Comparison of Indian Constitutional Scheme with other countries

“The price of freedom is eternal vigilance” – Thomas Jefferson

Evolution

• Montesquieu’s “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 – the reflection on U.S. Constitution
• The 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:

• Parliamentary – 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, etc

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

Indian Constitution Vs Written Constitution

American Constitution:

• Works on Checks and balances concept
• Presidential type of government
• Rigid Constitution
• Federal System

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 studied”
• Dynamic Constitution (protection of individual, welfare state)

Comparative Constitutional law and national identity:

The Constitution incorporates a national identity which is evident from the statements in some of the constitutions below:

• The preamble to Irish Constitution – ‘The Most Holy Trinity’
• The preamble to South African Constitution – ‘recognise the injustices of our past’
• Art 9 of the 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”
• The 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