The Affair of Embracing Concepts around the Globe

Ananya Jain[1]

Constitutionalism

Modern political thought draws a distinction between “constitutionalism” and “Constitution”. The underlying difference is that constitution grants powers to the citizens and state whereas in constitutionalism it speaks about restraining those powers and making them non-arbitrary by keeping all checks and balances.[2] People believe in a government which ensures citizen about their (government’s) duty and liability to safeguard its citizens. There are 185 countries in the world with different type of constitutions. Some basic division of constitutions being; –

Unwritten constitutions: Britain New Zealand, Saudi Arabia and Canada.

Written constitutions: India, U.S.A, Germany, Israel, Russia etc.

Federal form of government : Central govt. has certain powers which it exercises over the entire country like, U.S.A, Canada, Malaysia, Germany, India etc.

Unitary Form of government: Central government has all powers and it can delegate to its agencies it likes, Like, Britain, Sri Lanka, and Singapore.[3]

As we already discussed what constitutionalism is we will be studying how India became a country of constitutionalism. We all know that India is called bag of borrowing, it doesn’t mean that borrowed constitutions are verbatim of other constitutions. India in fact is a step ahead in elaborating and granting provisions to citizens and state. This will also give an insight about how other countries around the globe functions.

Britain – Rule of law

It provided the basis of our present legal system. The classic description of the doctrine of rule of law was given by A. V. Dicey in 3 points

  1. Absence of arbitrary power
  2.  Equality before law and
  3.  Individual liberties [4]

Though Britain has an unwritten constitution, it is based on a judge made law and is accurately pertinent to Dicey’s doctrine of Rule of Law and that is why despite an unwritten constitution it lured India to borrow it.

Indian Constitutionals promotes many of its provisions through Rule of Law like election through Adult Suffrage, Independence of Judiciary, Judicial review and Art.14.This shows that it doesn’t necessarily always requires a state to have a constitution but actually “Constitutionalism. British rule in India introduced the common law into this country. Indian constitution-makers have been really smart and had a very clear vision for the future of the country. Though India did go really far of Britain in adopting the rule of law. Certain unwritten conventions were also adopted by Britain such as Principle of Collective Responsibility etc. but India has codified and elaborated them. It tells India’s position.

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Appointment of governor by Centre – Canada

The appointment and removal of governor given in Article 153 of the Indian Constitution tells that a Governor for each State is appointed. Article 155 the Governor of a State shall be appointed by the President by warrant under his hand and seal. Article.156 says that tenure of governor is usually during pleasure of President and otherwise for five years.

Canada being a monarch country the rule is that governor general appointed by the monarch on the advice of the prime minister for a five-year term.[5]

Acting on advice of prime minister and cabinet ministers to give assent to bills passed in the Senate and House of Commons.[6] In India, the governor is not required to seek permission from Council of Ministers. He is final judge of his discretion and even during State emergency on report of Governor only President applies State Emergency.[7] So India gives more extensive powers to the Governor as of course it is a Federal country and Canada being a Monarch country. Apart from this Governor’s rule has been imposed eight times in J&K. Recently after B.J.P and P.D.A called off their alliance. No such governor rule imposed in Canada.

United States of America – Fundamental rights

Fundamental rights are a modern and enhanced form of basic human rights. The need was felt during British period when Indian people were treated in a barbarous manner. India is a cosmopolitan country so framers wanted to safeguard everyone’s right. Chapter III of Indian constitution provides protection to both citizens and non-citizens. We all know that this concept was borrowed from U.S.A. constitution because it is a strong and first country to give concrete shape to human rights by imbibing in its constitution.  Britain, Australia and Europe too are certain other countries with unwritten constitutions but still granting these basic fundamental rights to their citizens in form of conventions.[8] Though, Britain parliament has all authority to nullify a right at any time.

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Canada is another glaring example keeping pace with the growing time adapting and adopting features to make the country a sound and secured one. A critical appreciation of India and U.S.A. fundamental rights:

The similarities b/w INDIA and U.S.A. F.R. is

1) Both provide right for speech and religion.

2) Double jeopardy concept lies even there as well.

Differences

1) Powers of government finally rests with the Centre, while US Constitution reserves residuary matters for the States.

2) The Fundamental Rights were present in Constitution of India from its very inception while the Bill of Rights was added as amendments to the Constitution there.

3) India’s rights are absolute but U.S.A. isn’t.

4) Chapter –III of Indian constitution is a basic structure of our constitution whereas in U.SA. It is not the case.[9]

Preamble- U.S.A.

In the legislative history of India, for the first time, the Government of India Act 1919 (Montague Chelmsford Reforms) had a separate preamble. It is not incorrect to assume that idea of the Preamble was borrowed from the Constitution of USA.

A Preamble is considered as an important internal aid to interpretation. It gives a direction and a purpose to the Constitution.

Preamble in India is the basic structure of the constitution. It is an elaborated one and gives the lucid glimpse of all rights and duties it ascertains. People of India have given themselves this constitution as it says “We the People of India and hold ultimate power of electing representatives of a democratic state they reside in.

While looking at U.S.A.’s preamble it also starts with we the people giving themselves the constitution but it just gives a little insight going towards the supreme law of land not describing everything in much detail.

In fact in Keshvanand Bharti v Union of India judges have bestowed great respect on Preamble of the Constitution declaring it as an integral part of constitution.[10]

Fundamental duties – Russia

Fundamental duties aren’t enforceable and they are just certain moral obligations in lieu of enjoying fundamental rights. We borrowed it from Russia.

We come across following similarities and differences between both nations. The former is that both have duty to protect one’s nation and historical monuments and keeping alive the fire of brotherhood and equality and destroying enemies. Again India is a step ahead of Russia adding certain other duties like Educational Rights of children up to 14 years of age and securing women’s dignity and respecting people on linguistic basis etc. The latter is that Russia, China and U.S.A[11] they have a duty to join military services as a mark of respect but in India we don’t have this. By amendment this can be done but will have pros and cons. Cons being we all know how powerful army men get after acquiring such post and rapes and certain killings keep on happening.

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Pros being that every individual will come to know the importance of one’s nation. Internal riots in name of community and religion may come to an end or will become less. It may curb employment crisis.

Ireland – directive principles of state policies

Living in a country like India, one may never fall short of making laws on every subject of National and Private Importance, in order to solve this dilemma of legislature D.P.S. P’s were introduced. Their main aim is to promote welfare and prosperity of people. We borrowed it from Irish constitution. The makers of the Constitution of India were influenced by the Irish nationalist movement. Indians, who were seeking independence and their own government, were particularly influenced by the development of the Irish constitution. The D.P.S.P.in Irish constitution was looked upon by the people of India as an inspiration to tackle complex social and economic challenge across a vast, diverse nation.

ComparisonIndian D.P.S. P’s hold more weightage than Irish as our Fundamental Rights can be amended to give shape to duties provided they do not hamper our basic structure of constitution. Article 38 of Indian constitution makes it state’s duty to take care of D.P.S.P.’s whereas Irish constitution doesn’t hold any such provision.[12]


[1] Student, University Five Year Law College, University of Rajasthan, Jaipur

[2] M.P. Jain, Indian Constitutional Law, (7th ed. Lexis Nexis, 2016).

[3] Ibid.

4 Ibid.

[5] The man, the myth: How Xi Jinping’s rise from village life explains China’s ambitions (November 27, 2019), https://www.cbc.ca/news.

[6] Ibid.

[7] Supra Note 2.

8 Ibid.

[9] Bhavya Bansal,What are the fundamental rights of U.S.A., QUORA (November 27, 2019), https://www.quora.com/What-are-the-fundamental-rights-of-USA.

[10] Supra Note 2.

[11] Constitute (November 27, 2019), https://www.constituteproject.org/

[12] Ibid.