While American Constitution is the shortest (of any major government in the world) and the first written constitution, India’s Constitution is the lengthiest written constitution in the World. American Constitution is a very rigid constitution consisting of only Seven Articles and twenty-seven amendments, so far.
Originally, the India Constitution consisted of 395 Articles in 22 Parts, with 8 Schedules. Now, it consists of 448 Articles in 22 Parts, with 12 Schedules.
The US Constitution was finalized in a convention held on September 17, 1787, which required its ratification by a minimum of nine States, for it to be enforced.
By the end of July 1788, eleven States had ratified it and the Constitution was put into operation on 13th September 1788. The Indian Constitution, on the other hand, was adopted by her Constituent Assembly on 26th November 1949, and came into effect on 26th January 1950.
America has adopted the doctrine of dual ship in respect of its Constitution and citizenship. It has two Constitutions, one, for America as whole and another for each State. American people have two citizenships, one of USA and another of their respective State.
On the other hand, India has one constitution and concept of single citizenship for every citizen of the country.
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:
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.
USA
This means that the President is independent in the administration of the government and rather directly responsible to the people of USA.
India
The impeachment of the President by the legislature is the only similarity in both the Constitutions.
The position of the American President combines both the Head of State and the Head of Government into one.
Only a natural born citizen of USA can become the President, and not a person who has acquired the citizenship. Also, he must have attained the age of 35 years and must have stayed in USA for at least 14 years. On the other hand, the Indian President should be a citizen of India, wherein citizenship might be either natural or acquired.
Presidential election is indirect, through Electoral College.
Electoral College
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
Executive Functions
Legislative Functions
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.
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.
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.
US
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
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:
Functions of the Vice President of USA
It consists of two houses: House of Representatives and the Senate.
2. Senate
USA has the strongest committee system in the world. It is said that the US Congress works in the Committees.
Pigeon Hole: A bill in USA may get killed at the Committee stage itself. This is known as Pigeon Holing the bill.
US
India
The theory of Separation of Powers started with John Locke and became popular with Montesquieu (18th century philosophers).
Why Separation of Powers/Functions?
US
India
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.
No organ of the government can be given complete liberty. Hence there have to be checks and balances.
Judiciary checks on other branches of the government, by judicial review of the executive as well as legislative acts.
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.
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.
5 th 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.
In India, a person’s life and liberty shall be deprived according to the “procedure established by law”.
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.
9 th 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.
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.
97 th 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.
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.
There are two ways to amend the US Constitution:
-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.