituent history of the
preamble was brought into the notice of the court and it was held that “the preamble of
the constitution was part of the constitution and the observations to the contrary in
Berubari Union case were not correct”.

It describes India as a Sovereign Socialist, Secular,Democratic Republic and underlines

the-national objective of social justice, economic justice and political justice as well as
fraternity. It emphasizes the dignity of the individual and the unity and integrity of the
nation. It declares that India is a Republic because the head of the state is elected and is
not a hereditary monarch.

The recognition of the preamble as an integral part of the constitution makes the
preamble a valuable aid in the construction of the provisions of the constitution because
unlike the preamble to an act ,the preamble to the constitution occupies the same
position as other enacting words or provisions of the constitution 4.

2
Golak nath v. State of Punjab ,AIR 1967 SC 1643, at 1655
3
AIR 1973 SC 1461
4
Charan lal sahu v. union of india ,AIR 1990 SC 1480
3.3. Written Constitution:

There are two types of constitutions in the world. Most of the constitutions are written.
The first modern written constitution was the American constitution. On the other hand,
the British constitution is unwritten. It consists of customs and conventions which have
grown over the years. In India, we have a written constitution. The framers of our
constitution tried to put everything in black and white.

The Constitution of India is a written constitution. It was framed by a Constituent

Assembly which was established for the purpose in 1946. It has 395 Articles , 22 parts and
12 Schedules. A number of amendments, (about 96) passed since its enforcement in
1950, have also become a part of the Constitution.

The Constitution of India is the lengthiest constitution in the world as no other

constitution contains as many articles. The constitution of USA has 7 Articles, of China
138, Japanese 103, and Canadian 107 Articles.

The Constitution of India is the longest one in the world. Originally it had 395 Articles
and 8 schedules. During the period since 1950 a few Articles have been deleted, but
many more have been added through amendments.

Today the constitution has 395 Articles ,22 parts and 12 schedules. .

The constitution became lengthy mainly due to the following factors.

(a) The constitutional fathers wanted to put everything in great detail.

(b) In other federations, there are two constitutions: one for the federation and the other
for the states. In India, the states do not have separate constitutions. The powers of
states along with the powers of the federation have been stated in one constitution.

(c) The Government of India Act, 1935 was in operation when India got independence.
Our leaders were familiar with this Act. They borrowed heavily from this lengthy Act while
framing our constitution.
(d) India is a country of great diversity. It is a country of several minorities; it has many
languages, castes, races and religions. The problems and interests of these different
groups have found place in the constitution.

(e) Good features of other constitutions have been included, with necessary
modifications, in our constitution. For example, we have brought the 'bill of rights' from
the American constitution, parliamentary system of government from the British
constitution and Directive Principles of State Policy from the Irish constitution.

While including these elements of other constitutions in our constitution Dr. B.R.
Ambedkar said the framers of our constitution tried to remove their faults and suit them
to our conditions.

(f) Many members of the Constituent Assembly were "lawyer-politicians". They have
made the constitution not only long, but also extremely complicated.

Ivora Jennings has described our constitution as a 'lawyer's paradise'.

Jennings says that a constitution should be intelligible to common people, but they fail to
clearly understand the Indian constitution which is very complex. Every article of this
constitution can be interpreted by the higher judiciary, and lawyers, while interpreting,
different articles, further complicate the constitution.

3.4. Partly Rigid, Partly Flexible:

Whether a constitution is rigid or flexible depends on the nature of amendment. If the

constitutional laws and ordinary laws are amended separate ways, it is a rigid
constitution. On the contrary, in a flexible constitution constitutional laws and ordinary
laws are amended in the same way.

For the purposes of amendment the provisions of the constitutions falls under three
categories. The procedure for each category is laid down in the constitution.
Firstly those that can be effected by a simple majority, required for the passing of an
ordinary law. The amendments contemplated in Articles 4,169 and 239-A and paragraphs
7 and 21 of the fifth and the sixth schedules respectively 239-A fall within this class.5 They
are specifically excluded from the purview of Article 368.

Secondly those that can be affected by a special majority as laid in Article 368(2). All the
constitutional amendments other than those referred to above come within this category
and must be effected by a majority of the total membership of each House of Parliament
as well as by a majority of not less than two-thirds of the members of that House present
and voting.

Thirdly ,those that require, in addition to the special majority as described above,
ratification by resolution passed by not less than one-half of the state legislatures. This
class comprises amendments which seek to make any change in the provisions referred
to in the proviso to Article 368(2).

Some provisions of the Constitution of India can be amended by the Indian Parliament
with simple majority. The amendment of most other provisions of the constitution
requires a special majority in both houses of the parliament. There are some other
provisions of constitution which cannot be amended by the parliament alone.

In case of such provision the amending bill has first to be approved by both houses of
parliament by a special majority (with the support of two-thirds of the members of each
house present and voting). Then it has to be ratified by the legislatures of at least half of
the states of India.

These different amendment procedures make our constitution partly flexible and rigid. In
fact, there is a balance between rigidity and flexibility in our constitution.

Some amount of flexibility was introduced into our constitution in order to encourage its
growth. Nehru feared that if a constitution is too rigid, it will be stagnant.

5
Art. 4- creation of new states or reconstitution of existing States;Art. 169(3)-creation or abolition of upper
chambers in the states; and Art. 238-A – constitution of centrally administered areas.
The Constitution of India is neither wholly rigid nor wholly flexible. It is partly rigid and
partly flexible. It is because of the fact that for the purpose of amendment, our
constitution has been divided into three parts: (a) certain provisions of the constitution
can be amended by a simple majority in the Parliament.

(b) Certain provisions can be amended by a two-third majority of the Parliament and its
ratification by at least fifty percent states.

(c) The remaining provisions can be amended by the Parliament by two-third majority.

3.5. Sovereign, socialist, secular, democratic, republic:

The Constitution declares India to be a Sovereign, Socialist, Secular, Democratic,

Republic. The words, 'Socialist' and 'secular' were added in the Preamble of the
Constitution by 42nd amendment which was passed in 1976.The addition of the word
‘Socialist’ indicates the incorporation of the philosophy of ‘Socialism’ in the constitution
which aims at elimination of inequality in income and status and standards of life 6 and
may enable the courts to learn more and more in favour of nationalization and state
ownership of industry7

3.5.1 Sovereign: Sovereign means absolutely independent; it is not under the control of
any other state. It is sovereign because it can make or unmake any decision with respect
to itself without interference by any other country. Before 1947, India was not sovereign
as it was under the Britishers. Now it can frame its policy without any outside
interference.

3.5.2 Socialist: The word 'Socialist' was added in the Preamble by 42nd Amendment of
the Constitution which was passed in 1976. The addition of socialist indicates the
incorporation of the philosophy of ‘socialism’ in the constitution which aims at

6
D.S Nakara v. Union of India; AIR 1983 SC 130
7
Excel Wear v. Union Of India ;AIR 1979 SC 25
elimination of inequality in income and status and standards of life8 and may enable the
courts to lean more and more in favour of nationalization and state ownership of
industry9 . This implies a system which will endeavor to avoid concentration of wealth in a
few hands and will assure its equitable distribution.

It also implies that India is against exploitation in all forms and believes in economic
justice to all its citizens.

3.5.3. Secular: The word 'Secular', like Socialist, was also added in the Preamble by 42nd
Amendment of the Constitution. There is no state religion in India. Every citizen is free to
follow and practice the religion of his/her own choice. The state cannot discriminate
among its citizens on the basis of religion. The state cannot force him to accept any
specific India is a secular state.

3.5.4. Democratic: It is democratic because the constitution ensures the creation and
existence of the government at regular intervals on the principle of universal adult
Franchise. It means that the power of the government is vested in the hands of the
people. People exercise this power through their elected representatives who, in turn, are
responsible to them. All the citizens enjoy equal political rights.

3.5.5. Republic: It means that the head of the State is not a hereditary monarch but a
President who is indirectly elected by the people for a definite period. Hence India is a
republic because the head of the state is elected and is not a hereditary monarch.

3.6. A Quasi Federal government:

Before coming into the conclusion whether our Constitution is Federal, unitary or quasi
Federal, we need to firstly understand what does this term respectively means.

8
D.S Nakara V. Union of India,(1983)1 SCC 305,325

9
Excel Wear v. union of india(1978) 4 SCC 224,245
3.6.1. In a federation, there is dual polity or two forms of governments , the Union
Government at the central level and the state Government at the state (province) level.
The field of Government is divided between the Federal and the State Governments
neither of which is subordinate to the other but are coordinate and independent within
the sphere allotted to them.

In India, the powers of the government are divided between the central government and
state governments. There are three different lists of subjects- (i) Union list, (ii) State list
and (iii) Concurrent list. The Union list contains 97 subjects of national importance like
Defense, Foreign Affairs, Currency, Post and Telegraph, Railways. On these subjects, only
central legislature (Parliament) can make laws. State list contains 66 subjects of local
importance. On these subjects, state legislatures make laws. These subjects include
agriculture, police, and jails. Concurrent list contains 47 subjects which are of common
concern to both the central and state governments.

These include marriage, divorce, social security etc. On these subjects, both the
parliament and state legislatures can legislate. However, if there is a conflict between a
central law and the state law over a subject given in the concurrent list, the central law
will prevail.

According to Professor K.C. Wheare this arrangement represents the federal principle in
the Constitution. Federal Principle according to him, is ‘the method of dividing powers
so that the general and regional Governments are each, within a sphere ,coordinate and
independent’10. Existence of coordinate authorities independent of each other is the gist
of the federal principle.

Thus the constitution establishes a dual polity, consisting of the Union at the centre and
the states in different parts of the country, each endowed with powers to be exercised in
the field assigned to them respectively by the Constitution. The powers of the Union and
the States are clearly demarcated. The constitution is written and is supreme. Moreover
no amendment which makes any changes in the status or powers of the Centre or the

10
K.C. Wheare: Federal Government, 10 (4th Edn. 1963)
units is possible without the concurrence of the Union and the majority of the States.
Finally it establishes a Supreme Court to decide disputes between the Union and the
States, or the States inter se and to interpret finally the provisions of the Constitution.

3.6.2. But in certain times the Constitution does not embody the federal principle
because the Centre can in certain contingencies encroach upon the field reserved for the
States. The power of intervention given to the Centre is inconsistent with the federal
system, for it places the States in a subordinate position.

For instance during a period of emergency, the Union Parliament can make laws in
relation to the matters in the state List, give direction to the States as to how they should
exercise their executive authority in matters which are within their charge, empower the
Union officers to execute matters in the State List and suspend the financial provisions of
the Constitution.11

Thus there are specific provisions on the basis of which it is asserted that the
fundamental postulate of a federal polity that the central and State Governments
functioning under it are coordinate authorities each independent within its own sphere is
so greatly modified in the relationship between the Union and the States that the Indian
Constitution cannot be called a federal Constitution.

All these provisions make India a federation. But in Indian Federation, the centre is strong
as compared to the states. The centre has more financial powers and the states largely
depend upon it for their economic development. The centre can reorganize a state, but a
state cannot reorganize the centre. In other words, the centre is indestructible while the
states are destructible. During emergencies, the powers of the centre considerably grow
and the states become weak.

11
Arts. 352,353,354,358,359
3.6.3. Wheare holds that that the Constitution establishes a system of Government which
is at the most quasi- federal, almost devolutionary in character; a Unitary State with
subsidiary unitary features.12

The similar view has been taken by the Hon’ble Supreme Court in the case of State of
W.B. v. Union of India13 in some of its pronouncements.

3.7. Parliamentary Democracy:

The constitution sets up parliamentary government both in the centre and the states.
Parliamentary government embodies the following essentials:

 The presence of a nominal executive head of the state who acts exclusively on the
advice of a council of ministers or cabinet. The nominal executive may be
hereditary as the king in England, elected , as the president in the Federal
Republic of Germany ,or appointed , as the Governor-general in a Dominion.
 The cabinet , which is the real executive, consists of leaders of a party, or of a
coalition of parties, who have the support of the majority in the Legislature. This
group of men agrees to pursue a common policy under a common leader,
namely, the prime minister.
 The Prime Minister occupies a dominant position in the cabinet. He appoints
Ministers and assigns to them their offices. He can dismiss any one of them . “The
Cabinet is the steering of the ship of State . But the steersman is the Prime
Minister”.
 The tenure of office of the Cabinet is dependent on the will of the legislature, but
if the Legislature consists of two Houses, on support of the Lower House this
means the ministry which has lost the confidence of the legislature, must retire
from office. A government remains in office so long as its policy has the approval
of the legislature.

12
Wheare: India’s New Constitution Analysed, 48 ALL LJ 21
13
AIR 1963 SC 1241
  The responsibility of the cabinet is collective. The cabinet acts as a body. Ministers
stand and fall together .From this it follows that the cabinet must, in all
circumstances, agree. if there is a disagreement among the ministers ,either the
cabinet as a whole or the dissentient Minister or Ministers must resign.” In no case
may be minister disavow , either expressly or by necessary implication ,the policy
of his colleagues so long as he remains as their colleague.”
 There are certain prerequisites of parliamentary government .

To quote from the Report of the Joint Committee of Parliament on Indian

Constitutional Reform 1934:

“Parliamentary government, as it understood in the united kingdom, works by the

interaction of four essential factors :the principle of majority rule; the willingness of the
minority for the time being to accept the decisions of the majority; the existence of great
political parties divided by broad issues of policy, rather than by sectional interest; and
finally the existence of a mobile body of political opinion, owing no permanent allegiance
to any party and therefore able, by its instructive reaction against extravagant
movements on one side or the other, to keep the vessel on even keel.”

The Council Ministers is responsible to the Lok Sabha. The Cabinet is the real executive
head. In Presidential form of government, the President is the executive head. In India,
the President is only the nominal head.

In India, the post of President is elective our founding fathers adopted the parliamentary
model for two reasons. Firstly, they believed that a parliamentary form of government
would be more responsible democratic than the presidential form of government.

Secondly, they were, to so extent, familiar with the parliamentary form of government
during the British rule particularly after the implementation of the Government of India
Act, 1935 .

Thus Indian Constitution provides for a parliamentary form of government for the union
and its states. Under Article 53(1) the executive power of the Union is vested in the
President, but by virtue of Article 74(1) in the exercise of his powers and functions he acts
on the aid and advice of the Council of Ministers headed by the Prime Minister. The
council of Ministers must accept responsibility for every executive act and is therefore ,
accountable for its actions to parliament.

This rule is incorporated in Article 75(3) which provides that the council of ministers shall
be collectively responsible to the house of the people. Thus the condition precedent for
the Council Of Ministers to function in the constitutional sense is its retaining the
confidence of the House of the People. The president has therefore, the status of a
formal or constitutional head of the government.

President is the nominal head of the state. In actual practice, the government is run by
the Prime Minister and other members of the Council of Minister. The Council of
Ministers is collectively responsible to the Parliament.

3.7. Fundamental Rights:

The constitution declares certain fundamental rights of the individual. Some of these can
be claimed only by a citizen of India while others can equally be claimed by non citizens
and groups also. A fundamental right,as defined in the constitution, differs from a non
fundamental right in one vital aspect: A fundamental right (subject to the qualifications
defined in the constitution itself) is inviolable, whereas a non Fundamental right
possesses no such characteristics.

It is inviolable in the sense that no other no law, ordinance, custom, usage or

administrative order can abridge or take away a fundamental right.

A law which violates any of the fundamental rights is void. The fundamental rights are
binding on the legislature as well as the executive. A fundamental right cannot be taken
away even by a constitutional amendment if it forms the basic structure of the
Constitution.
The Fundamental Rights are guaranteed to the individuals by our constitution. These are
enumerated in Part III of the constitution. These rights are fundamental because they are
basic to the moral and spiritual development of the individual and these rights cannot be
easily abridged by the parliament.

Now the citizen enjoys six fundamental rights, originally there were seven fundamental
rights. One of them was taken away from Part III of the constitution by the Forty-fourth
Amendment Act, 1978. As a result, the Right to Property is no longer a fundamental right.
Since 1978, it has become a legal right.

An individual can now own property; he can enjoy it or dispose of it. But when the
government takes it away, he cannot go for a writ challenging the validity of the
government's action.

The six fundamental rights are - (1) Right to Equality

(2) Right to Freedom

(3) Right against Exploitation

(4) Right to Freedom of Religion

(5) Cultural and Educational Rights and

(6) Right to Constitutional Remedies.

The Fundamental Rights are subject to some restrictions.

Any citizen of India can seek the help of High Court or Supreme Court of India if any of
his fundamental rights is undermined by the government or any institution or any other
government. The fundamental rights, granted to the citizen, cannot be amended in the
normal manner. They can be amended with two-third majority in each house of the
Parliament
Under the Indian constitution the fundamental rights have been provided in different
forms. In some cases there is an express declaration of right, e.g. Articles 25, 26, 29 (1) ,
30 (1) and 32, whereas in others they are declared as prohibitions without any reference
to any person or body to enforce them, e.g., Articles 18(1),23(1),24 and 28(1).

Some of these rights take specific forms of restriction on state action, e.g, Articles 14,15,
16,20,21,22(1), 27 and 28 and yet at the same time quite a few of them require State
action, e.g : Articles 15(4),15(5),16(3),16(4).16(5),22(7), 23(2), 25(2) and 30(1-A).A few of
them are expressly guaranteed against private action such as Article 15(2) while others
imply such guarantee against private action such as Articles 17, 20,23 and 24.

Some of them are in the form of positive declaration and simultaneously providing for
imposition of restrictions on these rights, e.g:, Articles 19(1) and Article 19(2) to 19(6). It
could does be seen that the declaration of fundamental rights does not follow a uniform
pattern.

But they seek to protect the rights of individuals or groups of individuals against the
infringement of these rights within specific limits, express or implied , with each right
having different dimension of facts.14

3.8. Directive Principles of State Policy:

The Directive Principles of State Policy are enumerated in Part IV of the constitution,
which though not enforceable in the courts , are fundamental in the governance of the
country. They are instructions or directives from the constitution to the state and the
government. It is the duty of the government to implement them. These principles are
intended to be the imperative basis of state policy. They are really in the nature of
instructions issued to future legislatures and executives for their guidance.

The chairman of the Drafting Committee, Dr. B.R Ambedkar said:

14
Rustom Cavasjee Cooper v. Union of India, (1970) 1 SCC 248, 289
“ the directive principles are like the instrument of instructions which were issued to the
Governor-General and to the Governors of the colonies and to those of India by the
British government under the 1935 Act…. The only difference is that they are instructions
to the legislature and the Executive. Such a thing is to my mind to be welcomed,
wherever there is a grant of power in general terms for peace, order and good
government, it is necessary that it should be accompanied by instructions regulating its
exercise.”15

The directive principles of State policy are non- Justifiable rights, which expressly have
been excluded from the purview of the courts. If the state is unable to take any positive
action in furtherance of the directive principles, no action can be brought against it in a
court of law. This want of enforceability had led a critic to describe them as “little more
than manifesto of aims and aspirations”.16a directive , which lacks the quality of
enforceability, is according to this view , useless or at least not worth forming part of the
Constitutional document.

The criticism is unjustified. by their very nature the rights enumerated in this part can
only be directives and cannot be justifiable rights. This is so because the directive
principles require positive action on the part of the state, and therefore can be
guaranteed only so far as practicable.

Originally there were 20 Directive Principles. Three more were added by the 42nd
Amendment Act, 1976. Thus, in total, there are now 23 Directive Principles.

Some of the important Directive Principles are:

(1) There should not be concentration of wealth and means of production to the
detriment of common man

(2) There should be equal pay for equal work for both men and women;

15
Constituent Assembly Debates, Vol. VII , P. 41
16
K.C Wheare, 5 Cal WN 102 at p. 104.
(3) Workers should be paid adequate wage;

(4) Weaker sections of the people, Scheduled Caste and Scheduled Tribe people should
be given special care;

(5) The state should promote respect for international law and international peace.

In general, the Directive Principles aim at building a Welfare State. The Directive
Principles are not enforceable in a Court of Law, though they are not binding on the
Government , they are mere guidelines and are fundamental in the governance of the
country. These principles provide the criteria with which we can judge the performance
of the Government.

3.9. Fundamental Duties:

A new feature was inserted in the Constitution in 1976 by the 42nd Amendment in
detailing the Fundamental Duties of the citizen in Article 51-A. Fundamental Duties did
not form part of the constitution. The amendment does not throw any light on the
objectives in introducing these fundamental Duties except that since the duties of the
citizen were not specified in the Constitution it was thought necessary to introduce them.
The effect of this part on Part III dealing with the Fundamental Rights is to be seen.

Ten Fundamental Duties were inserted in Part IV of the constitution 42nd Amendment
Act, 1976. Some of the important Fundamental Duties are:

(1) To abide by the constitution and respect the ideals and institutions, the national flag
and the national anthem;

(2) To uphold and protect the sovereignty, unity and integrity of India;

(3) To defend the country and render national service;

(4) To protect and improve the natural environment;

 (5) To safeguard public property and to abjure violence.

A new Article - Article 51-A enumerates ten Fundamental Duties. These duties are
assigned only to citizens and not to aliens. These duties are not justifiable, but, in case of
conflict, they will prevail over Fundamental Rights.

3.10. An Independent and Integrated Judiciary:

An independent and impartial judiciary is said to be the first condition of liberty. It is the
custodian of the rights of the citizen. In a federal constitution it plays another important
role; it determines the limits of the powers of the centre and the states.

The following provisions of the Constitution are intended to secure independence and
impartiality of the Supreme Court and the High Court’s:

 The president appoints the judges after consultation with judicial authorities. In
case of the appointment of the Chief justice of India, the president must consult
such judges of the Supreme Court; he must consult the Chief Justice of India. The
appointment of the judges of a High court will be made by the President after
consultation with the Chief Justice of India and Governor of the State.
 In case of the appointment of judge other than the chief justice, the Chief Justice
of the High Court concerned must be consulted. Thus, in the appointment of
judges, the constitution does not give absolute discretion to the Executive 17.

This position has been further strengthened by judicial interpretation which

assigns primacy to the Chief Justice of India in the matter of appointment of the
judges of the Supreme Court and the High Courts and the transfer of the latter from
one high court to another. Chief justice of India in this regard means a collegiums of
judges comprising the chief justice of India and four senior most judges of the
Supreme Court for the purposes of appointment of Supreme Court Judges and the
transfer of the High Court Judges and consisting of Chief Justice Of India and two

17
Art. 124(2), 217
 senior most judges for the purpose of appointment of judges of the High Courts.
The chief justice of India shall always be appointed on the basis of seniority unless
found unfit.18

 Security of tenure is guaranteed to every judge. A judge of a supreme court or of

a High Court can be removed on the ground of proved misbehavior or incapacity.
THE president can remove a judge only when an address has been presented to
him against that judge by each house of Parliament.19
 Salaries of the judges have been fixed by the Constitution and cannot be varied
by the legislature except during the period of financial emergency. Once
appointed, their privileges, rights and allowances cannot be altered to their
disadvantage.20
 The Supreme Court and the High Courts have been given authority to recruit their
staff and frame rules regarding conditions of service.21
 Expenditure in respect of the salaries and allowances of the judges is not put to
vote of the Legislature.22
 The administrative expenses of the Supreme Court, including salaries, allowances
and pensions, payable to its officers, are charged on the consolidated fund of
India. Similarly, administrative expenses of the High Court are charged on the
Consolidated Fund of the State.23
 The constitution debars the Supreme Court judges from pleading or appearing
before any court or judicial authority in India- even after retirement. Also after
retirement a judge of the High Court can practice only in the Supreme Court or in
a High Court in which he has not been a judge.24

18
Supreme Court Advocate-on-Records Assn. v. Union Of India,(1993)4 SCC 441
19
Arts. 124,218.
20
Arts. 125,221,360.
21
Arts. 146,229
22
Arts. 146,229
23
Arts. 146,229
24
Arts 124(7),220
  No discussion shall take place in the Legislature of a state or in a parliament with
respect to the conduct of any judge of the Supreme Court or of a High Court in
the discharge of his duties.25

Thus our constitution has done everything possible to make the Supreme Court and the
High Court’s independent of the influence of the Executive. An attempt is made in the
Constitution to make even the subordinate judiciary independent of extraneous
influences. The constitution also directs and facilitates separation of the Executive from
the judiciary and places the magistracy, which deals with criminal cases, on the same
footing as civil courts.26

The judiciary in India is independent and impartial. It is an integrated judiciary with the
Supreme Court at the apex of the hierarchy. The High Court’s stand in its middle, and the
lower courts are located at its bottom.

The Judges security of tenure and it is extremely difficult to remove any Judge of the
Supreme or of the High Court through impeachment.

Recently the Parliament failed to impeach Justice Ramaswamy of the Supreme Court who
was charged with corruption. Soft a single Judge in India has been removed from office
through impeachment.

The Supreme Court and the High Court have the power of Judicial Review. They have the
power to declare acts of legislatures and actions of the Executive ultra vires such acts or
actions are found to be in conflict with the provisions of the constitution.

For many years it was maintained that the Supreme Court of India did not have this
power. But now it is the view of the Supreme Court India that it can declare any law ultra
wires if it violates natural justice.

3.11. SEPERATION OF POWERS:

25
Arts. 121,211.
26
Arts. 50,237
The doctrine of separation of powers stated in its rigid form means that each of the
powers of Government, namely, executive or administrative, legislative and judicial
should be confined exclusively to a separate department or organs of the government.
There should be no overlapping either of functions or of persons .

Under the Indian constitution only executive power is “vested” in the President while
provisions are simply made for a parliament and judiciary without expressly vesting the
legislative and judicial powers in any person or body.

Accordingly the Indian constitution has not recognized the doctrine of separation of
powers in its absolute form but the functions of the different parts or branches of
government have been sufficiently differentiated and consequently it can very well be
said that our Constitution does not contemplate assumption, by one organ or part of the
State, of functions that essentially belong to another. The executive indeed can exercise
the powers of departmental or subordinate legislation when so empowered ,exercise
judicial function in a limited way.27

3.12. Welfare State:

Our constitution aims at building a Welfare State. It provides for development of weaker
and depressed sections of the society. It underlines the need of improving the conditions
of women, Scheduled Castes and Scheduled Tribes who have remained neglected for
long.

Our constitution is opposed to concentration of wealth and means of production.

Workers should be involved in management and they should get fair wages. Children
should not be exposed to hazards. All these provisions are expected to help in building a
Welfare State.

Article 326 of the Constitution of India provides universal adult suffrage. The voting age
has now come down from 21 to 18. Anybody who has completed 18 years of age is

27
Ram Jawaya v. State of Punjab , AIR 1955 SC 549,556.
eligible to vote in general elections. This is one of the most revolutionary aspects of
Indian democracy.

The constitution provides for Universal Adult Franchise. It means that every citizen who is
18 years of age or more is entitled to cast his/her vote irrespective of his caste, creed, sex,
religion or place of birth.

4. The CONSTITUTION OF UNITED KINGDOM

G.B Adams remarked: “The English Constitution has made a great circuit of the globe
and has become a common possession of civilized man”.
The Constitution of U.K is unique in nature and has provided inspiration for a number of

other constitutions in the world.

Constitutions organize, distribute and regulate state power. They set out the structure of
the state, the major state institutions, and the principles governing their relations with
each other and with the state’s citizens. Britain is unusual in that it has an ‘unwritten’
constitution: unlike the great majority of countries there is no single legal document
which sets out in one place the fundamental laws outlining how the state works.

British Constitution is a result of an evolutionary growth. Constitution efforts as well as

needs of time shaped its spontaneous growth. The British Constitution has evolved
over a long period of time, reflecting the relative stability of the British polity. It
has never been thought necessary to consolidate the basic building blocks of this
order in Britain.

What Britain has instead is an accumulation of various statutes, conventions,

judicial decisions and treaties which collectively can be referred to as the British
Constitution.

Britain’s constitutional development has been far more evolutionary and almost organic:
‘The British constitution grew like a forest, requiring long centuries and fertile earth to
flourish and come to maturity. It was not built like a temple, deliberately designed and
constructed in a short span of years, as its American equivalent was’.

4.1. Unwritten:

Britain is one of a handful of nations that does not have a written or codified constitution.
Only a handful of democratic nations, including Israel and New Zealand, have similar
constitutional arrangements. The British Constitution is unwritten in nature, to be more
precise, “uncodified”. But it does not imply that all of its parts are unwritten. It means that
it has not been reduced to writing in a single document. Some of the components are
found in written form such as the Reform Act, 1832, the Parliament Act of 1911 etc.

There are a number of treaties, laws and conventions which together make up the
Constitution. These include:

Acts of Parliament: Acts of Parliament are laws (statutes) that have received the approval
of Parliament – that is, the Monarch, the House of Lords and the House of Commons. On
rare occasions, the House of Commons uses the "Parliament Acts" (the Parliament Act
1911 and the Parliament Act 1949) to pass legislation without the approval of the House
of Lords.

It is unheard of in modern times for the Monarch to refuse to assent to a bill, though the
possibility was contemplated by George V in relation to the fiercely controversial
Government of Ireland Act 1914.28

Treaties: Treaties do not, on ratification, automatically become incorporated into UK law.

Important treaties have been incorporated into domestic law by means of Acts of
Parliament. The European Convention on Human Rights, for example, was given "further
effect" into domestic law through the preamble of the Human Rights Act 1998.

28
http://books.google.com/?id=HEC6Ivq2JK8C
Also, the Treaty of Union of 1707 was important in creating the unitary state which exists
today. The treaty was between the governments of England and Scotland and was put
into effect by two Acts of Union which were passed by the Parliaments of England and
Scotland, respectively.

The Treaty, along with the subsequent Acts, brought into existence the Kingdom of
Great Britain, uniting the Kingdom of England and the Kingdom of Scotland.

EU: European union law is simply a subcategory of international law that depends for its
effect on a series of international treaties (notably the Treaty of Rome and the Maastricht
Treaty). It therefore has effect in the UK only to the extent that Parliament permits it to
have effect, by means of statutes such as the European Communities Act 1972, and
Parliament could, as a matter of British law, unilaterally bar the application of EU law in
the UK simply by legislating to that effect.29

Common law: It is a body of judge made laws. It has defined some of the significant rules
and principles pertaining to the powers of the government and its relationship with the
citizens. Judgments of the higher courts form precedents or case law that binds lower
courts and judges; Scots Law does not accord the same status to precedent and
judgments in one legal system do not have a direct effect in the other legal systems.30

A constitutional precedent applicable to British colonies is Campbell v. Hall, which

effectively extended those same constitutional limitations to any territory which has been
granted a representative assembly.

Conventions: Conventions constitute a major element of the British Constitution, these

are the unwritten principles of political practices and customary principles of
constitutional behavior which have developed in the course of time. They are generally
observed as they are backed by tradition and public opinion.

29
http://en.wikipedia.org/wiki/Special:BookSources/978-0-19-927389-8
30
http://en.wikipedia.org/wiki/Special:BookSources/978-90-5095-191-3
Great Charters: These are also called as constitutional charters or constitutional
landmarks. They are historical documents which define the powers of the Crown and
liberties of the citizens, and so on. The important among such charters are the Magna
Carta (1215), the Petition of Rights (1628) the Bill of Rights (1689), and others.

Statutes: these are the laws made by the British Parliament from time to time. They
define and regulate the principles,structure and functions of many British political
institutions. The important statutes in Britain are the Habeas Corpus Act(1679),the Statute
of Westminster (1913), Ministers of the Crown Act( 1937), the people’s Representation Act
(1948), and others.

Works of Authority: It is the formal name for works that are sometimes cited as
interpretations of aspects of the UK constitution. Most are works written by nineteenth-
or early-twentieth-century constitutionalists, in particular A. V. Dicey, Walter Bagehot and
Erskine May.

4.2. Unitary:

In all states, power is exercised at a number of levels—central, regional, local etc. The
question is how that power is divided. In a unitary state, only the central government has
primary law making powers. Any lower tiers of government only exercise delegated

powers—that is powers given to them rather than powers that are theirs by right.

The British Constitution is a unitary constitution. All powers of the State are concentrated
in the hands of a single government for the whole country. There are no units or states in

British.

Although there is devolution, yet all authority flows from the Central Government
centered at London. In recent years, a national Parliament in Scotland with the Scottish
Government, a national Assembly for Wales in Wales with the Welsh Government and a
national Assembly in Northern Ireland Known as the Northern Ireland Assembly and the

Northern Ireland Executive have been created.

This process transferred varying levels of power from the British Parliament to these
assemblies. However, the final authority over the devolved institutions rests with the
British Parliament itself. Parliament is constitutionally supreme. The local areas, as they
exist in Britain, derive their powers from the Acts of Parliament which may be enlarged or
restricted at its will. The local government machinery is merely an agent of the Central
Government .If the Parliament so desires, the Parliament can abolish the whole complex
structure of local government by a single enactment.

4.3. Supremacy Of The Parliament:

In U.K, Parliament has complete Supremacy or sovereignty.There is no law which the

British Parliament cannot make or unmake. No court can question the validity of the Acts
of Parliament. There is no judicial review and no authority can declare that the laws made
by Parliament are null and void. No law enacted by the parliament can be challenged in
the court on the plea that is against the constitution.

The authority of Parliament is absolute covering both the enactment of ordinary laws and
most radical changes in the government itself. It can, if it so desires, even abolish the
monarchy or abolish the House of Lords. Even the veto power has become obsolete and

the monarch must give his assent to all bills passed by the Parliament.

According to British writer and political philosopher, Prof. Ogg, although the Parliament
operates under plenty of practical restraints – moral inhibitions, public opinions,
international law, and international agreements, yet from the legal point of view, it faces

no restrictions.
According To De Loeme:

“British Parliament can do everything except to make a man into a woman”.

4.4. Parliamentary Monarchy:

The British Constitution provides for a Parliamentary form of government as distinct from

the Presidential form of government.

The Monarch is the nominal head of the State. He has been deprived of all his powers
and authority. In practice, the Monarch has become merely a nominal executive. Britain
today is a “limited monarchy”. The Monarch reigns but does not rule.

The real powers of the government rest with the British Cabinet headed by the Prime
Minister. The members of the Cabinet are members of the Parliament. The Cabinet is
composed of Ministers who belong to the majority party in the House of Commons and
they remain in office so long as they enjoy its confidence. They remain responsible to its
lower house, namely, the House of Commons, for all their acts. All this means the
supremacy of the House of Commons and ultimately, that of the people, for it is the
people who elect the members of the House of Commons. Accordingly, no government

can remain oblivious of public opinion, if it is to continue in office.

Since the Ministers are both the executive heads and members of the Parliament, there is
coordination between the executive and legislative wings of the government. There is
little chance of conflict between the executive and the legislature. As such the work of the

government goes on smoothly.

4.5. Separation of Power:

The conception of the separation of power has been applied to the United Kingdom and
the nature of its executive (UK government, Scottish Government, Welsh Government
and Northern Ireland Executive), judicial (England and Wales, Scotland and Northern
Ireland) and legislative (UK Parliament, Scottish Parliament, National Assembly for Wales
and Northern Ireland Assembly) functions.

Historically, the apparent merger of the executive and the legislature, with a powerful
Prime Minister drawn from the largest party in parliament and usually with a safe
majority, led theorists to contend that the separation of powers is not applicable to the
United Kingdom. However, in recent years it does seem to have been adopted as a
necessary part of the UK constitution.

In British, there is limited Separation of power. There is concentration of political powers

in the parliament while the cabinet which exercise executive power is just a committee of
the parliament.

Lord Mustill summarized the prevailing modern viewpoint in the 1995 judgment, R. v
Home Secretary ex parte Fire Brigades Union.31

“It is a feature of the peculiarly UK conception of the separation of powers that

Parliament, the executive and the courts each have their distinct and largely exclusive
domain. Parliament has a legally unchallengeable right to make whatever laws it thinks
right. The executive carries on the administration of the country in accordance with the
powers conferred on it by law. The courts interpret the laws and see that they are
obeyed.”

4.6. Bicameralism:
The Parliament consists of two chambers House of Lords and House of Commons. The
House of commons is a popular chamber whose member directly elected by the people
whereas the House of Lords comprises individuals whose membership depends on a
combination of direct appointment, membership by virtue of holding a particular post, or
by birth (though now supplemented by election). The house of lords is basically a

31
R v Secretary of State for the Home Department ex parte Fire Brigades Union [1995] 2 AC 513 at 567
hereditary chamber and its member are nominated by the Queen. The division into two

chambers fulfils a number of functions:-

First, it allows for an internal balance which is designed to prevent an excessive

concentration of power over something as important as the law making function.

Secondly, it allows for a different perspective to be taken by each chamber. There would
be no point in having each chamber being composed in the same way, and the practice
is that there are differences in the composition of each chamber

4.7. Legislature and Executive:

The legislature and executive have a close relationship in the UK constitution. This led
Walter Bagehot to declare the "nearly complete fusion" of the roles in the nineteenth
century.

The UK Parliament creates law through the authority of the Queen in parliament,
securing the support of at least the House of Commons, and usually the House of Lords
as well – although since the passing act of the Parliament Act 1911 this has not been
necessary.32 Under the European Communities Act 1972, the organ of the European
Communities to legislate for the United Kingdom was recognized, by virtue of that Act.
The power to create primary legislation has also been devolved to Scottish and Welsh
parliaments and to government ministers and local authorities to create secondary
legislation.29

The executive comprises all official and public authorities (including local authorities) that
govern the UK, from initiating and implementing legislation to the running of local and
national service.33 The civil service remains non-partisan (having little in common with the
Cabinet and Prime Minister in that respect). 34 The executive also exercises a number of
powers under the Royal Prerogative, including foreign relations; many other actions are

32
Bradley, Ewing (2007). p. 82
33
Bradley, Ewing (2007). p. 83.
34
Drewry in Jowell, Oliver (eds.) (2011). p. 195.
taken in the sovereign's name, from which executive power is derived. The Council and
the Commission of the European Union also exercise executive power, as do devolved
governments.35 Within the executive, there is no longer a clear elected–non-elected
divide: decision-makers are of both sorts since the widening of the government's remit. 36
The extent, to which the Civil Service serves the government, rather than usurping it, is
one character of the executive.37

4.8. Independence of judiciary:

In terms of control, the independence of the judiciary is confirmed through statute,

constitutional convention, and weight of opinion. In England and Wales, judges in sup

erior courts cannot be arbitrarily dismissed by the executive, instead serving whilst in
"good behavior".38 Those in lower courts have similar protection from dismissal without
due cause. Most members of tribunals cannot be dismissed by members of the
government department of which they form part. This is important in cases of judicial
review and other judicial methods of preventing government abuse of power. 35

The judiciary undertakes minor legislative functions in the form of court procedure,
which, whilst the performance of a conflicting power, strengthens their independence.
Tribunals are tied, but remain independent from, the executive. Government
departments adjudicate on many decisions, and are required to take principles such as
fairness and transparency into account in return. The courts provide only one method of
dispute resolution, albeit one that is important where the government is one party and
independence is necessary.The picture of which decision-making processes should be
assigned to which body is complicated.35 There remain problems with the scope of role

35
Bradley, Ewing (2007). p. 83
36
Drewry in Jowell, Oliver (eds.) (2011). p. 194
37
Drewry in Jowell, Oliver (eds.) (2011). p. 196.
38
Bradley, Ewing (2007). p. 89
of the Home Secretary in the penal system and judicial decisions with regard to
sentencing.39 Nolan LJ, in M v Home Office, noted that:40

“The proper constitutional relationship of the executive with the courts is that the courts
will respect all acts of the executive within its lawful province, and that the executive will
respect all decisions of the courts as to what its lawful province is.”

In matters such as Extradition of British nationals, courts must first consent and the Home
Secretary must agree and sign an Extradition Order or the individual cannot be
extradited.

A recent example of this is computer-hacker and Aspergers syndrome sufferer Gary

MacKinnon being extradited to the United States. The courts decreed that he could be
extradited and that it would not harm him. However the Home Secretary announced that
she refused to sign the order as she believed it would harm his life rights and could lead
to him committing suicide.

Under the unwritten British Constitution, there are two important conventions which help
to preserve judicial independence. The first is that Parliament does not comment on the
cases which are before the court. The second is the principle of parliamentary privilege:
That Members of Parliament are protected from prosecution in certain circumstances by
the courts.

In modern times, the independence of the judiciary is guaranteed by the Constitutional

Reform Act 2005. In order to try to promote the independence of the judiciary, the
selection process is designed to minimize political interference. The process focuses on
senior members of the judiciary rather than on politicians. Part 2 of the Tribunals, Courts
and Enforcement Act 2007 aims to increase diversity among the judiciary.

The pay of judges is determined by an independent pay review body. It will make
recommendations to the government having taken evidence from a variety of sources.

39
Bradley, Ewing (2007). p. 90
40
M v Home Office [1992] QB 270 at 314
The government accepts these recommendations and will traditionally implement them
fully. As long as judges hold their positions in "good order," they remain in post until
they wish to retire or until they reach the mandatory retirement age of 70.

4.9. RULE OF LAW:

The doctrine of Rule of Law is one of the fundamental characteristics of the British
constitutional system. It laws 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.

 Absence of arbitrary power, that is, no man can be punished except for a breach
of law.
 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.
 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 than
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.

4.10. Flexible Constitution:

The British Constitution is flexible in nature. It gives equal importance to constitutional

laws and ordinary laws, and both kinds of laws can be amended in the same way. Any
part of the constitution can be amended by simple majority of the members of national
legislature.

In the words of Barker, the constitution which can be amended in an easy and simple
manner as per the wishes of people is called the flexible constitution. Garner says that
the flexible constitution is that constitution which does not enjoy more legal authority
than ordinary law, and which can be changed like other laws.
The British constitution can be amended by the British Parliament with simple majority.

5. CONSTITUTION OF UNITED STATES OF AMERICA

The Constitution of the United States is the supreme law of the United States of America.
The first three Articles of the Constitution establish the rules and separate powers of the
three branches of the federal government: a legislature, the bicameral Congress; an
executive branch led by the President; and a federal judiciary headed by the Supreme
Court. The last four Articles frame the principle of federalism. The Tenth Amendment
confirms its federal characteristics.

The Constitution was adopted on September 17, 1787, by the Constitutional Convention
in Philadelphia, Pennsylvania, and ratified by conventions in eleven states. It went into
effect on March 4, 1789.41 The first ten constitutional amendments ratified by three-
fourths of the states in 1791 are known as the Bill of Rights. The Constitution has been
amended seventeen additional times (for a total of 27 amendments) and its principles
are applied in courts of law by judicial review.

The Constitution guides American society in law and political culture. It is the oldest
written national constitution in continuous use, and it influenced later international
figures establishing national constitutions. Recent impulses for reform center on concerns
for extending democracy and balancing the federal budget.

5.1. Written Constitution:

The American Constitution is usually cited as a classic example of a written Constitution.

It is perhaps the oldest among the existing written constitution of the world. It is
contained in a document of some 12 pages and consists of a preamble, 7 articles and 27

41
http://books.google.com/books?id=xZ-61GFZE1kC&pg=PA109
amendments. However, the actual working constitutional system includes, apart from the
‘Constitutional Document’, the following:

 The statutes of the Congress ( i.e. the legislature of the USA ) which determines
the organization and function of a number of Government agencies.
 The orders issued by the President on some occasions for giving practical shape
to the statutes made by the Congress.
 The judicial decisions interpreting the Constitution through a system of judicial
review. For example, the Supreme Court has increased the scope of federal
Jurisdiction through the doctrine of ‘implied powers.’
 The political conventions which have grown gradually around the Constitution .
For example, the Cabinet of the President is totally a product of convention.

Thus the American Constitution or Constitutional system, as it exists today, is a

product of the 1787 constitutional document and subsequent amendments, the
Congressional statutes, executive orders, judicial interpretations and political
conventions.

5.2. Rigid Constitution:

The American Constitution is a rigid one. It cannot be amended by the Congress in

the same manner as the ordinary laws are made. It can be amended by the Congress
only by means of a special process provided by the Constitution for that purpose.
Therefore, in the USA, there exists a distinction between a constitutional law and an
ordinary law.

The American Constitution, which is the most rigid Constitution in the world, lays
down the following two methods for its amendments:

 An amendment can be proposed by two- third votes of both the houses of the
Congress. It should be ratified by the legislatures of three fourths of the States
within a seven – year span.
  Alternatively, an amendment can be proposed by a constitutional convention
called by the Congress on the petition of two-thirds of the state legislature. It
should be ratified by the convention in three-fourths of state legislatures.

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

5.3. Federal Constitution:

Federalism describes the relationship between the national and state governments. Prior
to 1787, the thirteen states functioned like independent sovereign governments. They
were bound together in a very weak national alliance under the Articles of
Confederation. This confederal system wasn’t working.

Some proposed switching to a unitary system where there is just one all-powerful
sovereign government. However, the states were unwilling to surrender their authority,
and Americans feared a distant, powerful government. In the end, the Founders created
a compromise that they called a federal system.

In a federal system the national and state governments share sovereign powers, with
each having the authority to make and enforce its own laws directly on its citizens.
Neither government empowers the other; instead, both derive their authority from the
Constitution.
USA is a federal state. In fact, the USA is the first and the oldest federal state in the modern
world. It is a federal republic comprising 50 states (originally 13 states) and the District of
Columbia. The Constitution provides for a division of powers between the federal (central)
government and the state governments. It confers limited and specified powers on the centre
and vests the residuary powers (which are not enumerated in the Constitution) in the states. Each
state has its own Constitution, elected legislature, governor and Supreme Court.

5.4. Constitutional Republic:

A modern constitutional republic is a constitutional, representative democracy
characterized by (1) a chief of state chosen by some method of election and (2) a total
absence of inherited offices in the government. The system of government is
constitutional, representative, and democratic in character because govern- mental
power is limited by the Constitution and is exercised by representatives chosen in
popular elections in which the bulk of the adult citizenry has or can easily obtain the legal
right and opportunity to vote.

The widespread electoral suffrage and the exercise of political authority by elected
representatives make the governmental system a representative democracy; the fact that
the power of government is limited by a body of fundamental law makes the political
regime constitutional; and the elective, non-hereditary office of chief of state and the
total absence of inherited offices in the government make the regime republican in
character.

In a republic, there are no inherited offices in the government, this absence or exclusion
of hereditary positions applying to the office of chief of state in particular. A republican
chief of state, usually styled "the President," is chosen through the election process. The
President, or chief of state, is selected by direct popular vote, by the legislature, by an
electoral college, or by some other method of election.

Every public office in a republican government is filled by election (direct or indirect) or

by appointment according to law, with all law that is not part of the Constitution being
made or subject to modification by and with the consent of the people's elected
representatives in the legislature. (Statutory law is enacted by and can be changed or
repealed by the legislature. While common law is judge-made law, it is subject to
modification by legislative statute.)

In the United States of America, the President, who is both the nation's chief of state and
the effective head of the executive branch of the national government, is elected by the
voters through the medium of the Electoral College. The members of both houses of
Congress are chosen in direct popular elections.
Pursuant to the relevant provisions of the Federal Constitution, federal judges as well as
U.S. ambassadors to foreign governments and international organizations and other
high-ranking officers in the executive branch of the national government are appointed
by the President, subject to confirmation by the U.S. Senate.

All other federal officers and employees are appointed or employed in accordance with
the relevant statutory laws enacted by Congress. Moreover, the U.S. Constitution denies
both the national government and the states the authority to grant titles of nobility and
prohibits officers of the national government from accepting such titles from foreign
monarchs.

Not only is the U.S. national government is a republic, but the governments of the fifty
states are also republican in form. The U.S.A. is a federal constitutional republic,
composed of one national republic and fifty state republics. Article IV of the U.S.
Constitution imposes on the national government the obligation to guarantee to every
state in the American federal union a "republican form of government”.

5.5. Presidential Government:

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

 The American President is both, the head of the state and the head of the
government. As the head of the State, he occupies a ceremonial position. As the
head of the Government, he heads the executive organ of government. The
President of the USA is the chief real executive.
 The President is elected by an electoral college for a fixed tenure of four years. He
cannot be removed by the congress except by impeachment for a grave
unconstitutional act.
 The President governs with the help of the Cabinet or a smaller body called
‘Kitchen’ Cabinet. It is only an advisory body and consists of non-elected
 departmental secretaries. They are selected and appointed by him and are
responsible only to him. They can also be removed by him any time.
 The president and his secretaries are not responsible `to the Congress for their
acts. They neither possess membership in the Congress nor attend its sessions.
 The President cannot dissolve the House of Representatives – the lower house of
the Congress.

5.6.1. Separation of Powers:

The Founders recognized the need for a more powerful national government but
worried that it might encroach upon the peoples. They came up with two solutions:
 Separation of power
 Checks and balance
They borrowed the idea of separation of powers from the French philosopher
Montesquieu. He advised dividing the three basic functions of government (i.e.,
legislative, executive, and judicial) into different departments, headed by different
individuals, chosen at different times and by different means. The idea is that no single
person or group wields all the power, thus providing a built-in, structural check against
abuse.
The doctrine of separation of powers is the basis of the American Constitutional system. The
legislative, executive and judicial powers of the government are separated and vested in three
independent organs of the government. The first three Articles of the Constitution clearly
manifest this feature of the Constitution. Article 1 says that all legislative powers herein granted
shall be vested in the Congress. Article II states that the executive powers shall be vested in the
President. Article III provides that the judicial powers shall be vested in one Supreme Court and in
such inferior courts as the Congress may order from time to time ordain and establish.

5.6.2. Checks and balances:

In a true separation of powers system, all the lawmaking power would be confined to the
legislative branch, all the enforcement power would reside with the executive branch,
and all judging powers would rest with the judicial branch. Checks and balances attempts
to prevent this from happening by deliberately giving each branch a little bit of authority
to intervene in the business of the other.
As explained by Madison in Federalist No. 51:
“But the great security against a gradual concentration of the several powers in the same
Department consists in giving to those who administer each department the necessary
Constitutional means and personal motives to resist encroachment of the others……..
Ambition must be made to counteract ambition.”
Checks and balances promote “gridlock”—especially where the different branches are
controlled by opposing political parties.

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

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

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

5.7.1. Supremacy of Constitution and Judicial Review:

The American Constitution embodies the principle of ‘hierarchy of laws’. The written
Constitution is regarded as the highest (supreme or fundamental) law of the land. The
statutes of the Congress and state legislatures must confirm to this supreme law. If these
statutes are against the provisions of the Constitution, they can be declared by the
Supreme Court as ultra vires and hence, null and void.

5.7.2. Judicial review gives the courts the final say over the interpretation of the
Constitution. It allows judges to strike down (i.e. declare void) any law passed by
Congress or any act of the executive branch that they deem “unconstitutional.” It also
gives the federal courts the power to overrule state actions deemed unconstitutional.

Judicial review is the ultimate check and balance possessed by the judicial branch. It is
controversial because judges and officials can honestly disagree on the interpretation of
the Constitution, and federal judges are not elected.

And although there is evidence that the Founders intended the courts to have this power
as a check against the excesses of democracy (e.g., see Federalist No. 78), it is not
expressly mentioned in the Constitution. Rather, the power of judicial review was
established by the Supreme Court itself in the landmark case Marbury v. Madison (1803).
Thus it can be seen that the Supreme Court thus acts as the custodian of the Constitution
through its power of judicial review.

5.8. Bicameralism:

The American Federal Legislature called the Congress is bicameral, that is, it consists of
two houses namely the Senate and the House of the Representatives. The Senate is the
upper House while the House of Representatives is the lower house. The Senate consists
of 100 members , two being elected from each state to serve for a fixed six- year term.
The House of Representatives consists of 435 members elected from single member
constituencies to serve for a fixed two-year term. The Senate is the more powerful
chamber of the Congress.

Infact the American Senate is the most powerful second chamber (upper house) in the
world.

5.9. Bill of Rights:

The American Constitution is the first constitution in the world to carry the Bill of Rights.
The Bill of Rights is the collective name for the first ten amendments to the United States
Constitution. These limitations serve to protect the natural rights of liberty and property.

They guarantee a number of personal freedoms, limit the government's power in judicial
and other proceedings, and reserve some powers to the states and the public. While
originally the amendments applied only to the federal government, most of their
provisions have since been held to apply to the states by way of the Fourteenth
Amendment.

The amendments were introduced by James Madison to the 1st United States Congress
as a series of legislative articles. They were adopted by the House of Representatives on
August 21, 1789,42 formally proposed by joint resolution of Congress on September 25,
1789, and came into effect as Constitutional Amendments on December 15, 1791, through
the process of ratification by three-fourths of the States. Originally, the Bill of Rights
implicitly legally protected only white men,43 excluding American Indians, people

42
Adamson, Barry (2008). Freedom of Religion, the First Amendment, and the Supreme Court: How the
Court Flunked History. Pelican Publishing. p. 93.

Journal of the House of Representatives of the United States, 1789–1793, Friday, August 21, 1789, p. 85
43
"The Bill of Rights: A Brief History". ACLU. March 4, 2002. Retrieved December 10, 2011. A Supreme
Court opinion: "Blacks had no rights which the white man was bound to respect."

"Legal definition of Civil Rights". Legal-dictionary.thefreedictionary.com. Retrieved December 10, 2011.

considered to be "black"39 (now described as African Americans), and women.44 These
exclusions were not explicit in the Bill of Right's text, but were well understood and
applied.39

It guarantees a large number of rights to the people. It says that no person is to be

deprived of life, liberty and property without due process of law. These rights impose
restrictions on the authority of the Government . The Supreme Court acts as the
protector of these rights through its power of judicial review. The Bill of Rights was first
added to the original constitution in 1791 through the first ten amendments.

However, some of its basic tenets were adopted and extended by the U.S. Bill of Rights,
including:

 the right of petition,

 an independent judiciary (the Sovereign was forbidden to establish his own courts
or to act as a judge himself),
 freedom from taxation by royal (executive) prerogative, without agreement by
Parliament (legislators),
 freedom from a peace-time standing army,
 freedom [for Protestants] to bear arms for their defence, as allowed by law,
 freedom to elect members of Parliament without interference from the Sovereign,
 freedom of speech in Parliament,
 freedom from cruel and unusual punishments and excessive bail, and
 freedom from fines and forfeitures without trial.

6. The Constitution of India and United Kingdom:

44
"Are Women Citizens and People?". Digital.library.upenn.edu. Retrieved December 10, 2011.

"University of Chicago Law Review". Litigation-essentials.lexisnexis.com. Retrieved December 10, 2011.

 A Comparative Analysis

Only a few people get confused with regard to the difference between the countries
India and England. It is because these two nations are really far apart and aren’t that
much related to one another. Though the members of the drafting Committee being
highly influenced from the Constitution of the United Kingdom has adopted some of its
features into the Indian Constitution nevertheless we could see wide difference between
the Constitution of both the nations. Following are some significant similarities and
distinction between the two Constitutions :

6.1. Written V. Unwritten Constitution

India has a written Constitution, being tagged to be the lengthiest Constitution in the
world containing number of Articles, Parts and Schedules in it. On the other hand Britain
has an ‘unwritten’ constitution.

The framers of the Constitution of India after studying the Constitutions of different
nations , took up the significant features from them and drafted them into our
Constitution, that is the reason why Indian Constitution is sometimes called a ‘bag of
borrowing’.

Britain’s lack of a ‘written’ constitution can be explained by its history the British
Constitution has evolved over a long period of time, reflecting the relative stability of the
British polity. Britain does not have a single legal document which sets out in one place
the fundamental laws outlining of how the state works. There are several written parts of
the British Constitution, like the Magna Carta, Bill of Rights, Reforms Acts, Parliamentary
Act of 1911, etc. often the unwritten part overpowers the written ones. As a matter of the
fact, there is no single document which can be said to contain the general principles of
political governance. These principles remained scattered and no attempt has ever been
made to consolidate the basic building blocks of this order in Britain.

What Britain has instead is an accumulation of various statutes, conventions, judicial

decisions and treaties which collectively can be referred to as the British Constitution. It is
thus more accurate to refer to Britain’s constitution as an ‘uncodified’ constitution, rather
than an ‘unwritten’ one.

6.2. Unitary V. Federal Feature

In a federal government the powers of administration are divided between the centre
and the units. The powers may be distributed in two different ways. Either the
constitution states what powers the federal authority shall have, and leaves the
remainder to the federating units, or it states what powers the federating units shall
possess and leaves the remainder to the federal authority .The remainder is generally
known as residuary powers.

The Indian constitution establishes a dual polity, consisting of the Union at the centre
and the states in different parts of the country, each endowed with powers to be
exercised in the field assigned to them respectively by the Constitution. The powers of
the Union and the States are clearly demarcated. Amendment of the Constitution is not
possible without the concurrence of the Union and the majority of the States. Under the
Constitution Supreme Court is established to decide disputes between the Union and
the States, or the States inter se and to interpret finally the provisions of the Constitution.

However in certain times the Constitution does not embody the federal principle
because the Centre can in certain contingencies encroach upon the field reserved for the
States. The power of intervention given to the Centre is inconsistent with the federal
system, for it places the States in a subordinate position.

That is why the Indian Constitution has been rightly termed as Quasi federal in nature by
Prof. K.C. Wheare, and the same can be agreed upon.

6.3. Rigidity v. Flexibity:

The Indian Parliament can amend some provisions of the Constitution of India can with
simple majority. Whereas the amendment of most other provisions of the constitution
requires a special majority in both houses of the parliament. There are some other
provisions of constitution which cannot be amended by the parliament alone.

In case of such provision the amending bill has first to be approved by both houses of
parliament by a special majority (with the support of two-thirds of the members of each
house present and voting). Then it has to be ratified by the legislatures of at least half of
the states of India.

These different amendment procedures make the Indian constitution partly flexible and
rigid. In fact, there is a balance between rigidity and flexibility in our constitution.

The British constitution is a flexible constitution. It can be amended by the British

Parliament with simple majority. In a flexible constitution gives equal importance to
constitutional laws and ordinary laws, and both kinds of laws can be amended in the
same way. Any part of the constitution can be amended by simple majority of the
members of national legislature.

In the words of Barker, the constitution which can be amended in an easy and simple
manner as per the wishes of people is called the flexible constitution.

Garner says that the flexible constitution is that constitution which does not enjoy more
legal authority than ordinary law, and which can be changed like other laws.

Therefore British Constitution has been very aptly termed to be a flexible Constitution.

6.4. Parliamentary Democracy V. Parliamentary Monarchy:

Though India has derived the parliamentary form of government from United Kingdom
but still there is a fine line of demarcation between the two.

United Kingdom is described as to be a limited hereditary monarchy. The Hereditary

monarch (King or Queen) is the head of the state. The Crown is the visible symbol of the
supreme executive power. However the King or Queen only reigns and does not rule.
These powers are actually exercised by the Cabinet headed by the Prime Minister. The
cabinet is collectively responsible to the Parliament for its actions and ultimately to the
electorate. Hence what United Kingdom has is a “Constitutional monarchy”.

Under the British Constitution, sweeping executive powers, known as the royal
prerogative, are nominally vested in the Monarch. In exercising these powers the
Monarch normally defers to the advice of the Prime Minister or other ministers. Some
powers of the Monarch are as follows:

Domestic powers:

 The power to dismiss and appoint a Prime Minister

 The power to dismiss and appoint other ministers
 The power to summon and prorogue Parliament[16]
 The power to grant or refuse Royal Assent to bills (making them valid and law)
 The power to commission officers in the Armed Forces
 The power to command the Armed Forces of the United Kingdom
 The power to appoint members to the Queen's Council
 The power to issue and withdraw passports
 The power to grant Prerogative of mercy (though Capital Punishment is abolished,
this power is still used to remedy errors in sentence calculation)
 The power to grant honours
 The power to create corporations via Royal Charter
 The power to appoint bishops and archbishops of the Church of England.

Foreign powers:

 The power to ratify and make treaties

 The power to declare War and Peace
 The power to deploy the Armed Forces overseas
 The power to recognize states
 The power to credit and receive diplomats
The most important prerogative still personally exercised by the Monarch is the choice of
whom to appoint Prime Minister.

The Indian Constitution to the contrary is Parliamentary democratic in nature both in the
Union as well as the States, which is clearly indicated in the several provisions of the
Constitution. Thus the President of the Union and the Governors of the States are
required to exercise their functions with the advice of the Council of Ministers. Ministers
are required to be or become members of the Legislature. The Council of Ministers is
declared to be collectively responsible to the Legislature.

6.5. Fundamental Rights:

The constitution of India has embodied a number of Fundamental Rights in Part III of the
Constitution which are (subject to exceptions) to act as limitations not only upon the
powers of the Executive but also upon the powers of the Legislature.

Whereas the Constitution of United Kingdom being unwritten as no code of

Fundamental rights as exists in other written Constitution. This does not mean that in UK
there is no recognition of those basic rights of the individual without which democracy
becomes meaningless. Here the judiciary is the guardian of individual rights.

However United Kingdom being a signatory to the European Convention on Human

Rights covering both human rights and civil liberties. Hence the rights of people are

derived from various statutes, conventions and judicial decisions. Some of the important

statutes and acts which lay down the human rights and civil liberties in U.K. are:

 Magna Carta of 1215, dealing with the writ of habeas corpus, trial by one's peers,

representation of nobility for taxation and a ban on retroactive punishment.

 Petition of Right of 1628, asserting the specific rights and liberties of England, that

the King is prohibited from infringing.

 Habeas Corpus Act 1679

 Bill of Rights 1689

 Slave Trade Act 1807

 The Human Rights Act 1998.

6.6. Judicial Review:

In India the Supreme Court and the High Court have the power of Judicial Review.

They have the power to declare acts of legislatures and actions of the Executive ultra

vires such acts or actions are found to be in conflict with the provisions of the

constitution.

On the contrary, the Courts in the United Kingdom have no power of judicial review

over legislation at all. It cannot declare any law as unconstitutional on the ground of

contravention of any supposed fundamental or natural right.

7. The Constitution of India and United States of America:

A Comparative Analysis
Both the Constitutions of India and United States of America, apart from differing from
each other in certain spheres ,do share certain similarities between them which can be
seen below:

7.1.1. Written constitution:

Both US and India have a written constitution based on which the federal political
structure has been set up and both federal governments are functioning. Both
constitutions have provisions for amending the constitution to meet the growing socio,
political and economic needs and demands of their respective countries.

7.1.2. Bill of Rights and Fundamental Rights:

The US constitution has ensured the fundamental rights of its citizens like right to
equality, freedom, right against exploitation, freedom of religion, cultural and educational
rights, right to property, and right to constitutional remedies etc through ‘The Bill of
Rights’,. They became part and parcel of the US constitution through first ten
amendments that were carried out and adopted into the US constitution. The Indian
constitution has guaranteed the fundamental rights of the people through articles 14 to
34 in Part III.

7.1.3. Supremacy of the Federal or Union Government:

Both countries have federal governments at the centre in which various states have
acceded to. In the US as many as 50 states have joined the federal government and in
the Indian Union as many as 29 states and 8 Union territories have acceded to. Both in
US and India, states which have acceded to the Federal set up have no unilateral power
to secede from the Federal Government or the Union Government.

While Federal Government or the Union Government as well as the states are
empowered to enact laws on a particular subject,(known as concurrent powers),the law
enacted by the Federal or Union Government will have overriding effect over the law
enacted by the states on the same subject. Thus Federal or Union Government is
supreme in the present federal structure.

7.1.4. Division of Labor and Separation of Powers:

Adhering to Montesquieu's theory of division of labor and separation of powers, both US

and Indian constitutions have three basic divisions with regard to division of labor and
power in their federal set up known as executive, legislature and judiciary with clear cut
‘Separation of Powers’ Each division has been entrusted with a separate power.

The executive governs the country, the legislature enacts laws and the judiciary
administers justice.. Both U.S.A. and India have a bicameral legislature. US legislature has
an upper and lower house known as the House of Senate and the House of
Representatives respectively and the Indian Parliament has Lok Sabha and Rajya Sabha
as its Lower and Upper house respectively.

Both U.S.A. and India have a well organized judiciary, having the Supreme Court or the
Federal Court as the apex court and a number of other courts in various states to
administer original and appellate jurisdictions.

7.1.5. Powers of Checks and Balances:

Though there exists a clear cut division of labor known as separation of powers into
executive, legislature and judiciary in both countries, still there is a threat. to democracy.
A strong and dynamic leadership at the helm of powers as the executive and acting with
unlimited powers may lead to arbitrariness. After all power corrupts power; absolute
power corrupts absolutely; in the result democracy may become a laughing stock and
virtually unworkable.

Hence, in order to prevent unwieldy growth of any one of these three divisions, a
fantastic mechanism known as powers of ‘checks and balances’ has been maintained in
both countries. In other words, each division of power is somehow or other checked and
controlled by other divisions of power.

In the US, the President as the chief executive power appoints his members of ‘Kitchen
Cabinet’ and he is the Supreme Commander-in-Chief of Army, Navy and the Air Force.
He appoints the Chief Justice of the Supreme Court of the US. He enters into treaties
with other countries. However, his treaties must be approved by the House of Senate.
Otherwise, the treaty will not come into force.

Though President Woodrow Wilson was the chief architect of the League of Nations that
came into being after the first world war, US could not become a member of it since the
House of Senate did not approve it. Thus important policy decisions must be necessarily
approved by the House of Senate, which definitely acts as a check on the powers of US
President, who is the head of the executive.

Similarly laws enacted by both houses may be subjected to the power of Judicial Review
and can be declared null and void by the judiciary. The President can be impeached and
removed from power on the motion moved by the House of Senate in the presence of
the Chief Justice of the Supreme Court of the US.

Similarly in India, the Prime Minister and his cabinet can be removed from power by a
successful no confidence motion passed by both houses of parliament .The important
policy decisions taken by the cabinet headed by the Prime Minister, if necessary has to
be enacted into laws only with the requisite majority of the parliament .The laws enacted
by the parliament are subject to the judicial review of the Supreme Court of India .The
Chief Justice and other Judges of the Supreme Court are appointed by the President as
recommended by the cabinet and the Prime Minister.

Thus the powers of checks and balances have been the effective mechanism both in the
US and in India in safeguarding the democracy in both countries.
7.2. The constitution of U.S.A differing from the Constitution of INDIA

7.2.1. The Constitution of US is very rigid than the Indian Constitution:-

i)The constitution of US is very brief and rigid running into only a few pages, whereas the
constitution of India is very voluminous containing as many as XXII parts, 395 articles and
ten schedules. Since the US constitution is very rigid, the provisions meant for amending
the constitution are also very rigid and more formal.

The last amendment carried out in the US constitution was in the year 1992.Between the
period 1989 and 1992, the US constitution has been amended only 27 times, in which the
21st amendment was to reverse the 18th amendment Whereas, the Indian constitution
which came into force in the year 1950, has so far been amended 94 times. Therefore, it
is easy to amend the Indian constitution, since it involves four different types of
procedures which are comparatively easy than the amending procedure of the US
constitution.

For example, recently, the salaries and allowances of the Indian MPs have been hiked
through a voice vote of the members of the Indian Parliament, whereas in the US, the
27th amendment originally proposed on 25th September, 1789, was ratified on May 7th,
1992, regulating the provision for varying the compensation of the members of the
House of Senate and Representatives.

ii) In the US, though there is a Federal Constitution, all the states affiliated with the
Federal Government ,owing their allegiance to the Federal Constitution, have their own
constitutions to regulate their own governance.

In India, all the states affiliated with the Indian Union owe their allegiance only to the
Indian constitution and do not have their own constitution; however, each state is
empowered to enact its own laws included in the state as well as in the concurrent list of
the constitution.
7.2.2. While US has the Presidential form of Government, India has the Parliamentary
form of Government:

In the US, the President is the head of the state and so his government is invariably
mentioned as the Presidential form of government or democracy; In India, the President
is only a nominal head or titular sovereign power;( dejure sovereign),whereas the Prime
Minister and his cabinet is the defacto or popular sovereign in whom the real power
exists.

In the US, the President is popularly elected ,besides chosen through an electoral
college.However, nominating a candidate for contesting the Presidential election by a
political party in the US is a cumbersome process. This process is comparatively simpler
than the Indian system of forming the cabinet and electing the Prime Minister from a
party which enjoys a majority of elected members of the Lok Sabha .

While the US follows the bi-party system, India has a multi-party system and a
complicated process of election.

While the US President holds power for a period of 4 years, while the Indian Prime
Minister holds power for five years as long as his political party enjoys majority in the Lok
Sabha. However, the US President irrespective of his affiliation with a political party,
Republican or Democrat and irrespective of his party’s success or failure in the elections
for the House of Representatives or the House of Senate, holds power for his full tenure.

A person in the US can hold the post of President only for two terms, whereas, in India
there is no such restriction to hold the post of a Prime Minister or President. For example,
Nehru was the Prime Minister of India between 1947 and 1964 for a period of 17 years.

The Indian cabinet and the Prime Minister are collectively and directly responsible and
answerable to the parliament and indirectly to the people, whereas, the US President has
constitutional obligations and duties and of course answerable to the people.
For the dereliction of duty and blunder committed by a cabinet minister in India, the
Prime Minister and his entire cabinet colleagues are liable, responsible and answerable,
because they have collective responsibilities.

7.2.3. Differences between the legislatures of US and India:-

In India, the lower house or the Lok Sabha is more powerful and its members are directly
elected by the people and the members of the Upper house or Rajya Sabha are indirectly
elected every two years.

The Lok Sabha members represent their constituencies on the basis of their population
strength; In the US, the House of Representatives are elected on the basis of the
population strength of a state, but irrespective of the size of the state or its population,
each state in the US has only two senate members, totaling 100 members in all in the US.

While the Lok Sabha or the lower house is more powerful in India, the House of Senate
or the upper house is more powerful in the US. While a Senate member in the US is
directly elected, a Rajya Sabha member in India is indirectly elected by a system of
proportional and transferable voting system.

7.2.4. Differences in the judicial system between US and India:

While the US has an advanced judicial system, India has a rapidly developing judicial
system. An accused or a witness in the US can depose from the place where he is
imprisoned, thereby avoiding unnecessary travel all the way from Chicago or Los Angeles
to New York using the advanced technology. Such facilities are yet to develop in India.

While a Judge in the US can hold his post for life as long as he enjoys his good health, in
India it is slightly different. A District judge unless elevated retires at the age of 58, a High
Court and a Supreme court Judge retires at the age of 65.

Thus both the US and the Indian Federalism despite having limitations are by and large
successful.
7.2.5. Single Citizenship:

In the United States of America, there is double citizenship. An American is a citizen of

America and at the same time he is also a citizen of the 50 States of America. In India,
there is only single citizenship. An Indian is a citizen of India only. He is not a citizen of
any Indian state. Single citizenship is meant to s national unity and national integration.