Comparison of the Indian Constitutional Scheme with other Constitutions

How to prepare for this topic?

The common mistake the aspirants do while preparing for this topic is to memorize facts related to features of different constitutions. UPSC does not care about the features of individual constitutions of 150 plus countries across the world. UPSC is clear and specific when it mentions the word “constitutional scheme”.

A constitutional Scheme refers to the ideas and philosophies that are present in the constitution.It would be sufficient if certain principles underlying the constituions such as Secularism, Federalism,Welfarism and Nature of the Constitutional Scheme are compared.

To go into the details of each and every point in constitutions across the world would be a waste of time.

An understanding of “What a constitution” is all about is essential to go further into the“Constitutional philosophies and Ideas”that are expressed in the constitution.

What is a constitution:-

Any document that has principles that establishes itself as the highest law & one that defines the basic pattern of authority by establishing a proper structure for the executive can be referred to as the “Constitution”

Why constitutions matter?

1.Constitutions are the foundation for Governments in any society around the world.-Defining the nation,its vision, form of Government

2.Constitutions create,empower and limit the institutions that govern the Society-Constitutionalism as a limitation of government power

3.Constitutions are the source of Rights available to the Citizens-Check any arbitrary action by the Government

Secularism as a point of comparison

1.Secularism in India vs USA vs Europe:- ‘The different ways of being Secular

Defining what constitutes a Secular State remains a difficult task given the different variations of relationship that exists between the State and the Church.

In USA there exists a great degree of separation between the church and the state whereas in Germany and Italy the relationship is not one of separation but rather that of a closer interaction of a dominant religion in many aspects of Secular life.

While on one end of the spectrum , we have states such as France and USA where a complete divorce of religion from the state is seen whereas on the other end of the Spectrum are the theocratic states in which religion and Polity cannot be conceptualized as independent of one another.Saudi Arabia, Iran and many Islamic States fall on this side of the spectrum since in these countries the Government tends to be run on the basis of Shariath.All other democracies of the World fall in the space in between.

Characteristics of secular state:-

To characterize a state as a secular state ,three aspects need to be present:-

  1. Liberty-state permits practise of any religion
  2. Equality-state will not favour one religion over other
  3. Neutrality- to treat non-religious and religious on same footing.

Secularism in the Indian Constitutional Scheme:-

Secular models in different countries have been shaped by their histories. Since there has never been a conflict between the ‘State and the Church’ in India unlike the European Nations, the Indian model of secularism has evolved to suit its own requirements.

Indian Constitution makers have created a secular model that is rightly designed for its multi-religious society.

Indian Secularism is based on the idea of ‘Sarva dharma sambhava’– which emphasizes on equal respect of all religions.The defining feature of this concept is that the State not only recognizes different Religions and Practices but also it respects and accomodates them all as well.

In the Indian Model of Secularism, instead of maintaining a hostile distance between the state and the religion, the government accepts all religions and their role in an individuals life while at the same time it discourages a partisan relationship with any particular religion.

Principled distance from all religions rather than a complete divorce between the state and the religion thus becomes the enshrined constitutional Principle that guides Indian Secularism.

Indian Secularism is also marked by an active histility to some aspects of all Religions.Eg:- the state bans unotuchability, the Practise of Triple Talaaq etc..This active intervention of the State into a Religious aspecct of life is also a distinguishing feature of Indian Secularism.

Active Encouragement of different religious organizations(witohut any preferential treatment to any) is also a feature of Indian model of Secularism.State-aid is available non-preferentially to educational institutions run by religious communities, no blanket exclusion of religion as mandated by western liberalism).

Hard Secularism – USA and the French Constitutions

Secularism in France- The Point of Difference:-

The French model of Secularism, referred to as ‘laicite’ has evolved on the basis of a hostility between the State and the Religion. Each of the two institutions- Religion and State had to fight for its space of existence from the other.The hostiltiy dates back to the days of French Revolution when the People had to fight for political control from the hands of the clergy.

France has made the separating line between Religion and the State thicker than any other Nation.This feature has been the fundamental distinguishing feature of the French Polity since the Napoleanic times.The French Constitution makes it clear that no religion may be established as the legal state Religion and that Religion is a part of private life into which the state has no role to play. French Consitution makes it clear that no State Funding can go into the development of any religion.

French Secularism is based on two different aspects of life of a citizen. The private life to which Religion belongs sis separated from the public life where a citizen should appear as a simple citizen devoid of any religious or ethnic markings.

France has made for itself a separation of church and state stricter than most other nations. This legal structure has been a fundamental distinguishing feature of all constitutions since Napoleonic times. The French Constitution makes it firmly clear that no religion may be established as the legal state religion, that religion is part of the private sector, and that no state funding may be used to fund religion.  This separation of church and state dates back to the French Revolution when control of France’s social and political order was fought between the state and the Roman Catholic Church.   

Secularism in the United States of America :-

Though not modeled on an extreme form of separation between the Church and Religion, the USA Constitution also provides for a “wall of separation”(Thomas Jefferson) between the STate and Religion.

The constitutional practise in USA has only added to the re-enforcement of this wall of separation with the Judiciary further ensuring there is no metaphorical breach of this ‘wall’ thus making the separation impregnable.

Features of Secularism in USA:-

Neither a State nor the Federal Government can set up a church ,nor can pass laws which preferentially treats one religion over the other. 

No Government can force a person to stay away from a Church or force him to attend one. 

No person can be punished for professing any belief or disbelief in favour or against any religion. 

No Tax can be levied to support or to promote the cause of any religion. 

It is hence very clear that the US Constitution considers Religion and the State to be two separate aspects of the life of a citizen.There is no active hostility between the Church and teh State unlike France. However the pluralist nature of the society has ensured that a fair amount of distance remains between the State and the Religion.

Secularism in Europe:-Other Models

Germany:-

Europe is home to variations of the Secular Model.WHile France has a poles apart approach when it comes to Religion, nations like Germany and Italy have a dominant state Religion.The Political life is ofen seen from the lens of the Religious life,tohugh it doesnt translate into discrimnation or unfavourable treatment to the other religious groups.Political identification happens with respect to Religious symbols.

 For instance, the crucifix is sometimes seen as a symbol of national or state identity. The Church does enjoy certain privilegs and Corporate Rights that are not available to other Religions, but that would be the end of all.

Th Weimar consitution provides equal civil rights to all citizens irrespective of their religious faith.Such members of other faith are also not prohibited from occupying other civil and Publice Offices.

Secularism in UK- A comparison

Point of Difference:-

Unlike India where there is no state Religion, the Church of England is the officially established religion in England.

Though the upper House of the UK Parliament has the Church of England represented by twenty-six bishops (the Lords Spiritual),this does not mean that there is an interference from the church on the polices of the Government.The House of Commons plays a major role in policy Making. 

 The Federal Scheme- India and other constitutions compared

What is a Federal form of Government?

  • C. Where defined federalism as “the method of dividing powers so that the general and regional governments are each within a sphere co- ordinate and independent.”

 Federalism is a political system which creates in a society broadly two levels of Government with assigned powers and functions arising from a variety of social, economic, cultural, and political factors.

How do Federal Systems differ from one another?

Though there are similarities across federations in terms of

A Written Consitution,

An independent Judiciary etc.

 there are enormous variations with regard to the constitutional form and scope and to the operation of the distribution of powers.

What leads to such differences across Federal Constitutions?

Nature of the Society:-

Generally, homogenous societies tend to have a stronger Federal Government eg. Germany

In countries like Switzerland, Canada, and Belgium where the diversity is sharper,especially where linguistic and cultural differences are pronounced, prominent powers and roles for provinces can be seen. 

History behind the formation of Federations:-

Turbulent History behind the formation of Nations have also led to the Central Government being comparitively stronger as in the case of Canada and India This is a kind of an arrangement that provides a safeguard against any balkanizing tendencies.

The process through which a Nation had been formed also decides the difference between Federal Constitutions. If the Federation has been established as a result of different provinces coming together  and constituting a Nation,it results in a stronger provinces with the residual (usually unspecified) powers remaining reserved to the constituent units. 

Eg:-The United States, Switzerland, and Australia are classic examples of this.

By contrast, where the creation of a federation involves a process of devolution from a formerly unitary state, the reverse arrangement is often the case, with the residual authority remaining with the federal government, as in Belgium and Spain.

Influence of Earlier Models:-

The US Constitution had shaped the constitutions of Switzerland, Australia, Germany, Brazil, and Mexico, while in India the Government of India Act, 1935 – itself patterned on the Canadian model – had a strong influence upon the Constituent Assembly shaping the new Constitution of 1950.

The time period in which the constitutions were written also plays a significant role in shaping the outlook of the constitutions.While earlier 18th and 19th century constitutions such as US,Switzerland and Canada have functions and powers distributed in fairly general terms, the same is not the case with the Indian and Australian constitutions.

The Indian and Australian Constitutions were created in the 20th century and with new functions such as Labour having become a reality by this period and hence have been incorporated into these constitutions.

Comparison 1:Degree of Constitutional Non-Centralization in different federal constitutions:-

Non-centralization vs De-Centralization:-

Non-Centralization- Powers of provinces are derived from the Constitution itself.

De-Centralization-Powers of the provinces are derived from the Federal Government

Three federations – Switzerland, Canada and Belgium – appear to be the most non-centralized(Powers of Provincial Governments derived out of Constitution).

India, although it has some centralist elements, would appear to rank next with a fair degree of Non- centralization guaranteed by the constitution itself. 

Germany comes next in non-centralization since administrative decentralization is present in the lower levels as well,whereas legislative functions are mostly centralised.

Federations such as Brazil, Spain, Nigeria, and Mexico have higher degrees of centralization.

 When it comes to the third level of Polity i.e Local Governments some federations leave it in the hands of the Provinces to delegate powers to the third tier, whereas in certain other federations the third tier of Governance is derived out of the Constitution itself. The United States, Canada, Australia, Belgium, and Spain fall in the former category, while Brazil, Germany, India (as a result of major constitutional amendments), Mexico, Nigeria, and Switzerland fall in the latter.

Comparison 2:Extent of Federal Powers- Who can legislate on more subjects? Federal/Provincial government

More subjects in the hands of Union legislature:-

  In Canada, originally in Switzerland (but somewhat less so under the 1999 Constitution), and more recently in Belgium, most areas of responsibility were assigned exclusively to either the federal or the constituent unit legislatures.

More Subjects in the hands of Union Legislatures and Concurrent domain:-

 In Germany, India, Brazil, Mexico, and Nigeria the exclusive jurisdiction assigned to the federal legislature is more extensive, but the distribution of powers in each of these federations includes large areas of concurrent jurisdiction.

More Subjects in the Provincial and Concurrent domain:-

By contrast to these three federations, in the United States and Australia the powers assigned exclusively to the federal legislature are much more limited, and most federal powers are identified as shared concurrent powers.

Comparison 3:Differences with respect to Residuary Matters:-

 Jurisdiction over residual matters not otherwise listed or specified in the constitution has been assigned in each federal constitution to the legislature of one level of government or the other.

Residuary matters with the Provincial Legislatures:-Why?

In most federations, especially those created by a process of aggregating previously separate units, the residual power has remained with the federating units. Examples of this are the United States, Switzerland, Australia,

In most of these federations the assignment of significant residual authority to the states was intended to symbolically underline their autonomy

Residuary Matters in the Union Control-Why?

 In some federations, however, usually where devolution from a preceding – more centralized – unitary regime has occurred, the residual authority has been left with the federal government. Examples are Canada, India, and Spain.

Paradoxically, in such federations as Canada and India, where the centralist founders enumerated what were intended to be limited specific provincial or state powers, the courts have in practice tended to read those powers broadly, thus limiting the expansion of federal authority.

Over-riding Powers in the hands of Union Government:-

In some constitutions specific provisions that are present allows the Union Government to override the Provincial Governments. These arrangements reflect the fears of their founders over the prospects of potential balkanization or disintegration. Eg:- Canadian and Indian Constitutions

The Canadian Constitution allows the Federal Government to disallow provincial legislations in certain circumstances. However, in practice, over the past half century these federal unilateral powers have fallen into disuse.

On the other hand, the extensive emergency powers present in the Indian Constitution of 1950 have, in fact, been frequently used over the past fifty years .

Comparison 4:Asymmetry/symmetry differences across constitutions:-

Symmetrical Federalism:-

  In a majority of federations, including the United States, Switzerland, Australia, Germany, Mexico, and Nigeria, the formal constitutional distribution of legislative and executive jurisdiction applies symmetrically to all the states.This means that the Provinces are all treated similar to one another. There is no preferential treatment to one province over another.

Asymmetrical Federalism:-

In some other federations, however, significant variations among the full-fledged units (arising from different intensities in pressures for regional autonomy, sharp differences in linguistic, religious or ethnic composition, or major variations in economic situation or geographic size and population) makes necessary the provision of constitutional asymmetry in the jurisdiction assigned to full-fledged constituent units. Belgium, Spain, and India are examples of this.

Mix of both Symmetrical and Asymmetrical Federalism:-

The Canadian constitutional distribution of powers is fundamentally symmetrical in form, but there are some unique provisions relating to Quebec, and, in practice, this asymmetry is extended in a number of ways

Separating the powers between the organs

What is doctrine of separation of powers?

The main objective of this ‘Doctrine of Separation of Powers’ is to ensure the Government of the day functions according to set rules and laws by creating parallel authorities of Legislature and Judiciary to check and balance the Executive. However the doctrine of separation of Powers in its true sense is very Rigid and hence cannot be strictly applied to all the countries. An important feature of the doctrine is the independence of Judiciary. This independent Judiciary acts as a balancing force to the functioning of the legislature and the Executive.

 To compare this Principle as it is enshrined in the Indian Constitution, it is necessary to consider the same principle in other constitutional models as well. USA and UK can be considered to be two models at both ends of the spectrum, while India and other countries fit midway.

The British System– No strict separation of Powers?

Even though Montesque had based his theory of separation of powers o the basis of the system existing in Britain, it should be emphasized that Britain has a very weak system of separation of powers. This can be understood by looking closely at the interrelation between the three powers.

In Britain the legislature is dominated by the executive. This is because the majority party can have the commanding support of the members of the legislature and hence it can weaken the legislative check on the Executive. It leads to a situation in which in reality it is the Executive that legislates in the Parliament due to the majority of the executive.

Similarly it is also possible that the Executive may dominate the Judiciary as well since the appointment of the Senior Judges is in the hands of the Executive.

In Britain another peculiar feature that si found is the Common Law system. Under the Common Law system Judges also have a legislative role. This role of judges can be a deviance from the principle of “separation of powers”

Another peculiar aspect of the British Parliamentary setup that dilutes the doctrine of separation of powers is the presence of Lord Chancellor until recently when in 2005 the post of Lord Chancellor was abolished by the Constitutional Reform Act. Lord Chancellor was the presiding officer in the house of the Lords.He also was a member of the Cabinet and simultaneously the head of the Judiciary.

Separation of Powers In USA:-

The constitution of the USA can be considered to be the closest model to the ideal phenomenon of Separation of Powers.The doctrine of separation forms the basis of American constitutional structure. Articles I, II and II delegate and separate powers and also exemplify the concept of separation of powers. Art. I vests legislative power in the Congress; Art. II vests executive power in the President and Art. III vests judicial power in the Supreme Court.

Teh preseidntial  form of governemnt is based on the theory of strict separation between the exeutive and the legislature.Teh President as well as none of the members of the executive are memebrs of Legislature unlike the system that exists in India.

The life of the executive does not depende upon the majority support that the executive gets in the legislature. Unlike the Parliamentary system in which the executive can be dislodges anytime by an ordinary majority of members in the legialture, the US consitution separates the term of the Head of the Executive from the support that he gets in the Legislature. He is not made responsible to the legislature for each a nd every action that he takes for the administaryion of the nation.

Similarly the Presiednt does not enjoy any power to dissolve the legislatuere in the USA unlike the Pariamentaery systme in which the Prime Minister can advice the Head of the Executive – President in the case of India and Monarch in the case of United Kingdom to dissolve the Palriament.The independence of the Supreme Court is constitutionally guaranteed

Principle of Checks and Balances as in USA:-

This does not mean that there is no overlap between the functions of the different organs. In fact no systems can exist that works based on the ideal blueprint of ‘Strict Separation of Powers’.

 For instance, a bill passed by the Congress may be vetoed by the President and, to this extent the President may be said to be exercising a legislative function. Also, treaties made by the President are not effective until approved by the Senate; to this extent, therefore, the Senate may be deemed to be exercising executive functions.

The Congress continuously probes into executive functioning through its various committees, and also has the power to tax and sanction money for governmental operations. The Supreme Court has the power to declare the Acts passed by the Congress unconstitutional. But the judges of the Supreme Court are appointed by the President with the consent of the Senate. This exercise of some part of the function of one type by an organ of the other type is justified on the basis of the theory of checks and balances. It means that the functioning of one organ is checked in some measure by the other organ so that no organ can run amok with its powers and misuse the same.

Indian Constitutional Scheme for separation of Powers:-

Though we have modelled our Indian Parlaimentary system on the lines of the British system, to a fair degree we have also achieved the separation of powers between the three different organs.

An understanding about the kind of system that exists in India can be found out from various Judicial pronouncements.

In I.C.Golak Nath vs State of Punjab , the SC had observed that the constitution tries to clearly earmark respective areas of function for all the three different organs.

A similar opinion was given by the SC in Indira Gandhi vs Raj Narain judgment in which the court observed that the separation of powers that exists in the Indian Constitution is a broad separation rather than fine separation.It means that philosophically the Indian Constitution aims at providing a system of Checks and Balances so that one organ does not assume the powers of other .

However it does not mean a complete separation of powers as such a complete divorce of one organ with the other would only result in power struggle between the organs.

How Indian Constitution achieves the Principle of Checks and Balances?

Mind Map of One Organ exercising ‘Checks & Balances’ on the other:-