Comparative public law

1. Rule of Law and Constitutionalism in India

Introduction

India, the world's largest democracy, is built upon the foundational principles of the rule of
law and constitutionalism. These principles have been integral to the nation's political and
legal landscape since its independence in 1947. The Constitution of India, adopted in 1950,
serves as the supreme legal document, outlining the framework of governance, the rights of
citizens, and the structure of the state. It emphasizes the rule of law, ensuring that every
individual, including the government, is subject to the law. This article explores the concepts
of the rule of law and constitutionalism in India, examining their theoretical foundations,
their role in governance, and their application in the country’s legal and political system.

The Rule of Law: Concept and Meaning

The rule of law is a fundamental principle of democratic governance. It essentially means that
all actions of individuals and the government are governed by law, and that no one is above
the law. In the context of India, the rule of law is not only a legal principle but a political
ideal that ensures fairness, equality, and justice.

The concept of the rule of law can be traced back to the writings of British jurist A.V. Dicey.
Dicey’s three main principles of the rule of law include:

1. Supremacy of Law: The law is supreme and no one is above it, including the
government.
2. Equality Before the Law: Every individual, regardless of their status, is subject
to the same laws.
3. Predominance of Legal Spirit: The laws should be administered by independent
courts, free from the influence of political power.
In India, the rule of law is intertwined with the Constitution, which not only acts as a legal
document but also provides the philosophical and ethical framework for the state's operation.

Constitutionalism in India: An Overview

Constitutionalism is the principle that government should be limited by a constitution, which

serves as the supreme law of the land. In India, constitutionalism has deep historical and
cultural roots. The Constitution of India, drafted by the Constituent Assembly under the
leadership of Dr. B.R. Ambedkar, is the longest written constitution in the world and provides
a comprehensive blueprint for governance and the protection of individual rights.

The Indian Constitution is based on several key principles, including:

1. Federalism: The division of powers between the central government and state
governments
2. Secularism: The state does not favor any religion.
3. Democracy: India is a democratic republic, where the government derives its
authority from the people.
4. Judicial Review: The judiciary has the power to review laws and actions of the
government to ensure they conform to the Constitution.

The Constitution’s supremacy means that any law or executive action that contravenes it is
invalid. This concept of constitutionalism ensures that political power is exercised within the
limits defined by the Constitution.

The Rule of Law and Constitutionalism in Indian Governance

India's legal and political system is designed to uphold both the rule of law and
constitutionalism. The role of the judiciary in this regard is paramount.

The Supreme Court of India, under the doctrine of judicial review, has the authority to
examine the constitutionality of laws passed by Parliament and state legislatures. Through its
various landmark judgments, the Court has ensured that both the executive and legislative
branches adhere to the principles of the Constitution and the rule of law.

The Basic Structure Doctrine, which emerged from the Kesavananda Bharati case (1973),
is a cornerstone of Indian constitutionalism. This doctrine holds that certain fundamental
features of the Constitution, such as democracy, secularism, and federalism, cannot be altered
by any amendment, thereby preserving the Constitution's core values.
Moreover, the Indian system places significant emphasis on fundamental rights, which are
enshrined in Part III of the Constitution. These rights ensure that the government is bound by
the rule of law and cannot violate the rights of citizens arbitrarily. The right to equality, the
right to freedom of speech, and the right to protection from discrimination are just a few of
the fundamental rights guaranteed to every Indian citizen.

Challenges to the Rule of Law and Constitutionalism in India

Despite the strong legal and constitutional framework, the rule of law and constitutionalism
in India face significant challenges:

1. Corruption: Corruption remains pervasive in Indian politics and governance,

undermining. the effective enforcement of laws and policies. The delay in legal
processes and the slow pace of justice also erode public faith in the legal system.
2. Inequality and Discrimination: While the Constitution guarantees equality before
the law, issues of caste-based discrimination, gender inequality, and economic
disparity persist, leading to a situation where the law is not always equally accessible
to all citizens.
3. Political Influence on Judiciary: While the judiciary is constitutionally independent,
there are concerns about its functioning being influenced by political considerations,
which can affect its ability to uphold the rule of law impartially.
4. Over-centralization of Power: Critics of India's federal structure argue that the
centralization of power in the hands of the federal government undermines the federal
principle and violates the spirit of constitutionalism.

Conflicts between rule of law and constitutionalism

Conflict 1: Judicial Review vs. Parliamentary Sovereignty

In India, the judiciary has the power of judicial review, which allows it to strike down laws
and government actions that are unconstitutional. However, this power has sometimes been
seen as a challenge to parliamentary sovereignty, which is the principle that the elected
representatives of the people have the authority to make laws.

For example, in the case of Kesavananda Bharati v. State of Kerala (1973), the Supreme
Court of India held that the Constitution’s basic structure was unamendable, even by a
constitutional amendment. This decision was seen as a limitation on parliamentary
sovereignty and sparked a debate about the balance between judicial review and
parliamentary sovereignty.
Conflict 2: Individual Rights vs. National Security

The Indian Constitution guarantees various individual rights, such as the right to life, liberty,
and freedom of speech and expression. However, these rights have sometimes been seen as
being in conflict with national security concerns.

Conflict 3: Federalism vs. Centralization

India is a federal republic, with power divided between the central government and the states.
However, there have been instances where the central government has sought to centralize
power, leading to conflicts with the states.

Conflict 4: Social Justice vs. Economic Development

The Indian Constitution guarantees various social and economic rights, such as the right to
equality, the right to life, and the right to work. However, these rights have sometimes been
seen as being in conflict with economic development goals.

Conclusion

The rule of law and constitutionalism are the cornerstones of Indian democracy and
governance. While India's legal and constitutional framework is robust, challenges persist in
ensuring that these principles are fully realized. Strengthening the judiciary, reducing
corruption, and ensuring equality for all citizens are essential to preserving the rule of law
and constitutionalism in India. As the country continues to grow and evolve, it must remain
committed to upholding the rule of law as a guiding principle in both governance and the
protection of citizens' rights.
2. Presidential and Parliamentary System of Governance

Introduction

The governance structure of a country is determined by its political system, which defines the
relationship between the executive, legislature, and judiciary. In democracies, the systems of
government are largely classified into two types: the presidential system and the
parliamentary system. India follows the parliamentary system of governance, whereas
countries like the United States operate under a presidential system. This article compares the
two systems, exploring their features, advantages, challenges, and their application in
different countries, with a specific focus on India’s parliamentary system.

The Parliamentary System of Governance

The parliamentary system of governance, as the name suggests, is centered around a

parliament, which is responsible for making laws and overseeing the government. In this
system, the executive derives its authority from the legislature (parliament), and the head of
state and head of government are often separate roles.

Key Features of the Parliamentary System

1. Fusion of Powers: In a parliamentary system, there is a fusion of the executive and

legislative branches of government. The Prime Minister, who is the head of
government, is usually a member of the legislature and is appointed by the majority
party or coalition in the parliament. The council of ministers, including the Prime
Minister, is accountable to the legislature.
2. Collective Responsibility: The council of ministers, headed by the Prime Minister, is
collectively responsible to the lower house of the parliament (Lok Sabha in India). If
the government loses a vote of confidence in the house, all ministers must resign.
3. Majority Rule: The Prime Minister must command the confidence of the majority in
the parliament. This ensures that the government reflects the will of the majority.
4. Head of State and Head of Government: In a parliamentary system, the head of
state (often a ceremonial position) and the head of government are different. In India,
the President is the ceremonial head of state, while the Prime Minister is the head of
government and holds executive powers.
5. Dissolution of the Lower House: The lower house of the parliament can be dissolved
by the head of state, leading to fresh elections. This maintains the democratic nature
of the system.
The Parliamentary System in India

India, as a democratic republic, follows the parliamentary system as laid down in the
Constitution. The President of India is the ceremonial head of state, while the Prime Minister
is the head of government. The Indian Parliament consists of two houses: the Lok Sabha
(House of the People) and the Rajya Sabha (Council of States).

The Prime Minister is the leader of the majority party or coalition in the Lok Sabha and is
appointed by the President. The Council of Ministers, including the Prime Minister,
collectively exercises executive authority. The system is designed to ensure that the
government remains accountable to the people through their elected representatives in the
Lok Sabha.

The Presidential System of Governance

The presidential system, in contrast, is characterized by a clear separation of powers between

the executive and the legislature. In this system, the President is both the head of state and the
head of government. The President is directly elected by the people and holds significant
powers, including the authority to appoint executive officials and veto legislative acts.

Key Features of the Presidential System

1. Separation of Powers: Unlike the parliamentary system, the executive (the President)
is separate from the legislature (Congress or Parliament). This creates a system of
checks and balances where the branches of government act independently of one
another.
2. Fixed Term: The President serves a fixed term, and cannot be easily removed from
office unless impeached. This provides stability to the executive branch.
3. Direct Election: In most countries with a presidential system, the President is elected
directly by the people, which enhances the legitimacy of the executive branch.
4. Single Executive: The President holds both executive and administrative powers,
leading to a more centralized system of governance.
5. Independent Legislature: The legislature is independent of the executive and is not
directly accountable to the President. This means that the executive cannot dissolve
the legislature.

ThePresidential System in the United States

The United States operates under a presidential system, where the President is the head of
state and head of government. The President is elected every four years and can serve a
maximum of two terms. The executive is separate from the legislature, with Congress (the
Senate and the House of Representatives) responsible for making laws.

In the U.S., the President has substantial powers, including the authority to veto bills, appoint
federal judges, and command the military. The system ensures that the President is directly
accountable to the electorate, rather than to a legislature.
Comparison of the Parliamentary and Presidential Systems

1. Executive-Legislature Relationship: In the parliamentary system, the executive

derives its legitimacy from the legislature, leading to a fusion of powers. In the
presidential system, there is a separation of powers, where the executive operates
independently of the legislature.
2. Stability and Accountability: The parliamentary system is often more flexible and
accountable because the government can be removed if it loses the confidence of the
majority in the legislature. In contrast, the presidential system provides stability due to
the fixed term of office, but it can be difficult to remove an ineffective president.
3. Leadership and Decision-Making: The parliamentary system fosters collective
decision-making, as the Prime Minister and the Cabinet make decisions together. In a
presidential system, decision-making is more centralized in the hands of the President.
4. Adaptability: The parliamentary system is more adaptable to changing political
dynamics, as the government can be reshuffled through parliamentary votes. In
contrast, the presidential system is less flexible, as the President holds office for a
fixed term.

Challenges and Criticisms

Both systems face challenges. In the parliamentary system, there can be issues of instability if
coalition governments do not maintain majority support, leading to frequent elections or
changes in government. In the presidential system, the concentration of power in the hands of
the President can lead to authoritarian tendencies, as seen in some countries.

Conclusion

Both the parliamentary and presidential systems of governance have their strengths and
weaknesses. India’s parliamentary system emphasizes the principles of collective
responsibility and accountability to the legislature, ensuring that the government remains in
tune with the electorate's needs. On the other hand, the presidential system, exemplified by
the United States, offers stability and clear separation of powers but can suffer from
executive-legislature gridlock. Understanding these systems is crucial for appreciating how
different democracies balance the roles of the executive, legislature, and judiciary to ensure
effective governance.