British constitution

Salient features
1. Unwritten : no codified or structured document
2. Evolutionary: never framed by any constituent assembly, flexible(amended and repealed by a simple majority, no
distinction between a constitutional law and an ordinary law.
3. Unitary character: all powers vested in the british parliament which is a sovereign body
4. Parliamentary executive: real functionaries are the ministers who belong to the majority party in the parliament.( similar to
that of india)
5. Sovereignty of parliament: only legislatiive body with unfettered power of legislation(india has state govt), possess
supreme power(here constitution possess so), no court can question the validity of the laws passes by the P(our judiciary
can through BS and JR)
6. Important role of conventions as necessary corollary to the unwritten character of the british constitution(also important
in india)
7. 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 which means that all persons are equal before law, irrespective of their position or rank. It is different
from the concept of Administrative Law, which gives immunity of various types to public servants. In the absence of
Constitution and Fundamental Rights in Britain, the judiciary protects this law.
- 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.
8. Independence of judiciary:- The Rule of Law in Britain is safeguarded by the provision that judges can only be removed
from office for serious misbehavior and according to a procedure established according to which the consent of both the
Houses of Parliament is required. So, the judges are able to give their judgments without any fear or favour.

Organs of the state

1. Executive : The Executive in Britain is called as Crown. Earlier, the Crown symbolized King. Now, the King is part of the
Crown. The Crown, as an institution, consists of the following:
• King,
• Prime Minister,
• Council of Ministers (CoM),
• Permanent Executive, the Civil Servants,
• Privy Council.
In Britain, initially all power lied with the King. Later on, power shifted out of the institution of the King to the institution of
CoM headed by the Prime Minister, Permanent Executive and the Privy Council etc.

Nature of monarchy:- Britain has a constitutional monarchy which is not incompatible with democracy. This is because
essentially the powers of the monarch as head of the state are ceremonial.
Despite its lack of real power, the monarchy still has several important roles to play in contemporary Britain. These
include:
- Representing UK at home and abroad,
- Settings standards of citizenship and family life,
- Uniting people despite differences,
- Allegiance of the armed forces,
- Maintaining continuity of British traditions,
- Preserving a Christian morality etc.
In contrast, no provision of Monarchy exists in case of Indian Constitution. Indeed, holding of titles like King etc. are
forbidden as per Article 18 of the Fundamental Rights, thus emphasizing equality of all Indian citizens.

British Prime Minister and the Council of Ministers

Britain has a Cabinet form of government. A cabinet is a plural or collegiate form of government. The power doesn’t lie in
one person, but the entire Council of Ministers.
The roles of cabinet include the following: • Approving policy (major policy making body), • Resolving disputes, •
Constraining the Prime Minister, • Unifying government, • Unifying the parliamentary party etc.
Moreover, the Cabinet is the ultimate body of law making in the Parliamentary system.

POLITY Page 1
 British prime minister
 Position of the PM
- PM is the captain of the ship of the state.
- PM is the head of the Cabinet.
- The party of the PM enjoys majority in the House.
- He/She is the connecting link between the King and the Cabinet as well as the King and the Parliament.
- The life of the House depends on the PM as he/she may advice the dissolution of the House.
- The other Ministers are appointed on the advice of the PM
- The term of the other Ministers also depends on the PM
 The P.M. as first among equals: This explains the PM’s position w.r.t. other ministers. In the cabinet system, there is a
principle of collective responsibility; hence other ministers are also important but PM remains a 'key stone of the cabinet
arch'.
The relative position of the PM and other ministers in a Parliamentary system can be compared to the relative position of
the President and his/her secretaries in the Presidential system.
In the Presidential system, members of the Cabinet are chosen by the President. In USA, spoils system exists. The
Secretaries are not members of the Congress.
(only one difference w.r.t indian PM i.e., indian PM can be a member of either house of parliament but this not so in
britain.

Shadow cabinet:- members from the opposition party hold a similar portfolio as the minister.

2. Legislature

Essential differences between the two systems:

- In Britain, the Parliament can said to be the only institution, which exercises sovereign powers and on which there are no
limits because there is no written constitution.
India, on the other hand, has a written constitution. Powers and authorities of every organ of the Government and every
functionary are only as defined and delimited by the constitutional document. It is not sovereign in the sense in which the
British Parliament is sovereign and can do or undo anything.

The house of lords/rajya sabha

- The House of Lords is the second chamber, or upper house, of the United Kingdom's bi-cameral (two chamber) Parliament.
Together with the House of Commons and the Crown, the House of Lords form the UK’s Parliament.
- The House of Lords can propose and make changes, known as amendments. However its powers are limited; if it doesn’t
approve of a piece of legislation, it can only delay its passage into law for up to a year.
- In comparison to Rajya Sabha in India, the House of Lords is a weak house. Rajya Sabha has equal powers with Lok Sabha,
as far as an ordinary bill is concerned.
- Rajya Sabha has equal power with Lok Sabha as far as the amendment of the Constitution is concerned. Rajya Sabha is also
a delaying chamber, like the House of Lords, as far as a Money Bill is concerned.

The House of Commons/lok sabha

This is the lower chamber, but the one with most authority. It is chaired by the Speaker. Unlike the Speaker in the US
House of Representatives, the post is non-political.
The Prime Minister, although head of the Government and an MP, is now not usually the Leader of the House of
Commons. The Leader of the House of Commons, a member of the Government, is the chief spokesman for the majority
party on matters of the internal operation of the House of Commons.

The Position of Speaker of the House of Commons and its Comparison with the Indian and American Speaker

POLITY Page 2
3. JUDICIARY

Under the doctrine of Parliamentary sovereignty, the judiciary lacks the intrinsic power to strike down an Act of
Parliament. However, the subordination of common law to statute law does not mean the subordination of the judiciary to
the executive. Courts in Britain retain certain powers:
- Of interpreting the precise meaning of a statute.
- Of reviewing the actions of ministers and other public officials by applying the doctrine of ultra vires (beyond powers).
- Of applying the concept of natural justice to the actions of ministers and others

Because the Parliament is sovereign, the government can seek to overturn the decisions of the courts by passing
amendment legislation. The power of judicial review provides the judiciary with a potentially significant role in the policy
process.

Comparison between the Indian and British Judiciary

Similarities
- The actions of Executive can be declared ultra vires in both the systems.
- The judiciary is considered the highest interpreter of the Constitution.
- Off late, there has been a splurge in judicial activism in Britain and judiciary is becoming more and more active. A similar
evolution of judiciary has been noticeable in the Indian case too.
Differences
- In case of British system, the lack of concept of ‘Basic Structure’ makes amending power of the Parliament supersede any
judicial pronouncement. Whereas, in case of the Indian Judiciary system, the concept of ‘Basic Structure’ has provided a
potent tool to Judiciary.
- British legal system is completely based on ‘Common Law System’. Common Law System implies that law is developed by
the judges through their decisions, orders, or judgments. However, unlike the British system, the Indian system
incorporates the Common Law System along with the statutory and regulatory laws.

CONSTITUTION OF UNITED STATES OF AMERICA

SALIENT FEATURES
Shortest, first written constitution, very rigid (only seven articles and 27 amendments so far), doctrine of dual ship in
respect of its constitution and citizenship (ine for USA and another of their respective state).
NATURE OF THE CONSTITUTION
Truly federal constitution, states have their own constitutions.
NATURE OF FEDRALISM
While USA is a dual fedration, India is a cooperative federation.
Dual Federation (USA) – both the Cooperative Federation (India) –

POLITY Page 3
 Dual Federation (USA) – both the Cooperative Federation (India) –
Centre and state are completely Interdependence of Centre and state govt.
independent. They are complete Neither of them is independent of the
governments other. Centre usually has the role of big
brother
Centifugal federalism Centripetal federalism
Symmetrical federalism – all states Asymmetrical federalism – 1. States have
are given equal representation in been given representation in Rajya Sabha
Senate on the basis of their population. 2. Articles
370, 371 provide special provisions to few
states.
USA is a Legislative federation. This India is an Executive federation. This
means that States have dominance means that states are important at the
in law making. executive level only.
USA is an indestructible union of India is an indestructible union of
indestructible states destructible states
USA constitution provides a role to USA constitution provides a role to states
states in ratifying the international in ratifying the international treaties
treaties through the Senate through the Senate

FORM OF THE GOVERNMENT

- America has adopted a Presidential form of government, in which the people directly elect the executive President.
(india has parliamentary system, president indirectly elected)
- The President is powerful and not accountable to the House of Congress.(nominal head in india)
- The term of the American President is 4 years (fixed term).
- One can hold the office of the President for only two terms.(in india for 5 years)
- The President can appoint his own staff, which may be neither from the House of Representative or Senate, in assisting
in the administration of the government. The staff is not accountable to the Houses of Congress. (indian president run
the govt with the aid and advice of the PM and COM)
- Impeachment is the only similarity between both the constitutions

PRESIDENT OF USA
The position of the American President combines both the Head of State and the Head of Government into one.
• Qualification:- 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 .
• Election of the President:- Presidential election is indirect, through Electoral College.
 Electoral college: Strength of Electoral College = Total members in House of Representatives + Senate + 3 members
from Washington D.C. = 435 + 100 + 3 = 538
Winning Candidate requires an absolute majority (50% + 1) of the total members of the Electoral College, i.e. 270.
 Election of Electors:-
- The voters vote for the members of the Electoral College
- System of election is the List System
- Each state has a responsibility to conduct these elections
- The electors meet in their respective capital and vote for the Presidential candidatehe party that wins the majority of
the votes represents the state in entirety
• Functions of the president of USA
- Executive functions:- • Appointments • Representing the country • Preparation of the Budget
- Legislative functions:-
○ No presence in legislature
○ The President doesn’t address the legislature
○ He cannot dissolve the legislature
○ He can send messages to the legislature (the system of sending messages exists in USA because there is
Separation of Power. So this is the way that the President can interact.
- Veto power:- 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 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. This is known as “qualified veto”.
However, a significant departure from the US Presidential Scheme of things is that unlike the US, the Indian

POLITY Page 4
 ○ 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.
• Date of Retirement and Oath: US constitution has prescribed the date and the timing of retirement of the outgoing
president as well as the members of the congress. i.e., 20th day of january.
- The election of the President and Vice president are held in the month of November and in the same month results are
announced.
- In case of President’s death, resignation, or impeachment, the Vice President shall become the President for the
remaining period.
- But in india, in case of president's death, resignation or impeachment, the VP becomes the president until the fresh
elections ae held. Hence time schedule in india cannot be maintained unlike USA.
• Impeachment of the President of USA :
- Reasons: Treason, Bribery, High Crimes of Misdemeanor. No system of impeachment for violation of the Constitution,
unlike the Indian Constitution
- Process of impeachment:- Charges will be leveled against the President in the House of Representatives.
It has to be passed by 2/3rd majority by the House of Representatives.
Senate will be the investigating house.
In this process, the Chief Justice of the Supreme Court of USA will be the presiding officer.
If convicted, he can be removed only when 2/3rd members of the Senate pass a resolution in this context.

VICE PRESIDENT
 Elections:- same as president
 Tenure of a Vice President as a President:- if VP replaces the P who has alrewady served for more than two years, VP
becomes P for remaining term allowing him for two terms
- but if he replaces the P having served less than two years, he will be eligible for only one term.
 Functions of the VP of USA:- Ex-officio chairperson of Senate and has casting vote
- The office of the Indian Vice President is modeled on the US office, with some differences
- The office of Vice President is called as His Superfluous Highness

US LEGISLATURE/US CONGRESS
 It consists of two houses: House of Representatives and the Senate
 House of Representatives:- • One of the weakest lower house in the world • It consists of 435 members • System of direct
elections • Representation of people may differ in number from different states
 SENATE:- • Permanent body • Strongest upper house in the world • It has equal powers in ordinary bills, amendment bills
and money bills. • Term of a Senator is six years. 1/3rd of the members/Senators retire every two years.

COMMITTEE SYSTEM IN USA

USA has the strongest committee system in the world. It is said that the US Congress works in the Committees.
Difference from British and Indian System:
- In Britain and India, a bill is introduced in the House and the first reading takes place and then it is referred to the
Committee
- In USA, a bill is introduced and then directly referred to the Committee, before even the first reading

DURATION OF REPRESENTATIVE BODIES AT THE CENTRE

US:- America’s House of Representative and Senate are permanent bodies. The terms of the members of the
Representative and Senate come to an end on 3rd January.
India:- In India, during an emergency, the duration of Lok Sabha can be extended by one year, or can be shortened by
holding pre-matured elections. • The ruling party forms opinion based on their party’s prospects in the next election. It may
recommend for the dissolution of Lok Sabha and suggest the President to hold the election at an appropriate time, which
may be based on political expediency.

DOCTRINE OF SEPARATION OF POWER AND THE SYSTEM OF CHECKS AND BALANCES

USA
- The US Constitution strictly adheres to the doctrine of Separation of Power proposed by Locke and Montesquieu.
Separation of Power is complete in US.
- All the three branches of the government have separate functions.
- The term of Legislature and Executive are fixed and do not depend on each other.
- None of the member of the Legislature can be a member of the Executive.
- The Houses of Congress enact the law; the President executes the law; and the Supreme Court interprets the law.
- The American President has no privilege of law making power. Moreover, he is neither a member of the House of
Representative nor that of Senate.
By confirming veto power but equally not confirming the law-making power to the President, the Congress controls the

POLITY Page 5
- By confirming veto power but equally not confirming the law-making power to the President, the Congress controls the
Presidents and vice versa.
INDIA
- Theoretically, we may say that the doctrine of Separation of Power is adopted in our Constitution, but it is only between the
Executive and Judiciary.
- The President is a part of the Union Executive. Yet, it is the Prime Minster and the Council Ministers who are the real
executive because the President has to act on the aid and advice of the Council of Ministers.
- They have dual capacity:
o One, in capacity of executive; and
o Two, in the capacity of lawmaker.
- 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.
Checks and Balances
No organ of the government can be given complete liberty. Hence there have to be checks and balances.
How are checks and balances achieved in the US Constitution?
- Judiciary checks on other branches of the government, by judicial review of the executive as well as legislative acts.
- How Congress checks the President or powers of the President?
1. It is necessary to ratify the international agreements and higher appointments
2. Principle of no taxation without representation
3. Impeachment of the President
- How President checks the Congress?
1. By the use of veto powers (Congress can pass a bill against Presidential veto with 2/3rd majority. So the President
doesn’t have absolute veto.
2. Pocket Veto
- President and Congress applying checks on Judiciary
1. Appointment of Judges: appointed by the President and ratified by the Senate
2. Removal of Judges: removed through impeachment by the Congress and approved by the President
3. Salaries and emoluments controlled by the President

FUNDAMENTAL RIGHTS

- US has 'bill of rights' while india has 'fundamental rights'

- US has incorporated additional human rights which are not explicitly found in the indian constitution.
• Freedom of press is explicitly provided under the 1st amendment of the US Constitution, while in india, implicitly found
in article 19[1][a]
• Petition to the Supreme Court is a fundamental right in India, where as in US it is the government that is petitioned
• The Americans have a right to keep arms and guns for the protection of their life and property, whereas in India it is a
total contrast, because apart from not being a fundamental right, it is a highly regulated legal right.
• Accused will be tried for criminal offence with a system of 'grand jury', in India criminal trials are adjudicated by the
Judges only.
• 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”.
• In US, the right to property is still a fundamental right.
• A person accused of crime enjoys certain explicit rights under the 6 Student Notes: th 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.
• 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.
• 9th 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. The Indian
Constitution, on the other hand, does not contain any such notable Article.

DISTRIBUTION OF LEGISLATIVE POWER

India:- Seventh Schedule of the Indian Constitution distributes the legislative power between the Central and State
governments.
USA:- 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

POLITY Page 6
 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.

JUDICIARY
 No qualification mentioned for the appointment of judges of SC. The presidnet has the final say in the apointment process.
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. 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.
 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 in 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.
 India, on the other hand, has the collegium system of appointment and transfer of judges of the higher judiciary.

AMENDMENT OF THE CONSTITUTION

There are two ways to amend the Constitution:

- Proposed by the Congress and ratified by the States
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
- 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.
- 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.

FRENCH CONSTITUTION

1. INTRODUCTION
- France is known as 'laboratory of political experiment'.
- unitary form of government and nature of the government is called as semi-presidential type.
- It has some features of Parliamentary system and others of Presidential system
- The French Parliament does not have supremacy even in law making. There is a list for which the legislature can make
laws, whereas rest of the matters are taken care of by the President (i.e. he makes the laws).
- This is perhaps the only Democratic Constitution based on the Principle of Supremacy of Executive.
- The Constitution of the 5th Republic provides a strong President, with a fixed term of 5 years, and he enjoys a lot of
powers.

2. PRESIDENT
- The French President is the most powerful within the French system as well as amongst all other executive across world
democracies. Privileges of the Office of the President of US, i.e. security of tenure and being the head of the Government
as well as head of the State is combined with the privileges of the Office of the British P.M. i.e. power to dissolve the
Assembly.
- France has PM as well as president
○ French PM, unlike indian and UK, is assitant to the president.
○ There is a division of functions, rather than division of power between the two positions:
▪ The french president deals with foreign policy and national concerns.
▪ The PM deals with day to day routine functions of the government and local domestic issues.
- PM is appointed by the president.
○ The President doesn’t have a completely free-hand in PM’s election
○ The person appointed as PM must enjoy the confidence of the House
- PM may choose his cabinet colleagues.
- None of the members of the Govt. can be a part of the legislature
- Cabinet is presided over by the President

POLITY Page 7
 - Cabinet is presided over by the President
- The Lower House can pass the ‘Censure Motion’ against the PM and his CoM, which would imply that they must resign
- The President is elected for a fixed term. Initially the term was 9 years, reduced to 7 years and at present is 5 years.
- Removal of the president
○ The President can be impeached on the same ground as the US President. However, the process is ambiguous.
○ Article 67 of the Constitution suggests that both the Houses should pass identical motion.
○ After this, the President’s case will be dealt with by a special body called the High Court of Justice.
○ This body also trails cases of corruption and conspiracies against the state by government ministries.
- Emergency powers of the president:- Article 16 of the Constitution gives the real emergency powers to the President. In
this situation he assumes unlimited powers and it is like democratic dictatorship or democratic coup-detat.
- Comparative analysis of the US and the french president:-
○ The US President cannot dissolve the Assembly, whereas the French President can do so. The only limitation is that
he can’t do so more than twice a year.
○ Unlike the US President, the French President can assume dictatorial powers under Article 16.
- Comparative Analysis of the French President and British P.M.
○ The British P.M. can remain in office only as long as he enjoys majority in the lower house. The President of France,
on the other hand, is elected for a fixed term.

3. LEGISLATURE
- The Legislature is clearly subordinate to the Executive in the French system. Article 37 of the Constitution puts clear
limitation on the legislative power of the French Parliament. It mentions that the Parliament can make laws only on the
matters enumerated in the Constitution. On all other matters, the government can make laws by simple order or decree.
- The President can directly influence the legislative functions of the assembly through the P.M.
- The French Parliament is bicameral, consisting of two houses: National Assembly and the Senate
○ NATIONAL ASSEMBLY:- french bicameralism is an unequal system since the national assembly has much broader
powers than those of the senate.
▪ It alone can hold the Government accountable by refusing to grant it ‘confidence’ or by passing a censure
motion.
▪ In the case of disagreement with the Senate, the Government can decide to grant the National Assembly “the
final say” in the legislative procedure.
▪ The Constitution provides the National Assembly with a more important role in the examination of the finance
bill and the social security financing bill. Thus, the tabling for a first reading of such bills must be before the
National Assembly.
○ THE SENATE:- In contrast to the National Assembly, the Senate cannot be dissolved. The fact that Senate is a
permanent body plays an important role in accounting for the stability of the Government when the post of the
French Republic’s President falls vacant.

4. PROMINENT FEATURES OF THE FRENCH CONSTITUTION

► ORGANIC LAW:- The French Constitution has certain laws mentioned as organic laws(fundamental law). Laws made by the
Parliament and the orders of the Executive must confirm to the Organic laws. So these laws have to be reviewed by a
body known as the Constitutional Council.
► HIGH COUNCIL OF JUSTICE:- The purpose is the nomination of the judges. This body is headed by the President and the
members of the Judiciary.
► ECONOMIC AND SOCIAL COUNCIL:- Constitutional advisory body on social and economic issues.
► SECULARISM:- France follows the rigid principle of secularism unlike Indian secularism which respects all religions equally.
The French model of secularism follows the principle of strict separation of Church and State, freedom of conscience and
freedom to exercise any faith. The state does not support religious activities but also not interfere in private religious
practices. It prohibits any visible religious symbols in public space.

5. AMENDMENT TO 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 people by referendum.

POLITY Page 8