COMPARATIVE STUDIES OF THE INDIAN AND THE US CONSTITUION

The US Constitution is the first constitution of its kind, which is adopted by the people’s
representatives for an expansive nation. It is influenced, supplemented and implemented by a
large body of constitutional law, and also has influenced the constitutions of other nations.

American Constitution is shortest and second oldest, where as India’s is lengthiest Constitution
in the Universe.

The US Constitution was finalized in the convention held on the September 17 1787 which
required minim 9 States to ratify for the enforcement. By the end of July 1788 eleven States had
ratified and Constitution was put into operation on 13th September 1788. American Constitution
originally consisted only seven Articles and added 27 more Articles by way of amendments. The
Indian Constitution was actually put into enforcement on 26th November 1949 but officially
adopted on 26th January 1950. Originally India Constitution consisted 395 Articles in 22 parts
with 8 schedules. and 22 parts. Now it consists 448 Articles in 22 parts with 12 schedules.

Nature of the Constitution

American Constitution is described as a federal Constitution because it was ratified by 50

Independent States. Further, central government and the States have their own Constitution and
does not interfere with function of each other.

On the day India got its independence, most of the States in India were already under the rule of
government of India and other few sovereign States were forced to join the Indian Constitution.
India has a single Constitution in which the federal government interferes with functions of State
government in many ways. The Central Government interferes in the working of the state
government, and also the state government is sub-ordinate to the central government in terms of
power.

So, the Indian Constitution is not federal in nature but quasi-federal, that is partially federal.
Nature of Democracy

America has adopted the Presidential form of democracy in which the executive president is
directly elected by the people. American President Term is 4 years, he can hold the office of the
President for only two terms and only natural citizen of US can become the President, and not a
person who has acquired the citizenship.

President can appoint his own staffs who are neither member of House of Representative or
Senate in assisting the administration of government who are also not accountable to the House
of Congress. It means that President is independent in the administration of government and
directly responsible to the people of USA.

India was under the rule of British at the time of independence and this influenced us to adopt the
democracy of Parliamentary System of Common legal system. President of India is executive
head of Indian government who is indirectly elected by the legislators of central and states and
not accountable to the Parliament. President shall run the government with aid and advice of the
Prime Minster and Council of Ministers. Prime Minster and Council of Ministers is subordinate
staff of the President being the members of the Parliament, therefore they are accountable to the
Parliament. Unlike USA Indian President holds the office for five years, he should be citizen of
India and citizenship might be natural or acquired. Further, he can be elected for any number
times.

Amendment of the Constitution

Amendment of US constitution is very rigid and complicated; in case of India it is easy and
flexible.

According to V Article, of the US Constitution, the House of Congress with 2/3 majority can
proposes for amendment of the Constitution. States can make application for calling convention
for amendment of Constitution with support of more than 2/3, the convention shall be called and
proposed amendments shall be valid. In US both House of Congress and States have power to
amend the Constitution. The amended Constitution has to be ratified by more than 3/4 States to
take effect. The States have very decisive and vital power in validating the every amendment of
the Constitution.
In India, it is only Parliament can propose for the amendment of the Constitution and States do
not have role to play anything in this matter. Some of the Articles can be amended with simple
majority, special majority and in some limited Articles with ratification by more than half of the
States. Majority means majority of the Member of the Parliament present on the date of
amendment not in relation with total strength of the Member of Parliament. The fact that US
Constitution amended only 27 times in the last 225 years shows how rigid it is to amend the
Constitution. Indian Constitution amended 100 times in the last 60 years proves how easy it is to
amend the Indian Constitution.
FUNDAMENTAL RIGHTS IN THE INDIAN CONSTITUION

The Fundamental Rights are defined as basic human freedoms that every Indian citizen has the
right to enjoy for a proper and harmonious development of personality. These rights universally
apply to all citizens, irrespective of race, place of birth, religion, caste or gender. Most modern
Constitutions assure the basic human freedoms to its citizens. Citizens need protection against
their own representatives, because men dazzled by the legitimacy of their ends seldom pause to
consider the legitimacy of the means. Man being what he is, cannot safely be trusted with
complete power in depriving others of their rights. The protection of the citizen against all kinds
of men in public affairs, none of whom can be trusted with unlimited power over others, lies not
in their forbearance but in limitations on their power. That is the conviction underlying our
Constitution

Aliens (persons who are not citizens) are also considered in some matters. They are enforceable
by the courts, subject to certain restrictions.

Fundamental Rights is a charter of rights contained in Part III of Constitution of India. It is also
called corner stone of the constitution and together with part-4 (directive principles and state
policy) constitutes the conscience of the Constitution. This chapter of the Constitution has been
described as the Magna Carta of India.

The Simon Commission and the Joint Parliamentary Committee, which were responsible for the
Government of India Act, 1935, had rejected the idea of declaring or adding fundamental rights
in the Act. Their say was, "Abstract declarations are usesless, unless there exist the will and the
means to make them effective." But the nationalist opinion, since the time of the Nehru Report 1,
was definately in the favour of a Bill of Rights, because the experience gathered by the them
during the British era was that a subservient Legislature might serve as a handmaid to the
Executive in infringing the individual liberty.

Regardless of the Brtish opinion, therefore, the makers of our Constitution adopted Fundamental
Rights to safeguard individual liberty.
THE BILL OF RIGHTS : A BRIEF HISTORY

In the summer of 1787, delegates from the 13 states convened in Philadelphia and drafted a
remarkable blueprint for self-government, the Constitution of the United States. The first draft
set up a system of checks and balances that included a strong executive branch, a representative
legislature and a federal judiciary.

The Constitution was remarkable, but deeply flawed. For one thing, it did not include a specific
declaration or bill of individual rights. It specified what the government could do but did not say
what it could not do. For another, it did not apply to everyone. The "consent of the governed"
meant propertied white men only.

The absence of a "bill of rights" turned out to be an obstacle to the Constitution's ratification by
the states. It would take four more years of intense debate before the new government's form
would be resolved. The Federalists opposed including a bill of rights on the ground that it was
unnecessary. The Anti-Federalists, who were afraid of a strong centralized government, refused
to support the Constitution.

In the end, popular sentiment was decisive. Recently freed from the English monarchy, the
American people wanted strong guarantees that the new government would not trample upon
their newly won freedoms of speech, press and religion, nor upon their right to be free from
warrantless searches and seizures. So, the Constitution's framers heeded Thomas Jefferson who
argued: "A bill of rights is what the people are entitled to against every government on earth,
general or particular, and what no just government should refuse, or rest on inference."

The American Bill of Rights, inspired by Jefferson and drafted by James Madison, was adopted,
and in 1791 the Constitution's first ten amendments became the law of the land.
BILL OF RIGHTS IN THE US CONTSITUTION AND HOW IT WAS ADDED

The first 10 amendments to the Constitution make up the Bill of Rights. Written by James

Madison in response to calls from several states for greater constitutional protection for
individual liberties, the Bill of Rights lists specific prohibitions on governmental power. The
Virginia Declaration of Rights, written by George Mason, strongly influenced Madison.

One of the many points of contention between Federalists and Anti-Federalists was the
Constitution’s lack of a bill of rights that would place specific limits on government power.
Federalists argued that the Constitution did not need a bill of rights, because the people and the
states kept any powers not given to the federal government. Anti-Federalists held that a bill of
rights was necessary to safeguard individual liberty.

Madison, then a member of the U.S. House of Representatives, went through the Constitution
itself, making changes where he thought most appropriate. But several Representatives, led by
Roger Sherman, objected that Congress had no authority to change the wording of the
Constitution itself. Therefore, Madison’s changes were presented as a list of amendments that
would follow Article VII.

The House approved 17 amendments. Of these 17, the Senate approved 12. Those 12 were sent
to the states for approval in August of 1789. Of those 12, 10 were quickly approved (or, ratified).
Virginia’s legislature became the last to ratify the amendments on December 15, 1791.

The Bill of Rights is a list of limits on government power. For example, what the Founders saw
as the natural right of individuals to speak and worship freely was protected by the First
Amendment’s prohibitions on Congress from making laws establishing a religion or abridging
freedom of speech. For another example, the natural right to be free from unreasonable
government intrusion in one’s home was safeguarded by the Fourth Amendment’s warrant
requirements.

Though they are incorporated into the document known as the "Bill of Rights", neither of the
article establishes a right as that term is used today. For that reason, and also because the term
had been applied to the first ten amendments long before the 27th Amendment was ratified, the
term Bill of Rights in modern US usage means only the ten amendments ratified in 1791.

Other precursors to the Bill of Rights include English documents such as the Magna Carta, the
Petition of Right, the English Bill of Rights, and the Massachusetts Body of Liberties.
COMPARISION OF THE FUNDAMENTAL RIGHTS OF INDIA AND USA

Amendment 1 of the United States Constitution states that the Congress shall make no law
respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the
freedom of speech or of the press; or the right of the people peaceably to assemble, and to
petition the Government for a redress of grievances.

This protects the fundamental rights of conscience, the freedom to believe and express different
ideas in a variety of ways. Under the First Amendment, Americans have both the right to
exercise their religion as well as to be free from government coercion to support religion. In
addition, freedoms of speech, press, and petition make democratic self-government possible by
promoting the open exchange of information and ideas. Unpopular ideas are especially protected
by the First Amendment because popular ideas already have support among the people.

The Indian constitution grants freedom of religion to its subjects, and it is given in the Article 25
to the Article 28. It includes the Freedom of conscience and free profession, practice and
propagation of religion. Freedom to manage religious affairs. Freedom as to payment of taxes for
promotion of any particular religion. Freedom as to attendance at religious instruction or
religious worship in certain educational institutions.

If we compare the freedom of religion mentioned in the Bill of Rights to that of the Fundamental
Rights of India, the Bill of Rights have left a very large space of interpretation of this statute
whereas in the Indian Constitution, each right relating to the freedom of religion is expressed.

The First Amendment also talks about the freedom of speech, but no restrictions are as such
given in the constitution about this right. The freedom of speech found space for restrictions only
after the US Supreme Court ruled that there are limitations to the exercise of these freedoms.

The Indian constitutions expressly states that these rights are subject to reasonable restrictions.

The freedom of ‘press’ is nowhere to be mentioned in the Indian constitution. The Indian
constitution also states that people have the right to assemble peacefully but ‘without arms’. The
term without arms is nowhere mentioned in the Bill of Rights.
The freedom to petition the government for a redress of grievance is not mentioned anywhere in
the constitution of India, but a person can file petition to the higher courts, like High Court and
Supreme Court under Article 32.

Amendment 2 of the Bill of Rights states about the right to bear arms. It says a well regulated
militia, being necessary to the security of a free State, the right of the people to keep and bear
Arms, shall not be infringed. Without access to guns for a militia, Americans believed they were
vulnerable to oppression. In England, Catholic rulers prohibited their Protestant subjects from
owning firearms, and the English Bill of Rights corrected that injustice in 1689. Similarly, the
U.S. Bill of Rights included bearing arms among the rights “of the people,” not just government
militias.

In the case, District of Columbia v Heller 1, The Supreme Court ruled that the Second
Amendment protected an individual right to own guns, rather than the collective right of a state
to have a militia.

In the Indian Constitution, there is nowhere mentioned or implied that the citizens have the right
to bear arms. They don’t have the right to own weapons like those of US citizens.

Amendment 4 of Bill of Rights states about

 Protection against unreasonable search and seizure
 Protection against the issuing of warrants without probable cause

The Fourth Amendment guards against unreasonable seizures; it requires warrants having
judicial sanction. It was adopted as a response to the abuse of the writ of assistance, which is a
type of general search warrant, in the American Revolution.

Indian Constitution, Article 22 (protection against arrest and detention), it applies to all arrests
made under any law except in the cases of “preventive detention”. There is no scope of
preventive detention in US constitution. India is only country to have “preventive detention”
1
 554 U.S. 570 (2008)
which can be induced in connection with security and public order. The provision of preventive
detention is a necessary evil.