— Kannan K

(The Indian Express has launched a new series of articles for UPSC aspirants written by seasoned writers and scholars on issues and concepts spanning History, Polity, International Relations, Art, Culture and Heritage, Environment, Geography, Science and Technology, and so on. Read and reflect with subject experts and boost your chance of cracking the much-coveted UPSC CSE. In the following article, Kannan K analyses the constitutions of India and the US)

While India has completed its general elections in mid-2024 and the new government has assumed office, the US is gearing up for its own electoral process, with the presidential elections set to take place soon. 

India, the largest democracy in the world, has once again showcased the robustness of its electoral system, with more than 64 crore citizens giving their mandate. Meanwhile, the US, one of the oldest democracies in the world, continues to embody a legacy of representative governance that has influenced democratic ideals globally for over two centuries. 

The strength of these two diverse democratic systems lies in their sound and well-crafted constitutions, which serve as foundational documents for the functioning of each nation. Though the constitutions of the two countries have envisaged different political systems, there are some similarities and certain key differences.

The Indian constitution has designed a parliamentary democracy with a federal structure. There is a dual executive system in place, with the Prime Minister, the de facto or real executive, serving as the head of government, while the President, the de jure or nominal executive, holds a ceremonial role as the head of state. 

A quasi-federal system that divides powers among the states and a strong central government was designed, with the states having no power to secede from the union.

The Indian constitution grants the Union government all residuary powers, which is the power to make laws on any matter not mentioned in the Concurrent List or State List. 

The Indian constitution has created a healthy synthesis of the American doctrine of judicial supremacy and the British doctrine of parliamentary supremacy. The apex court of India can exercise its judicial review powers to declare any parliamentary law unconstitutional, while Parliament has the power to amend the constitution as long as it does not contravene the basic structure of the constitution. 

In contrast, the US constitution has framed a presidential system of government with the President being both the de jure and de facto executive. This system employs the doctrine of separation of powers to separate the executive from the legislature, giving significant powers to the President as head of state and government. 

Further, the US constitution provides for a federal system wherein the states have much more autonomy vis-a-vis the federal government. The residuary powers in the US context rests with the states. In terms of judicial review, the US constitution has established a system of judicial supremacy, granting the Supreme Court the power to declare any law unconstitutional, ensuring a check on the legislative branch. 

However, the US constitution requires a more stringent process for amendments, as it has no equivalent to India’s basic structure doctrine. Amendments must receive a two-thirds majority in both houses of Congress and further ratification by three-quarters of the states in the federation. This is the key reason that has resulted in the US constitution having only 27 amendments since its ratification in 1787, while the Indian constitution, with its more flexible amendment provisions, has been amended 106 times since its adoption in 1949.

Both these constitutions share several similarities while also exhibiting key differences from each other in their core philosophies and mechanisms, apart from the ones mentioned earlier. India’s constituent assembly framed the constitution by borrowing the best ideas from constitutions across the world and adapting them to India’s unique circumstances. 

Dr BR Ambedkar, the Chairman of the Constituent Assembly’s drafting committee, famously said that the Indian Constitution was designed by ‘ransacking all the known Constitutions of the World’. The US Constitution is one of the sources from which the constituent assembly was inspired. 

Important components of the Indian constitution such as the provision for fundamental rights, the independent nature of the judicial system, judicial review, provisions for impeachment of the President and judges of the Supreme Court and High Courts, and the office of the Vice President have all been adapted from the US constitution. 

While such similarities exist, there are also significant differences. The existence of a robust multi-party system in India is in direct contrast to the largely two-party system of the US. While the fundamental rights in the Indian constitution encompass not only protection from state interference but also promote social and economic rights that the state must promote, the US version primarily focuses on individual freedoms and protections against government overreach. 

In the context of emergency powers, India has detailed provisions for declaring a state of emergency, allowing the government to assume extraordinary powers during crises. On the other hand, the US Constitution has no formal emergency provision, only the suspension of certain rights during war or insurrection. 

While both states are largely federal in nature, India is a quasi federal, ‘indestructible union of destructible states’, while the US is a true federation, making it an ‘indestructible union of indestructible states.’ 

The judicial systems of the two countries also offer much contrast. India’s judiciary is unified, with the Supreme Court at its apex, followed by High Courts and subordinate courts. This hierarchy gives the Supreme Court the final authority on all legal and constitutional matters. 

On the other hand, the US constitution has put forth a dual system comprising both federal and state courts, with each state operating its own court system to deal with matters regarding state law, alongside federal courts that handle cases involving federal law. 

The process of appointment of judges to the Supreme Courts also varies. Judges of the Indian Supreme Court are appointed by the President based on recommendations from the Prime Minister and a collegium of senior judges. In the US, federal judges are nominated by the President and confirmed by the Senate. 

India and the US are secular nations. However, the nature and definition of their ideas of secularism are different. The idea of secularism envisaged by the constitutions of the two countries is a direct reflection of their sociocultural realities and the historical context in which the documents were framed.  

The American notion of secularism, also known as ‘negative secularism’ establishes a complete separation between religion (the church) and the state. The state is indifferent and neutral towards all religions, and the government neither endorses nor discriminates against any faith. Such a system was put in place to prevent the creation of a theocratic state or the declaration of a state religion which were causes for major conflicts in Europe at the time.

On the other hand, the concept of secularism put forth by the framers of the Indian Constitution is often described as ‘positive secularism’. This idea takes into account the wide variety of religions and cultures that exist in India and avoids any provision that insists on a strict separation between state and religion. It only ensures that the state does not uphold any particular religion as the official religion of India. 

At the same time, the constitution grants all citizens and non-citizens various religious rights ensuring that the state gives equal respect to all religions and protects all religions equally. This unique interpretation of secularism enables the Indian state to make effective interventions in religious matters to uphold the rights of various communities and maintain social order. 

In conclusion, despite their differences, India and the US share a commitment to democratic values and the rule of law. While different in many ways, their constitutions have provided the basis for the development of two vibrant democracies that continue to shape the global political landscape. As they navigate the challenges and opportunities of the 21st century, the oldest democracy and the largest democracy can learn from each other. Their constitutions will undoubtedly play a crucial role in ensuring their continued success as democratic societies.

How does the concept of the ‘basic structure’ of the Constitution impact the relationship between the judiciary and the legislature in India?

How does the power of judicial review in India compare to similar powers in other democratic systems, such as the United States?

What is the required majority for a constitutional amendment in the United States, and how does it compare to India’s amendment process?

How have the constitutions of India and the US contributed to the development of their respective democracies?

What does ‘positive secularism’ entail in the Indian Constitution, and how does it differ from negative secularism?

(Doctoral candidate in Political Science at the Centre for Economic and Social Studies, Hyderabad)

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