Thomas Paine: Where a constitution cannot be produced in a visible form, there is none
Evolution:
* Montesquieus Spirit of the Laws is the predecessor to all contemporary comparative legal Scholarship
* Before adopting the U.S. Constitution, John Adams & James Madison surveyed the constitutions of different nations
* In the same way, different countries analysed various constitutions and adopted the provisions which were suitable to their territory. Eg., Irish Constitution mentions Directive Principles of state policy, Argentine Constitution reflection on U.S. Constitution
* Study of comparative law includes the study of the constitutions of totalitarian governments
Constitutional Structures:
An overview of the parliamentary system and emergency conditions in the different constitutions suggest the following differences:
* Parlimentary Federal/Presidential/Semi-Presidential/Purely parliamentary
* Condition for Emergencies Natural disasters, terrorist threats, sustained or sporadic domestic disorder, economic distress etc.,
U.S. Constitution refers only to rebellion or invasion
French Constitution serious and immediate threat
Indian Constitution armed rebellion or external aggression
* Political Systems Dictatorship/Democracy/Republic/Anarchy
Indian Constitution Vs Unwritten Constitutions:
Unwritten Constitutions: e.g., Britain, New Zealand, Saudi Arabia, Israel, Canada
British Constitution:
* Product of history and the result of evolution
* There is a difference between theory and practice
* Flexible and unitary constitution
* Parliamentary government and two party system
* Rule of law and civil liberties applicable
IndianBritish
WrittenUnwritten
Quasi FederalUnion Constitution
Power is divided between centre and statePower is the with the centre
No monarchy/RepublicHas King/Queen
Indian Constitution Vs Written Constitution
American Constitution:
* Works on Checks and balances concept
* Presidential type of government
* Rigid Constitution
* Federal System
IndianAmerican
Not a result of agreement between statesResult of an agreement between states
Single CitizenshipDual citizenship
Representatives are sent to the parliament depending on the population of the stateEach state sends equal number of representatives to the senate
No principle of equality between the statesPrinciple of equality between the states
The states are not sovereignUnion and each Unit is sovereign in its sphere
No state can separate from Indian territoryState can separate from the federation
Only centre has residuary powersStates have residuary powers
Supreme Court has appellate jurisdictionNo appellate jurisdiction for the Supreme Court
No referendum is necessary for amending the ConstitutionFor amendment of Constitution a referendum is necessary
Indian Constitution Vs Dynamic Constitution
Switzerland:
* A comparatively longer document
* Spirit of Republicanism
* Federalism
* James Bryce Among modern democracies, which are true democracies, Switzerland has the highest claim to be studies
* Dynamic Constitution (protection of individual, welfare state)
IndianSwitzerland
Executive vested in the PresidentExecutive vested in the Federal Council
President elected by electoral collegeFederal Council Elected by Federal Assembly
Party GovernmentAbsent
States cannot conclude treatiesCantons can conclude treaties
Supremacy of JudiciaryJudiciary cannot rule invalid a federal law
No referendumReferendum possible
Comparative Constitutional law and national identity:
The Constitution incorporates a national identity which is evident from the statements in some of the constitutions below:
* Preamble to Irish Constitution The Most Holy Trinity
* Preamble to South African Constitution recognise the injustices of our past
* Art 9 of Japanese Constitution The Japanese people forever renounce war as a sovereign right of the nation and purports to ban the maintenance of land, sea, airforces
* Preamble to Indian Constitution We, the people of India having solemnly resolved to constitute India into a sovereign, socialist, secular, democratic, republic.
General Comparison with other countries
IndiaRussiaJapanFranceGermany
WrittenWrittenWrittenWritten
Flexible/RigidRigidRigidRigidRigid
Federal with Unitary BiasFederalUnitaryUnitaryFederal
Parlimentary DemocracySemi PresidentialParlimentary DemocracyQuasi Presidential/Quasi Prime ministerialParlimentary Republic
Supremacy of ConstitutionSupremacy of ConstitutionParliament with limited powers
RepublicRepublicConstitutional MonarchyRepublicRepublic
President -Indirect electionDirect ElectionDirect electionIndirect Election
Single CitizenshipDual CitizenshipSingle CitizenshipDual CitizenshipIn principle
Procedure established by lawProcedure established by law
The price of freedom is eternal vigilance Thomas Jefferson
References:
Oxford handbook of Comparative Law Mathias Reimann & Reinhard Zimmermann
Select Constitutions Anup Chand Kapur & K.K Mishra
Full Name: Hepzibah Beulah
