Comparison of Indian Constitution with British Constitution

2021 NOV 23

Mains > Constitution > Comparison of constitutions > Features of constitution

WHY IN NEWS?

During the pandemic, the UK government constituted a panel of legal and academic experts to examine the scope of judicial review. The outcomes of this panel may have significant and far-reaching repercussions even in other jurisdictions, especially India.

INTRODUCTION

The British constitution is a queer mixture of the monarchical, aristocratic and democratic principles.
The institution of Kingship shows that there is monarchy in England. The existence of House of Lords gives an idea that England has an aristocratic type of government. The House of Common reflects actual working of a full-fledged democracy in this country. But all these diverse political elements have been beautifully welded together to produce the final effect of perfect representative democracy. Moreover Britain has an official state religion.
However, Indian Constitution is republic in nature and it strictly adheres to the principles of democracy, secularism and socialism.

KEY FEATURES OF BRITISH CONSTITUTION

Legislature:
- Parliament is bicameral but has three parts, consisting of the sovereign (Crown-in-Parliament), the House of Lords, and the House of Commons (the primary chamber).
- Both houses of Parliament meet in separate chambers at the Palace of Westminster.
- In theory, the UK's supreme legislative power is officially vested in the Crown-in-Parliament. However, the Crown normally acts on the advice of the prime minister, and the powers of the House of Lords are limited to only delaying legislation; thus power is de facto vested in the House of Commons.
- House of Lords (strength is not fixed):
  - It includes two different types of members: the Lords Spiritual, consisting of the most senior bishops of the Church of England; and the Lords Temporal, consisting mainly of life peers, appointed by the sovereign, and of 92 hereditary peers, sitting either by virtue of holding a royal office, or by being elected by their fellow hereditary peers.
  - Prior to the opening of the Supreme Court in October 2009, the House of Lords also performed a judicial role through the Law Lords.
- House of Commons:
  - It is an elected chamber with elections to 650 single-member constituencies held at least every five years under the first-past-the-post system.
  - The party with the largest number of members in the Commons forms the government.
  - By constitutional convention, all government ministers, including prime minister, are members of the House of Commons and are accountable to the house.
Executive:
- The executive in Britain is called as Crown. The Crown, as an institution, consists of the following:
  - Queen/King
  - Prime Minister
  - Council of Ministers (CoM)
  - Permanent Executive/Civil Servants
  - Privy Council
- Executive power in the United Kingdom is exercised by the Sovereign, Queen Elizabeth II, via Her Majesty's Government and the devolved national authorities - the Scottish Government, the Welsh Assembly Government and the Northern Ireland Executive.
- The monarch appoints a Prime Minister as the head of Her Majesty's Government in the United Kingdom.
Judiciary
- Judiciary originated in Britain when Henry II had assigned five members to listen to complaints and give remedy in 1178.
- The objective of independence of the judiciary from the power of the executive branch did not secure the success over arbitrary Royal prerogative until the Act of Settlement in 1701.
- Then the Glorious Revolution which laid down the concept of Rule of Law instead of the will of the monarch.
- In the absence of the written Constitution, it highlighted the relevance of parliamentary sovereignty.
- Then came the Constitutional Reform Act 2005 and in the next year the new Judicial Appointment Commission. In 2007 the Ministry of Justice was created. Finally, in 2009 the judicial function of parliament ended as the independent UK Supreme Court was established.
- Supreme Court got its jurisdiction from the Appellate Committee of the House of Lords and the devolution jurisdiction from the Privy Council. SC is presided by twelve independent judges.
- For historical reasons, as a state made up of several separate jurisdictions, the United Kingdom does not have a single unified legal system.
- Instead, there is one system for England and Wales, another for Scotland, and a third for Northern Ireland.
- In most cases, The Supreme Court sits above all of these as the final court of appeal.
- However Judicial Committee of the Privy Council is the highest court of appeal in some cases.

SIMILARITIES:

Parliamentary system of government:
- Both India and Britain has a Parliamentary form of government
- The Prime Minister and his Ministers are responsible to the legislature for their acts and policies. In this system, the executive and legislature are not separated.
- Ministers, who belong to the majority party in the Parliament remains in office as long as they retain its confidence.
Rule of Law:
- Another important feature of the British constitution is the Rule of Law. Constitutionalism or limited government is the essence of Rule of Law. This checks the arbitrary action on part of the Executive
Similarities in the organs of government:
- Executive:
  - Presence of real and nominal executive:
    - In India, The President is the nominal executive while the Prime Minister is the real executive
    - Thus, the President is head of the State, while the Prime Minister is head of the government
    - In Britain, Crown is the nominal executive while the Prime Minister is the real executive.
  - Cabinet form of government
    - Britain and India has a Cabinet form of government.
    - A cabinet is a plural or collegiate form of government.
    - The power doesn’t lie in one person, but the entire Council of Ministers.
    - The principle is, “all Ministers sink and swim together”.
    - It is based on collective responsibility towards the Lower House.
  - Appointment of Prime Minister:
    - Leader of the political party with an absolute majority of seats in the Lower House is chosen to be the Prime Minister in both countries.
    - If no party has an absolute majority, the leader of the largest party is given the first opportunity to form a coalition.
  - Position of the Prime Minister
    - Constitutional position of the Indian P.M. is modeled on the British P.M.
    - In both the country PM is the head of the Cabinet.
    - He/She is the connecting link between the Queen/President and the Cabinet as well as the King/President and the Parliament.
    - The life of the House depends on the P.M. He may advice the dissolution of the House.
    - The other Ministers are appointed on the advice of the P.M.
  - Permanent Civil Servants/Bureaucrats
    - Indian bureaucracy is modeled on the British bureaucracy.
    - Some common features are recruited through competitive exams, they are expected to be politically neutral etc.
- Legislature
  - Both the British and Indian Parliament is bicameral i.e there are two houses or chambers. Just like Lok Sabha (Lower House) and Rajya Sabha (Upper House) in India, British Parliament consists of House of Commons (Lower House) and the House of Lords.
- Independence of Judiciary
  - The actions of Executive can be declared ultra vires in both the systems
  - The judiciary is considered the highest interpreter of the Constitution
  - Off late, there has been a splurge in judicial activism in Britain and judiciary is becoming more and more active.
  - For example: Miller case of 2017
    - It is constitutional law case decided by the UK Supreme Court in 2017, which ruled that the British Government (the executive) may not initiate withdrawal from the European Union without an Act of Parliament. The case was seen as having constitutional significance in deciding the scope of the royal prerogative in foreign affairs.
  - A similar evolution of judiciary has been noticeable in the Indian case too.
  - Security of tenure of judges:
    - The Rule of Law in Britain is safeguarded by the provision that judges can only be removed from office for serious misbehavior and according to a procedure requiring the consent of both the Houses of Parliament.
    - So, the judges are able to give their judgments without any fear or favor.
    - The same has been adopted in India, where independence of Judiciary is hailed as an unmistakable part of the Constitution
Similarities in elections:
- The first-past-the-post system is used for general elections to the House of Commons as well as Lokh Sabha
Presence of Fundamental Rights:
- The history of human rights in the United Kingdom is one of the oldest. An integral part of the UK Constitution, human rights derive from common law, from statutes such as the Magna Carta, the Bill of Rights of 1689 and the Human Rights Act 1998, from membership of the Council of Europe, and from international law.
- In India, the fundamental rights are provided for in Part III of the Constitution i.e., in Articles 12-35.

DIFFERENCES

Unwritten Constitution:

One of the most important features of the British constitution is its unwritten character. There is no such thing as a written, precise and compact document, which may be called as the British constitution.

The main reason for this is that it is based on conventions and political traditions, which have not been laid down in any document, unlike a written constitution, which is usually a product of a constituent assembly.

Written

Indian Constitution, in comparison, is the lengthiest written constitution in the world.

Evolutionary

The British constitution is a specimen of evolutionary development. It was never framed by any constituent assembly. It has an unbroken continuity of development over a period of more than a thousand years.

Framed by a constituent assembly

Indian Constitution is framed by a constituent assembly and it has well defined provisions

Flexible

The British constitution is a classic example of a flexible constitution. It can be passed, amended and repealed by a Simple Majority (50% of the members present and voting) of the Parliament, since no distinction is made between a constitutional law and an ordinary law. Both are treated alike. The element of flexibility has provided the virtue of adaptability and adjustability to the British constitution.

Both flexible as well as rigid

Indian Constitution, in contrast, is both flexible as well as rigid. This compliments the basic ideology of the Indian Constitution quite well, wherein certain features like Sovereignty, Secularism, and Republic et al have been held sacrosanct, but otherwise the Constitution is amendable.

Constitutional monarchy

The Head of the State in Britain (that is, King or Queen) enjoys a hereditary position.

Republic

India has a republican system in place of British monarchical system. the Head of the State in India (that is, President) is elected.

Unitary:

The British constitution has a unitary character as opposed to a federal one. All powers of the government are vested in the British Parliament, which is a sovereign body. There is only one legislature. England, Scotland, Wales etc. are administrative units and not politically autonomous units.

Federal in nature:

The Constitution of India establishes a federal system of government. It contains all the usual features of a federation, viz., two government, division of powers, written Constitution, supermacy of Constitution, rigidity of Constitution, independent judiciary and bicameralism

Sovereignty of Parliament

The term Sovereignty means Supreme Power. A very important feature of the British Constitution is sovereignty of the British Parliament (a written constitution being absent).

The British Parliament is the only legislative body in the country with unfettered power of legislation. It can make, amend or repeal any law. The courts have no power to question the validity of the laws passed by the British Parliament. The British Parliament may amend the constitution on its own authority, like an ordinary law of the land.

Parliamentary powers are restricted:

The Parliament is not supreme in India and enjoys limited and restricted powers due to a written Constitution, federal system, judicial review and fundamental rights.

Vital role of conventions:

A necessary corollary to the unwritten character of the British Constitution is that conventions play a very vital role in the British political system.

For example, while the Queen has the prerogative to refuse assent to a measure passed by the British Parliament, but by convention, she doesn’t do so and the same has become a principle of the constitution itself.

Minimal role for conventions:

In Indian political system, conventions have minimal role. Rules and Procedure are detailed in Constitution, and it is further backed by numerous statutes.

Official religion:

The official religion of the United Kingdom is Christianity, with the Church of England being the state church of its largest constituent region, England.

The Constitution of India stands for a secular state. Hence, it does not uphold any particular religion as the official religion of the Indian State

Prime Minister will always be from Lower House:

It is a convention in Britain that the P.M. will always be a member of the Lower House (House of Commons) only.

Prime Minister can be from both the houses:

In India, the PM can be a member of either House of Parliament, i.e. Lok Sabha or Rajya Sabha.

Minister should be a member of Parliament:

The members of Parliament alone are appointed as ministers in Britain

In India, a person who is not a member of Parliament can also be appointed as minister, but for a maximum period of six months

Legal responsibility of Ministers

Britain has the system of legal responsibility of the minister. They are required to countersign the official acts of the Head of the State

India has no such system. Unlike in Britain, the ministers in India are not required to countersign the official acts of the Head of the State

Privy Council

It has been one of the advisory bodies to the Crown. It has lost relevance because of the emergence of the Cabinet. It has some supervisory role w.r.t. University of Oxford, Cambridge etc. It also has some role in resolution of disputes related to the Church as well as a Court of Appeal in some admiralty cases.

India does not have such a mechanism.

Shadow cabinet

It is a unique institution of the British cabinet system. It is formed by the opposition party to balance the ruling cabinet and to prepare its members for future ministerial office.

There is no such institution in India

Hereditary members in Parliament

Upper house of British Parliament (House of Lords) has hereditary members.

Indian Parliament doesn’t have hereditary members.

Weaker upper house

The House of Lords can propose and make changes, known as amendments. However its powers are limited; if it doesn’t approve of a piece of legislation, it can only delay its passage into law for up to a year.

In fact, the House of Lords could be labeled as one of the weakest upper house in the world. Since the passage of the Act of 1919 and 1949, the House of Lords has lost all real legislative powers. It is simply a delaying chamber now.

It can delay an ordinary bill for a maximum period of one year and money bill for a maximum period of one month.

Rajya Sabha has equal powers with Lok Sabha, as far as an ordinary bill and Constitution amendment bill is concerned.

All bills (except money bills) need to be passed in both the houses to become an Act

Leader of lower house:

The Prime Minister, although head of the Government and an MP, is now not usually the Leader of the House of Commons. The Leader of the House of Commons, a member of the Government, is the chief spokesman for the majority party on matters of the internal operation of the House of Commons.

Under the Rules of Lok Sabha, the ‘Leader of the House’ means the prime minister, if he is a member of the Lok Sabha, or a minister who is a member of the Lok Sabha and is nominated by the prime minister to function as the Leader of the Hous

Features of British Speaker

In UK, there is a convention that once a Speaker, always a Speaker. It means that a Speaker’s constituency is unchallenged. Once a person is appointed as a Speaker he gives formal resignation from his political parties. He has a casting vote and ultimate disciplinary powers with respect to the conduct of the House and MPs.

Speaker of Lok Sabha

Though our position is midway between the British and the US model, it is theoretically closer to the British model. But similar conventions do not exist. For instance:

It is not necessary for the Speaker to resign from his party
If he decides to resign, he will not be disqualified under the Anti-defection law.
No convention in India that he will be elected uncontested.

Limited scope for judicial review

Under the doctrine of Parliamentary sovereignty, the judiciary lacks the intrinsic power to strike down an Act of Parliament. However, the subordination of common law to statute law does not mean the subordination of the Judiciary to the executive. Courts in Britain retain certain powers:

Of interpreting the precise meaning of a statute.
Of reviewing the actions of ministers and other public officials by applying the doctrine of ultra vires (beyond powers).
Of applying the concept of natural justice to the actions of ministers and others.

However the lack of concept of ‘Basic Structure’ makes amending power of the Parliament supersede any judicial pronouncement.

The Supreme Court and High Court can declare the parliamentary laws as unconstitutional through its power of judicial review.

British Constitution does not mentions Directive Principles and Fundamental Duties

The Directive Principles of State Policy, embodied in Part IV of the Indian Constitution, are directions given to the state to guide the establishment of an economic and social democracy.

The fundamental duties (embodied in Part IVA) serve as a reminder to citizens that while enjoying their rights, they have also to be quite conscious of duties they owe to their country, their society and to their fellow-citizens

PRACTICE QUESTION:

Q. The judicial systems in India and UK seem to be converging as well as diverging in the recent times. Highlight the key points of convergence and divergence between the two nations in terms of their judicial practices

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Mains: Questions can be asked on salient features of British Constitution and political system, its comparison with Indian political system etc.
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