Comparison of the Indian constitutional scheme with that of British constitution
A constitution is a set of rules through which a country or state operates.
Some countries have unwritten constitutions which means there is no formal constitution written in one particular document. Their constitutional rules are originated from a number of sources.
Britain sources its constitution from a number of important statutes, or laws, as well as principles decided in legal cases and conventions. New Zealand and Israel are two other countries that do not have formal written constitutions.
Other nations have formal written constitutions in which the structure of government is defined and the respective powers of the nation and the states are written in one single document. These systems may also include unwritten conventions and constitutional law which can inform how the constitution is interpreted.Australia, India and the United States are examples of countries with a written constitution.
Australia, India and the United States are examples of countries with a written constitution.
Some constitutions may be modified without any special process. The documents that make up the New Zealand Constitution may be amended simply by a majority vote of its Parliament.In other
In other countries, a special procedure is adopted before their constitution can be changed. Australia has a constitution which requires a referendum in order to change it.
Indian Constitution has many sources that include the imaginative ambitions of the nationalist leaders, the actual working of the Government of India Act, 1935, and the experience gained from the genuine working of some of the Constitutions of significant countries of the world.
Its sources include not only the sources upon which the founding fathers of our Constitution drew but also the developmental sources such as the judicial decisions, constitutional amendments, constitutional practices and others.
Importance of Constitution
The role of a Constitution is to make certain that the government operates efficiently and in a fair and responsible manner. It does this in three ways:
- It holds the government to the law.
- It provides the distinction of power so that no one part of the government is any more powerful than another.
It provides a series of checks and balances so that when laws are made or amended, the government follows the correct procedure to pass a Bill.
Constitution of India-At a glance
The Indian Constitution is inimitable in its contents and spirit. India, also called Bharat, is a Union of States. It is an Independent Socialist Secular Democratic Republic with a parliamentary system of government.
The Republic is governed in terms of the Constitution of India which was accepted by the Constituent Assembly on 26th November, 1949 and came into force on 26th January, 1950.
The Constitution offers for a Parliamentary form of government which is federal in structure with certain unitary characteristics.
The constitutional head of the Executive of the Union is the President. As per Article 79 of the Constitution of India, the council of the Parliament of the Union consists of the President and two Houses known as the Council of States (Rajya Sabha) and the House of the People (Lok Sabha).
Article 74(1) of the Constitution provides that there shall be a Council of Ministers with the Prime Minister as its head to help and advise the President, who shall exercise his/her functions in accordance with the advice.
The real executive power is vested in the Council of Ministers with the Prime Minister as its head.
British Constitution: Features, Comparison with Indian Constitution
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.
- 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:
- Protection from arbitrary arrest and the opportunity to defend oneself.
- 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).
- 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:
- Growth of Administrative Law
- Growth of Delegated Legislation
- 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).