Comparison of various constitutional schemes (DAMP)
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Contents
25-09-2023
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Answer :
Preamble is an introductory document to the Constitution that reveals the source of authority, nature of
the Indian state, objectives of the Constitution and date of adoption of the Constitution. It embodies the
basic philosophy and fundamental values and contains a grand and noble vision of the Constituent
assembly.
The various elements of the preamble reflect the general purposes behind various provisions of the Constitution such as:
• Justice (social, economic and political) – Fundamental rights and Directive principles contain various
provisions which aim to eliminate inequalities, remove discrimination and secure equal rights to all.
• Liberty (of thought, expression, belief, faith and worship) – Article 19 provides for freedom of speech
and expression and Article 25-28 gives the right to religion to everyone including minorities.
• Equality (of status and opportunity) – it promotes civic, political and economic equality as reflected
in following articles:
o Article 14-18 provides for absence of special privileges to any section of society and adequate
opportunities for all without discrimination.
o Article 39 secures equal rights to an adequate means of livelihood and equal pay for equal work.
o Article 325 and 326 provides for universal adult franchise and right to participate in elections
without any discrimination.
• Fraternity (dignity of an individual and unity and integrity of the nation)
o System of single citizenship promotes the feeling of fraternity.
o It is a fundamental duty of every citizen to promote harmony and spirit of a common
brotherhood.
Since the preamble is key to our constitution, there have been questions over its amendability. This question was dealt in the Kesavananda Bharati Case (1973) and the Supreme Court held that the Preamble is a part of the Constitution, and it can be amended under Article 368, subject to the basic structure doctrine.
It found its earlier opinion tendered in Berubari Union Case 1960 that Preamble is not a part of the Constitution and therefore, cannot be amended under Article 368, to be wrong.
The Preamble has been amended only once till now by the 42nd Constitutional Amendment Act 1976 which added three new words- Socialist, Secular and Integrity– to the Preamble.
26-09-2023
Answer :
The Indian Constitution establishes a parliamentary government at both the center and the states, emphasizing cooperation and coordination between legislative and executive branches rather than rigid separation of powers.
Shared Features with British Model:
- Presence of Executives: Both systems have nominal and real executives.
- Collective Responsibility: The executive is collectively responsible to the legislature.
- Executive Membership in Legislature: Executives are members of the legislature.
- Lower House Dissolution: The lower house can be dissolved.
- Majority Party Rule: Leadership by the Prime Minister from the majority party.
Distinctive Indian Modifications:
- Constitutional Sovereignty: India has constitutional limitations, unlike Britain’s parliamentary supremacy.
- Elected Nominal Executive: India’s President is elected, while Britain’s monarchy is hereditary.
- PM House Membership: Indian Prime Minister can be from either house; UK’s PM must be from the Lower House.
- Minister Appointment: Non-MPs can be ministers temporarily in India, not in Britain.
- Ministerial Responsibility: Indian ministers lack individual legal responsibility, unlike Britain.
- Absence of Shadow Cabinet: India lacks a shadow cabinet, which Britain has for opposition preparation.
These differences demonstrate that India’s parliamentary system, while influenced by the British model, diverges significantly, making it distinct from a replica of the British system.
27-09-2023
Answer :
India and the USA are liberal democracies with the Judiciary occupying a place of prominence and power.
There are various similarities such as:
• There is independence of judiciary in both the countries since both follow the doctrine of separation of powers.
• In both the countries, the Constitution is the supreme law of the land and the Judiciary acts as the interpreter and protector of the Constitution.
• Power of Judicial review is present in both the systems.
• The judges in the higher judiciary are appointed by the President in both the countries.
Differences between the two systems are:
- Court System:
- India: Unified judicial system with a hierarchy of courts enforcing both Central and state laws.
- USA: Dual judicial system where federal laws are enforced by federal courts, and state laws by state courts.
- Supreme Court Jurisdiction:
- India: Supreme Court holds extensive jurisdiction and comprehensive powers, serving as a final court of appeal.
- USA: American Supreme Court is federal and functions as the highest court but doesn’t hold such broad jurisdiction.
- Special Power of Supreme Court:
- India: Indian Supreme Court possesses broad discretion to grant special leave to appeal against any court or tribunal’s judgment (except military). American Supreme Court lacks this plenary power.
- Judicial Review Power:
- India: Indian Supreme Court’s judicial review scope is narrower than that of the USA due to different constitutional provisions (“procedure established by law” vs. “due process of law”).
- Appointment of Judges:
- USA: US President holds final authority in appointing Supreme Court judges.
- India: Indian President requires collegium consultation for such appointments.
- Scope of Powers Enlargement:
- India: Indian Parliament can expand jurisdiction and powers of the Supreme Court.
- USA: American Supreme Court’s jurisdiction is limited to its Constitution-defined powers.
Beyond these similarities and differences, the Indian and American judicial systems are quite powerful and have played a key role in ensuring constitutional checks and balances.