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  • Constitution of Japan: Features, Comparison with Indian + other constitutions

    Japan has a Parliamentary system of Government.

    It has a constitutional Monarchy. King is more like a ‘Rubber stamp’ authority while PM is head of the Cabinet.

    Election of the PM

    PM is elected by both the Houses of Japanese Parliament (called Diet)

    1. The two houses of the Diet are:
    • House of Representatives; and
    • House of Councillors

    It is not enough for a person to be a leader of the majority party.

    He has to be elected by both the houses of the Parliament. If no agreement is reached upon between the two houses on a candidate, then the matter is taken care of by a Joint Committee of both the houses.

    The Committee gets 10 days to arrive at a decision. After 10 days, if an agreement cannot be reached, then the will of the lower house prevails.

    A significant feature of Japanese Constitution is contained in Article 9.

    Herein, Japan formally renounces the policy of war for the settlement of international disputes. However, it can keep forces for self-defence.

  • German Constitution: Features, Comparison with Indian + other constitutions

    Germany is a federation and the residuary powers in Germany lie with the states. The states are referred to as ‘Landers’.

    It has a Parliamentary form of Government, modeled on the British Parliamentary form. But it is not just a replicate of the system.

    Germany is called as ‘Chancellor’s Democracy’. Chancellor is the PM.

    President is the Constitutional Head.

    Salient Features

    • Chancellor’s Democracy
    1. The Chancellor has a clear-cut superiority over other Ministers.
    2. Chancellor Principle: Chancellor has a privilege to determine the broad policy and other ministers are expected to act as per these guidelines. While a minister works under these guidelines, he enjoys a lot of autonomy with respect to his department. This mechanism ensures the stability of the coalition government.
    • Cabinet Principle

    It comes into existence only when there is a dispute among different departments. In such a situation decision is taken collectively.

    • Constructive Vote of No-Confidence

    The motion of no-confidence against the Chancellor is permitted only when those bringing the notion can prove that they are in a position to form an alternative government. This is also to deal with the problems of Hung Assembly (Coalition Government).

    Parliament

    Germany has two houses:

    1. The Bundestag: The lower house in the German political system is the Bundestag. Its members are elected for a four-year term. The method of election is known as Mixed Member Proportional Representation (MMPR), a more complicated system than First-Past-The-Post (FPTP), but one which gives a more proportional result (a variant of this system known as the additional member system is used for the Scottish Parliament and the Welsh Assembly).

    Manner of Elections

    Half of the members of the Bundestag are elected directly from 299 constituencies using the first-past the post method of election. The other half – another 299 – are elected from the list of the parties on the basis of each Land (the 16 regions that make up Germany). This means that each voter has two votes in the elections to the Bundestag:

    1. The first vote allows voters to elect their local representatives to the Parliament and decides which candidates are sent to Parliament from the constituencies.
    2. The second vote is cast for a party list and it is this second vote that determines the relative strengths of the parties represented in the Bundestag.

    The 598 seats are only distributed among the parties that have gained more than 5% of the second votes or at least 3 direct mandates. Each of these parties is allocated seats in the Bundestag in proportion to the number of votes it has received.

    Reason behind adopting the above Election System

    This system is designed to block membership of the Bundestag to small, extremist parties. As a consequence, there are always a small number of parties with representation in the Bundestag.

    Overhang Seat

    In addition to the above, there are certain circumstances in which some candidates win what is known as an ‘Overhang Seat’, when the seats are being distributed. This situation occurs if a party has gained more direct mandates in a Land than it is entitled to, according to the results of the second vote, when it does not forfeit these mandates because all directly elected candidates are guaranteed a seat in the Bundestag.

    Comparative analysis of Bundestag

    One striking difference when comparing the Bundestag with the American Congress or the British House of Commons is the lack of time spent on serving constituents in Germany. This is so because:

    1. Only 50% of Bundestag members are directly elected to represent a specific geographical district.
    2. A serving constituency seems not to be perceived, either by the electorate or by the representatives, as a critical function of the legislator.
    • There is also a practical constraint on the expansion of constituent service in the form of a limited personal staff of Bundestag members (especially compared to members of the US Congress).

    The Bundesrat

    The upper house in the German political system is the Bundesrat. At a first glance, the composition of the Bundesrat looks similar to other upper houses in federal states such as the US Congress, since the Bundestag is a body representing all the German Lander (or regional states).

    However, there are two fundamental differences in the German system:

    1. Its members are not elected (neither by popular vote nor by the State Parliaments). They are members of the State Cabinets, which appoint them and can remove them at any time. Normally, a state delegation is headed by the head of government in the Land, known in Germany as the Minister- President.
    2. The States are not represented by an equal number of delegates, since the population of the respective state is a major factor in the allocation of votes (rather than delegates) to each particular Land. The vote allocation can be approximated as 2.01 + the square root of the Land’s population in millions with the additional limit of a maximum of six votes so that it is consistent with something called the Penrose method based on game theory. This means that the 16 states have between three and six delegates.

    This unusual method of the composition provides for a total of 69 votes (not seats) in the Bundesrat. The State Cabinet may then appoint as many delegates as the state has voted, but is under no obligation to do so; it can restrict the state delegation even to one single delegate.

    The number of members or delegates representing a particular Land does not matter formally since, in stark contrast to many other legislative bodies, the delegates to the Bundesrat from any one state are required to cast the votes of the state as a bloc (since the votes are not those of the respective delegate).

    This means that in practice it is possible (and quite customary) that only one of the delegates (the Stimmführer or “leader of the votes” – normally the Minister-President) casts all the votes of the respective state, even if the other members of the delegation are present in the chamber.

    Even with a full delegate appointment of 69, the Bundesrat is a much smaller body than the Bundestag with over 600 members. It is unusual for the two chambers of a bicameral system to be quite so unequal in size. But the Bundesrat has the power to veto a legislation that affects the powers of the states.

  • French constitution: Features, Comparison with Indian + other constitutions

    France is known as ‘Laboratory of Political experiment’.

    It has a unitary form of government and nature of the government is called as semi-Presidential type

    It has some features of Parliamentary system and others of Presidential system

    1. The French Parliament does not have supremacy even in lawmaking. There is a list for which the legislature can make laws, whereas rest of the matters are taken care of by the President (i.e. he makes the laws).
    2. This is perhaps the only Democratic Constitution based on the Principle of Supremacy of Executive.
    3. France suffered from political instability. Hence, the Constitution of the 5th Republic provides a strong President, with a fixed term of 5 years, and he enjoys a lot of powers.

    President

    1. The French President is the most powerful within the French system as well as amongst all other executive across world democracies
    2. Privileges of the Office of the President of US, i.e. security of tenure and being the head of the Government as well as head of the State is combined with the privileges of the Office of the British P.M. i.e. power to dissolve the Assembly (which the American President doesn’t enjoy)

    France has PM as well as President.

    French PM, unlike that in India and Britain, is assistant to the President. There is a division of functions, rather than

    There is a division of functions, rather than the division of power between the two positions. The French President deals with foreign policy and national concerns. The PM, on the other hand, deals with day to day routine functions of the Government and local domestic issues.

    PM is appointed by the President. The President doesn’t have a completely free-hand in PM’s election. The person appointed as PM must enjoy the confidence of the House.

    Concept of ‘Cohabitation’

    A situation where the President and the PM belong to different political parties

    PM may choose his cabinet colleagues. None of the members of the Govt. can be a part of the legislature

    Cabinet is presided over by the President.

    The Lower House can pass the ‘Censure Motion’ against the PM and his CoM, which would imply that they must resign

    The President is elected for a fixed term. Initially, the term was 9 years, reduced to 7 years and at present is 5 years.

    They follow Second Ballot system (i.e. an absolute majority of the total votes polled is needed)

    The President of the Republic shall be elected by an absolute majority of votes polled: if in the first round of elections, no person gets absolute majority only the top two candidates remain and the rest are eliminated. The second round of election takes place, in which one person is able to get the absolute majority.

    Removal of the President

    1. The President can be impeached on the same ground as the US President. However, the process is ambiguous.
    2. Article 67 of the Constitution suggests that both the Houses should pass an identical motion.
    • After this, the President’s case will be dealt with by a special body called the High Court of Justice.
    1. This body also trails cases of corruption and conspiracies against the state by government ministries.

    Emergency Powers of the President

    Article 16 of the Constitution gives the real emergency powers to the President. In this situation he assumes unlimited powers and it is like democratic dictatorship or democratic coup-detat.

    Comparative Analysis of the US and French Presidents

    1. The US President cannot dissolve the Assembly, whereas the French President can do so. The only limitation is that he can’t do so more than twice a year.
    2. Unlike the US President, the French President can assume dictatorial powers under Article 16.

    Comparative Analysis of the French President and British P.M

    The British P.M. can remain in office only as long as he enjoys majority in the lower house. The President of France, on the other hand, is elected for a fixed term.

    The Legislature

    The Legislature is clearly subordinate to the Executive in the French system. Article 37 of the Constitution puts clear limitation on the legislative power of the French Parliament.

    It mentions that the Parliament can make laws only on the matters enumerated in the Constitution. On all other matters, the government can make laws by simple order or decree.

    The President can directly influence the legislative functions of the assembly through the P.M. If the assembly doesn’t agree to a particular bill, it can be given for referendum by the President.

    The French Parliament is bicameral, consisting of two houses: National Assembly and the Senate.

    National Assembly

    As is the case with other bicameral Parliaments, the French bicameralism is an unequal system since the National Assembly has much broader powers than those of the Senate:

    1. It alone can hold the Government accountable by refusing to grant it ‘confidence’ or by passing a censure motion (following the same idea, only the National Assembly can be dissolved by the President of the Republic).
    2. In the case of disagreement with the Senate, the Government can decide to grant the National Assembly “the final say” in the legislative procedure (except for constitutional acts and institutional acts concerning the Senate);
    • The Constitution provides the National Assembly with a more important role in the examination of the finance bill and the social security financing bill. Thus, the tabling for a first reading of such bills must be before the National Assembly and the time limits granted for their examination are much longer for the National Assembly.

    The Senate

    In contrast to the National Assembly, the Senate cannot be dissolved.

    The fact that Senate is a permanent body plays an important role in accounting for the stability of the Government when the post of the French Republic’s President falls vacant.

    Owing to above, it’s the President of the Senate who is appointed the President of French Republic if the latter is prevented from doing so, if he falls ill or resigns. Thus, a case of power vacuum is prevented, in case the President’s office falls vacant.

    This interim is limited to the time needed to organize a presidential election (in practice, it lasts around 50 days).

    Prominent Features of the French Constitution

    1. Organic Law:An organic or fundamental law is one that forms the foundation of a government or organization. A Constitution is a particular form of organic law for a sovereign state. The French Constitution has certain laws mentioned as organic laws. Laws made by the Parliament and the orders of the Executive must confirm to the Organic laws. So these laws have to be reviewed by a body known as the Constitutional Council. It has 9 members – three are representatives of the President, three are representatives of the French National Assembly, and the remaining three are representatives of the Senate.
    2. High Council of Justice: The purpose is the nomination of the judges. This body is headed by the President and the members of the Judiciary. The President is also known as the ‘guardian of Judiciary’.
    3. Economic and Social Council: Constitutional advisory body on social and economic issues.

    Amendment of the Constitution

    1. Rigid process
    2. Both the Houses of Parliament have to pass a resolution by 3/5th majority.
    3. The President may also choose to refer the amendment to people by referendum.

  • Chinese constitution: Features, Comparison with Indian + other constitutions

    China is a socialist country. There is supremacy of socialist ideology in China.

    The Chinese Constitution accepts the leadership of the Communist Party of China (CPC). Communist Party of China (CPC) is the largest political party in the world, having millions of local level members.

    It works on the principle of Democratic Centralism. The full meeting of the party is called as National Party Congress (NPC), which is convened once in five years. Though theoretically all power lies with the people, but in practice, it is with the top leaders.

    NPC members select the members of the Central Committee. The Central Committee selects the Polit Bureau (around 200 members). The Polit Bureau selects the Standing Committee of the Polit Bureau (at present 24 members; the most powerful members of the party).

    Salient Features of the Constitution

    • Preamble

    The paramount position of Marxism, Leninism and Mao’s teachings has been acknowledged in relation to ideological goals of the political system. Traditional principle of Democratic Centralism has also been given due place within the Constitutional setup. The old definition of China as a “Dictatorship of the Proletariat” has been replaced with “People’s Democratic Dictatorship.”

    The Preamble clearly recognizes Taiwan as an integral part of China and its liberation is declared as a liability of Chinese People. Five points have been set as the underlying principles to be observed in the field of foreign relations. These include:

    1. Respect and Preservation of the territorial integrity of all nations
    2. Avoidance of aggression
    3. Non-interference in the internal affairs of other countries
    4. Promotion of international cooperation
    5. Peaceful coexistence
    • Nature of Constitution

    It has close affinity in letter and spirit, with the constitution of the former Soviet Union. It is neither too rigid nor too flexible.

    • Basic Principles

    Under the Constitution, People’s Republic of China is a Socialist State established in the name of People’s Democratic dictatorship, wherein Communist Party performs a leadership role to guide the people. People are declared as fountain of power and authority and they will exercise it through National People’s Congress.

    • Unitary System

    The People’s Republic of China is a unitary multi-national state created jointly by the people of all its nationalities. In China, a strong central government exists while regional governments, as distinct entities, have not been created under the Constitution. Therefore, In order to encourage people’s participation in policy-making and preserve their interest in public affairs, decentralization has been introduced in the governmental affairs. The central government has delegated much authority and powers to the regional and local administrative units.

    • Democratic Centralism

    Like the political system of former Soviet Union, the principle of “Democratic Centralism” prevails in People’s Republic of China as well. Keeping in view democratic norms, elective principle has been introduced at all levels not only within the governmental institutions but also within the Party organization. All the citizens have been secured the right to vote on the basis of adult suffrage.

    • One Party System
    1. The Communist Party enjoys almost dictatorial powers within the constitutional framework and has been regarded as the sole source of political authority for all practical purposes.
    2. Party organization runs parallel to that of the governmental institutions. Party elite hold all top-notch positions in the government.
    3. In practice, no other political party enjoys real freedom to act.

    Certain youth organizations, loyal to the party and working groups affiliated with the Party, enjoy the right to participate in decision-making.

    Legislature

    1. The National People’s Congress (NPC) comprises the legislative branch.
    2. It is a unicameral legislature with more than 3000 members.
    3. Theoretically, it is the top decision making body in China. It has the ultimate say on policies, amendments and appointment of ministers in the government.
    4. It has been declared as an organ through which the people exercise state power.
    5. Congressmen are elected by regional Congresses, by autonomous regions, by Municipalities working under the central government and by People’s Liberation Army, each according to its quota.
    6. The mode of election is based on secret ballot, while the constitution guarantees holding of free and fair elections.
    7. The real work of NPC is done by a smaller body known as Standing Committee of NPC, consisting around 150 members.
    • Duration

    The Congressmen are elected for a period of five years but the Congress can be dissolved before the expiry of its term and it can be extended as well. The Standing Committee of the Congress is responsible for making proper arrangements for holding fresh elections prior to the completion of its term.

    • Sessions

    Sessions of the Congress are held once a year in Beijing. The Standing Committee of the Congress normally summons its session. In addition to it, the Chairman of the Congress can also summon the session on the request of one fifth of its members.

    • Powers

    The National People’s Congress is the supreme law-making body, which is fully authorized to enact laws, alter or repeal the existing ones. It also approves the administrative policy for the state.

    Enactment of Laws

    During its sessions, the Congress enacts new laws and makes necessary alterations in the existing ones, if circumstances so demand. The Constitution can be amended with the support of two-thirds majority of the members of the Congress, whereas ordinary laws are enacted by a simple majority. It is to be noted, that the acts of the Congress cannot be challenged in the Supreme Court.

    Executive Powers

    National People’s Congress is also empowered under the Constitution, to supervise the execution of constitutional laws and statutes. It can affect and control administrative policies through its choice regarding the appointment of superior public officials. All the administrative departments along with their ministers in charge are accountable to the Congress in respect of performing their official functions. Congress also exercises the power to approve National Economic Policy and the annual budget. Congress is fully authorized under the constitution to exercise all such powers as it thinks expedient and necessary within its sphere of action.

    Elective functions

    NPC holds a pivotal position within governmental structure by virtue of its power to elect the top-notch occupants of the governmental authority. Under the Constitution, it also elects the President and Vice President of the Republic and appoints Premier of the State Council on the recommendation of the President. On the advice of the Premier, it also appoints other ministers. Congress is also empowered to remove the ministers. It also exercises the power to appoint or remove the President of the Supreme Court and Chief Procurator of the Supreme Procurate.

    Though the NPC is fully authorized by the Constitution to exercise all the foregoing powers, in practice, it is not an active body. Rather its position, as a free law-making body is merely in theory. Major reasons being:

    1. Its sessions are rarely held on a regular basis. It meets only once a year, that too for not more than a few days.
    2. The powers of Congress are virtually exercised by its Standing Committee.

    Standing Committee

    The Standing Committee of the Congress is an effective and active body, as it exercises, in practice, most of the Congressional powers. It is outwardly a body subordinate to the Congress, as a matter of principle. It is accountable to the parent body and is bound to present regular reports of its working. All the members of the Committee are elected by the Congress and liable to be removed on its discretion.

    Powers

    1. The Committee summons the sessions of the Congress, in addition to the issuance of orders to hold its fresh elections.
    2. It performs the function of interpreting the statutes as well as the laws of the Constitution. The performance of this judicial type of function enhances its importance and the scope of power.
    3. It supervises the functioning of the State Council, of superior courts and that of Procurator. These functions have been assigned to the Standing Committee by the Constitution.
    4. The Committee has the authority to alter or repeal any inappropriate decision of the official departments, autonomous regions, provinces and that of the Municipalities working under the Central government.
    5. It is actually the repository of real powers during the interval in which the Congress is out of session. During this period, it wields the authority to issue orders regarding the appointment of new ministers and removal of the previous ones, on the advice of the Premier. It can issue orders for the appointment or removal of the Vice President as well as the Deputy Chief Procurator.
    • Chairman

    The Chairman of the Committee has been regarded as the most powerful person in the political setup. He presides over the meetings of the Standing Committee. He has also been endowed with the power to issue decrees and promulgate ordinances. His list of duties include:

    1. To receive the diplomatic envoys of other countries;
    2. Ratification of the treaties made with other countries; and
    3. Appointment of the members of diplomatic corps assigned to other countries.

    Other Committees

    The People’s Congress forms a number of Committees during its term, such as National Committee on fiscal and economic affairs, Committee on education, science, culture and health issues, Committee on foreign affairs, Committee on matters relating to Chinese settled abroad. All these committees work under the supervision of the Standing Committee of National People’s Congress during the period the latter is not in session.

    Keeping in view the aforesaid functions and powers of the Standing Committee, it is apparent that it is a powerful and effective body. As the Congressional annual session lasts a few days only, its powers are virtually exercised by the Standing Committee for the remaining period the parent body is not in session. The Committee’s members, being the members of the Chinese Communist Party, perform important role in administrative affairs as well.

    Executive

    • State Council

    The State Council is the Cabinet or Executive of China. It is headed by the Premier, four Vice Premiers and State Councillors. Under the Constitution, State Council is the chief executive organ of the government. All its members are elected by the Congress and accountable to it. Enforcement of law, formation and execution of the administrative policy is the major function of the Council. The members of the State Council introduce the bills on the floor of the Congress in the form of proposals and later manage to get these translated into law on parliamentary lines.

    • Premier

    The Premier performs a very important role as head of the administration and holds a pivotal position within the administrative set up.

    • President
    1. The President of the Republic is regarded as head of the state.
    2. He is elected by the Congress for a period of five years.
    • The President enjoys the most prestigious position in the administrative setup.

    Judiciary

    China has a committed Judiciary, i.e. committed to the goal of Socialism. The highest organ is the Supreme People’s Court. China also has a Court of Procuratorates – it deals with corruption cases of officials. Chinese law has never been codified in a systematic form. Most of the disputes and controversies are settled in quasi-judicial institutions. The Chinese judicial system has been held together more by conventions, rather than by laws.

    • Central Military Commission
    1. The party and the government maintain control on the military through the Central Military Commission
    2. Military is also described as the defenders of the Communist Party.

    Rights and Duties

    Rights

    1. The Chinese Constitution gives Fundamental Rights and prescribes certain duties for its citizens.
    2. All citizens at least18 years of age are secured the right to vote. They also enjoy the right to contest elections. Right to secrecy of all correspondence, freedom of speech and expression, freedom to join or form associations, and right to hold public meetings even to the extent of staging demonstration or resorting to strike for articulation of demands, have been secured under the Constitution.
    • According to the constitution, the government is under obligation to afford full protection to the preservation of family life in addition to the integrity of a person. All citizens have the right to personal security against illegal detention. The constitution also recognizes equal right of all citizens to education and cultural freedom. Equality of men and women has also been recognized in all areas of life.

    Duties

    The Chinese constitution explicitly prescribes certain duties of the citizens, which are justiciable. It is the first and foremost duty of the citizens to cooperate with the Socialist leadership in every respect, abide by the Constitution and all other state laws. They are required to protect public property and extend a helping hand in the maintenance of law and order. To defend the country against foreign aggression is also another duty of the citizens.

    Communist Party of China

    The Chinese Communist Party came into being in 1921. Lenin sent one representative to China to assist in organizing the newly established party. Cheng Tu-hisu was appointed as the first Secretary General of the Chinese Communist Party and within a short period many branches of the Party were established in the towns and cities.

    • Ideological Foundations

    Ideology of the Chinese Communist Party had been shaped by the teachings of Marx and Lenin right from its inception. It developed a deep linkage with the global Communist Movement in its early phase. Mao also played a pivotal role in the socialist struggle of the Chinese People.

    • Party Organization

    The party operates on the principle of Democratic Centralism. Accordingly all office bearers of the Party are elected. Primary unit of the Party elects District Congress while District Congress elects the deputies of the Congress of the upper level. Party members enjoy right to criticize party leadership and may initiate proposals for framing party policies. On the same pattern, primary party branches may lodge complaints for the consideration of higher leadership.

    On the other hand, strict party discipline is maintained and strong centralism operates in the decision-making process. It is obligatory on the lower ranked party members to abide by the decisions of the higher ranked party leadership. In practice, most of the decisions are thrust upon by the higher ranks within the central leadership.

    • Politburo

    The Politburo has been regarded as the most powerful body in the decision-making process, as it makes all- important decisions; so much so that it summons the sessions of the Central Committee. It also has a Standing Committee consisting of seven members. Like its counterpart within the government, the Standing Committee of the Politburo exercises all the powers of the Central Committee when the latter is not in session.

    • National Congress of the Communist Party of Congress

    National Congress of the Communist Party of Congress holds a pivotal position in the policy-making of the Party. Members of the Congress numbering in thousands with no fixed size are elected by the respective regional and local party congresses for a period of five years.

    • Central Committee

    The National Congress of the Communist Party of Congress holds its sessions for a few days, once every five years. The Central Executive Committee, comprising limited membership, exercises the power of the Congress when the latter is not in session. The powers of the Central Executive Committee are also exercised in practice, by its Politburo, as the former rarely holds its meetings. The Central Committee elects the members of its Politburo, as well as its Chairman and Vice Chairman.

    Other Parties and Groups

    The single party system, on the lines of Soviet Union, has not been adopted in the People’s Republic of China; rather such smaller parties, as Kuomintang Revolutionary Committee, Democratic League, National Construction Association, and various Youth Organizations are allowed to function.

    Hence, China is a multi-national and multi-party country. In China, the term democratic parties refer to the eight other parties apart from the Chinese Communist Party. These have developed cooperation with the Chinese Communist Party on different levels, since the inception of the new order.

    But, the Communist Party enjoys a political monopoly in China, while other parties have merely dejure existence. Party Organization runs parallel to that of the government. A person holding an important position as a public official is also assigned office within the Party.

    The Central leadership of the Party is mainly responsible for chalking out government policies. The importance of any government department can’t be assessed keeping in view merely its legal status, since its role within the Party matters.

    The Central leadership of the Party is mainly responsible for chalking out government policies. The importance of any government department can’t be assessed keeping in view merely its legal status, since its role within the Party matters.

  • Constitution of USA: Features, Comparison with Indian + other constitutions

    Salient Features of American Constitution

    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 American 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:

    1. Appointment of Governors.
    2. Governor having the power of reserving the States’ bills for consent of the President.
    3. 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.

     

    Difference between Indian Constitution and American Constitution

    The Indian Constitution and the American Constitution differ in several key areas. The American Constitution, adopted in 1787, is much shorter and establishes a presidential system with a clear separation of powers among the executive, legislature, and judiciary. Additionally, the Indian Constitution can be amended more easily, while the American Constitution requires a more complex process for amendments.

    Aspect Indian Constitution American Constitution
    Length Long and detailed (448 articles) Short (7 articles)
    System of Government Parliamentary system Presidential system
    Adopted in 1950 1787
    Amendment Process Easier to amend More complex amendment process
    Federal Structure Federal with unitary elements Purely federal
    Rights & Duties Includes fundamental rights and duties Primarily focused on fundamental rights

    Form of Government (India vs USA)

    USA

    1. America has adopted a Presidential form of government, in which the people directly elect the executive President.
    2. The President is powerful and not accountable to the House of Congress.
    3. The term of the American President is 4 years (fixed term).
    4. One can hold the office of the President for only two terms.
    5. 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

    1. India has adopted a Parliamentary form of government.
    2. 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.
    3. The President runs the government with the aid and advice of the Prime Minster and the Council of Ministers.
    4. Unlike USA, the Indian President holds the office for five years.
    5. He can be elected any number of times.

    The impeachment of the President by the legislature is the only similarity in both the Constitutions.

    • President

    The position of the American President combines both the Head of State and the Head of Government into one.

    • Qualification

    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.

    Electoral College

    1. Strength of Electoral College = Total members in House of Representatives + Senate + 3 members from Washington D.C. = 435 + 100 + 3 = 538
    2. 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

    1. The voters vote for the members of the Electoral College
    2. System of election is the List System
    3. Each state has a responsibility to conduct these elections
    4. The party that wins the majority of the votes represents the state in entirety
    5. Electors meet in their respective capital and vote for the Presidential candidate
    • Functions of the President of USA

    Executive Functions

    1. Appointments
    2. Representing the country
    3. Preparation of the Budget

    Legislative Functions

    1. No presence in legislature
    2. The President doesn’t address the legislature
    3. He cannot dissolve the legislature
    4. 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.)

    Veto Power

    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
    1. 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.
    2. 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

    US

    1. 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.
    2. The terms of President and Vice President shall end at noon on the 20th day of January.
    3. 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.
    4. 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.

    India

    1. 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.
    2. Hence, unlike the American system the time schedule cannot be maintained, in the case of India.
    • Primaries
    1. Primaries are elections to select the candidate
    2. They are conducted by Political Parties
    • Impeachment of the President of USA
    1. Reasons: Treason, Bribery, High Crimes of Misdemeanor. No system of impeachment for violation of the Constitution, unlike the Indian Constitution
    2. Process: 
    • 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

    Important terms of the American Constitution

    1. 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.
    2. 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.
    3. 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.
    4. 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.
    5. 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.

    Vice President

     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:

    1. 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
    2. 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.

    1. 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

          2. Senate

    1. Permanent body
    2. Strongest upper house in the world
    3. It has equal powers in ordinary bills, amendment bills and money bills.
    4. 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
    1. 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
    2. 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

    US

    1. America’s House of Representative and Senate are permanent bodies.
    2. The terms of the members of the Representative and Senate come to an end on 3rd

    India

    1. 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.
    2. 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?

    1. According to Montesquieu – liberty is not protected, unless there is Separation of Power.
    2. Separation of Power with judiciary is a universal feature in all democracies.
    3. 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.

    US

    1. The US Constitution strictly adheres to the doctrine of Separation of Power proposed by Locke and Montesquieu. Separation of Power is complete in US.
    2. All the three branches of the government have separate functions.
    3. The term of Legislature and Executive are fixed and do not depend on each other.
    4. None of the member of the Legislature can be a member of the Executive.
    5. The Houses of Congress enact the law; the President executes the law; and the Supreme Court interprets the law.
    6. 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.
    7. 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.

    India

    1. 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.
    2. 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.
    3. They have dual capacity:
    4. One, in capacity of executive; and
    5. 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.

    1. 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.

    1. How Congress checks the President or powers of the President?
    2. It is necessary to ratify the international agreements and higher appointments
    3. Principle of no taxation without representation
    • Impeachment of the President
    1. How President checks the Congress?
    2. 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.
    3. 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.

    1. President and Congress applying checks on Judiciary
    2. Appointment of Judges: appointed by the President and ratified by the Senate
    3. 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.

    1. 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[1][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).
    2. 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.

    1. Due process means that the content and procedure of law must be just, fair, and equitable, which will be decided by the judiciary.
    2. 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”.

    1. The world “procedure established by law” gives wide discretionary power to the legislature to restrict the liberty.
    2. 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

    India

    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.

    US

    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.

    Judiciary

    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:

    1. 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.

  • British Constitution: Features, Comparison with Indian Constitution

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    Salient Features

    • Unwritten

    One of the most important features of the British constitution is its unwritten character. There is no such thing as a written, precise and compact document, which may be called as the British constitution. The main reason for this is that it is based on conventions and political traditions, which have not been laid down in any document, unlike a written constitution, which is usually a product of a constituent assembly.

    Indian Constitution, in comparison, is the lengthiest written constitution in the world.

    • Evolutionary

    The British constitution is a specimen of evolutionary development. It was never framed by any constituent assembly. It has an unbroken continuity of development over a period of more than a thousand years. It is said that the British Constitution is a product of wisdom and chance.

    The Indian Constitution has certain similarities as well as differences on this particular aspect. It differs from the British Constitution to the extent that it is a written document and has well defined provisions. However, it too is open to evolution, given that the provision of

    However, it too is open to evolution, given that the provision of an amendment is kept such, so as to allow for the Constitution to evolve according to the needs and sensibilities of the time.

    • Flexibility

    The British constitution is a classic example of a flexible constitution. It can be passed, amended and repealed by a Simple Majority (50% of the members present and voting) of the Parliament, since no distinction is made between a constitutional law and an ordinary law. Both are treated alike. The element of flexibility has provided the virtue of adaptability and adjustability to the British constitution. This quality has enabled it to grow with needs of the time.

    Indian Constitution, in contrast, is both flexible as well as rigid. This compliments the basic ideology of the Indian Constitution quite well, wherein certain features like Sovereignty, Secularism, and Republic et al have been held sacrosanct, but otherwise the Constitution is amendable.

    • Unitary vs. Federal Features

    The British constitution has a unitary character as opposed to a federal one. All powers of the government are vested in the British Parliament, which is a sovereign body. Executive organs of the state are subordinate to the Parliament, exercise delegated powers and are answerable to it. There is only one legislature. England, Scotland, Wales etc. are administrative units and not politically autonomous units. The Indian Constitution, on the other hand, is federal.

    Unitary Federal Confederation
    Units come together and form the state. All power lies with the Centre Powers for Provincial Government comes from the Constitution.
        Centre delegates power to the provincial government.
    Example: India Real power with the units. Example: Britain Opposite to Unitary Example: EU, USA
    • Parliamentary Executive

    This is one important similarity between the British and the Indian Constitution. (In addition to the Sovereignty of Parliament)

    Britain has a Parliamentary form of government. The King, who is sovereign, has been deprived of all his powers and authority. The real functionaries are Ministers, who belong to the majority party in the Parliament and remain in office as long as they retain its confidence.

    The Prime Minister and his Ministers are responsible to the legislature for their acts and policies. In this system, the executive and legislature are not separated, as in the Presidential form of government

    • Sovereignty of Parliament

    The term Sovereignty means Supreme Power. A very important feature of the British Constitution is sovereignty of the British Parliament (a written constitution being absent).

    The British Parliament is the only legislative body in the country with unfettered power of legislation. It can make, amend or repeal any law. Though in India’s case, we have legislature at state level too, yet the law making power of the Indian Parliament roughly corresponds to that of the British Parliament.

    The courts have no power to question the validity of the laws passed by the British Parliament. The British Parliament may amend the constitution on its own authority, like an ordinary law of the land. It can make illegal what is legal and legalize what is illegal.

    Here, there is a marked difference, vis-à-vis the power of Indian Judiciary to keep a tab on the legality of the law framed. Also, the ‘Basic Structure’ doctrine, lends the Indian Judiciary further power to question the legality of the law, in light of the fact that the Supreme Court of India is the highest interpreter of the Constitution of India.

    • Role of Conventions

    Conventions are known as unwritten maxims (rules) of the Constitution. They provide flexibility and avoid amendments.

    Most constitutions of the world have conventions. A necessary corollary to the unwritten character of the British Constitution is that conventions play a very vital role in the British political system. For example, while the Queen has the prerogative to refuse assent to a measure passed by the British Parliament, but by convention, she doesn’t do so and the same has become a principle of the constitution itself.

    However, the legal status of conventions is subordinate to the written law.

    • Rule of Law

    Another important feature of the British constitution is the Rule of Law. Constitutionalism or limited government is the essence of Rule of Law. This checks the arbitrary action on part of the Executive. According to Dicey, there are three principles of Rule of Law, found in Britain:

    1. Protection from arbitrary arrest and the opportunity to defend oneself.
    2. Equality before Law:All persons are equal before law, irrespective of their position or rank. Equality before Law is different from the concept of Administrative Law, which gives immunity of various types to public servants. In the absence of Constitution and Fundamental Rights in Britain, the judiciary protects this law. So this system is called as the Principle of Common Laws (in USA – Principle of Natural Law; in India – Maneka Gandhi case).
    3. The rights of people in Britain are guaranteed by the judiciary. The Judiciary gives recognition to the common laws. Thus, the people in Britain enjoy rights, even in the absence of a Bill of Rights or Fundamental Rights.

    However it has been seen that Rule of Law isn’t practiced in its real sense.

    Several reasons are attributed for it:

    1. Growth of Administrative Law
    2. Growth of Delegated Legislation
    3. Internal and External Emergencies

    These developments have been termed as ‘New Despotism’.

    • Independence of Judiciary

    The Rule of Law in Britain is safeguarded by the provision that judges can only be removed from office for serious misbehavior and according to a procedure requiring the consent of both the Houses of Parliament. So, the judges are able to give their judgments without any fear or favor.

    The same has been adopted in India, where independence of Judiciary is hailed as an unmistakable part of the Constitution (one of the features of the ‘Basic Structure’ doctrine).

    Organs of the State

    Executive

    The Executive in Britain is called as Crown. Earlier, the Crown symbolized King. Now, the King is part of the Crown.

    The Crown, as an institution, consists of the following:

    1. King
    2. Prime Minister
    3. Council of Ministers (CoM)
    4. Permanent Executive, the Civil Servants
    5. Privy Council
    1. Crown: King is dead. Long live the King. In Britain, initially all power lied with the King. Later on, power shifted out of the institution of the King to the institution of CoM headed by the P.M., Permanent Executive and the Privy Council etc. Today, the Crown comprises of all these institutions. Hence, the first part of the statement describes the King as a person, while the second part describes the King or Crown as an institution.
    1. Nature of Monarchy: Britain has a constitutional monarchy and a constitutional monarchy is not incompatible with democracy. This is because essentially the powers of the monarch as head of the state – currently Queen Elizabeth II – are ceremonial. The most important practical power is the choice of the Member of Parliament to form a government, but invariably the monarch follows the convention that this opportunity is granted to the leader of the political party or coalition, which has majority in the House of Commons.

    Despite its lack of real power, the monarchy still has several important roles to play in contemporary Britain. These include:

    • Representing UK at home and abroad
    • Settings standards of citizenship and family life
    • Uniting people despite differences
    • Allegiance of the armed forces
    • Maintaining continuity of British traditions
    • Preserving a Christian morality

    In addition, consider the following:

    Parliamentary system requires two heads:

    • First head, as head of the state. He represents the nation and provides continuity to the administration.
    • Second head is the head of the government. He has real powers because the house has confidence in the Prime Minister. The P.M. is the leader of the House. He represents the majority of the House.

    The institution of kingship is a source of psychological satisfaction. It is said that, “with the King in the Buckingham Palace, the Englishmen sleep peacefully in their houses”. The King is of great help in critical times. He usually has a very long experience and can give valuable advice in the interest of the country.

    According to Bagehot, the King has three rights:

    • Right to warn
    • Right to encourage
    • Right to be informed

    Abolishing the kingship will require an elected head. An elected head, with no real powers, will have its own set of problems. In contrast, no provision of Monarchy exists in case of Indian Constitution. Indeed, holding of titles like King etc. are forbidden as per Article 18, a Fundamental Right, thus emphasizing Equality of all Indian citizens.

    1. British Prime Minister and the Council of Ministers: Britain has a Cabinet form of government. A cabinet is a plural or collegiate form of government. The power doesn’t lie in one person, but the entire Council of Ministers. The principle is, “all Ministers sink and swim together”. It is based on collective responsibility towards the Lower House. The Cabinet has its origins in the Privy Council set up to advise the King. The roles of cabinet include the following:
    • Approving policy (major policy making body)
    • Resolving disputes
    • Constraining the Prime Minister
    • Unifying government
    • Unifying the parliamentary party

    Moreover, the Cabinet is the ultimate body of law making in the Parliamentary system. It is formed out of the party/group, which enjoys majority in the House. The cabinet meetings are held in private.

    1. British Prime Minister
    • Position of the Prime Minister
    1. M. is the captain of the ship of the state.
    2. M. is the head of the Cabinet.
    3. The party of the P.M. enjoys majority in the House.
    4. He is the connecting link between the King and the Cabinet as well as the King and the Parliament.
    5. The life of the House depends on the P.M. He may advice the dissolution of the House.
    6. The other Ministers are appointed on the advice of the P.M.
    7. The term of the other Ministers also depends on the P.M.

    The P.M. as first among equals

    This is also called as Primus Inter Pares or Inter Stella Luna Minores.

    This explains the P.M.’s position w.r.t. other ministers. In the cabinet system, there is a principle of collective responsibility; hence other ministers are also important.

    The relative position of the P.M. and other ministers in a Parliamentary system can be compared to the relative position of the President and his secretaries in the Presidential system. In the Presidential system, members of the Cabinet are chosen by the President. In USA, spoils system exists.

    The Secretaries are not members of the Congress. In the Parliamentary system, ministers are also the members of either House. The P.M. cannot treat them as his subordinates.

    Theoretically, the P.M. should consider himself as only first among equals, must give due respect to other members of the Cabinet and should take decisions in consultation with them. However, the P.M. is first because:

    • He is the one who is appointed first, since he is the leader of the House of Commons.
    • Other ministers are appointed on his advice.
    • Other ministers can be removed on his advice.

    P.M. as moon among stars

    This statement gives a more realistic view of the position of P.M. In practice, the P.M. gains prominence and he is not simply the first among equals. Both formal and informal factors are responsible for this.

    • Formal Factors:He is the link between the Parliament and the King, and ministers are appointed/removed on his advice etc.
    • Informal Factors:Personality factors, position of his party, external/internal emergency like situation

    Difference between the British and Indian PM

    Constitutional position of the Indian P.M. is modeled on the British P.M., with one difference. In India, the PM can be a member of either House of Parliament, i.e. Lok Sabha or Rajya Sabha. However, this is not so in Britain. It is a convention in Britain that the P.M. will always be a member of the Lower House (House of Commons) only.

    Privy Council

    It has been one of the advisory bodies to the King. It has lost relevance because of the emergence of the Cabinet. Cabinet decisions are the decisions of the Privy Council. It has some supervisory role w.r.t. University of Oxford, Cambridge etc. It also has some role in resolution of disputes related to the Church as well as a Court of Appeal in some admiralty cases.

    Permanent Civil Servants/British Bureaucrats

    Indian bureaucracy is modeled on the British bureaucracy.

    Some features:

    • Bureaucracy in Britain is generalist
    • They are expected to be politically neutral
    • Recruited through competitive exams
    • Enjoy a lot of immunities
    • It is said that the British bureaucracy is not representative. It is still elitist
    • Bureaucrats are known as New Despots
    • It is said that the Bureaucracy thrives behind the cloak of ministerial responsibility
    • It has also been compared with Frankenstein’s monster (overpowering the Ministers)

    Legislature

    Essential differences between the two systems

    There is a natural tendency to compare the Parliament of India with the British Parliament.

    But our Parliament and Parliamentary Institutions and procedures are not a copy of the Westminster system. There are fundamental differences between their system and ours.

    British Parliament has grown through some three hundred years of history. In Britain, the Parliament can said to be the only institution, which exercises sovereign powers and on which there are no limits because there is no written constitution.

    India, on the other hand, has a written constitution. Powers and authorities of every organ of the Government and every functionary are only as defined and delimited by the constitutional document.

    The power of Parliament itself is also clearly defined and delimited by the Constitution. However, within its own sphere, the Parliament is supreme. Also, Parliament is a representative institution of the people.

    But it is not sovereign in the sense in which the British Parliament is sovereign and can do or undo anything. The point is that in the sense of constitutional sovereignty, their powers are not limited by a constitutional document.

    Moreover, our constitutional document provides for fundamental rights of the individual, which are justiciable in courts of law. And any law passed by the Parliament, which abridges any of the fundamental rights can be declared ultra vires by the courts.

    The courts adjudicate the disputes and while doing so, they can interpret the constitution and the laws. Also, Parliament has the constituent powers and within certain limitations it can suitably amend the constitution.

    The British Parliament is bicameral, that is there are two houses or chambers – The House of Lords (strength not fixed) and The House of Commons (strength fixed at 650 members). The House of Lords has hereditary members. Moreover, it has the largest number of Life Peers, Church/Religious peers (Ecclesiastical Peers) and Law Lords.

    The House of Lords

    The House of Lords is the second chamber, or upper house, of the United Kingdom’s bi-cameral (two chamber) Parliament. Together with the House of Commons and the Crown, the House of Lords form the UK Parliament. There are four types of members of the house:

    1. Life peers:These make up the majority of the membership. The power to appoint belongs formally to the Crown, but members are essentially created by the Queen on the advice of the Prime Minister. Life peers’ titles cease on death.
    2. Law lords:Up to 12 Lords of Appeal in Ordinary are specially appointed to hear appeals from the lower courts. They are salaried and can continue to hear appeals until they are 70 years of age.
    3. Bishops:The Anglican Archbishops of Canterbury and York, the Bishops of Durham, London and Winchester and the 21 senior Diocesan Bishops from other dioceses of the Church of England hold seats in the House. This is because the Church of England is the ‘established’ Church of the State. When they retire the bishops stop being members of the House.
    4. Elected Hereditary peers:The House of Lords Act, 1999 ended the right of hereditary peers to sit and vote in the House of Lords. Until then there had been about 700 hereditary members. While the Bill was being considered, an amendment was passed (known as the Weatherill amendment after Lord Weatherill who proposed it), which enabled 92 of the existing hereditary peers to remain as members.

    The House of Lords can propose and make changes, known as amendments. However its powers are limited; if it doesn’t approve of a piece of legislation, it can only delay its passage into law for up to a year. After that, there are rules to ensure that the wishes of the House of Commons and the Government of the day prevail.

    In fact, the House of Lords could be labeled as one of the weakest upper house in the world. Since the passage of the Act of 1919 and 1949, the House of Lords has lost all real legislative powers. It is simply a delaying chamber now. It can delay an ordinary bill for a maximum period of one year and money bill for a maximum period of one month.

    In comparison to Rajya Sabha, the House of Lords is a weak house. Rajya Sabha has equal powers with Lok Sabha, as far as an ordinary bill is concerned (though, there is provision of a joint session, but it is an extraordinary device).

    Rajya Sabha has equal power with Lok Sabha as far as the amendment of the Constitution is concerned. Rajya Sabha is also a delaying chamber, like the House of Lords, as far as a Money Bill is concerned. Rajya Sabha can delay the bill for a maximum of fourteen days. Rajya Sabha does have some special powers, which are not available to Lok Sabha; for example: Articles 249 and 312.

    Comparison between the House of Lords and Senate of USA

    • Senate is called as the strongest Upper House. It enjoys equal power with the House of Representative in the context of an Ordinary Bill, a Constitutional Bill and even in passage of a Money Bill. It is customary to introduce Money Bill in the Lower House.
    • The Senate also enjoys some special powers not available to the House of Representatives. For example, ratification of international treaties, ratification of higher appointments. The House of Lords did enjoy a privilege that it used to be the highest Court of Appeal in Britain. But this has now ceased to exist, as the Supreme Court has been created by the Constitutional Reform Act, 2005 (SC established in 2009).

    The House of Commons

    This is the lower chamber, but the one with most authority. It is chaired by the Speaker.

    Unlike the Speaker in the US House of Representatives, the post is non-political and indeed, by convention, the political parties do not contest the Parliamentary constituency held by the Speaker. The number of members varies slightly from time to time to reflect population change.

    In modern practice, the Prime Minister is the head of the Government and is always a member of the majority party or coalition in the House of Commons.

    The Cabinet comprises primarily leading House of Commons Members of the majority, although Members of the House of Lords have served as Cabinet ministers. In fact, designating someone outside Parliament as a “life peer” has been one recent means of bringing someone essentially from private life into the Government.

    The Prime Minister, although head of the Government and an MP, is now not usually the Leader of the House of Commons.

    The Leader of the House of Commons, a member of the Government, is the chief spokesman for the majority party on matters of the internal operation of the House of Commons.

    The Office of the Leader issues announcements of the impending House of Commons schedule, and a routine inquiry from the Opposition’s counterpart serves as an occasion for the Leader to announce the business for the next two weeks of session.

    In the House of Commons, party organizations (akin to the Republican Conference or Democratic Caucus) meet regularly to discuss policy, and to provide an opportunity for backbench party members to voice their views to ministers or shadow cabinet members in a private forum.

    The Position of Speaker of the House of Commons and its Comparison with the Indian and American Speaker

    Features of British Speaker

    The position of the Speaker is a position of great prestige and dignity. In UK, there is a convention that once a Speaker, always a Speaker. It means that a Speaker’s constituency is unchallenged. Once a person is appointed as a Speaker he gives formal resignation from his political parties. He has a casting vote and ultimate disciplinary powers with respect to the conduct of the House and MPs.

    US Speaker (Speaker of House of Representatives)

    He is expected to be a party man, not expected to be neutral; instead he favours his party. He does not have final disciplinary powers, which lie with the House itself. In USA, the Speaker can vote in the beginning.

    Speaker of Lok Sabha

    Though our position is midway between the British and the US model, it is theoretically closer to the British model. But similar conventions do not exist. For instance:

    • It is not necessary for the Speaker to resign from his party
    • If he decides to resign, he will not be disqualified under the Anti-defection law.
    • No convention in India that he will be elected uncontested.

    Judiciary

    Under the doctrine of Parliamentary sovereignty, the judiciary lacks the intrinsic power to strike down an Act of Parliament. However, the subordination of common law to statute law does not mean the subordination of the Judiciary to the executive. Courts in Britain retain certain powers:

    • Of interpreting the precise meaning of a statute.
    • Of reviewing the actions of ministers and other public officials by applying the doctrine of ultra vires (beyond powers).
    • Of applying the concept of natural justice to the actions of ministers and others.

    Because Parliament is sovereign, the government can seek to overturn the decisions of the courts by passing amendment legislation. The power of judicial review provides the judiciary with a potentially significant role in the policy process.

    In recent decades, there has been an upsurge in judicial activism for several reasons:

    • Judges have been more willing to review and quash ministerial action
    • British membership of the EU
    • The incorporation of the ECHR (European Convention on Human Rights) into domestic law
    • Devolution of powers to elected assemblies in Scotland, Wales and Northern Ireland
    • The creation of a Supreme Court in 2009.

    Comparison between the Indian and British Judiciary

    • Differences
    1. In case of British system, the lack of concept of ‘Basic Structure’ makes amending power of the Parliament supersede any judicial pronouncement. Whereas, in case of the Indian Judiciary system, the concept of ‘Basic Structure’ has provided a potent tool to Judiciary by which it can scuttle down any Executive or Legislative action, which it deems as against the basic spirit of the Constitution.
    2. British legal system is completely based on ‘Common Law System’. Common Law System implies that law is developed by the judges through their decisions, orders, or judgments (also referred to as precedents). However, unlike the British system, which is entirely based on the Common Law System, where it had originated from, the Indian system incorporates the Common Law System along with the statutory and regulatory laws.
    • Similarities
    1. The actions of Executive can be declared ultra vires in both the systems
    2. The judiciary is considered the highest interpreter of the Constitution
    3. Off late, there has been a splurge in judicial activism in Britain and judiciary is becoming more and more active. A similar evolution of judiciary has been noticeable in the Indian case too

    Note: By Constitutional Reform Act, 2005 the Supreme Court has come into existence as the highest Court of Appeal. A National Judicial Appointment Commission has also been introduced.

    Brief Synopsis of comparison drawn above

    British Constitution

    1. Product of history and the result of evolution
    2. There is a difference between theory and practice
    3. Flexible and unitary constitution
    4. Parliamentary government
    5. Rule of law and civil liberties applicable

    Indian Constitution

    British Constitution

    Written

    		 Unwritten
    Federal

    Unitary

    Power is divided between Centre and states

    Power is the with the Centre
    No Monarchy/Republic

    Has King/Queen

    Comparison between British Monarch and Indian President

    British Monarch

    Indian President

    Position of the King is hereditary

    Elected

    King enjoys absolute immunity; it’s said that King can do no wrong

    In India the President can be impeached for violation of the Constitution

    King has no discretionary powers. He is known as ‘Golden Zero’

    In India there was a lack of clarity w.r.t. the Indian President. There was confusion whether he has any discretionary power or is merely a rubber stamp.

     

    • 24th Amendment clarifies that he doesn’t have any discretionary powers. Real power lies with the PM, while the President is merely a ‘rubber stamp’.

    • 44th Amendment Act again changed the stand, providing some scope for Presidential discretion. He could now send the request back to the CoM, though only once.

    Comparison between British Monarch and the US President

    British Monarch US President
    King as titular head US President is both – a real as well as titular head
    Hereditary Elected and can be impeached No discretionary powers Real executive powers, subject to checks and balances
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  • 20 September 2017 | Prelims Daily with Previous Year Questions & Tikdams

    Q.1) ‘Hamas’, which is often seen in news, is a Sunni-Islamic fundamentalist organization from
    a) Palestine
    b) Syria
    c) Iran
    d) Yemen

    Q.2) Recently, The Securities and Exchange Board of India (SEBI) has relaxed the guidelines for REITs InvITs in order to broaden the scope of fund raising by such instruments. REITs and InvITs are related to
    a) Telecom Sector
    b) Real Estate Sector
    c) IT industry
    d) Pharmaceutical Industry

    Q.3) Which of the following statements regarding the Medical Council of India are correct?
    The Medical Council of India
    1. grants recognition of medical qualifications
    2. gives accreditation to medical schools
    3. grants registration to medical practitioners
    4. monitors medical practice in India
    Select the correct option using the codes given below.
    a) 1, 2 and 3 only
    b) 1 and 4 only
    c) 1, 2, 3 and 4
    d) 2, 3 and 4 only

    Q,4) What is ‘Maglev’, which was recently in news?
    a) World’s heaviest Submarine
    b) World’s heaviest commercial Ship
    c) High Speed Train
    d) None of the above

    Q.5) With reference to the economic history of medivial India, the term ‘Araghatta’ refers to
    a) Bonded labour
    b) Land grants made to military officers
    c) Waterwheel used in the irrigation of land
    d) Wasteland converted to cultivated land

    Q.6) With reference to the cultural history of India, the memorizing of chronicles, dynasty histories and epic tales was the profession of who of the following?
    a) Sharamana
    b) Parivraajaka
    c) Agrahaarika
    d) Maagadha

    Q.7) Recently, for the first time in our country, which of the following States has declared a particular butterfly as ‘State Butterfly’?
    a) Arunachal Pradesh
    b) Himachal Pradesh
    c) Karnataka
    d) Maharashtra

    Q.8) Consider the following statements:
    The Mangalyaan launched by ISRO
    1.Is also called the Mars Orbiter Mission
    2.Made India the second country to have a spacecraft orbit the Mars after USA
    3.Made India the only country to be successful in making its spacecraft orbit the Mars in its very first attempt
    Which of the statements given above is/are correct?
    a) 1 only
    b) 2 and 3 only
    c) 1 and 3 only
    d) 1, 2 and 3

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  • Appointment to various Constitutional posts, powers, functions & responsibilities of various Constitutional Bodies

    Under the Constitution, the President has power to make numerous constitutional appointments. But in reality he exercises this power on the proposal of the Cabinet. Cabinet decides who is to be appointed and at what place.

    The President appoints Governor of States, ambassadors and members of a number of Commissions. The unseen finger behind all these appointments is, however, of the Cabinet. To be specific, the Prime Minister discusses with his other colleagues before the making of such appointments. Actually, cabinet accepts the appointments made by the Prime Minister.

    The Constitutional Bodies in India are created by the Constitution which assists the Government to operate properly. Each of these permanent or semi-permanent organizations is accountable for the administration of specific functions. Some additional bodies help them by providing advisory functions.

    Constitutional Bodies in India are the permanent or semi-permanent organization within the machinery of government. These bodies are responsible for the administration of specific functions. The functions of these bodies are usually executive type. Furthermore, different types of organization or commissions are used for advisory functions. The bodies are of national importance and help in the effective function of the government. India is a Socialist, Secular, Democratic Republic country. These constitutional or independent bodies have extensive administrative functions. The head of these bodies are either appointed by the President of India or the Prime Minister serves as the chairman.

    Appointments to various constitutional posts

    A Constitutional body is formed under detailed instructions given in the Constitution. It is compulsory for the government to set up such a body and it cannot dispense off with it easily when it becomes uncomfortable. Such bodies or institutions are written into the Constitution of a nation and cannot be eliminated without amending that part of the Constitution which sometimes also requires

    Such bodies or institutions are written into the Constitution of a nation and cannot be eliminated without amending that part of the Constitution which sometimes also requires the consent of the states.

    The Constitution of India specifies the setting up of following major constitutional bodies and has given appointment to various constitutional posts. The major constitutional bodies in India are as under:

    1. Union Public Service Commission (UPSC)
    2. State Public Service Commission/Joint State Public Service Commission
    3. The Comptroller and Auditor General of India
    4. Election Commission of India
    5. Finance Commission of India
    6. National Commission for Scheduled Castes (NCSC)
    7. National Commission For Scheduled Tribe

     

     

     

  • Finance Commission of India: Powers, Functions and Responsibilities

    The Finance Commission of India was established on 22nd November, 1951. It was established under Article 280 of the Indian Constitution by the President of India. It was formed to describe the financial relations between the centre and the state.

    The Finance Commission has been provided for the Indian constitution as part of the scheme of division of financial resources between the two different sets of governments. Finance Commission also serves as as a constitutional body for the purpose of allocation of certain resources of income between the Union and the State Governments.

    Key role

    1. The key role Finance Commission in India is to act as an instrument to divide proceeds of divisible taxes between the states and the Union government or in cases of taxes that are collected by the centre but the proceeds of which are allocated between the states, to determine the principles of such allocation.
    2. The Finance Commission of India also determines the principles of governing the grants in aids of the revenues of states out of the consolidated fund of India. It is an important function of the Indian Finance Commission. The commission has the responsibility of considering any matter referred to the commission by the President in the interest of sound finance.
    3. The President under Article 280 lays the recommendations of the finance commission before each House of the Parliament with an explanatory note as to the action to be taken on the recommendations.
    4. The Finance Commission distributes of proceeds of Income-tax between the union and the states. But taxes on the payments of the central government are attributable only to the union territories.

    Under Article 280 (C), the President may refer any matter to the Finance Commission in the interest of “sound finance”. Till now the President of India has asked the commission to make recommendations on the principles governing distribution of the net proceeds of estate duty in respect of Property Tax on Railway fare and excise duties on sugar and tobacco. The President also sought recommendations on the rates of interest, and terms of repayment of loans to the various states by the Government of India.

    Finance Commissions mainly focuses on the financial relations between the State government and the Central government. These recommendations progressively increase share of the state governments in the proceeds of the income tax. They also increased gradually the amount of grants-in-aids to be given to the states. As a result the states now enjoy considerable degree of financial autonomy so necessary for the proper functioning of the federation.

    It can be said that the Finance Commission as an autonomous body has served a wonderful purpose. In, as complex a society as India is, it acted as an agency to bring about coordination and cooperation for smooth working of a federal system.

    Under the Constitution, the basis for sharing of divisible taxes by the Centre and the States and the principles governing grants-in-aid to the states have to be decided by the Commission every five years. The President can refer to the Commission any other matter in the interest of sound finance.

    The recommendations of the Commission together with an explanatory memorandum as to the action taken by the Government on them are laid before each house of Parliament. The Commission has to assess the increase in the Consolidated Fund of a state to affix the resources of the Panchayat in the state. It also has to evaluate the increase in the Consolidated Fund of a state to affix the resources of the Municipalities in the state.

    The Commission has been given passable powers to perform its function and within its area of activity. It has all the powers of the Civil Court as per the Code of Civil Procedure, 1908. It can call any witness, or can ask for the production of any public record or document from any court or office. It can ask any person to give information or document on matters as it may feel to be useful or relevant. It can function as a civil court in discharging its duties.

    Key functions

    The Commission makes recommendations to the president with regard to:

    1. The distribution of the proceeds of taxes between the union and the states.
    2. The principles which should govern the grants-in-aid to be given to the states.
    3. Any other matter referred to the Commission by the President in the interest of sound finance.
    4. The recommendations of the commission are generally accepted by the Union Government as well as by the parliament.

  • State Public Service Commission: Powers, Functions and Responsibilities

    The State Public Service Commission is also a constitutional body. There is a State Public Service Commission in every state. The same set of Articles (i.e., 315 to 323) of the Constitution also deal with the composition, appointment and removal of members, power and functions and independence of a State Public Service Commission.

    Composition

    1. The composition of the State Public Service Commission is similar to that of the Union Public Service Commission.
    2. The members of the State Public Service Commission are nominated by the Governor.

    Functions

    The functions of both the Commissions are also similar. Only the jurisdiction of the Union Public Service Commission is far wider than that of the State Public Service Commission. The jurisdiction of the Union Public Service Commission extends across the entire length and breadth of the country because it is related to the Civil Service of the Union Government. The Jurisdiction of the State Public Service Commission is limited within the State.

    Powers, Functions, and Responsibilities of State Public Service Commission

    A State Public Service Commission performs all those functions in respect of the state services as the UPSC does in relation to the Central services:

    1. It conducts examinations for appointments to the services of the state.
    2. It is consulted on the following matters related to personnel management.
    3. All matters relating to methods of recruitment to civil services and for civil posts.
    4. The principles to be followed in making appointments to civil services and posts and in making promotions and transfers from one service to another.
    5. The suitability of candidates for appointments to civil services and posts for promotions and transfers from one service to another, and appointments by transfer or deputation. The concerned departments make recommendations for promotions and request the SPSC to ratify them.

    The Supreme Court has held that if the government fails to consult the State Public Service Commission in these matters, the aggrieved public servant has no remedy in a court. In other words, the court held that any irregularity in consultation with the State Public Service Commission or acting without consultation does not invalidate the decision of the government.

    Thus, the provision is directory and not mandatory. Similarly, the court held that a selection by the SPSC does not confer any right to the post upon the candidate. However, the government is to act fairly and without arbitrariness.

    The additional functions relating to the services of the state can be conferred on State Public Service Commission by the state legislature. It can also place the personnel system of any local authority, corporate body or public institution within the jurisdiction of the SPSC. Hence the jurisdiction of SPSC can be extended by an Act made by the state legislature.

    The State Public Service Commission presents, annually, to the governor a report on its performance. The governor places this report before both the Houses of the state legislature, along with a memorandum explaining the cases where the advice of the Commission was not accepted and the reasons for such non-acceptance.

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