On 26th of November 1949, the citizens of India, freed of the colonial rule of the Europeans, gifted themselves the constitution which has for almost seventy years now, been the base of governance of our country. A constitution is defined as a comprehensive collection of fundamental laws and principles and standard guidelines that constitute the legal foundation of a nation, political state or any institution.
It is commonly used to determine how the entity should be governed. The word ‘constitution’ finds its origin in the Latin term constitutio, which was used in context of regulation and orders or passing of imperial enactments. Ever since its conceptualisation, numerous types of constitutions have been developed.
The precedents established in the constitutions of nations around the world are personalised to suit themselves. Ancient civilisations incorporated constitutions to existing monarchical and autocratic regimes. Democracy was a young ideology not as famous as the others.
The first ever written code of justice that can pass as a constitution had been found in 2016 in modern-day Iraq. They belong to an era in which democracy was just a thought that had appeared in a man’s brain. It was not until the modern ages that most of the countries in the world adopted a democratic model of governance.
India is the largest democracy that exists on the face of the planet. As of 2016, it stands as the second most populated nation with 1.32 billion citizens accounted for. Naturally, for a country of this scale, it is no wonder to possess the longest written constitution with 448 articles divided in 25 parts.
This, paired with a number of other factors gives our constitution a unique stand as compared to the modern day constitutions around the world. A constitution secures the citizens of a nation their rights and lays down laws which enable proper functioning of the state as well as efficient governance.
A constitution is a prerequisite for modern democracies to thrive. Without them, these countries will be governed by mob rule which tends to rule out the interests of the minorities. To assess the standard of our constitution, it is important for us to compare it with the constitution of other nations in the world.
Prominent features of Indian Constitution
As aforementioned, our constitution is the largest to ever exist, till date. It is classified as a written constitution with more than 146,000 words defining the various laws, rights, duties and work of government officials. Additionally, it also covers 12 schedules and has undergone 103 amendments, with the last one being conducted on 14th of January 2019.
Our constitution has a well drafted preamble that sums up the entirety of the nation and its objectives in a few words. India is a Sovereign, Socialist, Secular Democratic Republic and grants to its citizen justice, fraternity, liberty and equality.
It has been inspired by many of the constitution from around the world. Majorly deriving most of the features from the United Kingdom, it borrows the institution of a bicameral parliament with a lower house and an upper house. It restricts its citizens to hold only single citizenship and provides supreme legislative power to the Prime Minister and executive powers to the nominal head, which in our case is the President.
From the United States of America, we have incorporated the features of written constitution, the post of vice-president, highest judiciary body in the form of Supreme Court and provisions of state and judicial review. Two of the most important features we have included in our constitution are the post of president as the head of the state (first citizen), and the fundamental rights.
These rights empower the citizens and assure them of protection of their basic rights from government encroachment. These rights include right to equality, freedom, practice of religion freely, culture and education and constitutional remedies. Alongside these five, there is a right against exploitation which protects the citizens from physical, mental as well as social exploitation. In August, 2017, Supreme Court added a seventh fundamental right- right to privacy.
Other countries from which we borrowed some features include France with the republic and ideals of liberty, equality and fraternity. The concurrent list, centre-state relationship and language of the preamble were induced from the constitution of Australia.
The USSR’s five year economic plan and the fundamental duties plan were added too. Procedure established by law and procedure of constitutional amendment were also added, from Japan and South Africa respectively. The articles of emergency were inspired by Germany’s emergency provisions.
Canada provides us with federal system and residuary powers. Finally, Ireland’s concept of Directive Principles of State Policy was implemented in our constitution. All these features were incorporated keeping in mind the ecosystem of Indian polity, economy and society.
India has given itself the title of a socialist democracy. This means that our constitution is committed to secure social, economic and political justice and equitable distribution of wealth, income and resources. It also combines key factors of federal governance with that of Unitarianism to form mixed governance machinery.
The mixed nature is also observed in terms of amendment of the constitution. Ours is a constitution which can be rigid, with certain laws standing tall against the test of time, but at the same time it can be flexible- changing, adding, removing as well as amending laws in accordance with the ideology of the society.
The bicameral parliament gives more powers to the lower house than the upper house. Being a republic nation, there are elections held every 5 years to choose a new legislative and executive head with direct and indirect polls respectively. The voting rights are mentioned under the universal adult suffrage. It has fixed the minimum age of voting at 18 years. Any citizen of India, irrespective of gender, caste, status or creed, can cast one vote in any political elections and each vote holds equal value.
The judiciary we possess is an integrated one. From local district courts to high courts in state, all headed by the Supreme Court. There are 21 high courts as of now across the states in our nation. The judiciary is independent of influence of legislative and executive powers. It functions as an independent organisation, enforcing the laws of the constitution.
In case of security breach, instability or failure of the government, multiple emergency laws come alive to keep things balanced. The constitution provides us with three emergencies- Article 352, National Emergency; Article 356, Constitutional Emergency; Article 360, Financial Emergency.
Finally there are certain special provisions that were made to strengthen the secularity and sovereignty of our nation. Article 370 grants the state of Jammu & Kashmir a special status to form its own laws and government. Another special provision is made for the scheduled castes and scheduled tribes which grants them reservation in many sectors, most importantly education.
And to preserve the cultural identity of each state, there exist provisions for language. There are 22 languages under the 8th schedule which are listed as the official languages authorised by the constitution of India.
Comparison with American Nations
The American nations consist of countries from the North and South Americas. Comparing the size, India fares well above other nations in terms of world count, but when it comes to coverage of important factors, it covers only 60% while countries like Ecuador and Mexico have 75% coverage.
A study conducted by Oxford compared constitutions of the world on 92 key factors. India has a better coverage of these factors as compared to the USA. Yet the American populace enjoy a higher standard of civil liberties as compared to India. As far as codification of constitution is concerned, India and the USA are similar as they have a written constitution.
The constitution of the United States is a product of the 1787 constitutional document and following documents. Similarly, all of the American countries have a written constitution. Canada is the only exception with an uncodified constitution. Although they do have a Constitution Act, the preamble of their constitution states, ‘similar in principle to that of the United Kingdom’.
In terms of Rigidity, Indian constitution is more flexible than rigid. In contrast to this, the United States’ constitution is rigidly structured. But it can still be amended by the Congress using special provisions provided in the constitution itself. In terms of federation and Unitarianism, India describes itself as a federal system with a unitary bias.
In the America, The US is a purely federal state. Most of the other nations in the continents follow the example including Canada, Mexico, Brazil and Argentina. Chile is one South American country which is a democratic republic and its State is unitary while the territory is divided into regions. Its administration is functionally and territorially decentralized.
American nations have also preferred Presidential type of government. The president is the head of the state and government. In India Parliamentary form is followed where the Prime Minister is the head of the government and President is the head of the state.
Coming to the fundamental rights, India modelled it on the American Bill of Rights. But the rights are not absolute and government can impose restrictions on them. The USA’s American Bills right had enumerated a list of rights, which the Supreme Court extended by recognising several fundamental rights not specifically enumerated in the constitution.
Finally, Indian constitution provides emergency provisions under part 13. The USA has several counters to manage emergencies. The Governor of a state or a local mayor can declare emergency in their state or city. The president can enforce a federal state of emergency.
There is only one emergency provision that the Constitution of USA guarantees its citizen- The privilege of the writ of Habeas Corpus shall not be suspended, unless when in case of rebellion or invasion of public safety may require it. Canada invokes emergency via the emergency act. The state of emergency expires automatically after 90 days unless the Governor-in-Council extends it.
Comparison with European and African Nations
Once again, there is no competition to the word count of Indian constitution in this case either. Nigeria with 66,263 words comes the closest and is yet half the size of the constitution. It is ranked as the 4th biggest constitution. The Oxford’s constitutional comparison study ranks the UK below India in terms of factors covered by the constitutions of the nations. But once again, it does not imply that Indian civil rights are being enforced in a better way than the UK.
The United Kingdom also differs from the Indian constitution on the aspect of codification. Their constitution is unwritten. The closest thing that came to become a constitution was the Treaty of Union in 1707, but this tends only to be subject to legal and academic scrutiny in Scotland, and has not received comparable attention in England and Wales.
The only other example of an uncodified constitution in the Europe is the Microstate of San Marino near Italy. France and Hungary are two European countries which adopted a written constitution in the 20th century.
Britain has a very flexible constitution. There is no special procedure of amendment and can be amended by the Parliament just like other laws. France and Germany are the stark opposite with their rigid constitutions. French constitution can only be amended if the amendment gets 60% favour from both the houses in the parliament.
Germany has article 79, which states that Basic Law can be amended by absolute 2/3rd majority in the Bundestag and simple 2/3rd majority in Bundesrat excluding amendment of the laws defined by the eternity clause. Europe has a balanced state between federalism and Unitarianism.
The UK, France, Spain and Italy are example of unitary countries whereas Germany, Switzerland, Belgium and Austria are some examples of federal states. In Africa, Nigeria, Ethiopia and South Africa follow federalism while the others follow the unitary system. Parliamentary system of governance is followed in majority of the European countries.
The UK, Norway and Sweden have parliamentary government with a royal head of the state. In Africa, Libya, Ethiopia and Somalia have a parliamentary government with a non-monarchical head of the state. South Africa and Botswana have the head of state and head of government in one office, filled by parliament’s choice and elected separately.
Fundamental rights are not mentioned in the British Constitution. The French though, have Declaration of the Rights of Man and of the Citizen, which comes close to the fundamental rights mentioned in the Indian constitution. The nations of the European Union follow the Charter of Fundamental Rights of the European Union.
In the second chapter of South African constitution, there exists a provision called Bills of Rights. This bill covers all the 15 fundamental rights that a South African citizen enjoys. Coming to the Emergency provisions, France grants ‘extraordinary powers’ to the president at the time of crisis. Germany limits basic laws in case of state of defence, tension or internal instability. In the UK, the emergency powers act, 1964 grants the monarch the Authority to declare a state of emergency in the time of crisis.
Comparison with Asian and Oceanic Nations
Malaysia is the nation with the second highest constitutional word count, with 64,080 words. India exceeds the number by almost twice the amount again. However, the scope of the constitution is not a direct indicator of the rights that the citizens of the country enjoy.
The Oxford study observed that Russia and Pakistan have a better coverage of the factors as compared to India, yet they cannot claim their citizens enjoy the same quality of liberty that the Indians get. In terms of codification, two countries in the middle-east namely, Israel and Saudi Arabia follow an unwritten constitution.
In the Oceania, New Zealand is the only example of uncodified constitution. Japan had reformed itself with a new constitution on 3rd May 1947, three months before India became an independent nation.
In terms of rigidity, Japan has a rigid structure as compared to India. Japanese amendments require 2/3rd majority to be passed, followed by a special referendum where it is submitted to the people for ratification. Our neighbour Pakistan shares similar features of rigidity with us. It also shares the ideology of federal government like ours.
Nepal and Bangladesh are the other two neighbours which are federal in nature. Most of the middle-east and south Asian nations follow Unitarianism. In the Oceania, New Zealand is Unitary while Australia is Federal. But both the countries follow a Parliamentary type of government with the head of the state being the Monarch of Britain.
In Asia, India and its democratic neighbours have a parliamentary type of government, loosely based on the British parliament. The middle-east countries have Presidential government with the exception of Iraq which follows parliamentary form. Japan has a parliamentary government with the head of the state being the emperor of Japan.
The fundamental rights in the Asian continent vary from country to country. Pakistan has seven fundamental rights and one optional right to bear arms. Russia provides its citizen 16 fundamental rights, with a special provision to protect these rights.
Coming to the emergency provisions, Russian president declares emergency in the time of crisis and state emergency committee is formed to look into it.
Defence Regulations in Israel brings the nation under military rule during emergency. Indian emergency provisions are on the similar lines their Australian counterparts. Pakistan too follows similar pattern to India when declaring an emergency.
The Indian constitution finds many similarities with the other constitutions in the world, yet it has its own unique features which make itself special in its own way. This is partly due to the fact that we have adopted characteristics of many different constitutions across the globe, combined them together and personalised them to suit our conditions.
We observe that constitutions, written or unwritten, form the backbone of governance in any state. It is after all, an archive of all the laws, principles and guidelines that are required to maintain law and order in the country and prevent internal or external fallouts.
Each nation has constructed its constitution on the basis of efficiency of governing the demonym of the region. Over the decades, it has continuously been amended to keep up with the times, the transforming demographics and modern ideologies.
No matter the differences or similarities between the different constitutions of the world, each nation wants to secure the interests of its citizens prior to everything else. In doing so, they are prioritising the nation’s interest in growth, security and stability. Constitution provides the basis of decisions and policies that are made to support this.
A good constitution is a prerequisite of an empowered nation. India, with its extensive written constitution in place, already possesses this prerequisite. It would not be too long until we stand on level ground with the super powers of the world.