Comparison of Constitution - India, UK, USA, Russia, Japan, France, Germany

FEATURE	INDIA	UK	USA	RUSSIA	JAPAN	FRANCE	GERMANY
Written/ Unwritten	Written	Unwritten	Written	Written	Written	Written	Written
Flexible/ Rigid	Both	Flexible	Rigid	Rigid	Rigid	Rigid	Rigid
Unitary / Federal	Federal with unitary bias	Unitary	Federal	Unitary	Unitary	Unitary	Federal
Parliamentary / Presidential	Parliamentary	Parliamentary	Presidential	Semi Presidential	Parliamentary	QuasiPresidential	Parliamentary
Sovereignty of Parliament	Supremacy of Constitution	Supremacy of Parliament	Supremacy of Constitution		Supremacy of Constitution	Parliament with limited powers
Republic / Monarch	Republic	Constitutional Monarchy	Republic	Republic	Constitutional Monarchy	Republic	Republic
President	Ceremonial	Ceremonial	Executive	Executive		Executive	Ceremonial
Fundamental Rights	Yes	Yes	Yes	No	Yes	Yes	Yes

United Kingdom

Sources of Constitution:

Convention: Their importance lies in the fact that Fundamental principles like Parliamentary sovereignty and Ministerial responsibility to the parliament are regulated by conventions.

Important Convention:

Pairing Convention: If a member of the majority party is absent on any working day, the whip will ask one of the members in opposition also to be absent.
Mandate Convention: The Government will not legislate any legislation of controversial nature without specific mandate from the electorate.
The Money bill will be initiated in the House of commons.

Charters: Charters define and regulate the powers of crown and rights of citizens. Important charters are:

Bill of Rights: Provided a list of rights and declared Parliament as supreme law-making body.
Magna Carta: Prohibited the imposition of certain taxes without the consent of the Great council.

Statutes: The British parliament is fully empowered to repeal or amend these statues whenever it likes.

Important Statues are:

Parliament acts of 1911: – It curtailed the power of House of Lords and permanently established the supremacy of House of commons.
RPA 1918: – Guarantees Right to vote to women as well.

Common Law: The system of law which is based on judges’ decisions and on custom rather than on written laws. It originated with the legal reforms of King Henry II in the 12th century and was called “common” because it applied equally across the whole country. The doctrine of binding precedent, whereby courts follow and apply the principles declared in previous cases decided by more senior courts, known as “courts of record”, is also known by the Latin expression “stare decisis”. The common law includes both substantive rules, such as the offence of murder, and procedural ones, such as court procedure rules derived from the inherent jurisdiction of the court.

Nature of the Constitution/Salient Features

Unwritten:

One of the most important features of the British constitution is its unwritten character. 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:

It is said that the British Constitution is a product of wisdom and chance. It has evolved gradually, expressing itself in different charters, statues, precedents, usage and traditions. The British constitution has not undergone any sudden transformation at specific times.
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 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.
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.

Sovereignty of Parliament:

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 the 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.

Rule of Law:

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 the Constitution and Fundamental Rights in Britain, the judiciary protects this law. So, this system is called the Principle of Common Laws (in the USA – Principle of Natural Law; in India – the 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.

Blend of Monarchy, Aristocracy and Democracy: – The British king represents Monarchy which rested on hereditary principles. The House of Lords is Aristocracy, representing Lords and nobles and House of common is democracy representing the people of England.

Structural Understanding

The House of Common:

The UK public elects 650 Members of Parliament (MPs) to represent their interests and concerns in the House of Commons. MPs consider and propose new laws, and can scrutinise government policies by asking ministers questions about current issues either in the Commons Chamber or in Committees.
The UK is divided into 650 areas called constituencies. During an election everyone eligible to cast a vote in a constituency selects one candidate to be their MP. The candidate who gets the most votes becomes the MP for that area until the next election.
General elections
At a general election, all constituencies become vacant and a Member of Parliament is elected for each from a list of candidates standing for election. General elections happen every five years.
If an MP dies or retires, a by election is held in that constituency to find a new MP for that area.
Most MPs are members of one of the main political parties in the UK – Labour, Conservative, Scottish National Party or Liberal Democrat. Other MPs represent smaller parties or are independent of a political party.
To become an MP representing a main political party a candidate must be authorised to do so by the party’s nominating officer. They must then win the most votes in the constituency.
The House of Commons is the effective legislative authority in Great Britain. It alone has the right to impose taxes and to vote money to, or withhold it from, the various public departments and services.
The Prime Minister is appointed by the monarch. The monarch’s appointment of the Prime Minister is guided by constitutional conventions.
The political party that wins the most seats in the House of Commons at a general election usually forms the new government. Its leader becomes Prime Minister.

THE HOUSE OF LORDS

Composition: 760 members:

– 646 Life Peers appointed by Crown on the advice of the Prime Minister.

– 25 archbishops and bishops.

– 92 Hereditary Peers (Including 2 Women).

The House of Lords appointment commission was established in 2000. It is independent and separate from the House of Lords.
The Appointments Commission recommends individuals for appointment as non-party-political life peers. It also vets nominations for all life peers, including those recommended by the UK political parties, to ensure the highest standards of propriety. Members can be suggested by the public and political parties. Once approved by the prime minister, appointments are formalised by the King.
Members of the House of Lords spend a lot of their time considering draft government bills before they become law. However, any proposed amendments to legislation must also be agreed by the Commons. Its primary function is therefore as a ‘revising’ chamber, asking the Commons to reconsider its plans.

US CONSTITUTION

PHILOSOPHICAL UNDERSTANDING

The present Federal government of the U.S.A came into being in the year of 1789. The United States comprised thirteen colonies of Great Britain. In the year 1776, these colonies at the Atlantic Coast rebelled against the mother country and became independent in 1783. During this period the revolted colonies established the “Articles of Confederation” as the first constitution in 1777. However, this system could not last very long.

There was no separate common executive nor was there any independent judiciary. An effective central government was the fundamental need of the hour. A convention for the purpose of framing the constitution was convened at Philadelphia in 1787. Thus the constitution was framed based on this convention and was signed by the delegates on September 17, 1787. This constitution came into force in 1789. since then, it has undergone many changes, one of them being the increase in the number of states from 13 in 1787 to 50 at present.

The Preamble to the United States Constitution: As the phrase, “we the people” suggests that the new government originates from the people of the United States, and it sets into motion a question as it pertains to that vast population concerning the individual rights and equality among all people; this can be seen most broadly in the divide between republicanism and social democracy.

Nature of the constitution/Salient Features –

Popular Sovereignty: Attributes ultimate sovereignty to the people and substitutes constitutional system of government for arbitrariness.
Rigidity of the constitution: Consisting of only Seven Articles and twenty-seven amendments, so far.
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 the 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.
Separation of Power with checks and Balances:

The President can veto the bills passed by the Congress. The Senate shares with the President his powers of making appointments to the various federal offices and conclusion of treaties with foreign States.
All such treaties must be ratified by two-thirds majority in the Senate. Through this power, the Senate controls the internal administration and external policy of the President.
The organisation of judiciary is determined by the and the judges of the Supreme Court are appointed by the President with the consent of the Senate.
The Supreme Court can declare the laws passed by the Congress and executive action taken by the President ultra vires.
In this way, the three organs of the Government have been interlocked and interchecked.

Spoil system: Two specific types of spoils systems emerged over the next few years. Cronyism is the practice of rewarding one’s friends with political positions. Nepotism is the practice of giving those positions to family members. an act known as Pendleton Act (1883) was passed to put a stop to this system. Henceforth, about 80% of such offices were to be filled through competitive examinations. Thus Spoils System persists only in 20% cases.
Federal system

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:• States have been given representation in Rajya Sabha on the basis of their population.• 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.

STRUCTURAL UNDERSTANDING

“The first Article of the American Constitution states: “All legislative powers herein granted shall be vested in a Congress of the United States which shall consist of a Senate and House of Representatives.” Thus the Congress is the main legislative organ of the American Government and is bicameral in its composition.

The House of Representatives is the lower house within the US Congress and has the following characteristics:

435 voting members representing districts
One member per congressional district
Members serve two year legislative terms
Elections occur every even year
Members elected by a plurality in most states (also known as First past the post)
Louisiana, Washington and California employ a two-round runoff voting system
- The number of persons representing each state depends upon its population as reported in the Nation’s decennial census counts. Each state is divided into congressional districts accordingly. There is a Representative for every congressional district and every state has at least one congressional district.
- In order to be elected to the House of Representatives one must be at least 25 years old by the time one takes the oath of office, a citizen of the U.S. for at least seven years, and a resident of the state from which one is elected. These qualifications were established in Article I, Section 2 of the Constitution.

Senate:

The Senate is a small body of only 100 members. Each State sends two representatives irrespective of their population or area.
The President of the Senate is the Vice-President of the United States, but he or she may vote only in case of a tie vote. In practice, the Vice-President does not often preside over sessions of the Senate.
Senators are elected in State-wide elections. In 48 states, Senators are elected by plurality vote: the candidate receiving the most votes is elected, even if that candidate receives less than a majority of the votes cast. In two States, Georgia and Louisiana, the winning candidate must receive a majority of the votes cast. If there are three or more candidates and none of them receives a majority vote, there is a second election between the two candidates who received the most votes. The candidate who receives a majority of votes cast at the second election is elected.
Term of office: The term of office for a Senator is six years. The terms of Senators are staggered so that the terms of approximately one-third of Senators expire every two years. Elections to fill those Senate seats coincide every two years with elections for all members of the House of Representatives and, every four years, with the election of the President. The terms of office for Senators are fixed. Neither house can be dissolved, and the dates for congressional elections are established by law.
Criteria for eligibility: 30 years of age citizen of the United States for at least nine years; resident of the State from which he or she was elected.
Incompatibilities: Holding of any civil office under the authority of the United States
The Senate, like the House of Representatives, is the sole judge of the election and qualification of its members.

FRANCE

Philosophical Understanding

Nature of the Constitution

A Unitary State: Like the UK, France is a unitary state. The powers have been vested with the central government. The local governments derive their powers from the central government rather than the Constitution.
Provision of Administrative Law and Administrative Courts: France parades equality before law for all citizens but in actual practice Administrative law exists for the civil services. The civil servants can be sued only in specially constituted administrative courts where administrative law exists. For ordinary citizens ordinary courts have been provided.
Popular Sovereignty: Article 2 of the Constitution declares France as an indivisible, Secular, Democratic and Social Republic. National sovereignty belongs to the people, who shall exercise this sovereignty through their representative by means of referendum.
Separation of legislative and Executive Branch: The PM may choose his cabinet colleagues. None of the members of the Govt. can be a part of the legislature
Amendment of the Constitution
- Rigid process
- Both the Houses of Parliament have to pass a resolution by 3/5th majority.
- The President may also choose to refer the amendment to the people by referendum.

The Constitutional Council:

The Constitutional Council exists to determine the constitutionality of new legislation or decrees.
It has powers to strike down a bill before it passes into law, if it is deemed unconstitutional, or to demand the withdrawal of decrees even after promulgation.
The Council is made up of nine members, appointed (three each) by the President of the Republic, the leader of the National Assembly, and the leader of the Senate, plus all surviving former heads of state.

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

Structural Understanding:

Like other Parliaments of top democracies of the world, the French Parliament is bicameral. The French Parliament under the Fifth Republic consists of two Houses, namely the National Assembly and the Senate.
The National Assembly is the lower and the popular Chamber whereas the Senate is the Upper Chamber. Unlike the British monarch the French President is not a component part of Parliament.
The Constitution makes no mention of the system of election. It only says that the Deputies of the National Assembly shall be elected by direct suffrage while the Senate will be elected by indirect suffrage.
The number of members, their emoluments, the conditions of eligibility and ineligibility and the offices incompatible with membership of the Parliament have been determined by Organic Acts.
In 1950, when the Constitution was inaugurated the National Assembly consisted of 552 members. However, after Algeria attained Independence the membership was cut down by 85. Its membership came down to 468. However, at present the assembly comprises 577 members.

Tenure of the House:

The tenure of the Assembly has been fixed by organic law. Its tenure as at present is 5 years. It can be dissolved earlier. Article 12 vests this power with the President. However, he can dissolve the Assembly on the request of the Prime Minister.
For electing new assembly general elections have to take place not less than 20 and not more than 40 days after the dissolution. The Constitution also lays down specifically that no new dissolution take place during the year following the new elections There cannot be two dissolutions in one year.

Election:

Any of the voters who is 21 years of age or more can contest elections.
It is elected through two ballot systems in single member constituencies. The candidates have to obtain an absolute majority of the votes cast in the first ballot and a simple majority in the second ballot. The representation is on the basis of one seat for 93,000 population unit. However, this goes varying.
However, government employees, Army personnel and employees of nationalized industries cannot contest elections as per law of the land.
There are two peculiarities of electoral system – (i) 2nd Ballot systems. If no candidate secures absolute majority, those getting less than one-fourth of the votes are dropped out and second ballot is held and a person getting absolute majority is elected. (ii) Every candidate contesting election nominates a substitute as well. The victory of the candidate means victory of the substitute too. In case of death of candidate substitute takes his place.

The Senate consists of representatives of the territorial entities of the Republic. Thus, its membership of 321 which was to increase to 346 in 2010 is divided between metropolitan France, overseas departments, overseas territories and the French citizens living abroad. The metropolitan seats are 255 in number which are distributed on the basis of department. (The department is a local unit like municipal committee in India).

Each electoral college composed of (i) the local parliamentary deputies: the members of the departmental councils; and representatives of the municipalities according the size of the various municipal councils.