While American Constitution is the shortest (of any major government in the world) and the first written constitution, India’s Constitution is the lengthiest written constitution in the World. American Constitution is a very rigid constitution consisting of only Seven Articles and twenty-seven amendments, so far.
Originally, the India Constitution consisted of 395 Articles in 22 Parts, with 8 Schedules. Now, it consists of 448 Articles in 22 Parts, with 12 Schedules.
The US Constitution was finalized in a convention held on September 17, 1787, which required its ratification by a minimum of nine States, for it to be enforced.
By the end of July 1788, eleven States had ratified it and the Constitution was put into operation on 13th September 1788. The Indian Constitution, on the other hand, was adopted by her Constituent Assembly on 26th November 1949, and came into effect on 26th January 1950.
America has adopted the doctrine of dual ship in respect of its Constitution and citizenship. It has two Constitutions, one, for America as whole and another for each State. American people have two citizenships, one of USA and another of their respective State.
On the other hand, India has one constitution and concept of single citizenship for every citizen of the country.
- Nature of the Constitution
The American Constitution is described as a truly Federal Constitution. It was ratified by 50 Independent States. Further, the Federal Government and States have their own Constitutions and do not interfere in each other’s functions. On the other hand, India has only one Constitution, wherein the Central government interferes with functions of State governments in the form of, inter alia:
- Appointment of Governors.
- Governor having the power of reserving the States’ bills for consent of the President.
- Central government’s power to impose President’s rule in the States.
- Nature of Federalism
While USA is a Dual Federation, India is a Cooperative Federation.
|Dual Federation (USA) – both the Centre and state are completely independent. They are complete governments||Cooperative Federation (India) – Interdependence of Centre and state govt. Neither of them is independent of the other. Centre usually has the role of big brother.|
|Centrifugal federalism||Centripetal federalism|
|Symmetrical federalism: All states are given equal representation in Senate||Asymmetrical federalism:
1. States have been given representation in Rajya Sabha on the basis of their population.
2. Articles 370, 371 provide special provisions to few states.
|USA is a Legislative federation. This means that States have dominance in law making.||India is an Executive federation. This means that states are important at the executive level only.|
|USA is an indestructible union of indestructible states||India is an indestructible union of destructible states|
|USA constitution provides a role to states in ratifying the international treaties through the Senate.||There is no such provision for states in the Indian Constitution.|
Form of Government
- America has adopted a Presidential form of government, in which the people directly elect the executive President.
- The President is powerful and not accountable to the House of Congress.
- The term of the American President is 4 years (fixed term).
- One can hold the office of the President for only two terms.
- The President can appoint his own staff, which may be neither from the House of Representative or Senate, in assisting in the administration of the government. The staff is not accountable to the Houses of Congress.
This means that the President is independent in the administration of the government and rather directly responsible to the people of USA.
- India has adopted a Parliamentary form of government.
- The President of India is the executive head of the Indian government. He is indirectly elected by the legislators of Centre and states, and is not accountable to the Parliament.
- The President runs the government with the aid and advice of the Prime Minster and the Council of Ministers.
- Unlike USA, the Indian President holds the office for five years.
- He can be elected any number of times.
The impeachment of the President by the legislature is the only similarity in both the Constitutions.
The position of the American President combines both the Head of State and the Head of Government into one.
Only a natural born citizen of USA can become the President, and not a person who has acquired the citizenship. Also, he must have attained the age of 35 years and must have stayed in USA for at least 14 years. On the other hand, the Indian President should be a citizen of India, wherein citizenship might be either natural or acquired.
- Election of the President
Presidential election is indirect, through Electoral College.
- Strength of Electoral College = Total members in House of Representatives + Senate + 3 members from Washington D.C. = 435 + 100 + 3 = 538
- Winning Candidate requires an absolute majority (50% + 1) of the total members of the Electoral College, i.e. 270.
In the House of Representatives, members from different states are not fixed, while in Senate members from different states are equal and fixed.
Election of Electors
- The voters vote for the members of the Electoral College
- System of election is the List System
- Each state has a responsibility to conduct these elections
- The party that wins the majority of the votes represents the state in entirety
- Electors meet in their respective capital and vote for the Presidential candidate
- Functions of the President of USA
- Representing the country
- Preparation of the Budget
- No presence in legislature
- The President doesn’t address the legislature
- He cannot dissolve the legislature
- He can send messages to the legislature (the system of sending messages exists in USA because there is Separation of Power. So this is the way that the President can interact. The system of sending messages is found in India also, but the logic of the provision is not clear because the President has no discretionary power and he has to act on the advice of the P.M.)
Under the Constitution, the President may respond to a bill passed by the Congress in one of the three ways. He may sign it, veto the bill by returning it to Congress, or do nothing. If he does nothing, the bill becomes a law after the passage of ten days, excluding Sundays. However, if the Congress adjourns sooner than ten days, the bill dies, under the “pocket veto” provision. If the President vetoes a bill, the Congress can still enact it into a law bypassing the measure again with two-thirds majority in both the houses.
- Legislative Proposals
The Constitution also authorizes the President to “recommend to Congress’ consideration such measures as he shall judge necessary and expedient.” Unlike the veto, which is a limited and somewhat negative instrument for stopping legislation, the duty to recommend legislation has over time become the primary mechanism, by which the nation’s political agenda is influenced.
- Indian President
- In India, the President has the power to send back a bill to the Parliament for reconsideration. But, when the Parliament has reconsidered the bill and then passes it with the required majority, the President has no option but to sign the bill.
- Practically, the Prime Minster and his Cabinet almost always enjoy a simple majority, except in a coalition government. So, it does not pose a major hurdle for the Prime Minster and his cabinet to get the consent of the President for the bill.
However, a significant departure from the US Presidential Scheme of things is that unlike the US, the Indian Constitution does not prescribe any time limit for signing the bill by President.
Therefore, he can keep the bill without signing it for an indefinite period under the disguise of consideration, which can frustrate the Prime Minster and his cabinet. Obviously, this leads us to the question whether the Indian President’s pocket veto is more powerful than the US President’s pocket veto.
- Date of Retirement and Oath
- A unique feature of the US Constitution is that it has prescribed the date and timing of retirement of the outgoing President as well as members of the Congress.
- The terms of President and Vice President shall end at noon on the 20th day of January.
- It means that the new President and Vice President shall take oath of the office on 20th January (or 21stJanuary, if 20th is a Sunday) at noon of their first year of office.
- The election of the President and Vice president are held in the month of November and in the same month results are announced.
Thus, Americans are informed much earlier about their new President. Naturally, the question is how this time schedule is maintained. In case of President’s death, resignation, or impeachment, the Vice President shall become the President for the remaining period. In this way, duration of the President is kept intact and the next elected President takes oath on the scheduled date.
- In India, if the President dies or is impeached, or submits resignation, the Vice President becomes the President till fresh elections are held. The newly elected President holds the office for a full term of five years.
- Hence, unlike the American system the time schedule cannot be maintained, in the case of India.
- Primaries are elections to select the candidate
- They are conducted by Political Parties
- Impeachment of the President of USA
- Reasons: Treason, Bribery, High Crimes of Misdemeanor. No system of impeachment for violation of the Constitution, unlike the Indian Constitution
- Charges will be leveled against the President in the House of Representatives
- It has to be passed by 2/3rd majority
- Senate will be the investigating house
- In this process, the Chief Justice of the Supreme Court of USA will be the presiding officer
- If convicted, he can be removed only when 2/3rd members of the Senate pass a resolution in this context
Some terms of the US Constitution
- Filibustering:It’s a privilege of Senators that they can exercise his right to speak for an unlimited period. It’s an ultimate device to stop the passage of a bill. However, now a rule has emerged, by which 2/3rd of the members can bring a motion, which will deny this privilege to the Senators.
- Senatorial Courtesy:A convention has developed by which the President, before formally sending the names for appointments in higher posts, informs the Senate about the probable candidates to be appointed. The idea in such situations should not arrive, where the Senate does not ratify the President’s proposal.
- Gerrymandering:It is the process of demarcating the electoral districts that give advantage to the party in power in the state. They create electoral districts in a manner that the supporters of the party get concentrated and the supporters of the opposition party get dispersed, with the objective of electoral gains.
- Log Rolling:The members of a party may support a bill or viewpoint of the other party. Strict party discipline is not only existing, but also not required.
- Pork Barrel:It represents the politics in the House o Representatives where local interest dominates and the representatives want to take maximum benefits for their constituencies.
Election of Vice President
The qualification for the President and the Vice President is the same. Since the elections take place simultaneously, the process of elections is also the same.
Earlier Method: The candidate coming first used to be declared as the President and second as the Vice President.
Present Method: Separate elections, but at the same time and in the same manner.
Tenure of a Vice President as a President
A Vice President may become a President because of vacancy in the office of the President. There are two situations:
- If the Vice President has come to the office when the President has already served the office for more than two years. Then the Vice President can be President for the remaining term and in addition for two more terms he can serve as a President
- If the Vice President came to the office when the remaining term of the outgoing President was more than two years, then he will be eligible for only one more term
Functions of the Vice President of USA
- Ex-officio chairperson of Senate and has casting vote
- The office of the Indian Vice President is modeled on the US office, with some differences
- The office of Vice President is called as His Superfluous Highness
US Legislature/US Congress
It consists of two houses: House of Representatives and the Senate.
- House of Representatives
- One of the weakest lower house in the world
- It consists of 435 members
- System of direct elections
- Representation of people may differ in number from different states
- Permanent body
- Strongest upper house in the world
- It has equal powers in ordinary bills, amendment bills and money bills.
- Term of a Senator is six years. 1/3rd of the members/Senators retire every two years.
- Committee System in USA
USA has the strongest committee system in the world. It is said that the US Congress works in the Committees.
- Difference from British and Indian System
- In Britain and India, a bill is introduced in the House and the first reading takes place and then it is referred to the Committee
- In USA, a bill is introduced and then directly referred to the Committee, before even the first reading
Pigeon Hole: A bill in USA may get killed at the Committee stage itself. This is known as Pigeon Holing the bill.
Duration of Representative bodies at the Centre
- America’s House of Representative and Senate are permanent bodies.
- The terms of the members of the Representative and Senate come to an end on 3rd
- In India, during an emergency, the duration of Lok Sabha can be extended by one year, or can be shortened by holding pre-matured elections.
- The ruling party forms opinion based on their party’s prospects in the next election. It may recommend for the dissolution of Lok Sabha and suggest the President to hold the election at an appropriate time, which may be based on political expediency.
Doctrine of Separation of Power and the System of Checks and Balances
The theory of Separation of Powers started with John Locke and became popular with Montesquieu (18th century philosophers).
Why Separation of Powers/Functions?
- According to Montesquieu – liberty is not protected, unless there is Separation of Power.
- Separation of Power with judiciary is a universal feature in all democracies.
- The Presidential system provides Separation of Power w.r.t. all three organs of the government, whereas in the Parliamentary system there is a fusion of legislative and executive powers.
- The US Constitution strictly adheres to the doctrine of Separation of Power proposed by Locke and Montesquieu. Separation of Power is complete in US.
- All the three branches of the government have separate functions.
- The term of Legislature and Executive are fixed and do not depend on each other.
- None of the member of the Legislature can be a member of the Executive.
- The Houses of Congress enact the law; the President executes the law; and the Supreme Court interprets the law.
- The American President has no privilege of law making power. Moreover, he is neither a member of the House of Representative nor that of Senate.
- By confirming veto power but equally not confirming the law-making power to the President, the Congress controls the Presidents and vice versa. In this way, ‘Checks and Balance’ are maintained.
- Theoretically, we may say that the doctrine of Separation of Power is adopted in our Constitution, but it is only between the Executive and Judiciary.
- The President is a part of the Union Executive. Yet, it is the Prime Minster and the Council Ministers who are the real executive because the President has to act on the aid and advice of the Council of Ministers.
- They have dual capacity:
- One, in capacity of executive; and
- Two, in the capacity of lawmaker.
The Prime Minster, in his capacity as the leader of the ruling party can enact a law, which his administration executes. Thus, the Prime Minster and his Council Ministers enact the law and the administration executes the same, which is per se, contradictory to the doctrine of Separation of Power.
- Checks and Balances
No organ of the government can be given complete liberty. Hence there have to be checks and balances.
- How are checks and balances achieved in the US Constitution?
Judiciary checks on other branches of the government, by judicial review of the executive as well as legislative acts.
- How Congress checks the President or powers of the President?
- It is necessary to ratify the international agreements and higher appointments
- Principle of no taxation without representation
- Impeachment of the President
- How President checks the Congress?
- By the use of veto powers (Congress can pass a bill against Presidential veto with 2/3rd majority. So the President doesn’t have an absolute veto.
- Pocket Veto: Two situations arise –
Congress in session for ten days: Bill can be passed even without the assent of the President
Congress in session for less than ten days: Bill will lapse.
- President and Congress applying checks on Judiciary
- Appointment of Judges: appointed by the President and ratified by the Senate
- Removal of Judges: removed through impeachment by the Congress and approved by the President
- Salaries and emoluments controlled by the President
- Fundamental Rights
While US has incorporated the “Bill of Rights”, India has incorporated “Fundamental Rights” in its Constitution. However, the American Constitution has provided additional human rights, which are not to be explicitly found in the Indian Constitution.
- Freedom of press is explicitly provided under the 1st amendment of the US Constitution, while in India it is implicitly read under the Article 19[a], freedom of speech and expression. Petition to the Supreme Court is a fundamental right in India, where as in US it is the government that is petitioned (In case of US, the word “government” has a wider connotation and encompasses not only the executive, but also the higher judiciary).
- The Americans have a right to keep arms and guns for the protection of their life and property. This was provided under the 2ndamendment. Therefore, guns and arms are sold like any other commodity in US without legal hassles, whereas in India it is a total contrast, because apart from not being a fundamental right, it is a highly regulated legal right.
5th amendment to the US Constitution guarantees that an accused will be tried for criminal offence with a system of “Grand Jury”. Grand Jury means that common people are selected by the government randomly, representing the community. They play a part in deciding the guilt of the accused persons. The number of persons selected to be in the grand jury varies from 6 to 12, or even more, if the case is controversial.
On the other hand, in India criminal trials are adjudicated by the Judges only.
Further, in US, no person’s life and liberty shall be deprived without “due process” of law.
- Due process means that the content and procedure of law must be just, fair, and equitable, which will be decided by the judiciary.
- Legislative power of depriving a person’s liberty is restricted and scrutinized and evaluated by the judiciary.
In India, a person’s life and liberty shall be deprived according to the “procedure established by law”.
- The world “procedure established by law” gives wide discretionary power to the legislature to restrict the liberty.
- Nevertheless, the Supreme Court in Maneka Gandhi case (even though the court did not use the word due process) held that the procedure established by law must be fair, just and equitable.
The Indian Parliament deleted the Right to Property from the list of Fundamental Rights in 1978. Whereas, in US, the right to property is still a fundamental right and no property shall be acquired without just compensation.
A person accused of crime enjoys certain explicit rights under the 6th Amendment to the US Constitution: speedy and public trial, notice of accusation, compulsory process of obtaining witness in his favor and assistance of legal counsel of his choice.
All these rights in India are not expressly mentioned in the Constitution. Nonetheless, these rights are provided by the Supreme Court by broadly interpreting the Right to Life and Liberty under Article 21.
Further, the 8th amendment to the US Constitution says that bail shall not be denied to an accused, the imposed fine should not be excessive and inflicted punishment shall not be cruel. These rights are also made available to Indian people because of well-established precedents pronounced by the Supreme Court under Article 21.
9th Amendment to the US Constitution is quite important because it says that mere enumeration of certain rights in the Constitution shall not be interpreted to deny the other rights retained by the American people.
In spite of the statutory rights in the Constitution people enjoy other rights, which are given by nature. The American Constitution is highly influenced by Locke’s philosophy of inalienable natural rights of human being.
The Indian Constitution, on the other hand, does not contain any such notable Article. Therefore, Indians enjoy only those rights recognized by the Constitution, which are based on the philosophy of Austin and Bentham’s theory of law.
- Distribution of Legislative Power
Seventh Schedule of the Indian Constitution distributes the legislative power between the Central and State governments. The Central and State governments have exclusive power to make laws on 97 and 66 subjects, listed in the Union and State list respectively. On the 47 matters of Concurrent list both the Centre and State can make laws. In case of conflicting laws, law of the Centre would prevail.
97th subject in the Union list says that any subject, which does not belong to any other list would automatically confer power to the Parliament to make a law regarding that subject. Thus, our constitution makers have created stronger Central and weaker State governments, which depend on the Central government for the financial assistance.
It is quite contrary in the case of US, where no elaborative mechanism is provided. Few expressly mentioned subjects are with the federal and rest of the matters with State governments.
Emergency and Suspension of Writs
In India, an emergency can be declared on the ground of War and Armed Rebellion. During such emergency all fundamental rights except the right to life can be suspended. The American Constitution does not use the phrase of emergency but says that in case of Rebellion and Invasion of Public Safety, the writ of Habeas Corpus can be suspended.
There is no qualification mentioned for the appointment of judges of the Supreme Court. In America, the President has the final say in the appointment of Supreme Court Judges. He suggests the names of judges to the Senate and on the advice and consent of the Senate, judges are appointed by the President.
The Judicial Committee of Senate plays a very significant role in evaluating the credentials of the proposed judges of the Supreme Court. They make the investigation of the background of judges, they hold a face-to-face interaction with the judges, the judges are queered and grilled and questions are put.
The whole process happens in public and in a transparent manner. If a citizen of the US has any information about judges’ integrity, he can send that information, with evidence, to the Senate Judicial Committee, which further investigates to ensure that no unworthy candidate is appointed as a Judge to the Supreme Court.
In the appointment of Judges, the people of US also participate and the judiciary of US has no role to play in the appointment of judges. The entire process of appointment of judges is crystal clear.
There is no fixed tenure of the judges. However, if they are retiring at the age of 70 years, they will get salary and perks as a working judge.
In India, on the other hand, the entire process of appointment of judges happens in a darkroom, between the judiciary and executive. The people of India come to know of the judges only after their appointment. Neither the people are informed in advance, nor does the executive make an open inquiry about judges.
The President appoints Judges to the Supreme Court based on a process, in which the Chief justice and four senior judges of the SC play a very dominant and decisive role. The entire process of appointment of judges happens in the backyard and under the carpet without the involvement of the people, which is cited by many as a serious flaw of the Indian legal system. The judges hold the office up to the age of 65 years.
Amendment of the Constitution
There are two ways to amend the US Constitution:
- Proposed by the Congress and ratified by the States
-Amendment to be passed by 2/3rd majority in both the Houses
-To be ratified by the State Legislatures of at least 3/4th of the States
2. Proposed by States and ratified by the States
-2/3rd of the States should pass a resolution to this effect
-They will communicate to the Congress. The Congress will call the convention.
-In the convention, it has to be ratified by 3/4th of the States
In case of India, the amendment process is easy and flexible as compared to the US.
In India, it is only the Parliament that can propose an amendment to the Constitution and States do not have any role to play in this matter. While some of the Articles can be amended by a simple majority,
While some of the Articles can be amended by a simple majority, a special majority is required for others, and in some limited Articles, ratification by more than half of the States is also required. The majority here means the majority of the Members of the Parliament present on the date of the amendment and is not related to the total strength of the Parliament.
The fact that the US Constitution got amended only 27 times in the last 225 years, shows how rigid it is to amend the US Constitution, in contrast to the Indian Constitution.