Comparison of Indian and US Constitution: A Critical Analysis

This article has been written by Hari sri vidya Lalithambica, a law student from Padala Rama Reddi Law College.

Introduction

Constitution is a body of fundamental principles or established precedents according to which a state or other organization is acknowledged to be governed. They are the foundational legal documents that outline the framework of governance, distribution of powers, fundamental rights of citizens in any country.

The constitutions of India and the United States Constitution represent distinct yet influential models of governance. Both constitutions share common democratic values yet they reflect the unique historical, cultural and political experiences of their respective nations. The U.S. Constitution is crafted in 1787, world’s oldest written constitution, designed to protect individual liberty and limit the powers of government whereas the Indian Constitution, adopted in 1950, is world’s largest written constitution, aims to balance individual rights with social justice and ensure the unity and integrity of a diverse and populous nation.

A comparative analysis of the two constitutions reveals both similarities and differences in their approach to governance, federalism, fundamental rights, and the roles of the judiciary. While the U.S. Constitution is often viewed as more rigid and concise, providing a broad framework that has been interpreted over time, the Indian Constitution is more flexible and exhaustive, reflecting the complexity of a newly independent nation grappling with poverty, inequality, and immense diversity. This analysis aims to explore these nuances, highlighting how each constitution addresses the challenges of democracy in vastly different socio-political contexts.

Historical Context

The U.S. Constitution, drafted in 1787, was born out of the American Revolution. The experience of colonial oppression had made the framers deeply wary of centralized power and led them to prioritize individual liberties, limited government and the creation of federal system. The framers of the U.S. Constitution sought to create a more balanced structure that allowed for a strong central government while protecting states’ rights and ensuring checks and balances among the executive, legislative, and judicial branches.

Indian Constitution is adopted in 1950. India had just emerged from nearly 200 years of British colonial rule and had experienced a long and intense struggle for independence, led by figures such as Mahatma Gandhi and Jawaharlal Nehru. The struggle was not just for political freedom but also for social justice, equality, and the eradication of colonial-era inequalities like caste discrimination and economic exploitation. The horrors of the Partition of India in 1947, which caused widespread communal violence and displacement, added to the complexity of the task. The framers of the Indian Constitution, under the leadership of Dr. B.R. Ambedkar, sought to build a document that would not only establish a democratic framework but also foster unity in a deeply diverse society—in terms of language, religion, caste, and culture. It incorporates extensive provisions for fundamental rights, affirmative action, economic development, and social welfare. It also provides for a strong central government, recognizing the importance of national unity in a country fragmented by regionalism and communal tensions.

Structure of the Constitutions

• The Preamble of the Constitution of the United States focuses on forming a more perfect union, establishing justice, ensuring peace within the country, providing for the common defence, promoting the general welfare, and securing the blessings of liberty for ourselves and future generations.
• The Preamble of the Constitution of India establishes India as a sovereign, socialist, secular, democratic republic nation. Preamble also ensures justice in social, economic and political matters; liberty in thoughts, expressions, beliefs, faith and worship, equality in status and opportunity for everyone; and to promote fraternity, assuring the dignity of the individual and the unity and integrity of the nation.
• The US Constitution consists of 7 Articles and 27 Amendments. The Constitution, without any amendments, is roughly 4,500 words long.
• The Constitution of India is the longest written constitution in the world. Originally, it had 395 Articles, 22 Parts and 8 Schedules. With 105 amendments, the Constitution now contains 470 Articles, 25 Parts and 12 Schedules. It is over 1,46,000 words long.
• U.S. Constitution provides for general framework for governance. It outlines the separation of powers among three branches of government viz., Legislature, Executive and Judiciary, and provides a few fundamental rights and principles leaving many details to be filled by legislation, judicial interpretations. Generally, US Constitution is considered as rigid constitution as its amendment process is quite difficult and lengthy.
• The Indian Constitution covers not just the structure of government but also specific policies on various subjects, including fundamental rights, directive principles of state policy, citizenship, functioning of states, emergency provisions, amendment process and many more.

Division of Powers: Federalism

A Federal State is a dual government system where the power is divided between a central authority and regional authority, each of which operates within its own spheres.

The American Constitution is described as a truly Federal Constitution. It was ratified by 50 Independent States. Further, the Federal Government and States have their own Constitutions and do not interfere in each other’s functions. On the other hand, India has only one Constitution, wherein the Central government interferes with functions of State governments in the form of, inter alia:

• Appointment of Governors.
• Governor having the power of reserving the States’ bills for consent of the President.
• Central government’s power to impose President’s rule in the States.

While USA is a Dual Federation, India is a Cooperative Federation.

The U.S. Senate ensures that states have representation in the federal legislative process, with each state having equal representation, regardless of size. The judiciary is independent and the constitution maintains a balance of power that defines the country’s federal nature.

India is a federal state due to the division of powers as specified in the seventh schedule of the constitution, which separates powers into the Union list, State list and Concurrent list. India’s written constitution clearly defines these boundaries and Article 1 declares India as union of states, and separation of judiciary under Article 50. However, India is not fully a federal state because it retains unitary features, making it more of a quasi-federal state. The Central holds more power, especially during emergencies provided under Articles 352 to 360. India’s single citizenship reinforces a unitary character, as all citizens owe allegiance to the nation rather than their individual states.

Fundamental Rights and Duties

The Bill of Rights under the U.S. Constitution protects individual freedoms without suspension during emergencies. United States Bill of Rights comprises the first ten amendments to the United States Constitution in 1791. The rights protected under each amendment are as follows:

The United States Constitution does not formally list fundamental duties. However, civic responsibilities expected from citizens include serving on a jury, voting, obeying laws, and paying taxes.

Part III of Indian Constitution guarantees fundamental rights, which can be suspended during emergencies. Part IV of the Constitution outlines fundamental duties for citizens to promote civic responsibility.

Separation of Powers: Checks and Balances

The principle of separation of powers is a foundational concept in both the United States and Indian constitutions, designed to prevent the concentration of power in any single branch of government. This system ensures a balance of power, where no single branch can dominate the others, promoting a system of checks and balances. While both countries implement this doctrine, there are significant differences in how rigidly it is applied.

The doctrine of separation of powers in the U.S. is strictly applied, with distinct boundaries between the three branches of government:

• Legislative (Congress) makes laws.
• Executive (President) enforces laws.
• Judiciary (Courts) interprets laws.

A system of checks and balances ensures that no branch can dominate the others. For example, Congress can pass laws, but the President can veto them; the President can appoint judges, but the Senate must confirm them; and the judiciary can declare laws unconstitutional through judicial review. This division is clearly enshrined in the U.S. Constitution and serves as a safeguard against tyranny.

In India, while the separation of powers is an integral part of the constitutional framework, it is not strictly enforced. The Indian Constitution provides for a functional overlap between the branches:

• Legislature (Parliament and State Assemblies) makes laws.
• Executive (President, Prime Minister, and Governors) implements laws and also participates in the legislative process.
• Judiciary (Supreme Court and other courts) interprets laws and can review the constitutionality of legislative and executive actions.

Although Article 50 of the Indian Constitution directs the separation of the judiciary from the executive, there is considerable overlap, especially in the relationship between the executive and legislature, as ministers are drawn from the legislature. The judiciary, however, retains significant independence through judicial review, similar to the U.S. model.

Judiciary: Role and Powers

In both Indian and U.S. Constitutions judiciary acts as an independent and impartial branch of government responsible for interpreting law, administering justice and safeguarding the constitution. The judiciary’s role is to act as a check on the legislative and executive branches, ensuring that laws and governmental actions do not violate constitutional principles.

In the U.S. Constitution, judicial powers are primarily vested in the Supreme Court and other federal courts (Article III). These courts have the authority to review laws and executive actions for constitutionality, a power formally recognized through judicial review, established in Marbury v. Madison. The Bill of Rights (the first ten amendments) plays a crucial role in protecting individual liberties, which the judiciary enforces.

Similarly, under the Indian Constitution, the judiciary is empowered to safeguard the Fundamental Rights of citizens (Part III) and ensure that laws passed by Parliament or state legislatures are consistent with the Constitution. The power of judicial review is not explicitly mentioned but has been implied and upheld by the courts, particularly in cases like Kesavananda Bharati v. State of Kerala, which introduced the basic structure doctrine, limiting Parliament’s power to amend certain constitutional principles. Additionally, Article 32 and Article 226 provide citizens direct access to the Supreme Court and High Courts for the enforcement of fundamental rights, further reinforcing the judiciary’s role as a protector of civil liberties.

Both constitutions ensure that the judiciary remains independent, with specific provisions for the appointment and removal of judges. In the U.S., federal judges are nominated by the President and confirmed by the Senate. In India, judges are appointed by the President, with the recommendation of the Collegium (a body of senior judges), ensuring a separation from direct political influence.

Thus, according to both constitutions, the judiciary serves a fundamental role in maintaining the checks and balances essential to preventing the concentration of power in any one branch of government and protecting the rights and liberties of the people.

Amendment Procedures

The U.S. Constitution is known for its rigidity in terms of the amendment procedure, making it difficult to amend. Article V outlines two ways to amend the constitution:

1. Proposal:

• By Congress: An amendment can be proposed by a two-thirds majority in both the House of Representatives and the Senate.
• By a National Convention: Alternatively, an amendment can be proposed by a national convention called at the request of two-thirds of the state legislatures. This method, however, has never been used.

2. Ratification:

• By State Legislatures: After being proposed, the amendment must be ratified by three-fourths of the state legislatures (currently 38 out of 50 states).
• By State Conventions: Alternatively, ratification can occur through conventions in three-fourths of the states. This method has only been used once, for the 21st Amendment, which repealed prohibition.

The Indian Constitution is flexible compared to the U.S. Constitution. Article 368 of the Constitution provides for three different types of amendment procedures, depending upon the nature of change:

1. Simple majority:

• Requires: More than 50% of members present and voting in both Houses of Parliament.
• Examples: Article 2 (Admission of new states), Fifth Schedule (Administration of Scheduled Areas), Citizenship provisions, Elections to Parliament and state legislatures.

2. Special majority

• It requires two-thirds of the members present and voting, and a majority of the total membership of each House.
• Examples: Amendments affecting Fundamental Rights, Changes to Directive Principles of State Policy.

3. Special majority and state ratification:

• It requires a special majority in Parliament and ratification by at least half of the state legislatures.
• Examples: Election of the President, changes to the Seventh Schedule (division of powers), amendments to Article 368 itself.

Emergency Provisions

The U.S. Constitution does not explicitly provide for emergencies; instead, it relies on the National Emergencies Act of 1976, which allows the President to declare a national emergency for various situations, subject to Congressional oversight and periodic reviews every six months.

The Indian Constitution contains specific provisions under Articles 352, 356, and 360 for declaring a National Emergency, a State Emergency (President’s Rule), or a Financial Emergency. Each type of emergency has distinct criteria and implications, with the National Emergency allowing the government to suspend certain Fundamental Rights (except Articles 20 and 21) and empowering the President to legislate by ordinance. While both systems aim to balance governmental power and civil liberties during crises, the Indian framework is more detailed and allows for broader government action with fewer checks, potentially leading to concerns about misuse of power.

Citizenship

India follows a system of single citizenship, while the United States allows for dual citizenship.

In India, Articles 5 to 11 of the Constitution define citizenship, focusing on factors such as birth, descent, and registration. Indian citizenship is conditional, with restrictions that may disqualify individuals born after 2004 unless at least one parent is a citizen, reflecting a protective stance towards national identity (Indian Constitution, Articles 5-11).

U.S. Constitution, particularly through the 14th Amendment, grants birthright citizenship (jus soli), automatically conferring citizenship on individuals born within U.S. territory, regardless of parental citizenship (U.S. Constitution, 14th Amendment). The U.S. system also includes provisions for citizenship through naturalization, which requires applicants to meet specific criteria such as residency and language proficiency, emphasizing integration into American society (Immigration and Nationality Act).

Both countries permit the revocation of citizenship under certain circumstances; however, the Indian framework allows for citizenship to be terminated more broadly based on anti-national activities, raising concerns about potential misuse of power.

Critical Analysis and Comparative Overview

Despite both being rooted in democratic ideals, their approaches to governance reflect their unique historical and sociopolitical contexts. The U.S. Constitution, with its emphasis on limited government and individual liberties, was created in response to colonial oppression and the desire for a balanced federal structure. In contrast, the Indian Constitution arose from the struggle against colonialism and sought to address deep social inequities while promoting unity in diversity.

The Indian Constitution is notable for its extensive provisions aimed at ensuring social justice, economic development, and affirmative action, reflecting the country’s diverse demographics and challenges. Its adaptability and detailed structure allow for continuous evolution, addressing contemporary issues while maintaining core democratic principles.

In contrast, the U.S. Constitution, often viewed as rigid due to its challenging amendment process, provides a concise framework for governance. The principles of separation of powers and checks and balances are clearly delineated, creating a robust mechanism to prevent the concentration of power.

Both constitutions also emphasize fundamental rights but approach them differently. The U.S. Bill of Rights guarantees specific liberties that remain largely intact even during national emergencies, whereas the Indian Constitution allows for the suspension of rights under certain conditions, reflecting a more flexible yet potentially more controversial stance on civil liberties.

Conclusion

In essence, the comparative analysis of the Indian and U.S. Constitutions reveals the dynamic interplay between governance, rights, and societal values in two of the world’s largest democracies.

This examination underscores the necessity of context in constitutional design, as each constitution responds to the unique historical and cultural circumstances of its nation. Moreover, ongoing debates surrounding fundamental rights, federalism, and citizenship illustrate that both constitutions are living documents, continuously interpreted and adapted in response to contemporary issues. The insights gleaned from this analysis highlight the importance of fostering democratic values while addressing the distinct needs and aspirations of each society. Ultimately, both constitutions serve as powerful testaments to the ideals of democracy, liberty, and justice, emphasizing the need for ongoing dialogue and evolution in governance.

References

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