Subhash Goudappanavar: Comparative study of Indian and USA Constitution.

Subhash Goudappanavar: Comparative study of Indian and USA Constitution.: Comparative study of American and Indian Constitution * American Constitution is shortest and second oldest, where as India ’s is len...

Comparative study of Indian and USA Constitution.

Comparative study of American and Indian Constitution*

American Constitution is shortest and second oldest, where as India’s is lengthiest Constitution in the Universe. The US Constitution was finalized in the convention held on the September 17 1787 which required minim 9 States to ratify for the enforcement. By the end of July 1788 eleven States had ratified and Constitution was put into operation on 13^th September 1788. American Constitution originally consisted only seven Articles and added 27 more Articles by way of amendments. The Indian Constitution was actually put into enforcement on 26^th November 1949 but officially adopted on 26^th January 1950. Originally India Constitution consisted 395 Articles in 22 parts with 8 schedules. and 22 parts. Now it consists  448 Articles in 22 parts with 12 schedules. Author of the article has tried to analyze the dissimilarity between the US and India Constitution. America has adopted the doctrine of dual ship in respect of Constitution and citizenship. It has two Constitutions, one, for America as whole and second one for each State. American people have two citizenship, one of USA and another of their respective State. India has one constitution and one citizenship for its entire people.

Nature of the Constitution.

American Constitution is described as truly federal Constitution because it was ratified by 50 Independent States. Further, federal government and States have their own Constitution and does not interfere with function of each other. On the day India got its independence, most of the States in India were already under the rule of government of India and other few sovereign States were forced to join the Indian Constitution. We have one Constitution in which the federal government interferes with functions of State government in the form of appointment of governors, governor reserving the States bill for the consent of President and central government power to impose the president rule in the States which makes the State government subordinate to the central government. Because of all these reasons the constitutional intellectual are not unanimous in holding the Indian Constitution is federal. Sum jurist also say it is neither unitary nor federal but “quasi-federal” Constitution.

Nature of Democracy.

America has adopted the Presidential form of democracy in which the executive President is directly elected by the people who is powerful and not accountable to House of Congress. American President Term is 4 years, he can hold the office of the President for only two terms and only natural citizen of US can become the President, and not a person who has acquired the citizenship. President can appoint his own staffs who are neither member of House of Representative or Senate in assisting the administration of government who are also not accountable to the House of Congress. It means that President is independent in the administration of government and directly responsible to the people of USA.  India was under the rule of British at the time of independence and this influenced us to adopt the democracy of Parliamentary System of Common legal system. President of India is executive head of Indian government who is indirectly elected by the legislators of central and states and not accountable to the Parliament. President shall run the government with aid and advice of the Prime Minster and Council of Ministers. Prime Minster and Council of Minsters is subordinate staff of the President being the members of the Parliament, therefore they are accountable to the Parliament. Unlike USA Indian President holds the office for five years, he should be citizen of India and citizenship might be natural or acquired. Further, he can be  elected for any number times. The impeachment of the President by the legislator is only similarity of both Constitutions.

Veto Power.

The Indian President is called as puppet or rubber stamp because he has to act on the advice of Council of Minster who are accountable to Parliament. This is not so incase of the US President. He can call shots on his own judgment more- ever the subordinate staff appointed by him is accountable to himself but not the House of Congress.  US President has explicit power to return the bill passed by the House of Congress with objections otherwise he has to the sign the bill within 10 days excluding Sundays. If President does not sign nor returns the bill within 10 days the bill is deemed to be law. When both House of Congress reconsiders the objection and passes the same bill with 2/3 majority, the bill would become the law without the signature of the President. And getting 2/3 majority by either Democratic or Republic party at both Houses at same period is remote possibility that’s why the American President power of rejection is called veto power and makes him real and  powerful executive President. In India too the President has power to send back the bill to Parliament for reconsideration. When the Parliament has reconsiders the bill and passes with simple majority the President has no option but sign the bill. The Prime Minster and his Cabinet always enjoys the simple majority except in coalition government so it would not be major hurdle for Prime minster and his cabinet to get the signature of the President for the bill. Hence Indian President is called a puppet. Unlike US, the Indian Constitution does not prescribe the time limit for signing the bill by President. Therefore he can keep the bill without signing for indefinite period under the disguise of consideration which can frustrate the Prime Minster and his cabinet. Obviously the question arises whether India’s President implied negative power of veto is more powerful than the US President’s explicit positive power of veto. 

Date of Retirement and Oath.

Unique feature of US Constitution is that it has prescribed the date and timing of the retirement of outgoing President and Members of the Congress. The terms of President and Vice President shall end at noon on the 20^th day of January in which their term would have ended. It means that the New President and Vice President shall take oath of the office on 20^th January at noon of their first year of office.  The election of the President and Vice president are held in the month of November and in the same month results are announced. Thus Americans are informed much earlier to their new President.  Naturally, the question is how this time schedule is maintained. In case of President’s death, resignation, or impeachment occurs the Vice President shall become the President for remaining period. In this way duration of President is kept intact and next elected President takes oath on the schedule date. In India, if President dies or impeached, or submits resignation, the Vice President becomes the President till the fresh election are held and new elected President holds the office for full term of five years. Hence the time schedule of American system cannot be maintained.

The Members of the Representative and Senate terms comes to end on 3^rd January. America’s House of Representative and Senate are permanent Body. Entire world holds the American democracy in high esteem because of its impeachable of holding elections on time fixed schedule. In India, during the emergency duration of Lokshaba can be extended by one year, and the duration of Lokshaba can be shortened by holding pre-matured election. The Prime Minster and his Cabinet Ministers forms opinion that their party chances are bright in the next election; they may recommend for the dissolution of Lokshaba and suggest the President to hold the election at appropriate time which is based on political expedicy.       

Doctrine of separation of power.                                                                           

US Constitution has strictly adhered to the doctrine of separation of power invented by the Locke and Monotosque, 18^th century political philosopher. House of Congress enacts the law and President executes the law and Supreme Court interprets the law. American President has no privilege of law making power; moreover he is neither member of House of Representative nor Senate. By confirming veto power and equally not confirming law making power to President, the Congress controls Presidents and vice versa. In this way checks and balance are maintained. Theoretically we say that doctrine of separation of power is adopted in our Constitution, but it is not so. Prime Minster and Council Ministers are real executive of Indian government because the President has to act on the advice of Prime Minster and his Colleague. Prime Minster and Council of Ministers are from the majority party in the Parliament. Therefore, they  have dual capacity, one, in capacity of executive and another in the capacity of law maker. Prime Minster in the capacity of leader of the ruling party, enacts a law which is convenient for his administration. Prime Minster and his Council Ministers enact the law and execute the same which is blatant violation of doctrine of separation of power.

Human Rights.                    

America has incorporated the “Bill of Rights” and India “Fundamental Rights” into their Constitution.  American Constitution has provided the additional human rights which are not in the Indian Constitution. Freedom of press is explicitly provided under the 1^st amendment of the US Constitution, in India it is impliedly read under the Article 19[1] [a], freedom of speech and expression. Petition to the Supreme Court is fundamental right in India, where as in US it is petition to the government. The world “government” gives wider meaning covering not only higher judiciary even the executive also. American people have the right to keep the arms and guns for the protection of their life and property which is provided under 2^nd amendment. Therefore, the guns and arms are sold like commodity in US without legal hassles, where as in India it is totally contrast because it is not fundamental right and moreover it is highly regulated legal right. Vth amendment of US Constitution guarantees that the accused will be tried for criminal offence with system of “Grand Jury”, in India criminal trials are adjudicated by the judges only. Grand Jury means common people are selected by the government randomly representing the community, those will decide the guilt of the accused persons. Number of selected persons varies from 6 to 12 or even more if the case is controversial. No person’s life and liberty shall be deprived without “due process” of law in US. Due process means the content and procedure of law must be just, fair, and equitable which will be decided by the judiciary. Legislative power of depriving the person liberty is restricted and scrutinized and evaluated by the judiciary. In India the person’s life and liberty shall be deprived according to procedure established by law. The world “procedure established by law” gives wide discretionary power to the legislator to restrict the liberty. Nevertheless, the Supreme Court in Menaka Gandhi case, even though the court did not use the world due process, it held that the procedure established by law must be fair, just and equitable. Indian Parliament deleted the right to property from the list of Fundamental Rights in 1978. Where as in US the right to property is still fundamental right and no property shall be acquired without just compensation. Accused person of crime enjoys certain explicit rights under the VI Amendment of US Constitution; those are 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 life and liberty under Article 21. Further the VIII amendment of US says that the bail shall not be denied to 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. IX amendment of USA Constitution is most 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 the other rights which are given by the nature. American Constitution is highly influenced by the Locke’s philosophy of inalienable natural rights of human being. Indian Constitution does not contain such notable Article; therefore Indian people enjoy only those rights recognized by the Constitution which is based on the philosophy of Austin and Bentham theory of law.

Distribution of Legislative Power.

Seventh Schedule of Indian Constitution distributes the legislative power between the Central and State governments. The Central and State governments have exclusive power to make laws on the 97and 66 matter listed in the Union and State list respectively. On the 47 matter of Concurrent list both Central and State can make law, in case of conflict laws the law of Central would prevail. 97^th matter of Union list says any surfaced new matter which is not in any other list would confer power to Parliament to make law. Our constitution makers have created strong Central and weak State governments which depend upon the financial assistance of the Central government. It is contrast theory in US, where there is no elaborative mechanism is provided. Few expressly mentioned matters are with the federal and rest of the matters with State governments. Therefore in America the States are financially stronger than Federal government.

Emergency and Suspension of Writs.

In India the emergency can be declared on the ground of War, Aggression of War, and Armed Rebellion. During such emergency all fundamental rights except the right to life can be suspended. 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.

In America the President has final say in the appointment of Supreme Court Judges. He suggests the names of judges to Senate and with advice and consent of Senate, judges are appointed by the President. Judicial committee of Senate plays very significant role in evaluating the cardinals of the proposed judges of the Supreme Court. They make the investigation of the background of judges, they hold the face to face interaction with judges, the judges are queered and grilled and questions are put. The whole process happens in public and in transparent manner. The citizens of US has any information about judges integrity, they can send the information with evidence to the Senate Judicial Committee which will  make the further investigation and make sure that no unworthy candidate will be appointed as judges to the Supreme Court. In the appointment of Judges the people of US also participates 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.  Judges of US holds the office for lifetime. In India the entire process of appointment of judges happens in the darkroom between the judiciary and executive. The people of India would come to know of their judges only after the appointment. Neither the peoples are informed in advance nor the executives makes open enquiry of judges. President appoints judges to Supreme Courts on the recommendation of the Prime Minster and Cabinet. The prime Minster and Cabinet consults the judiciary  in which the Chief justice and  four senior judges of SC plays very dominant and decisive role in preparing the list of  judges which will be sent to President for the appointment. The entire process of appointment of judges happens in the backyard and under the carpet without involvement of the people which is serious flaw of the Indian legal system. Judges holds the office up to the age of 65.

Amendment of Constitution.

Amendment of US constitution is very rigid and complicated; in case of India it is easy and flexible. According to V Article House of Congress with 2/3 majority can proposes for amendment of the Constitution. States can make application for calling convention for amendment of Constitution with support of more than 2/3, the convention shall be called and proposed amendments shall be valid. In US both House of Congress and States have power to amend the Constitution. The amended Constitution has to be ratified by more than 3/4 States to take effect. The Stares have very decisive and vital power in validating the every amendment of the Constitution. In India, it is only Parliament can propose for the amendment of the Constitution and States do not have role to play anything in this matter. Some of the Articles can be amended with simple majority, special majority and in some limited Articles with ratification by more than half of the States. Majority means majority of the Member of the Parliament present on the date of amendment not in relation with total strength of the Member of Parliament. The fact that US Constitution amended only 27 times in the last 225 years shows how rigid it is to amend the Constitution. Indian Constitution amended more than 95 times in the last 60 years proves how easy to amend the Indian Constitution.

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* S.G.Goudappanavar,LL.M. lecturer, gouri1000@gmail.com  S.C.Nandimath Law College, Karanatak.