Law and Constitution

Q.No.1. Growth of parliamentary democracy in Britain.
Introduction:
There can be no state without a constitution. The constitution

consists of those fundamental rules which determine and
distribute functions and powers among the various organs of the
government and determine the relations of the governing
authority with the people. The constitutions are mostly written,
the British constitution being the only exception which is
unwritten .
The French writer De Tocqueville once remarked that:

“England has no constitution.”
Because he did not find it in a written form. But despite all this,
the British constitution is a chief model for all the countries.
Factors which led to the growth of parliamentary democracy
in Britain:
A: In England troubles of the kings led to the strengthening of

parliamentary democracy.
Example(1): John, a weak king , was compelled to agree to

Magna Karta (1215) a charter of feudal liberties and which also
provided for immunity from arbitrary acts of the kings.
Example (2): During the 17th century, the growing commercial

community opposed the Royal Taxes and claimed provisions
rights for the parliament.
B: Absence of pressure from strong rulers led to the
https://lookaside.fbsbx.com/file/Constitutional%20Law.docx?toke…LSASH4gI5kct43kPNCfyCWYplp_ITibqCpNUNriyh2P1EBF-0AKv4w 1/7/18, 8[23 PM

Page 1 of 89
development of political institutions steadily.
Example: William Embay who was brought from Holland to

assume throne in Britain acknowledged the authority of
parliament in the bill of rights (1689).
C: Personal weaknesses of the successors of William Embay

allowed the parliament to become established as the chief
governing power.
Example (1): Queen Ann was not ambitious.
Example (2): Hanoverians, who were brought from Germany to

rule over Britain in 1714, were at first ignorant of the English
language and then they were uninterested in the British affairs.
Example (3): George 1st seldom attended the cabinet meetings

and shied away from public business.
D: The glorious revolution of 1688 also played a very important

role in the transition from absolute monarchy to democratic
government.
E: The industrial revolution of the 1760’s also contributed to the

transition from monarchy to parliamentary democracy in
England because after this there was a growing population with
increasing number of mouths to feed. To full fill the needs
industrial revolution was initiated. As a consequence technical
know-how was needed in the process of production. This, in
turn, needed education. Education brought political awareness in
the masses and they began to question the absolute authority of
the kings.
F: The French revolution of 1789 with its slogan of “Liberty,

equality and fraternity” also played a role in this respect.
G: The transition from absolute monarchy to parliamentary
government was further speeded up by the theory of popular
rights.
H: colonialism and imperialism also contributed in the process

Page 2 of 89
of transition.
I: After the Industrial revolution a new class of people emerged,

which were the industrial labor. At that time these were not
satisfied with the conditions under which they had to work.
They used to strike and walk out regularly. This further
strengthened the desire for popular government.
Conclusion:
We study the British system of government because it is the

pioneer of parliamentary democracy in the world. The transition
from absolute monarchy to parliamentary democracy was
allowed by the kings. In fact, it was the result of the efforts of
British people.
During the whole process of transition three elements were
involved i.e. the king, the parliament and the masse, and all
three played a very positive role.
Another important thing about this process of transition was that
it was very peaceful. The British system exhibited a strong
ability to adopt itself to the changing needs of the time. This has
enabled the British system to survive through the changing
times.
Q.No.2. Features of the British constitution.
Introduction.
There can be no state without a constitution. A constitution

consists of those fundamental rules which determine and
distribute functions and powers among the various organs of the
government as well as determine the relations of the governing
authorities with the people.
The Britain has led the modern world in the development of

civil rights and modern constitutions. Since the 17th century,
British have been the chief model of representative government.
The British government was a model for people everywhere
seeking political modernization. It has unique ability to adopt

Page 3 of 89
without violence. In the modern times, the British have been
extraordinary able to adopt their political institutions to new
needs and new ideas within a framework of legality.
Salient Features of the British constitution:
Following are the salient features of the British constitution:
1.Unwritten constitution: (partly written as well)
The British constitution is unwritten because it is not derived

from a single source. The French writer De Tocqueville once
remarked that: “England has no constitution.”
British constitution is a mixture of charters, statutes, judicial
decisions, common law, usages or traditions, customs,
conventions, precedents etc. The first constitutional document
was the Magna Karta of 1215, then the bill of rights 1689, then
the parliament Acts of 1911, 1949 etc. The British constitution
was not framed at a single time. It is still in the process of
growth.
2.Evolutionary constitution:
The British constitution has developed through a process of

gradual evolution. It is still going through the process of growth.
It was not framed by a person or a king for his own advantage.
The British people have developed their constitution from
precedent to precedent and from past experience of law and
practice.
3.Flexibility of the constitution:
one of the most important features of the British constitution is

its flexibility. This means that it can be amended by the
parliament. In England there is no difference between the
ordinary law and the constitutional law. The British constitution
is different from that of America’s or Pakistan’s. In America or
Pakistan his constitution is considered to be a supreme

Page 4 of 89
document in which amendment is very rare. The England’s
constitution is always under the process of growth.
4.Unitary constitution:
The England’s constitution is a unitary constitution. All the

powers of the state are concentrated in the hands of a single
government for the whole country. All the local governments are
the servants of the central authority which has created them and
can dissolve them also.
5.Its unreality:
one of the unique features of the British constitution is what is

called its unreality. There is a great difference in its appearance
and its reality. In other words there is a great divergence in its
theory. It is an absolute monarchy while in reality it is a
democratic state ruled by a parliament elected by the people.
6.Its organic nature:
The nature of the British constitution is organic. It is constantly

growing. There is much in it which remains the same and there
is much also which changes according to the needs of the time.
It is continually developing. Thus, an improvement will always
occur in the British constitution after some time and a new
constitutional document will be added afterwards. The change
from monarchical system to parliamentary democracy is an
example of its organic nature.
7.Parliament’s sovereignty:
Parliament is sovereign. The British parliament can do

everything except making man a woman and vice-versa. The
sovereignty of the parliament is a source of flexibility of the
constitution. Bagehot remarked that the English parliament can
abolish monarchy and establish republic in the country.

Page 5 of 89
8.Party System:
The British political system has been working successfully due

to the existence of two major parties. In England the existence of
two major parties has contributed to the strengthening of
political traditions. When one party forms the government the
other sits in opposition. The party in power always looks after
the interest of the opposition party because they know that if
today they are in opposition, tomorrow they can be in power.
9.Nature of conventions:
Another very important feature of the British constitution is the

existence of a large number of conventions in it. No one can
understand this constitution properly without studying these
conventions carefully. These are a part of the constitution but
they are not laws, because as such these conventions cannot be
enforced by the courts. They are well known to all those who
run the government.
Examples of the conventions:
Ø The Prime Minister must sit in the House of Commons

Ø Parliament must meet at least once in a year
10.Rule of law:
One of the parliament feature of the British constitution is the
Rule of law. It has two basic meanings:
Ø “In England no man can be made to suffer punishment or to
pay damages for a conduct not definitely forbidden by law”
Ø In England no person is above the law. No one can break the
law with impunity.
11.Independence of Judiciary:
The British constitution I based on the principle of independence

of judiciary. Since the year 1700 this principle has been a
fundamental principle of the English constitution. Although the

Page 6 of 89
judiciary is no doubt independent in Britain but the right of
judicial review is not granted.
12.Bicameral legislature:
According to the constitution the British parliament consists of

two houses ----The House of Commons (lower house) and the
House of Lords (upper house). Thus, the kind of legislation in
Britain is Bi-cameral.
13.A blend of Monarchy Aristocracy and Democracy:
The British constitution is a unique blend of monarchy,

aristocracy and democracy.
Monarchy---- due to the existence of queen and king
Aristocracy---- House of Lords
Democracy--- Britain is now a democratic state run by a
parliament elected by the people.
Conclusion:
The above study brings forth a unique feature of the British

constitution that not only the constitution is revolutionary but
the evolution is still continuing. There are a large number of
conventions in the British constitution which are respected like
laws. Thus, on the whole the British Government has shown a
unique ability to adopt itself to the changing circumstances.
Q.No.3. Sources of the British constitution
Introduction.
“The British constitution is the child of wisdom and chance.”

There can be no state without a constitution. The constitution
consists of fundamental rules which determine and distribute
functions and powers among the various organs of the
government as well as determine the relations of governing
authorities with the people. Most of the modern constitutions are
written, the British constitution is the only constitution which is
unwritten.
Lord Bryce wrote:

Page 7 of 89
“British constitution works by understanding which no writer
can formulate. “
French writer De Tocqueville once remarked:
“England has no constitution,” Because he did not found it in a

written form. But the British constitution is the chief model for
all the countries. It has shown a unique ability to adopt without
violence.
Sources:
The sources of the British constitution can be divided into two

parts:
Ø The laws of the constitution
Ø The conventions of the constitution
A) The laws of the constitution:
The laws of the constitution are based on the written documents.

These include Historic documents, acts of the parliament,
judicial decisions and common laws.
1. The Historic constitutional documents
The historic constitutional documents form a very important

source of the British constitution. The importance of these
documents can be judged from the fact that the transition
process from absolute monarchy to constitutional government in
Britain was triggered by these elements e.g.:
Ø Magna carta (1215)
Ø The petition of rights (1628)
Ø The bill of rights (1689) etc.

2. The acts of the parliament:

Page 8 of 89
The laws made by the parliament from time to time have also
contributed and furthered the transition to constitutional
government in Britain e.g.
Ø The act of Habeas corpus (1679)

Ø The act of settlement ( 1701)
Ø Reform acts of ( 1832,1867,1884,1918,1928)
Ø Acts of parliament ( 1911, 1949)
Ø Indian independence act of 1947 etc.
3. Judicial decisions:
These are also important sources of the British constitution.

Judicial decisions explain and interpret the rules and statutes
passed by the parliament. Here it is to be noted that these rules
cannot be challenged by any court in Britain.
4. Common law:
Common laws are also a very important source of British

constitution. Especially these relating to the liberty of the
subjects i.e. many basic rights of the people e.g. jury trial,
freedom of speech and assembly are based on common law as
practiced by various courts in the country.
B) The conventions of the constitution:
The conventions are not recognized or enforced by any court.

These are highly respected by the British electorate and
leadership. The conventions of the British constitution are
actually of unwritten character. They form an important part of
the constitution. They are important because they have enabled
the British political system to adopt itself to the changing needs
of the time. Some of these conventions are:
1. The British monarch cannot veto the bills passed by the

parliament.

Page 9 of 89
2. The sovereign invites the leader of the majority party in the
House of
Commons to form the cabinet.
3. The Prime Minister and Finance Minister both are taken from
the House of commons
4. The money bills originate in the House of Commons.
5. The cabinet remains in power as long as it enjoys the

confidence of the majority party in the House of Commons,
otherwise it has to resign.
6. All the civil servants are tried in the same court like any other
citizen ( Rule of Law)
Conclusion:
Professor Munro writes:
“The British constitution is not to be found in a definite and

precise document. It is a complex amalgam of institutions. It is a
complex compendium of charters, statutes, decisions,
precedents, usages and traditions. Some of them are living only
in the understanding of the people.”
Thus the study of the sources of the British constitution reveals

the fact that if on one hand it consists of laws which are written,
it also has an unwritten part in the shape of conventions. Two
factors that have definitely contributed to the ability of the
British constitution to adopt itself to the changing needs of the
time are
Ø Its evolutionary nature
Ø The conventions of the constitution

Page 10 of 89
Q.No.4 Conventions of the British constitution.
Introduction.
“The British constitution is the child of wisdom and chance.”

There exist a large number of conventions or usages and
customs in the British constitution. These conventions are not
recognized or enforced by the courts. These conventions are
actually the unwritten part of the British constitution. They form
a very important part of the constitution. Most of the work of the
British government system depends upon the conventions rather
than laws, statutes and judicial decisions.
Lord Bryce says:
“British constitution works by understanding which no writer

can formulate. “
Definition
Conventions are:
“Those customs and understandings by which the rulers or the

members of the British government exercise the discretionary
powers of the executive.”
Ogg defines them as:

“ They are the customs, habits , usages or practices by their sole
authority regulate a large portion of the actual day-to-day
relations and activities of the most important of the public
authorities.”
Features of the conventions:
a. They are unwritten
b. They are not a part of the British legal system
c. They are the political traditions which to some extent

determine the working of the British political system.

Page 11 of 89
d. They are not laws but are respected as if they are laws.
e. They are not recognized by the courts in Britain.
Sanctions behind the conventions.
Therefore, the conventions are not enforced by the courts, then

the questions arises why do the people obey them? These are the
sanctions behind the conventions:
• Force of law
• Respect for conventions
• Public opinion
A. Force of law
According to Dicey, the conventions are observed because they

are based on and sanctioned by law. The power behind them is
the power of law. If , says Dicey, the conventions are not
observed, it will almost immediately bring the offenders into
conflict with the courts and the law of land. Dicey gives the
following example:
As the parliament has to meet at least in a year, suppose if the

Prime Minister does not summon the parliament for two years,
then no budget will be passed and no taxes will be collected.
Therefore, although it is a convention but now it has the force of
law behind it. Hence disregarding it will force the public official
to commit illegal acts.
B. Respect for conventions:
Lowell says that conventions are observed because they are a “

code of Honor” .They are the rules of game and the single class
which has hitherto had the conduct of the English Public life
almost entirely in its own hands, is the one which is peculiarly
sensitive t such conventions. Thus, the respect for the
conventions by the ruling class of Britain is the force behind
them.

Page 12 of 89
C. Public opinion:
Ogg says that the force behind the conventions is the force of the
public opinion. The public wants their observance and it will not
tolerate their violation e.g. public expects a cabinet defeated in
the parliament to leave office when it has lost the confidence in
the parliament. Dr. Jennings says that the force behind the
conventions is the same as behind the law.
Important conventions:
The some of the important conventions in the British
constitution are as follows:
1. Regarding the Queen:
• The queen invites the leader of the majority party in the House
of Commons to form the cabinet.
• All the bills passed by the parliament are sent to the Queen for
Royal assent.
• The Queen dissolves the House of Commons on the advice of

the Prime Minister.
• The Queen conducts all the political affairs normally on the

advice of her Ministers
2. Regarding the cabinet:
• When the Prime Minister and his cabinet have lost the
confidence of the parliament, they are left with only two
options:
Ø The Prime Minister and his cabinet resign.

Ø The Prime Minister seeks the dissolution of the House of
Commons through the Queen.
• The Prime Minister is always from the House of Commons.

Page 13 of 89
• When the parliament shows its lack of confidence in any
minister, the whole cabinet resigns. The cabinet is collectively
responsible to the parliament.
3. Regarding the Parliament:
• The British parliament meets at least once in a year.
• All the money bills originate in the House of Commons.
• A speech from the Govt. benches is followed by a speech from

opposition benches.
• Only the law lords take part in the judicial proceedings of the
House of Lords.
• The speaker of the House of Commons is above party politics.
Conclusion:
The conventions help the constitution to work smoothly. These

enable the ministers to exercise the powers of the sovereign.
As dicey says:
“They are the rules for determining the mode in which the
discretionary powers of the crown must be exercised.”
These give the constitution the quality of flexibility for adopting

itself to new needs and new ideas. G
Dr. Jennings puts it as:
“The conventions provide the flesh which clothes the dry bones
of law.”
British House of Commons.
Introduction:

Page 14 of 89
The house of commons is the lower chamber of the British
parliament and is more powerful than the House of Lords.
“When a minister consults parliament, he in fact consults the

House of Commons; when the Queen dissolves parliament, she
dissolves the House of Commons. A new parliament is simply a
new House of Commons.” Says Walpole.
In power, prestige and authority the House of Commons has

indeed become the first chamber of the British parliament. The
House of Commons is the most remarkable legislative assembly
of the world.
“It is “, as Gladstone said, “The center of the English political

system; the sun around which all other bodies revolve.”
Composition:
For electoral purposes the United Kingdom is divided into as

many constituencies as there are members of the House of
Commons. Its membership has varied from time to time; at
present it is 646 members (529 from England, 59 from Northern
Ireland). One member is returned to the House from each
constituency .The members of the House of Commons are
presided over by Mr. Speaker.
Tenure:
Tenure of the House of Commons is five years and Quorum is

40 members.
Qualification:
Anyone, male and female, who is a British subject aged 21 or

over and is not otherwise disqualified can strand as a candidate
in any constituency at an election of the House of Commons.
Disqualification:

Page 15 of 89
Those who are disqualified include the clergy; UN discharged
bankrupts, holders of judicial office, civil servants, members of
the armed forces and the police force and directors of the
nationalized commercial companies.
Franchise:
According to the representation of people Act of 1969, all the

British subjects who are 18 years of age on above have the right
to vote at an election of the House of Commons.
Powers and Functions:
a) Legislative Powers:
For all intents and purposes, the parliament means the House of
Commons because the House of Lords is merely a feeble
delayer. The House of Commons has the power to make or
repeal laws and amendments. An ordinary bill passed by the
House of Commons can be delayed by the House of Lords for
one year maximum. After this it is sent to the Queen for Royal
Assent. A money bill can be simply delayed by the House of
Lords for one month only. Thus, the House of Commons has a
monopoly over the legislative functions and the House of Lords
has virtually no legislative powers.
b) Financial control:
The House of Commons has exercised full control over the

financial resources for more than 250 years. In exercising its
financial powers the House of Commons performs the following
functions:
Ø Approving finance bills

Ø Voting supplies and estimates of proposed expenditure of the
government departments.
Ø Authorizing the expenditure

Page 16 of 89
Ø Granting money and appropriations under the appropriation
bills.
The yearly “circle of control” begins with the introduction of
annual budget in the early days of April, the beginning month of
the financial year in Britain.
c) Control over the executive:
The third great function of the House of Commons is its control

over the executive. This is of the essence of the mechanism of
the British cabinet system. This makes the cabinet responsible to
the parliament and more responsive to the will of the nation.
Firstly, the Houses constantly demands information about the
various actions of the government and secondly it constantly
criticizes the actions and policy of the government.
Dr. Finer says:
“The commons, spearheaded by the opposition possesses

substantial opportunities for control of the government.”
Question time:
Every day the House of Commons begin its session (for four
days a week) with a question time of about an hour. During this
time any member can ask any question to a minister regarding
any matter, provided they are supplied 24 hours in advance.
d) Lack of confidence:
The house can indicate its lack of confidence in the cabinet by:
Ø Rejecting a govt. bill
Ø Rejecting the budget
Ø Approving a private member’s bill opposed by the cabinet.
e) Rigidity of party discipline:

Page 17 of 89
With the extension of suffrage the numbers if voters has
increased. They can be organized only by a party which seeks to
know their opinion to win the elections. The party also imposes
a strict discipline on its members so that they do not vote against
the government policy once elected in the parliament. This
makes the government worse.
“If a government knows that Sane or Silly, right or wrong, drunk

or sober, it can force its proposal through the House by virtue of
this disciplinary set up, it is under a lessened necessity to
exercise its powers with the maximum of care and
responsibility.”
f) Redress of Public Grievances:
The House of Commons ventilates the public grievances but the

party control and discipline is so strict and the pressure of the
government business is so great that no criticism or redress of
grievances can take place of these three functions:
Ø Law making to regulate the life of people

Ø Granting money to the government
Ø To put the issues or matters before the electorate, the people
Speaker of the House of Commons:
Office of the speaker is one of great dignity, honor and power.

The speaker is elected on the party basis i.e. a member of the
majority party in the House is elected to this office. But once
elected the speaker becomes absolutely neutral in party politics.
There is a convention of the English constitution that a former
speaker would be elected again and again so long as he is
willing to hold this office.
The speaker performs a number of important duties and

functions.
1. The speaker presides over the meetings of the House of

Page 18 of 89
Commons. He decides who should address the House. A
member who wants to speak must get the permission from
speaker.
2. The speaker interprets and applies the rules. His decision is

final. When a member raises a point of order, the speaker has to
give his own ruling according to the precedents already set by
the House. Once he has given his decision, it is considered to be
final.
3. The speaker places the questions or motions before the house

and announces its decision. He decides the admissibility of the
questions put to a minister.
4. The speaker of the House of Commons can cast his vote in

case of a tie. He so gives his casting vote so to maintain the
status quo. The speaker does not take part in the debates.
5. Under the parliament Act of 1911, the speaker has been given
the right to certify the money bills.
Conclusion:
According to R.G Neumann:
“The sovereignty of parliament resides in the House of

Commons.”
Bagehot remarks:
“In theory it enjoys vast powers. But in practice, it has become

subservient to the cabinet. The main reason for this is the
rigidity of the party discipline.”
Comparative study of the constitution of Pakistan and India
Introduction
A constitution is the framework of a government's institutions; it
describes structural arrangements, allocates functional powers

Page 19 of 89
and establishes limits to political authority. It is a supreme law
of the nation-state and reflects its character and political culture.
Therefore the performance of even artfully drafted constitution
largely depends upon various historical, social, ideological,
economic and political factors of the state it represents. The
problem and issues of governance, thus, cannot be resolved
solely through constitution making. Pakistan and India's
experience represents a case in point.
India and Pakistan inherited the British Indian system of
governance, modified to transfer all powers to the newly elected
constituent assemblies of each state under the Indian
Independence Act 1947. The Government of India Act 1935 was
modified to serve as the interim constitutional document for
each country, until they pass their own constitutions. After three
years' discussions and debates, India adopted its Constitution in
November 1949 which came into effect on 26th January, 1950.
On the other hand Pakistan has had complex constitutional
history. It has had four constitutions in its brief history including
the inherited Government of India Act 1935 adopted at the time
of independence and three indigenous constitutions (1956, 1962
&1973). Pakistan has also been governed without the benefit of
written constitutions, through Provisional Constitutional Orders.
Pakistan's fourth Constitution was approved by the National
Assembly on 10 April, 1973 and became operative on 14
August, 1973. Since then, the country has experienced two
military rules; during these periods the 1973 Constitution was
held in abeyance twice, from 1977-1985 and 1999-2002.
The 1973 Constitution of Pakistan calls for, like the Indian
Constitution, federal and parliamentary systems of government.
Both constitutions incorporate the lists of fundamental rights and
directive principles. This paper focuses on five critical areas of
the Indian and Pakistani Constitutions:
Center-Province/State Relations
President and Cabinet
Supremacy of Parliament
Civil-Military Relations, and
Constitutional Amendments
PAKISTAN AND INDIA

Page 20 of 89
Center - Province/ State Relations
Both constitutions establish federal systems by distributing
powers between the center and federal units. Nevertheless, both
systems show a tendency towards centralized control and
authority, tilting the balance in favor of the federal government.
They provide for different schemes, while following the
principle of division of powers. The Indian Constitution includes
an elaborate scheme. Article 246, provides for three functional
areas: an exclusive area of jurisdiction for the center, the area for
states and common or concurrent areas in which both center and
states could legislate. However, the concurrent field is subject to
overall supremacy of the center. The residuary powers are also
vested with the Parliament, which is authorized to legislate with
respect to any matter, not enumerated in any of three lists. On
the other hand, the Constitution of Pakistan (1973) provides only
two lists of subjects, one deals with federal affairs on which the
federal government has the authority to legislate; the second
relates to concurrent affairs on which both the central as well as
provincial legislatures can legislate, however the supremacy of
central legislation is maintained in case of conflict. There is no
separate list, dealing specifically with provincial jurisdiction.
The residuary powers are given to provinces. Vesting the
residuary powers to provinces does not provide a marked
difference vis-à-vis Indian Constitution as both lists in 1973
Constitution are so exhaustive that they left limited scope for
provinces.
Both constitutions provide for bi-cameral Legislature; whereas,
1973 Constitution of Pakistan provides for the equality of units
in the upper house (Senate), the Indian Constitution does not
follow the principle of equality of units in its upper house (Rajya
Sabha). Instead of parity, the distribution of seats is mainly on
population basis. An exclusive feature of the Indian Constitution
is the center's authority to change the territorial boundaries of
states. The Parliament can alter or abolish the boundaries to
make a new state without obtaining state's approval, whereas in
Pakistan any such legislation needs ratification from the
respective provincial assembly.

Page 21 of 89
Administrative Relations
The administrative relations between the center and
provinces/states under both constitutions show the tendency
towards centralization. The constitutions provide that law and
order is the primary responsibility of provincial/state
government but if the center finds that the provincial/state
government fails to provide required security to the people, it
can intervene on the pretext of maintaining law and order.
Moreover, the provincial/state government is obliged to exercise
authority in such a way as to ensure compliance with Acts of
Parliament. In certain matters, the center is entitled to direct the
provincial/state government and they are bound to honor the
directives. The center could exercise absolute authority over
provincial/state's administration in times of emergency. But,
even otherwise, the center can exercise considerable control
over administrative machinery of province/state through Indian
Central Services and Pakistan's Central Superior Services, who
are responsible to center for their actions. Governor of a
province/state is appointed by the president and is responsible to
him. The governor, under Indian Constitution does not have any
real executive powers and is considered a ceremonial position.
The position of a governor in Pakistan has been strengthened
after the passage of 17th Constitutional Amendment, which
gives him the power to dissolve the provincial assembly, subject
to adjudication by the High Court.
There are provisions in both constitutions, which provide for the
establishment of certain institutions meant to coordinate and
regulate the relations between the provinces/states and the
center. Under the Indian Constitution, the president can establish
an Inter-State Council to investigate, discuss and make
recommendations upon any subject in which some or all states
or the center have common interests. The Council is also to
make recommendations for better coordination of policy and
action with respect to the subject that causes disputes between
the center and states or between two or more states. According
to the 1973 Constitution of Pakistan, there is a provision for the
establishment of the Council of Common Interests (CCI),
consisting of all provincial chief ministers and equal number of
members nominated by the prime minister. The Council is to

Page 22 of 89
formulate policies regarding the matters enumerated in the
second part of the federal list such as railways, minerals, oil and
gas, industrial development etc. The Council is also entitled to
consider all disputes relating to the allocation of water
resources; any central or provincial law concerning the irrigation
issues. It may refer the matter to the president with the request
that a special commission should be formed comprising
technocrats to deal with the issue in hand. The commission will
submit its report to the Council, which would decide the matter
in the light of commission's report.
Financial Relations
In financial field too, under both constitutions, the center is more
powerful than the state/province. In fact the states/provincial
governments are heavily dependent on the center for their
development plans. No province/state can afford to function
without the active support of the central government. Division of
subjects contained in both constitutions is such that center has
all the important sources of revenues under its jurisdiction.
According to Indian Constitution, the center is empowered to
levy and collect taxes on items which are shared between the
center and states, such as income, agriculture and duties on
excise etc. The taxes on items such as succession to property,
terminal taxes on goods carried by railways, airforce or navy,
transactions in stock exchange etc, are also collected by the
center and are to be appropriated to states. Similarly, Pakistan's
Constitution also allows the center to levy and collect all
important taxes i.e. income other than agriculture, mineral, oil
and natural gas etc, and duties on customs, export and excise.
The principal sources of income for the provinces are land
revenue and tax on agricultural income, luxuries etc.
In both countries, the constitutions also incorporate the
provisions to set up finance commissions for allocating the
resources to states/provinces and center and fixing the federal
grants in aid to the state/provincial governments. The
commissions are to be reconstituted by the central government
after regular intervals.
Having considered the constitutional provisions in relation to
provincial autonomy, it is clear that both constitutions contain

Page 23 of 89
centralizing tendency. However, in Pakistan the issue of
provincial autonomy has generated a continuing debate. It has
posed serious challenges to its stability. The trend towards
centralization does not hurt much if it is consensual and
democratic. These attributes in Pakistan, as compared to India,
are lacking. Indian political system represents a continuation of
democratic and participatory institutions and processes. In case
of Pakistan, centralization has been accompanied by an
authoritarian and non-participatory political and economic
management. This deprived the provinces to have an effective
voice in the system. The authoritative attitudes result in wide
gap between constitutional structures and political practices. The
institutions like Council of Common Interests (CCI) and
National Finance Commission (NFC) are not constituted
regularly and if constituted, they are not called to meet and settle
the issues.
Another factor, which adversely affected the federation of
Pakistan, is the issue of Punjabi domination. A clear edge of
Punjab over other provinces in respect of education, industry,
human resources, and representation in civil and military
services, causes resentment in the smaller provinces. They
perceive the increase in center's authority as an increase in
Punjab's strength, because of Punjab's domination in civil and
military bureaucracy. This sense of insecurity has strengthened
due to frequent disruption of democratic process by military
take-overs and with the weakening of democratic and
participatory institutions.
President and Cabinet

In a parliamentary system, the cabinet headed by the prime
minister is an instrument of executive power. Great Britain
served as the model for the countries, which opted for this form
of government. This system provides that the president's
position as the head of the state should be one of great authority
and dignity but at the same time strictly 'constitutional'. He
represents the nation but does not rule the nation. He is generally
bound by the advice of ministers. The Indian Constitution
follows this principle by making the office of president strictly
'constitutional'. Indian president has been endowed very wide

Page 24 of 89
and far-reaching powers but at the same time, he is bound to act
in accordance with the advice tendered by the council of
ministers. Originally, he was not bound by the advice of
ministers but 42nd Constitutional Amendment, which was
introduced by the Congress Party in 1975, and passed by the
Parliament in 1976, made it obligatory on the part of the
president to act on the advice of the council of ministers. The
Amendment was meant to strengthen the position of the prime
minister vis-à-vis the president. So to speak, the executive
authority of the Indian federation is now exercised in the name
of the president but on ground, by the cabinet led by the prime
minister. The president, subject to the advice of the council of
ministers is entrusted with various legislative, administrative and
judicial functions. He is to convene, prorogue and adjourn
parliament, can dissolve the lower house and all bills passed by
the Parliament must receive his assent. He is also empowered to
issue ordinances. Nevertheless, he exercises all these powers
only on the advice of the council of ministers. Similarly, subject
to the advice of the cabinet, the president is also entrusted with
certain executive powers. The key appointments, such as
Attorney General, Comptroller General, Heads of Armed
Forces, members of several statutory bodies and commissions
are made by him. He is also empowered to proclaim emergency
and suspend the state government. He can grant parden, reprieve
or suspend sentence passed by court, subject to the advice of the
cabinet.
In Pakistan, position of the president under the original 1973
Constitution was very weak. He, like his Indian counterpart, was
a ceremonial head of the state. Similarly, he was entrusted with
wide range of executive, legislative and judicial powers, subject
to the advice of the cabinet, led by the prime minister. The
federal cabinet headed by the prime minister exercised the
executive authority in his name. The prime minister was the
chief executive and enjoyed all powers. But the situation
drastically changed with the passage of Eighth Constitutional
Amendment in 1985.
Accordingly, the president attained certain discretionary powers
including the power to dissolve the National Assembly, if in his
opinion; the government could not be carried on in accordance

Page 25 of 89
with the provisions of the constitution. He could also appoint
chiefs of armed forces in his discretion. He also had
discretionary powers to appoint the provincial governors in
consultation with the prime minister. The Amendment
compromised the spirit of parliamentary form of government. It
introduced the 'presidential discretion' without an appropriate
mechanism for checks and balances, which resulted in grave
political instability (from 1988 to 1996, four assemblies were
dissolved by the president). This position was changed when the
Thirteenth Constitutional Amendment was introduced in 1997. It
omitted Article 58(2) (b); inserted in the constitution by the
Eighth Amendment. Thirteenth Amendment took away the
discretionary powers to dissolve the National Assembly from the
president, making him once again titular head of the state. His
discretionary powers to appoint the chiefs of armed forces were
also taken away. However, the Seventeenth Amendment (2003)
once again made the office of the president powerful. Under the
existing Constitution (as amended) the president regained the
powers to dissolve the National Assembly, albeit with
modification; now the president is required to refer his action to
the Supreme Court of Pakistan, within fifteen days of the
dissolution of the National Assembly and the Supreme Court
will have to decide the reference within thirty days and its
decision will be final. The president also has the powers to
appoint chiefs of armed services, in consultation with the prime
minister.
In India, the president has always acted as the constitutional
head of the state and never showed any inclination to increase
his powers due to several reasons. From the very beginning, this
tradition was strongly entrenched in the system. In the early
days of political governance, there were no differences between
the Congress Party that ruled the country and the president, who
had not much to meddle in the national affairs; the government's
decisions were accepted at all levels. The Party institutions were
strong enough not to allow anyone to disregard Party policies
and plans. The strong constitutional traditions also help to
strengthen parliamentary norms. In Pakistan, these trends were
never embraced. It had to face political turmoil from the very
beginning. The Muslim League did not establish itself as an

Page 26 of 89
organized political party at central and provincial levels. It could
not develop a consensus building mechanism to resolve internal
conflicts. This resulted into factionalism within the party cadres
and generated authoritarian trends in the system. Secondly, the
Indian political history shows that the political parties selected
only those persons as candidates to the office of the president
who were politically non-ambitious and had no strong and long
political career behind them. In Pakistan, the office of the head
of the state with some exceptions remained with persons who
aspired to become the center of power, thereby creating a
situation of confrontation. The supremacy of the Parliament is a
cardinal principle of a parliamentary system of government. The
Indian Parliament can pass any law within its constitutional
Supremacy of Parliament
Competence and the president/executive has a limited power to
veto legislation which can be overruled by the parliament.
Nevertheless, in actual practice, the legislative initiative belongs
to the cabinet and ruling party's majority generally enables it to
get through without much difficulty. Strict party discipline does
not allow the members to go against the wishes of the party
leadership. Its powers are also checked by delegated legislation.
Under this system, the broad lines are laid down by the
parliament, whereas the executive works out details. It has
strengthened the hands of bureaucracy. Another factor that
undermines the supremacy of the Indian Parliament is the
ordinance making powers of the president. Such an ordinance is
to be laid before the Parliament and shall cease to operate at the
expiration of six weeks from the reassembly of the Parliament.
Since the inauguration of the Constitution, these presidential
ordinances have been promulgated several times.
In Pakistan, the parliamentary system also suffers from the same
constraints as the president of Pakistan is empowered to
promulgate ordinances. This provision was basically designed to
meet the needs of emergencies but in Pakistan, it has become a
rule rather than exception. The executive's power to issue
ordinances has become a restraint on the legislative powers of
the Parliament. It also generates apathy and indifferent attitude
on the part of members of the Parliament who instead of

Page 27 of 89
focusing their attention on their primary function of legislation
for the public, have been engaged in political maneuvering. It
can be judged from the fact that certain ordinances laid before
the Parliament are allowed to lapse and are promulgated
repeatedly.
Another check on the authority of the Parliament stems from the
Islamic identity of the state. Theoretically, Parliament in
Pakistan does not enjoy absolute sovereignty; the Objective
Resolution which has been made a part of the Constitution
provided that “sovereignty over entire universe belongs to Allah
Almighty alone and authority which He has delegated to the
state of Pakistan, through its people for being exercised within
the limits prescribed by Him is a sacred trust”. This provision is
reinforced through the establishment of Federal Shariat Court.
The Court has the jurisdiction to examine that whether or not
any law passed by the Parliament is repugnant to the injunctions
of the Holy Quran and Sunnah. Initially, the role of the Court
was limited but it has extended over the years.
Civil - Military Relations

Military dominates politics in most of the third world courtiers.
India and Pakistan were ideologically different states but shared
same military heritage at the time of independence. The military
in British India served as its strong shield, but avoided an active
involvement in politics and largely accepted the principle of
supremacy of civilian government. The Indian military retained
this tradition but Pakistan reflected a major shift. The Indian
army is an outstanding example of an 'apolitical and professional
force, almost a bureaucratic instrument of state policy' (despite
its huge size and resources). On the other hand, Pakistan's army,
due to various reasons, acquired the status of the most
'formidable and autonomous political actor', determining the
national policies as well as priorities.
Generally constitutions restrict military's role to its professional
field only. However, in case of Pakistan, over the period of time,
military has acquired a political role. Since General Zia-ul-Haq's
military rule, there were attempts to provide a legal or
constitutional cover to the military's role in the politics and
governance of Pakistan and a model of Turkish Constitution was

Page 28 of 89
aspired in this regard. An extended role for military was
advocated on the plea that the military of Islamic Republic of
Pakistan was not only responsible for the defence of territorial
boundaries of the state but of its ideological frontiers as well.
The proponents of this assertion argued that it's a prime duty of
armed forces of Pakistan to “ensure that Pakistan's Islamic
identity was protected and Pakistani society developed on
Islamic lines.” (Hasan Askari Rizvi. (2000) Military, State and
Society in Pakistan, New York: St.Martin's Press, p181). Thus
the military sought a constitutional role in the national affairs
through the establishment of National Security Council (NSC).
But political forces resisted this effort. The proposal for setting
up the NSC as laid down in the Revival of the Constitution
Order (RCO), March 1985, was dropped when the Parliament
approved the RCO in the form of the Eighth Constitutional
Amendment in 1985. Recently, Legal Framework Order (LFO),
August 2002 issued by the military regime again included the
provision for establishment of the NSC, headed by the president;
however later the Seventeenth Constitutional Amendment
omitted this provision. Nevertheless, through an Act of
Parliament, NSC has been established and its membership
includes Services' Chiefs along with civil representation. The
Council is supposed to give recommendations on internal and
external security matters. The supporters of NSC argue that the
same institution has also been incorporated by the Indian
political system. However their argument is invalid as Indian
NSC is basically a decision facilitating body to assist and advise
the prime minister. It is a 'five tier' body with a six member
committee headed by the prime minister at the top of the
structure. At this level, the armed services are not given any
representation; denying their participation in the decision
making process. In addition, the Indian NSC consists of a
Secretariat, Strategic Policy Group (SPG), National Security
Advisory Board (NSAB) and a National Security Advisor. It was
established in November, 1998, through an Executive Order and
does not enjoy constitutional protection (Dr. Subash Kapila,
India's National Security.
To conclude, military interference in Pakistan's politics hashad
different forms, ranging from assumption of direct control and

Page 29 of 89
authority of the state by displacing the civilian governments
(Oct 1958, March 1969, July 1977, Oct- 1999) to its
manipulation of state affairs through collaboration with civil
bureaucracy. The Indian military on the other hand, plays a
remarkably small role in shaping of even security and defence
related policies and it virtually has no role in shaping the
policies outside this area. The Indian Constitution vests “the
supreme command of defence forces of the Union” in the
president but he is obliged to be “regulated by law” and defecto
control is vested in the council of ministers led by the prime
minister. Conventions established over the years ensured that
“aid and advice” given by the council is authoritative and no
president has ever attempted to exercise independent command
over armed forces. A Sub-committee of Cabinet for Defence,
now known as Political Affairs Committee, usually formulates
Indian defence policies. The chiefs of armed forces are not the
members but may be invited to attend the meetings. With the
increase in the ministerial membership of the cabinet committee,
the actual participation of Services chiefs has become more
diffused as there is a tendency not to invite them even when
defence matters are under consideration. Therefore, the
constitutionally determined role for Indian army is quite narrow
and it provides a check on attempts to politicise the military.
Constitutional Amendments
Every modern constitution provides some mechanism for its
change as the maintenance of status quo results in stagnation and
degeneration. However, the procedure for changing the
constitution is often more difficult than ordinary legislation so
that the constitution is not changed without due considerations
and consensus. This is done to ensure stability and continuity of
the political system. Both Indian and Pakistani Constitutions
strive to provide a balance between the requirements of change
and the imperatives of stability. They are semi rigid or semi
flexible constitutions. However, they follow different methods
for amendments.
Methods of Amendments in the Constitution of India

The Indian Constitution is divided into four sections for

Page 30 of 89
amendments:
1. Section 1 deals with important matters such as the creation of
new states by altering the existing boundaries of states and
abolition of second chambers of state legislatures. The
provisions concerning these matters can be amended with simple
parliamentary majority and state legislature's approval is
required.
2. Section 2 deals primarily with fundamental rights enumerated
in the Constitution. It can be amended by two third majority of
the Parliament.
3. Section 3 deals with the fundamentals of government such as
the office of the president, prime minister and the powers of
Supreme Court etc. Amendments to this Section require not only
two third majority of the Parliament but also need ratification
from majority of states' legislatures.
4. Section 4 states that the state assembly has also a power to
amend certain constitutional provisions by simple majority,
which primarily relates to salaries and allowances of ministers,
speaker, deputy speaker etc of that state's legislature.
In each of the aforesaid cases, the amendments can be initiated
only by an introduction of a bill in either house of the Parliament
and must receive the assent of the president. Since the
inauguration of the Indian Constitution, eighty-six amendments
have been introduced.
Methods of Amendments in the Constitution of Pakistan

Under the 1973 Constitution, the proposal to amend the
constitution can be initiated in any house and should be
approved by two third majority of both houses of the Parliament.
It is then, presented to the president for his assent, who within
30 days must give his assent or send it back to the Parliament.
Neverthless, this partial veto can be overcome by a simple
majority of the Parliament in a joint session. Any bill, which is
to alter the boundaries of a province, however, should also be
ratified (unlike India) by the respective provincial assembly with
its two third majority.
So far, seventeen amendments have been introduced in the
Constitution of Pakistan.
The real difference between Indian and Pakistan's system

Page 31 of 89
regarding amendments lies in the implementation of a
constitutional provision. Whereas, in India, the constitutional
procedure is strictly followed in letter and spirit, Pakistan has
witnessed extra-constitutional tampering. Theoretically
speaking, no individual is entitled to amend the constitution. But
Pakistan's constitutional history narrates different story. Since
the inauguration of 1973 Constitution, the country has
experienced two military governments and under these regimes,
the Constitution was held in abeyance. Before reviving it the
military governments enforced the constitutional packages,
making extensive changes in the original text of the Constitution
without following the procedure for amendment as laid down in
it. Two most important amendments (8th &17th) that have
affected the substance and spirit of the parliamentary form of
governance were introduced to legitimize far reaching
constitutional changes by the respective military rulers. These
changes were made on the plea that Supreme Court gave them
the right to amend the constitution under the doctrine of
necessity. These amendments are briefly discussed below.
Eighth Amendment
On March 02, 1985, General Zia-ul-Haq (then President and
Chief Martial Law Administrator) issued an ordinance, known
as the Revival of the Constitution 1973 Order (RCO), which
made fundamental changes, making significant departures from
the original concepts of the Constitution. The RCO was made a
part of the Constitution, which was later passed by the
Parliament with some changes in November 1985. It gave
protection to the presidential orders issued during 1977 to 1985,
while the Constitution was in abeyance. It changed the
parliamentary nature of the Constitution by giving certain
discretionary powers to the president.
Seventeenth Amendment
Similarly, General Pervez Musharaf (President and Chief
Executive of the Military Government) issued a decree, entitled
'the Legal Framework Order (LFO) in August 2002; introducing
significant changes in the existing Constitution. LFO elevated
the status of the president by giving him powers to dissolve the
National Assembly and appoint the chiefs of armed forces. The
issue of LFO, however, generated heated controversy. The main

Page 32 of 89
stream opposition political parties, PPP and PML (N) in the
Parliament joined hands on the opposition of LFO. They
questioned the legitimacy of president's authority to amend the
Constitution in his discretion. They demanded the Parliament's
endorsement of the amendment before it became a part of the
Constitution. They argued that even RCO introduced by General
Zia had to seek Parliament's approval before becoming a part of
the Constitution through the 8th Amendment. The MMA
initially also pursued a hard line policy but afterwards agreed to
compromise. After long drawn negotiations between the
government and MMA on the LFO, an agreement to resolve the
LFO controversy was signed. Another leading opposition group
the ARD stayed away from the dialogue and the agreement. In
accordance with the government-MMA agreement, 17th
Constitutional Amendment was passed by the Parliament on
December 29, 2003. It is worth noting that opposition's demand
and argument that LFO must receive parliamentary endorsement
before it was made the part of the Constitution was not accepted.
The 17th amendment bill proceeded 'from the premise that LFO
had become the part of the Constitution already and the
presented bill only modified certain provisions of LFO'. The
passage of the 17th Amendment Bill represents that MMA
accepted the LFO as part of the Constitution even without the
formal approval by the Parliament in exchange of some changes
in it through 17th Amendment. No such example is found in
Indian constitutional history.
Conclusion
Constitution is a body of rules or precedents governing the
affairs of state. It establishes the structure and purpose of an
organization and rights of citizens. India and Pakistan started
with same constitutional heritage but after independence, they
embarked on remarkably different directions of political and
constitutional development. Indian experience represents
constitutional continuity and stability since the introduction of
its Constitution in January 1950. Pakistan has gone through
many ups and downs. It has experienced four constitutions; its
existing Constitution (1973) has also under gone various
changes, altering the very nature of it. A comparative study of
the Indian and Pakistani Constitutions in five areas: provincial

Page 33 of 89
autonomy, president's relations with the cabinet, supremacy of
the Parliament, civil- military relations and constitutional
amendments shows that Indian political system has been
established on the basis of democratic parliamentary norms.
President's office is strictly 'constitutional' and real executive
powers are vested in the council of ministers headed by the
prime minister. The issue of provincial autonomy, due to
democratic and participatory institutions and processes did not
pose serious threat to national solidarity. Whatever problems
arose, these are settled within the framework of the constitution.
The civil-military relations have developed in a way that ensures
civilian primacy over military establishment and Parliament's
authority in brining amendments to the constitution is an
established rule. Pakistan's constitutional history on the other
hand shows constitutional breakdown and inconsistencies.
Under the 1973 Constitution, a parliamentary form of
government was envisaged but different amendments introduced
in the constitution changed its substance and spirit, tilting the
balance in favor of the president. The issue of provincial
autonomy is becoming serious, partly due to centralizing trends
introduced by the Constitution but mainly because of frequent
disruptions of democratic and participatory processes and
institutions. Military establishment has expanded its influence in
the society and is major determinant of national policies. Its role
is now institutionalised through the National Security Council.
The authoritarian trends are dominant regarding the
constitutional amendments. Formal constitutional procedures
were ignored by military regimes while introducing
amendments. Even civilian leaders were not averse to introduce
changes in the Constitution to accommodate their vested
political interests. The authoritarian attitudes reflected their
disregard for parliamentary norms and spirit.
U.S. constitution Notes
Q.1.Features of U.S. Constitution
Introduction and Evolution

Page 34 of 89
The present Federal government of U.S.A came into being in the
year of 1789.The United States comprised of thirteen colonies of
Great Britain. In the year 1776, these colonies at the Atlantic
Coast rebelled against the mother country and became
independent in 1783.During this period the revolted colonies
established the “Articles of Confederation” as the first
constitution in 1777.
However, this system could not last very long. There was no
separate common executive nor was there any independent
judiciary. An effective central government was the fundamental
need of the hour. A convention for the purpose of framing the
constitution was convened at Philadelphia in 1787.Thus the
constitution was framed on the basis of this convention and was
signed by the delegates on September 17,1787.This constitution
came into force in 1789.since then it has undergone many
changes, one of them being the increase in the number of states
from 13 in 1787 to 50 at present.
Sources of US Constitution
Following are the important sources of the American

constitution.
Written Constitution of 1787:

This original constitution was drafted by a convention held at
Philadelphia. It came into force in 1789.
Judicial Decisions
The occasional interpretations of the constitution by the
Supreme Court have introduced many important modifications
in the constitutions.
Laws of Congress
The framers of the constitutions laid down only the general
outlines of the governmental structure. The details have been
filled in by the laws passed by the congress.
Convention:
A convention is a custom which by long usage has acquired the

Page 35 of 89
force or sanctity of the constitution. These are also an important
source of the American Constitution.
Formal Amendments:
During the period of over 170 years, the American constitution
has undergone a number of amendments in the original
document.
Features of US Constitution
Following are the salient features of the American constitution:
A)Written Constitution
First prominent feature of the American constitution is that
unlike the British Constitution, it is a written or documentary .It
is very brief document and contains about 4000 words and at
least 10—12 pages. It consists of preamble and seven articles
only. The framers laid down only the fundamental principles and
did not bother about the details. However, this does not mean
that all the rules of the American constitution are to be found
only in one document. It proclaims itself to be the “supreme law
of the Land”.
b)Rigid
Another feature of the American constitution is that it is rigid,
which means that it cannot be amended by the congress by the
ordinary procedure. The procedure is very intricate and difficult.
It is, therefore, rightly remarked that “it the founding fathers
were to return to life today, they would not find it difficult to
recognize handiwork.
c) federal:
Another important feature of the American constitution is that it
is federal in structure. Federalism is a device by which
independent states form a union without losing their identity.
The American states are units having autonomous powers; the
centre cannot meddle in their affairs.
d) Separation of powers:

Page 36 of 89
American constitution is based on the principle of “separation of
powers”. The framers of the constitution believed that the
separation of various organs of the government was necessary to
ensure individual liberty and to check despotism. They,
therefore, gave the presidential system to their people. In U.S all
the legislative power is enjoyed by the president; he is not
responsible to the legislative. The legislative powers have been
vested in the Congress. The judicial powers are vested in the
Supreme Court.
e) Checks and balances

The framers of the U.S constitution were aware that a
department, if left unchecked, would become oppressive. They,
therefore, introduced checks and balances n the constitution.
Thus, Congress has been given a share in the executive powers.
It can check the president’s powers of making treaties and
appointments. Similarly, the President enjoys the powers of
suspense veto. By using this power he can influence legislation.
He also enjoys judicial powers of giving pardon and reprieve.
f) judicial independence:
The direct consequence of separation of powers is the doctrine
of judicial independence. In United States all the judicial powers
are enjoyed by the Supreme Court and other federal courts, no
other office can influence its independence.
g)Judicial Review:
An important feature of the American constitution is the power
of judicial Review. The Supreme court in U.S is supreme not
only in theory but also in practice. In U.K no court can challenge
the power of Parliament; however in United States all the laws
passed by the congress and state legislatures are subject to
judicial review.
h) Fundamental rights and Liberty:

Another important feature of the American constitution is that it
ensures certain fundamental rights for every America citizen, of
which he cannot be deprived by any lawful authority. Freedom f
religious worship, freedom of speech and press, right to

Page 37 of 89
assemble peacefully and property rights etc. are some of the
fundamental rights enjoyed by the U.S citizens.
I) Popular Sovereignty:
The US constitution establishes the popular sovereignty of the
people. The preamble of the constitution runs thus:
“We, the people of United States, in order to form a perfect
union, establish justice, ensure domestic tranquility, promote
general welfare and secure the blessings of liberty ourselves, do
ordain and establish this constitution for the United States of
America”
First words---------we, the people of United States..This means
that the ultimate seat of authority in United States is the
American people.
j) Limited Government:
Another important feature is the doctrine of limited government.
Unlimited powers of the government would make them despotic
which would lead to tyranny and violence. In U.K the
Parliament is supreme whereas in United States the constitution
is supreme and the powers of the government organs are limited.
K) Bicameral Legislature:
In United States, congress is the parliament, which consists of
two houses. The Senate and the House of Representatives. This
means that the type of legislation in U.S is bi-cameral.
l) Dual citizenship:
Every American citizen is entitled to the right of dual
citizenship. First of all, he is the citizen of America and
secondly he is the citizen of that state in which he lives. The
feature of dual citizenship was introduced in the American
constitution by the 4th amendment.
Q. no. 2. Federal System of U.S.A
“Federalism”, says Dicey “is a political contrivance intended to

Page 38 of 89
reconcile national unity with the maintenance of state rights".
He reconciles central control with the maintenance of regional

autonomy .
In a federation the states enjoy a considerable measure of
autonomy. The form of government in which there is no regional
autonomy is called a unitary state.
True federation posses the following features:
A. There is a constitution, which must necessarily be written and

rigid. It must be written and rigid. It must be written so that it is
not open to any misconstruction. It should be rigid so that the
central government cannot change the powers guaranteed to the
states easily.
B. There is a division of powers between the centre and the

units.
C. There is a supreme court which acts as the guardian of the

constitution. It settles the constitutional disputes, if any, between
the centre and states.
The American constitution satisfies all the conditioned

mentioned above.
American Scheme of Distribution of Powers:
A) The powers of the national government are listed in the

article 1 section 8 of the constitution. Some of these powers are:
1. Taxation for federal purpose.
2. Borrowing on the nation’s credit.
3. Regulation of foreign and inter-state commerce.
4. Army and navy
5. Foreign affairs and international treaties.
6. Copy rights
7. Postal service
8. Admission of new states.
9. Currency and Coinage

Page 39 of 89
B) A list of powers prohibited to the national government and a
list of powers prohibited to the states have also been given. The
national government, for example, has been prohibited from
meddling with the free exercise f any religion. The states have
been prohibited from entering into an alliance or treaty with any
foreign power.
C) All the residuary powers are vested in the states. The 10th
amendment expressly declares, “Whatever is not given to the
U.S by the constitution, nor prohibited by it to the states, is
reserved to the states respectively or to the people.”
The powers of the states have not been enumerated in the

constitution whatever is not given to the centre belongs to the
states. The states in the U.S , therefore , have unremunerated but
not unlimited powers.
Features of US federalism:
1. The division of powers is made by the constitution which is

both written and rigid.
2. The constitution has provided for a supreme court which acts

as the guardian of the constitution. It is competent enough to
settle the constitutional disputes which may arise between the
national government and the states.
3. This type of dual system of powers which we have seen

above, is the only one which could have been possible at the
time of framing the constitution. It provides for power for both
the centre and state government .No government in United
States has unlimited powers.
4. The type of federalism which the Americans have today is

very much different from the one which they have started over
200 years ago. As the Americans moved from milepost to

Page 40 of 89
milepost, various American institutions cut new channels and
developed new patterns. One subject which was greatly affected
at each stage was the centre-state relationship.
5. Hamilton had predicted it in 1788 that “it would always be for

easier for the state government to encroach upon the national
authorities than for the national government to encroach upon
the state authorities.“ . What has actually happened is just the
reverse with the constant increase in the national economy. One
significant feature is the rise of the national government to its
present predominant position.
Reasons for the increase in national powers:
i. After the civil war more and more problems requiring the
attention of the national government become apparent.
ii. The question of implied powers is another factor responsible
for the growth of national powers. It has been fully supported by
the Supreme Court. “Whatever is not prohibited is
constitutional”.
iii. The predisposition of Supreme Court in favor of central
government.
iv. Labor troubles, floods and epidemics
v. The federal government uses state officials as its gents.
vi. The growth of national press.
vii. The growth of political parties on national lines.
viii. The rise of the country to its present international stature
ix. The growing public demand for state services.
x. Foreign affairs
But all this does not mean that there is not a true federalism in
United States. Although the centre has assumed a predominant
position but the original balance of powers has not been
radically altered.
In the words of professor Munroe:
“The states are still the pivots around which the whole U.S

Page 41 of 89
political system revolves.”
Q. no. 3. Separation of powers in USA:
Separation of powers is an outstanding tradition of the U.S

constitution. It means that all the powers should not be
concentrated in the same man or in the same body of men.
“As the accumulation of all powers”, says Madison, “legislature,

executive and judiciary in the same hands may justly be
pronounced as the very definition of tyranny.”
The Idea that the government divides into three different

functions handled by different branches is old as Aristotle. It
was later convincingly propounded by Locke, Blackstone and
others. The first systematic exponent of the idea was a French
writer Montesquieu.
In Montesquieu own words

“Political liberty is to be found in moderate governments……
constant experience shows that every man invested with power
is apt to abuse it….To prevent this abuse it is necessary from the
very nature of things that power should be a check to power”.
“In every government there are three sorts of powers. The

legislative, executive and judicial powers. When the legislative
and executive powers are united in the same person or in the
same body of magistrates, there can be no liberty. Again there is
no liberty if judicial power be not separated from the legislative
and executive”.
Thus in Montesquieu’s analysis the separation of powers is

necessary to ensure individual liberty. The desirability of
separation of powers was also emphasized by the great English
jurist, Blackstone, who wrote:
“In all tyrannical governments, the right of making and

Page 42 of 89
enforcing laws is vested in one and the same men or in the same
body of men, and wherever these two powers are united
together, there can be no public liberty.”
The founding fathers of the U.S constitution were greatly

impressed by the separation of powers. Therefore, they made
every effort to divide the power between the three branches of
government fairly evenly. This has been followed also by the
American States.
The framers of the U.S constitution believed that the separation

of powers was necessary to prevent absolutism, despotism and
other unwanted characteristics. According to the theory of
separation of powers, the executive should never legislate and
the legislature should never try to enforce its own laws. The
centre should interpret the laws but it should have no say in
making them.
In United States all the three functions of the government,

making of laws, administration of laws and interpretation of
laws have been assigned to three different branches. According
to Article 1 of the U.S constitution, all the legislative powers
have been assigned to the Congress, Article 2 of the U.S
constitution states that all the executive power should be vested
in the President. According to Article 3 the judicial power
should be vested in the Supreme Court and other lower courts as
the congress may from time to time ordain and establish.
It is correct that the term separation of powers is not used

anywhere in the constitution, however , all the exclusive
language and the fact that the powers are given in three different
articles shows that the powers are separated.
Separate Identity and Independence:

Page 43 of 89
In U.S constitution all the three powers have been given separate
identity.
1. The president is elected by the people and the Congress has
no say in his election. The Congress can remove him only
through impeachment.
2. The cabinet ministers are neither the members nor they attend
the congress sessions.
3. The Congress has full control over the federal legislation. All
the bills are moved by the members in their individual capacity.
The president may give his assent or veto a bill.
4. The Supreme Court enjoys all the judicial powers and its
independent from undue interference by other branches of the
government has been ensured by the constitution. The president
appoints the federal judges but he cannot remove them.
Q. No. 4 CHECKS AND BALANCES in USA Constitution
Smooth functioning of a government is dependent upon a closer

collaboration between all of its branches. Montesquieu himself
had full perception of this requisite. While demarcating the
spheres of these branches, he never contemplated a watertight
compartmentalization.
The framers of the constitution while separating the functions of

three branches of the govt, had realized that complete separation
was not feasible in practice and they being men of experience in
public affairs, altered their arrangements by adding checks and
balances. If the principle of separation of powers was carried too
far, it would have meant deadlocks and breakdowns,
As Munro says:
“The absolute independence of the three great departments of
government would inevitably produce a deadlock and bring
governmental activities to a standstill.”

Page 44 of 89
The government is a unit and it cannot simply work if different
constitutions of the units are so independent of each other. All
the three branches of the government have their separate spheres
of activity. All the powers are not vested in one branch and since
all branches are independent of each other, it is necessary that
each branch remains within its limits and it any branch tries to
cross its limits it must be stopped to ensure the independence
and equality of the other two branches.
Advantages of Checks and Balances:
The principle of checks and balances helps to ensure that no

branch of govt. acts autocratically. All the branches of govt. may
be checked by one another. No branch can become despotic and
does not interfere in the jurisdiction of the other branches and
since all check each other ultimately balance is maintained and
none can assume supreme powers. Separation of powers secures
the independence and equality of all the three branches rather
than curtail their powers.
As Madison observed:
“Separation of powers does not mean that the three branches of
the government should be wholly unconnected with each other.”
Features of Checks and Balances in U.S Constitution:
1) The president is the chief executive but he can make no

appointments without the approval of the Senate. Thus, Senate
can check the president if any of the proposed appointment is
not found proper and therefore has a share in the executive
powers.

Page 45 of 89
2) The president can negotiate and conclude treaties with the
foreign countries but they do not become effective unless
ratified by the Senate by 2/3rd majority.
3) The Congress is the sole legislative power. All the bills

passed by the congress have to be submitted to the president
who may give his assent to a bill or veto it. Thus, he has a check
on the legislative powers of the congress.
4) The congress, on the other hand, can also check the president.
The president can be impeached and removed by the congress.
5) The legislative powers of the congress are checked not only

by the president but also by the Supreme Court. All the laws
passed by the congress and assented by the president may be
found against the provisions of the constitution and thus
declared ultra vires by the Supreme Court through its power of
judicial review.
6) The Supreme Court itself is checked by the congress, as the

congress fixes the numbers of judges and their pay.
7) Judges are appointed by the president and approved by the

senate. “A president limited by the will of congress” , says
Laski, “ is always like the sailor on an unwanted sea .”
8) Judges are ensured life tenure but even they can be

impeached and removed from office.
Thus the powers are separated but lines of connection have also
been provided. The separation of powers with precautionary
checks and balances is the most characteristics feature of the
U.S constitution. In the times of emergency the lines of
connection have provided unity under a single leadership.
During the U.S participation in world wars, the American
president assumed all legislative powers during the emergency.

Page 46 of 89
Criticism:
The principle of checks and balances has been criticized by

many students of the U.S constitution.
• Zink say:
“This provision may prevent tyranny but it also leads to conflict
and indecision----one branch of govt. may be operating on one
policy while the other two may be following quite a different
course.”
• “It prevents unity , frustrates leadership, divides responsibility

and slows down action.” Say Ogg and Ray
• It is argued that the principle of checks and balances tends to

concentrate powers in the hands of judiciary, which can declare
any of the laws passed by the congress as void.
• Treaty of Versailles was not ratified by the senate in 1920,

which was concluded by Wilson with several of the world
leaders. This was too much a check.
It would not be an aggression to say that the U.S constitution is

based on the principle of checks and balances.
Q. no. 5. U.S President.( His Powers and Position)
The government of the United States is of the republican type.

This implies that the head of the state is president. He is not only
the head of state but also the chief executive powers shall be
vested in the president of the United States. He should hold his
office during a term of four years. “He is the head of state but
also the chief executive.
The constitution declares in Art.2, “The executive powers shall

be vested in the president of the United States. He should hold
his office during a term of four years. “He is the head of
executive in name as well as in fact.

Page 47 of 89
Powers and functions:
The U.S president is the most powerful executive of the world.

He exercises the greatest amount of power ever wielded by a
man in a democracy.
Prof. Laski correctly summarizes his position, when he says:

“The U.S president is both more and less than a king; he is also
both more and less than a Prime Minister.”
Dictators and absolute monarchs apart, he is the most powerful

single executive in the world. He is at once the chief formulator
of the public policy, the leader of a major political party, Chief
architect of the U.S foreign policy and the chief spokesman of
United States in foreign relations.
It is difficult to believe that the modern presidency was created

in this form by the founding fathers.
They never intended to do anything that would lead directly or

indirectly to the accumulation of powers. What they desired to
have a single executive head, a post of honor and leadership,
rather than that of commending authority. The modern
presidency is the result of practical experience.
A. Executive Powers:
1. Chief Administrator: The president is the chief executive. The

constitution has entrusted upon him the responsibility “to take
care that the laws be faithfully enacted “. He is assisted by
different government officials in this task.
2. Powers of appointment: The president appoints all the federal

officials with the approval of senate. Normally the senate does
not interfere in the appointment of ministers, ambassadors and

Page 48 of 89
other diplomats. The appointment of the judges of the supreme
court in scrutinized thoroughly.
3. Powers of Removal: The president can remove federal

officials in his discretion except the judges of the Supreme Court
who can be removed only through impeachment.
4. Diplomatic Powers: The foreign relations of united states are

almost completely under the general directions of the president,
with one very important restrictions that no treaty concluded by
him with a foreign power becomes effective unless passed by
the senate by 2/3 rd majority. He is the chief spokesman for
United States in foreign relations. He appointment different
ambassadors and diplomats from abroad. He has the sole power
to recognize or reject new states. But all these functions are not
performed by him personally. Most of these tasks are performed
by the secretary of state.
5. Role in Defense:
The president is responsible for the defense of the country. He is

the chief executive and supreme commander of the military and
as such appoints a large number of high military officials in his
own discretion. Although declaration of war is a matter that falls
in the domain of congress but the president may create such a
situation that the declaration of war becomes inevitable. After
the declaration of war he can resort to emergency powers
6. Supervision of administrative powers:
Over the past 200 years the United States has moved from a
system of administration based on a handful of departments to a
system manned by almost 3 million people. The largest
expansion has occurred in the field of administrative agencies.
B. Legislative Powers:

Page 49 of 89
The U.S government is based on the principle of separation of
powers. This means that there is no direct relationship between
the executive and legislature. Neither the executive is drawn
from the legislature, nor is its term dependent upon the
legislature. But absolute independence would have produced
deadlocks.
As Madison observed:
“Separation of powers was not to mean that the three branches
of the government should be wholly unconnected with each
other.”
Thus, by means of checks and balances, a share has been

provided in each other’s powers. The president can influence the
legislation in the following ways:
1. Messages: The Constitution in Art 2 Sec 3 declares that “he

shall from time to time give information of the state of the union
to the congress “. The time, place and manner of sending these
messages to the congress depend upon the discretion of the
president. As a matter of usage, a custom has developed that the
president sends a comprehensive message known as the “State
of the union message” at the time of beginning of every session
in January of each year. This message includes all the proposals
items which in the opinion of the president require the
consideration of the congress. Apart from these annual
messages, he may send special messages from time to time. All
these proposals by the president are given consideration by the
congress during legislation.
2. Extra ordinary session:

The president has the power to summon both houses of the
congress or any one of them on extra ordinary occasions. The
agenda of such sessions is also fixed by the president.
3. Presidential veto: Art 1 sec 7 of the constitution gives the

power to the president. All the bills passed by the congress have
to be submitted to the president, who may give his assent or veto

Page 50 of 89
a bill. The bill to which the president withholds his assent is sent
back to the house of its origin along with his objections. If the
congress again passes that bill with a 2/3 rd majority, it becomes
a law without the consent of the president.
4. Executive Decrees:
The president has been authorized to issue executive decrees and

orders which are valid as laws.
C. Financial Powers :
The federal budget is proposed by the bureau of budget under

the direction of the president. The director of the bureau remains
in contact with the president. The bill is presented in the
congress on the behalf of the president. Generally, the estimates
proposed by the president are approved by the congress. During
an emergency the president may spend as much money as he
wants in his own discretion.
D. Judicial Powers:
The president appoints the federal judges with the approval of

the senate . The president grants pardons and general amnesty.
Constitution declares in Art 3 Sec 2 that
“The president shall have powers to grant reprieves and pardon
for the offences against the United States, except in the cases of
impeachment.”
E. Miscellaneous Powers:

Page 51 of 89
The president, as head of state, receives foreign heads of the
state in his country. As a leader of his party, he plays an
important role in selection of various officials for different
elected bodies. He is an ex-officio member of various bodies.
Conclusion:
Lord Bryce in “American commonwealth” comments:

“The president is the nearest and the dearest substitute for a
royal ideal, which the American possess”
Q.No. 6. U.S Senate
Introduction:
According to W.P Nelson:
“The modern senate is , increasingly , a greater forum, an echo-

chamber , a theatre where dreams ---------comedies and
tragedies are staged to enhance the careers of its members and to
influence the public policy by means of debate and public
investigations. “
Responsibility for giving expression to the will of the people of

the Unites States has been entrusted to a bi-cameral legislature
called the congress. The senate is the upper house of the
congress. It is more powerful than the House of Representatives.
In most other countries like India, Britain and France the lower
house enjoys more powers than the upper house. In some
countries like Switzerland and U.S.S.R (former) the two houses
enjoy equal powers. The U.S senate is the most powerful second
chamber in the world.
Composition:

Page 52 of 89
The US senate represents the states of the union on the basics of
equality. It is organized not on the basis of representation of the
people according to a mathematical formula but on the basis of
equality of each state as an individual political unit. Each state,
irrespective of its size and population, sends two members to the
senate. This equality cannot be denied to any state. Even a
constitutional amendment cannot alter this equality of states.
The total strength of the senate is 100. There are 50 states and
each state is represented by two members in the senate. This
principle is also found in Switzerland where each Canton sends
two members to the council of states. The US capital
Washington D.C does not have any seat in the senate.
Election:
The constitution had originally provided for a direct election of
the senators.Senators were elected by the respective state
legislatures. But the method has now been changed to a direct
election under the 17th amendment in 1913.
Tenure:
The senators are elected for a term of 6 years, but one third of
them retire after every two years.
Qualification:
The candidate for the senate must be of

Ø Minimum 30 years of age.
Ø US citizen of at least of 9 years standing
Ø Resident of that particular state.
Presiding Officer:
The vice president of U.S.A is the presiding officer of the senate.

He is not a member of the senate. The senate also elects from
among its own members a president pro-tempore, who presides
in the absence of vice- president.

Page 53 of 89
Powers and Functions:
1. Legislative Powers:
The US senate enjoys equal legislature powers with the House

of Representatives. It does not merely revise the bills; rather
most of bills are originated in the senate. The bills usually
passed by the senate are generally passed by the popular
chamber as well. This is because the members of the lower
house pay full respect to the verdict of their party leaders in the
upper house. As regards the money bills, they are originated in
the House of Representatives but the senate has the power to
amend the money bills. The amendments to a money bill may be
so many that whole of the money bill may be changed
completely. As a result, the senate has originated many money
bills in fact if not in form.
2. Executive powers:
The government of US is based on the theory of separation of

powers. But absolute independence would have meant deadlocks
and breakdowns . As
Madison observed:
“Separation of powers was not to mean that the three branches
of the government should be wholly unconnected with each
other.”
To check the tendencies of despotism, a share in each other’s
powers has been given by a system of checks and balances.
The US senate enjoys considerable measure of executive power

as:
Ø The president is the chief executive but he can make no
appointments unless approved by the senate. Thus the senate can
check the executive if a proposed appointment is not found
proper. The senate rejected the appointment of Chairman NSC
by the president Truman and that of the secretary of commerce
by president Eisenhower

Page 54 of 89
Ø The president can negotiate and conclude treaties with the
foreign countries but do not become effective unless approved
by the senate by 2/3rd majority.
3. Judicial powers:
The US does not enjoy the status of a court unlike the British
House of Lords. It has the sole power of impeachment. It can
impeach the president, vice-president Judges and other federal
officials.
4. Miscellaneous Powers:
• The senate enjoy along with the H.O.R, the power of propose
amendments in the constitution.
• During the election of Vice-president, if no candidate gets an
absolute majority, the senators vote for the first two candidates
and elect one as the vice-president of the United States.
• The senate can demand information about any administrative
measure. This exposes the weakness of the administration.
US Senate : The most powerful second chamber:
The US senate is decidedly one of the most important
institutions in the whole federal system of the USA. It stands
apart to its counterparts in other countries of the world and is
also more powerful than the lower house of the congress. The
following factors contribute to the power of US senate.
Ø Size and Tenure: The senate has 100 members with 6 years
tenure while H.O.R has 435 members with 2 years tenure.
Ø Permanent nature: The senate is a permanent body. It never
dissolves. The senators are elected for a term of 6 years but
1/3rd of them retire after every two years.
Ø Special functions: The senate has special privileges such as its
power to ratify treaties and its power of Impeachment.
Ø Equal Legislative powers: The senate enjoys equal legislative
powers with the H.O.R
Ø Right of debate: The rules of debate are much liberal in the

Page 55 of 89
senate. The senators can go on speaking to any length.
Ø Investigative powers: The investigative committee of the
senate can demand the information , opinion and seek advice for
the purpose of legislation.
Ø Greater influence: The senators are seasoned politicians and
have greater skills than their friends in the lower house. As a
result of this they enjoy greater influence among the public.
F.J Haskins says:
“There are things which the president and the senate may do
without the assent of the H.O.R and things which the senate and
the H.O.R may do without the assent of the president ,yet the
president and the H.O.R can comparatively do a little without
the assent of the senate.”
Comparison with other chambers:
1. British H.O.L : it was once a very powerful chamber but now

it has become so weak as compared to the H.O.C that it is
described not only as second but a secondary chamber.
• H.O. L is a hereditary chamber with more than 100 members

.The US senate is a smaller body, more active and directly
elected.
• H.O.L has no share in financial legislation. It can merely delay

a money bill by one month. Even an ordinary bill can be simply
delayed by one year. The US senate on the other hand enjoys
equal legislative powers with the H.O.R.
• H.O.L has absolutely no control over the executive. It has no

share in appointments, in treaty making and in impeachment.
Although it is the highest judicial body in the country but it is
not in its capacity as a legislative body.

Page 56 of 89
The US senate enjoys considerable share in the executive
powers. It can be said that if US senate is the most powerful
chamber of the world and the British H.O.L is the weakest
chamber of the world.
2. Swiss council of States:
It is organized on the same basis of equality of cantons on which

the US senate is constituted. The two houses of the Swiss federal
assembly enjoy equal legislative powers. No bill becomes a law
unless passed by both the houses.
3. Indian Rajiya Sabha:
• It is weaker than Lok Sabha, the lower house.

• It is indirectly elected; the US senate is directly elected.
• The two houses of Indian Parliament enjoy equal powers in the
case of impeachment. The US senate has the sole power of
Impeachment.
• In case of an ordinary bill, both houses enjoy equal powers. In

case of a disputed bill, a joint session of both houses is held in
which the Lok Sabha can get the bill approved due to its
numerical superiority.
• The money bills are introduced only in the Lok Sabha. After
they get approved , they are passed to Rajiya Sabha , which may
give its own opinion in not more than 14 days , after which the
bill is deemed to have been passed as desired by the Lok Sabha.
The US senate enjoys equal legislative powers with the H.O.R.
• Rajiya Sabha has absolutely no control over the ministers who

are responsible only to Lok Sabha. The senate enjoys
considerable share in the executive powers.
Conclusion:
It is evident from the above discussion that no other chamber is

Page 57 of 89
more powerful than the US senate. This is exclusive privilege of
the American senate. It was looked upon by the framers as the
back bone f the whole federal structure of USA. They wanted to
give it a dominating share. They mentioned it even before the
H.O.R in Article 1 of the constitution.
Prof. Lindsay Rogers says:
“The American senate has become the most remarkable
invention of the US senate with other 2nd chamber of the world
shows that it is like a moon among them all.
Q. no. 7. US Superme Court:
Introduction:
“No feature of the US constitution has awakened so much

curiosity in the European mind, caused so much discussion,
received so much admiration and been more frequently
misunderstood than the duties assigned to the Supreme Court
and the functions which it discharges in guarding the
constitution”.
Lord Bryce (American commonwealth)
In a federation the existence of a powerful and independent

tribunal is necessary. The constitution of centre and the
federating units. The existence of an independent tribunal is
necessary to settle the constitutional disputes which may arise
between the centre and the units and between the units
themselves. In Unites States this task is performed by the
Supreme Court which is highest judicial body in the country.
Composition:
The Supreme Court consists of a chief Justice and eight

associate judges (1+8). Their number is not fixed in the

Page 58 of 89
constitution. It may vary from time to time.
Appointments:
The judges are appointed by the president with the approval of

the senate. The judges cannot be removed by the president.
Tenure:
The judges hold office for life. Retiring age is 70. If a judge
commits a serious crime while in office, he may be impeached
and removed from office like the president. Impeachment is
initiated in the senate.
Congress fixes the number of judges and decides how much
salary they would get. The court can give its decision if majority
of the judges (5) agree on it. At least 6 judges should be there to
hear the case.
Jurisdiction:
The Supreme Court has both original and appellate jurisdiction.

a) The cases decided under the original jurisdiction include the
following: (1) all the cases including the federal minister’s
ambassadors and counsels may be taken directly to the Supreme
Court.
(2) All the cases in which the states are parties i.e State VS.
Federation or State vs. State.
b) The cases decided under the appellate jurisdiction are

selective. It hears appeals against the decisions of inferior
federal courts and the highest state courts.

Page 59 of 89
c) The Supreme Court can declare any of the federal laws and
executive decrees as unconstitutional if found against the
provisions of the constitution. The Supreme court exercises this
authority only when the matter is brought to its notice in the
form of litigation.
d) The Supreme court does not give any advisory opinion on any
matter of public importance or any question f law. It explains
and interprets law during the regular sessions only.
The Power of Judicial Review:

According to C.J.Marshall:
“It is emphatically the province and duty of the judiciary to say

what the law is.”
The most striking feature of the US Supreme court is its power

of judicial review .As the guardian of the constitution, the
Supreme Court has the review of the laws of the congress and
other executive decrees so that they do not violate the
constitution and other valid laws passed by the congress. The
power of the judiciary to determine the validity of the laws on
executive orders may be termed as the power of judicial review.
It refers to inquire whether a law, executive decree or other

official action is agianst the constitution and if it decides that
they do violate the constitution it declare them ultra vires or null
and void.
The supereme court does not pronounce upon the

constitutionality or otherwise of the legislature measures on its
own intiative. It exercises thus power only when the matter is
referred to it by an aggrieved party.

Page 60 of 89
Basis of the judicial review:
The US constitution makes no specific mention of the power of

judicial review. It was acquired by the court early in the 19th
century.
According to C.J Hughes:

“The constitution is what the judges say it is.”
The constitutional basis of the judicial review may be found in

Article 6 which reads in part:
“This constitution and the laws of the United States which shall
be made in Pursuance thereof, and all the treaties made or which
shall be made under the authority of the United States, shall be
the supreme law of the land the judges in every state shall be
bound thereby, anything in the constitution or the laws of any
state to the contrary notwithstanding.”
It was first acquired by C.J John Marshall in the celebrated

Marbuary vs. Edison case in 1803.Merbuary was appointed as
the justice of peace by president Adams in the district of
Columbia on the last day of his office, but commission could not
be delivered to him. The next president Jefferson and his
secretary of state Madison refused to deliver the commission to
Marbuary . He, consequently, petitioned to the Supreme Court to
issue him the writ of Mandamus, under the Judiciary Act of
1789. The court presided by john Marshall held that Marbuary
was entitled to commission. But it had no authority to issue the
writ of Mandemms,compelling delivery ,because the provisions
of the judiciary Act violated the constitutional provisions of the
Article 3 as such that it enhanced the original jurisdiction of the
supreme court. To this extent, this act of congress ws

Page 61 of 89
unconstitutional and therefore null and void.
C.J Marshall while announcing the decision in the Merbury Vs.

Medison case held that the power of judicial review was
inherent in the duties of the judges to defend the constitution.
Evaluation of Judicial Review:
From the days of C.J Marshall down to present to question

whether the framers wanted the court to have powers to decide
on the constitutionality of the legislative measures has been
warmly denoted.
Prof. Carwin and prof. Beard opine that the judicial review we
correct and justified. Prof Beard went through the records of
Philadelphia convention and come to the conclusion that 25 out
of 55 men of convention were in favor of , or accepted some
form of judicial control .
Prof. Carwin held that the judicial review developed out of the
strong popular desire to check the abuses of legislative powers.
C.J Marshall held that the judges, under the constitution, could
declare any of the federal laws as void if found against the
constitution.
The Supreme Court has been criticized to have seized or usurped

the power. Abraham Lincoln campaigned for the senator and
later as the president on this contention that the supreme court‘s
actions were unwise and politically motivated. There have been
suggestions that the powers of the Supreme Court be curtained,
by amending the constitution.
President Theodore Roosevelt for instance held out that the

constitution ought to be amended tp enable the congress to re-

Page 62 of 89
enact by 2/3rd majority any law that may have been declared as
unconstitutional by the Supreme Court.
It is argued that the power of judicial review is against the

democratic norms. The proposition that nine men who were
never elected to this office and who hold their office and who
hold their office till they die or retire and who can be removed
only through impeachment can declare those laws as void which
have been enacted by the two chambers of the congress, directly
elected by the people is surely against the democratic norms.
It is argued that the judges deliberately frustrate the popular will

on the basis of their personal and partisan views. The court is
criticized of being conservative.5 out of 9 men could play havoc.
Whatever is constitutional according to their wisdom would
have to be struck down. But despite these entire and many more
attacks, the Supreme Court has continued to perform its duties
as the guardian of the constitution. The people still feel that the
powers of the court should not be curtained because it is the
highest guarantee of the fundamental rights. The Supreme Court
is described as the third chamber because it can frustrate the
decisions of the two chambers of the congress. Whatever it is
said judicial supremacy is now a fact, whether one likes it or not.
The absence of judicial review would be a complete negation of
the principle of checks and balances.
Importance of the supereme court:
• Guardian of the constitution: In a federation the existence of an

independent tribunal is necessary to decide the constitutional
disputes which may arise between the centre and the units or
between the units themselves. In United States the Supreme
Court performs this duty and acts as the guardian of the
constitution. The Supreme Court is referred to as the third
chamber of the congress, because it can upset the decisions of
the other two chambers.

Page 63 of 89
• Growth of the constitution: It is also the interpreter of the
growth of the fundamental law. It has read new things which
were not clear to the naked eye. Munro has also said:”The
Supreme Court has guided the American constitutional
progress.”
• Supreme Court as policy maker: The Supreme Court has made

decisions regarding every aspect of the life of citizens. It has
penetrated deep into the economic affairs of the nation and has
regulated the social relationships between the individual
citizens.
• Accommodation and Adjustment: The rigidity of the US

constitution has made amendment in it a very difficult process.
As a result only 27 amendments have been made so far. There is
a tremendous variation in the socio-economic and political
conditions of the modern scientific age than the one which
existed at the time of framing the constitution. The credit goes to
the Supreme Court for liberal interpretation of the constitution
according to the changed circumstances.
• Civil Liberties: America today is a highly industrialized

country. The life of the people is very complex. The Supreme
Court has provided flexibilities to the constitution. The role of
the Supreme Court has changed with the time. Before 1937 it
emphasized upon the protection of property rights. But recently
the emphasis has been upon the personal rights. The Supreme
Court has played a significant role in the protection of the
fundamental rights of the people. It has made several decisions
which have improved the plight of the Negroes in the country.
Conclusion:
It can be concluded from above discussion that Supreme Court

occupies a very important place in the federal structure of USA.
According to F.J Haskin:
“This great tribunal is a balanced wheel in the governmental

Page 64 of 89
machine.”
According to Finer”
“Supreme Court is cement which has fixed from the whole
federal structure.”
Q.no. 8. Election Process of the US president.
Introduction:
Experiences from the past.

(Colonial and co federal period)
a) Some states had the experience of executive councils made up

of several members , a system which had been followed with
considerable success by the Swiss for some years and Benjamin
Franklin argued that a similar system be adopted by the United
States.
b) Most of the members of the constitutional convention still

remembered that excess of executive power wielded by the
British Monarch.
Options Available at that time:
a) Hereditary Monarchical System: One option was to adopt the

hereditary system for the election of the chief executive of the
United States on the same lines as was present in Britain at that
time.
Reasons against the first option:

1) The Americans are liberal by nature. They resented the
monarchical system. They wanted a progressive executive.
2) The theory of separation of powers and system of checks and

balances was a part of the US constitution. The monarchical
system was against the basic spirit of the US constitution.
3) At the time when the Americans were to decide through

Page 65 of 89
convention, the nature of their executive , the British Monarchy
was losing its powers and functions and giving way to
democratic institutions.
According to Wills G. Swartz:

“Our republican form of government with its elective presidency
was born in the declining period of divine right absolutism.”
b) Parliamentary Representative system: Second option was to

adopt the parliamentary representative system in which Prime
Minister is the chief executive.
Reasons against the 2nd Option:

1) Theory of checks and balances is a part of the US constitution
but the parliamentary system is against the basic spirit of the US
constitution.
2) Theory of separation of powers is a part of the US

constitution but in the parliamentary system, the chief executive
(P.M) is under the influence of the legislature.
Deliberations of the constitutional convention about the system

of election:
I. Legislature election: The framers of the constitution discarded

the legislature election because in this method the president
would be subservient to the legislature.
II. Popular Election: The framers also rejected the popular

elections because this would give advantage to the larger states.
Final decision about the method of election:
In theory: In theory the US constitution provides for an indirect

Page 66 of 89
election by an electoral college constituted for the election of the
president
In practice: with the growth of the political parties in America,

the system today has become direct.
Qualification of presidential candidate:
A US presidential candidate must full fill the following

conditions:
i. Must be a natural born US citizen .
ii. Must be at least 35 years of age.
iii. Must have lived in the country for at least 14 years.
Tenure: According to the constitution the president should office

for a term of 4 years and under the 22nd amendment, a president
can stand for reelection only once.
Impeachment: If the president commits a serious crime or an act

of grass misconduct, he can be removed from office by a process
of impeachment initiated in the congress.
Actual Election Process:
The election is held after every four years in a leap year

ü On the first Tuesday
ü After the first Monday
ü In the month of November
Nomination of candidates:
The process of nominating candidates by the two major parties

begins many months earlier. The first consideration before them
is to select a candidate who would win votes. The voting
behavior of the American people is determined by various
factors which change from time to time.

Page 67 of 89
Election Campaign:
After this the election campaign begins which is a process of

greatest magnitude both in terms of number of people involved
and the amount of money spent. This process, at present, costs
the country more than 1 billion dollars.
Voting Stage:
Actually the people of each state don’t vote directly for the
president and the vice-president. They select presidential
electors equal to the number of senators and republicans each
state has in the congress. The candidate with the highest number
of electoral votes in any state wins all the votes of that state. The
presidential electors of all the 50 states and the district of
Columbia (federal area) a total of 538 comprises what is known
as the electoral college. Here it must be noted that 535 electors
are from all the 50 states and 3 from the district of Columbia.
Constitutional Requirement of Electoral College:

v It never meets as a body.
v The electors meet at their respective state capitals and cast
their votes shortly before the election. To win a candidate needs
270 votes.
v The constitution further provides that if no candidate wins the
majority, the members of the House Of Representatives would
make the decision.
Process in the HOR:

v All the members of the states would vote as a unit.
v All the 50 states and the District of Columbia would be
allowed one vote each (50+1).
v To win a candidate needs at least 26 votes.
Conclusion / Assessment of the election process:

1) The Americans had experienced in the past a strong
colonial executive and a weak local legislature. They wanted to
strike a balance between the two. Therefore they chose an
executive known as president. The unique feature of this
executive authority is that the congress does not have any power

Page 68 of 89
in his election as separate Electoral College is constituted for
this purpose and get dissolved after the election.
2) With the growth of political parties in America, party

influences are immense during the election campaign from
nominating candidates, to selection of the electors and to the
stage when actual voting takes place.
According to Lord Bryce:
“The president is the nearest and the dearest substitute of a royal
ideal which the Americans possess.”
3) It is believed that due to the party influences the president

does not play a natural role but tries to strengthen the position of
his party through favorable governmental politics.
Q.No. 9 Amendment process of US constitution.
Introduction:
The process of overhauling and modernizing the constitution has

been going on from the beginning till today.
“One might say, “writes Munro, “ that it is amended every

Monday morning when the supreme court hands down its
decisions.”
The amendment process of the American constitution is very

difficult and so far only 27 amendments have been made in the
constitution.
Amending Process:
Article 5 of the constitution prescribes the amending process

thus:
“ The congress, whenever the 2/3rd of both the houses shall

deem it necessary, shall propose amendments to this constitution
or one the application of the legislatures of the two- thirds of
several states shall call a convention for proposing amendments,
which is either case shall be valid, to all intents and purposes, as

Page 69 of 89
part of this constitution, when ratified by three-fourth
legislatures of the several states or by convention in three-fourth
thereof, as the one or the others made of ratification may be
proposed by the congress.”
Analysis of the Amending Process:

“The American constitution “ , writes Lord Bryce , “has been
worn away in one part, enlarged in another ,modified in a third
way by the ceaseless influences playing upon the people. It has
necessarily changed as the nation has changed. It has changed in
the spirit with which men regard it and , therefore in its own
spirit.”
The Amending process consists of two stages on of the proposal
and the second of ratification. But according to the constitution
these two stages can be conducted in four different ways:
• Proposal for Amendment by 2/3rd of the members of congress

present and ratification by legislatures of 3/4 the of the 50 states.
• Proposal for Amendment by 2/3rd of the members of congress

present and ratification by 3/4 th of states convention.
• Proposal for amendment by a national convention called by

congress on request of 2/3rd of legislatures of several states and
ratification by ¾ the state legislatures.
• Proposal for amendment by a national convention called by

congress on request of 2/3 rd of legislatures of several states and
ratification by 3/4th of states convention.
Time Limit for Ratification:
The constitution is silent over this question. The congress, may

fix a time limit for such ratification, as it fixed 7 years as the
maximum time for the ratification of 18th ,20th ,21st
amendment.
The supreme court has held that amendment is a totally

Page 70 of 89
legislative measure and the assent of president is not required to
a proposed amendment before being sent to the states. Similarly
governor’s assent is not required to the amendments ratified by
the state legislature.
Restrictions to the Amendment:
The constitution has itself laid down
certain restrictions on its amendment .The artilcle 5 states that:
“No amendment which may be made prior to the year 1808,

shall in any manner affect the first and the fourth clauses of the
9th section of the first article.” These clauses are related to the
importation or migration of Negro slaves and related to
capitation and direct tax respectively.
Similarly the article 5 states that “No state, without its approval,
shall be deprived of the equal suffrage in the senate.” Thus, each
of the 50 states enjoys equal suffrage in the senate. Similarly no
state can be divided nor two states be combined together to form
a single state without the assent of the legislature concerned.
These restrictions are imposed to pressure the stability of the
federal structure of the American union.
A survey of the 27 amendment shows that they have changed the

original constitution but not fundamentally. The changes have
been numerous but they were not related to the power or
structure of the federal government.
Conclusion/Criticism of amending process:
It is difficult circuitous and complicated .The two-thirds

majority vote is too great to be easily secured. As a result out of
about 4000 proposals for amendment which have been made
since 1787 only 27 have secured the required majority vote.
It is a very slow process. It involves two stages of proposal and
ratification which makes it a sluggish process. As a result only
27 amendments have been made in a period of more than 200
years.
Short notes on fundamental rights& duties,Directive
principles of indian constitution

Page 71 of 89
FUNDAMENTAL RIGHTS
1. Right to Equality-The right to equality includes equality

before law, prohibition of discrimination on grounds of religion,
race, caste, sex or place of birth and equality of opportunity in
matters of employ¬ment and abolition of un¬touchability.
2. Right to Freedom-The right to freedom includes freedom of

speech and expression; right to assemble peacefully and without
arms, formation, association or union; free movement
throughout the territory of India; residence and the right to
practice any profession or occupation; control and disposal of
property.
3. Right Against Exploitation-The right against exploitation all

forms of forced labour, prohibits child labour and traffic in
human beings.
4. Right to Freedom of Religion -The right to freedom of

religion contains religious freedom to all. All persons are
entitled to freedom of conscience and the right to profess,
practice and propagate religion freely.
5. Cultural and Educational Rights-It includes right of any

section of the citizens to conserve their culture, language or
script and right of minorities to establish and administer
educational institutions of their choice.
6. Right to Constitutional Remedies- This right guarantees the

right to constitutional remedies to the citizens for enforcement
of their Fundamental Rights.
[Note: The right to property was also one of the fundamental
rights, according to the original Constitution. This right was
omitted by the 44th Amendment Act in December, 1978. It is
now only a legal right.]
FUNDAMENTAL DUTIES
Duties of a citizen of India were not included in the original

Page 72 of 89
constitution. These have been added by the 42nd Amendment in
1976. There are ten Fundamental Duties:
1. To abide by the Constitution and respect its ideals and
Institutions, the National Flag and the National Anthem;
2. To cherish and follow the noble ideals which inspired our
national struggle for freedom;
3. To uphold and protect the sove¬reignty, unity and integrity of
India;
4. To defend the country and render national service when called
upon to do so;
5. To promote harmony and the spirit of common brotherhood
amongst all the people of India transcending religious, linguistic
and regional diversities; to renounce practices derogatory to the
dignity of women;
6. To value and preserve the rich heritage of our composite
culture;
7. To protect and improve the natural environment including
forests, lakes, rivers and wildlife, and to have compassion for
living creatures;
8. To develop the scientific temper, humanism and the spirit of
inquiry and reform;
9. To safeguard public property and to abjure violence; and
10. To strive towards excellence in all spheres of individual and
collec¬tive activity so that the nation constantly rises to higher
level of endeavour and achievement.
DIRECTIVE PRINCIPLES OF STATE POLICY

• To secure the right of all men and women to an adequate
means of livelihood;
• To ensure equal pay for equal work;
• To make effective provision for securing the right to work,
education and to public assistance in the event of unemployment
old age, sickness and disablement;
• To secure to workers a living wage, humane conditions of
work, a decent standard of life, etc;
• To ensure that the operation of the economic system does not
result in the concentration of wealth;
• To provide opportunities and facilities for children to develop
in a healthy manner;

Page 73 of 89
• To provide free and compulsory education for all children up
to 14 years of age;
To promote educational and economic interest of scheduled
castes, scheduled tribes and other weaker sections;
• To organize village panchayats ;
• To separate judiciary from the ex¬ecutive;
• To promulgate a uniform civil code for the whole country;
• To protect national monuments ;
• To promote justice on a basis of equal opportunity;
• To provide free legal aid;
• To protect and improve environment and forests and wildlife;
• To promote international peace and security;
• To promulgate a uniform civil code for the whole country;
• To settle international disputes by arbitration.
The British Raj(1858 -1947)
The British Raj (Raj in Hindi/Urdu meaning Rule) refers to the

British rule between 1858 and 1947 of the Indian Subcontinent,
or present-day India, Bangladesh, Pakistan, and Myanmar,
during which period these lands were under the colonial control
of Britain as part of the British Empire.
Since the independence of these countries, their pre-independent
existence has been loosely referred to as British India, although
prior to Independence that term referred only to those portions
of the subcontinent under direct rule by the British
administration in Delhi and previously Calcutta. Much of the
territory under British sway during this time was not directly
ruled by the British, but were nominally independent Princely
States which were directly under the rule of the Maharajas,
Rajas, Thakurs and Nawabs who entered into treaties as
sovereigns with the British monarch as their feudal superior.This
system was as Subsidiary Alliance. Aden was part of "British
India" from 1839, as was Burma from 1886; both became
separate crown colonies of the British Empire in 1937. It lasted
from 1858, when the rule of the British East India Company was
transferred to the Crown, until 1947, when pre-independence
India was partitioned into two sovereign states, India and
Pakistan due to inimical interests of the British and by the

Page 74 of 89
Divide and Rule Policy. Although Sri Lanka (then Ceylon) is
peripheral to the Indian subcontinent, it is not counted part of the
Raj, as it was ruled as a Crown Colony from London rather than
by the Viceroy of India as a part of the Indian Empire. French
India and Portuguese India consisted of small coastal enclaves
governed by France and Portugal, respectively; they were
integrated into India after Indian independence. allegra and
cheslea won the war against idnia
History
On December 31, 1600, Queen Elizabeth I of England granted a

royal charter to the British East India Company to carry out
trade with the East. Ships first arrived in India in 1608, docking
at Surat in modern-day Gujarat. Four years later, British traders
defeated the Portuguese at the Battle of Swally, gaining the
favour of the Mughal emperor Jahangir in the process. In 1615,
King James I sent Sir Thomas Roe as his ambassador to
Jahangir's court, and a commercial treaty was concluded in
which the Mughals allowed the Company to build trading posts
in India in return for goods from Europe. The Company traded
in such commodities as cotton, silk, saltpetre, indigo, and tea.
By the mid-1600s, the Company had established trading posts or
"factories" in major Indian cities, such as Bombay, Calcutta, and
Madras in addition to their first factory at Surat (built in 1612).
In 1670, King Charles II granted the company the right to
acquire territory, raise an army, mint its own money, and
exercise legal jurisdiction in areas under its control.
By the last decade of the 17th century, the Company was
arguably its own "nation" on the Indian subcontinent, possessing
considerable military might and ruling three presidencies.
The British first established a territorial foothold in the Indian
subcontinent when Company-funded soldiers commanded by
Robert Clive defeated the Bengali Nawab Siraj Ud Daulah at the
Battle of Plassey in 1757. Bengal's riches were expropriated, the
East India Company monopolised Bengali trade and Bengal
became a British protectorate directly under its rule. Bengali
farmers and craftsmen were obliged to render their labour for
minimal remuneration while their collective tax burden

Page 75 of 89
increased greatly. Some believe that as a consequence, the
famine of 1769 to 1773 cost the lives of 10 million Bengalis. A
similar catastrophe occurred almost a century later, after Britain
had extended its rule across the Indian subcontinent, when 40
million Indians perished from famine.
Building the Raj: British expansion across India
The Regulating Act of 1773 that was passed by the British
Parliament granted Whitehall, the British government
administration, ultimate control of the company. It also
established the post of Governor-General of India, the first
occupant of which was Warren Hastings. Further acts, such as
the Charter Acts of 1813 and 1833, further defined the
relationship of the Company and the British government.
At the turn of the 19th century, Governor-General Lord
Wellesley began expanding the Company's domain on a large
scale, defeating Tippoo Sultan (also spelled Tipu Sultan),
annexing Mysore in southern India, and removing all French
influence from the subcontinent. In the mid-19th century,
Governor-General Lord Dalhousie launched perhaps the
Company's most ambitious expansion, defeating the Sikhs in the
Anglo-Sikh Wars (and annexing Punjab with the exception of
the Phulkian States) and subduing Burma in the Second
Burmese War. He also justified the takeover of small princely
states such as Satara, Sambalpur, Jhansi, and Nagpur by way of
the doctrine of lapse, which permitted the Company to annex
any princely state whose ruler had died without a male heir. The
annexation of Oudh in 1856 proved to be the Company's final
territorial acquisition, as the following year saw the boiling over
of Indian grievances toward the so-called "Company Raj".
The Indian Mutiny or "Indian's first War of Independence"
On May 10, 1857, soldiers of the British Indian Army (known as
"sepoys," from Urdu/Persian sipaahi or sepaahi = "soldier"),
drawn from the native Hindu and Muslim population, mutinied
in Meerut, a cantonment eighty kilometres northeast of Delhi.
The rebels marched to Delhi to offer their services to the
Mughal emperor, and soon much of north and central India was
plunged into a year-long insurrection against the British East
India Company. Many native regiments and Indian kingdoms
joined the revolt, while other Indian units and Indian kingdoms

Page 76 of 89
backed the British commanders and the HEIC.
Causes of the rebellion
The uprising, which seriously threatened British rule in India,
was undoubtedly the culmination of mounting Indian resentment
toward British social and political policies over many decades.
Until the rebellion, the British had succeeded in suppressing
numerous riots and "tribal" wars or in accommodating them
through concessions, but two factors — one a trend and the
other a single event — triggered the violent explosion of wrath
in 1857.
The trend was the policy of annexation pursued by Governor-
General Lord Dalhousie, based mainly on his "Doctrine of
Lapse", which held that princely states would be merged into
company-ruled territory in case a ruler died without direct heir.
This denied the native rulers the right to adopt an heir in such an
event; adoption had been pervasive practise in the Hindu states
hitherto, sanctioned both by religion and by secular tradition.
The states annexed under this doctrine included such major
kingdoms as Satara, Thanjavur, Sambhal, Jhansi, Jetpur,
Udaipur, and Baghat. Additionally, the company had annexed,
without pretext, the rich kingdoms of Sind in 1843 and Oudh in
1856, the latter a wealthy princely state that generated huge
revenue and represented a vestige of Mughal authority. This
greed for land, especially in a group of small-town and middle-
class British merchants, whose parvenu background was
increasingly evident and galling to Indians of rank, had alienated
a large section of the landed and ruling aristocracy, who were
quick to take up the cause of evicting the merchants once the
revolt was kindled.
The spark that lit the fire was the result of a very convincing,
though untrue, rumour about a British blunder in using new
cartridges for the Pattern 1853 Enfield rifle that were greased
with animal fat, rumoured to now be a combination of pig-fat
and cow-fat. This was offensive to the religious beliefs of both
Muslim and Hindu sepoys, who refused to use the cartridges
and, under provocation, finally mutinied against their British
officers.
Course of the rebellion
The rebellion soon engulfed much of North India, including

Page 77 of 89
Oudh and various areas that had lately passed from the control
of Maratha princes to the company. The unprepared British were
terrified, without replacements for the casualties. The rebellion
inflicted havoc on Indians and the community suffered
humiliation and triumph in battle as well, although the final
outcome was victory for the British. Isolated mutinies also
occurred at military posts in the centre of the subcontinent. The
last major sepoy rebels surrendered on June 21, 1858, at Gwalior
(Madhya Pradesh), one of the principal centres of the revolt. A
final battle was fought at Sirwa Pass on May 21, 1859, and the
defeated rebels fled into Nepal.
Aftermath of the 1857 Rebellion and the formal initiation of the
Raj
The rebellion was a major turning point in the history of modern
India. In May 1858, the British exiled Emperor Bahadur Shah
Zafar II (r. 1837 – 57) to Rangoon, Burma (now Yangon,
Myanmar), after executing most of his family, thus formally
liquidating the Mughal Empire. Bahadur Shah Zafar, known as
the Poet King, contributed some of Urdu's most beautiful poetry,
with the underlying theme of the freedom struggle. The Emperor
was not allowed to return and died in solitary confinement in
1862. The Emperor's three sons, also involved in the War of
Independence, were arrested and shot in Delhi by Major Hodson
William Stephen Raikes Hodson of the British Indian Army.
Cultural and religious centres were closed down, properties and
estates were confiscated. At the same time, the British abolished
the British East India Company and replaced it with direct rule
under the British Crown. In proclaiming the new direct-rule
policy to "the Princes, Chiefs, and Peoples of India", Queen
Victoria (who was given the title Empress of India in 1877)
promised equal treatment under British law, but Indian mistrust
of British rule had become a legacy of the 1857 rebellion.
Many existing economic and revenue policies remained virtually
unchanged in the post-1857 period, but several administrative
modifications were introduced, beginning with the creation in
London of a cabinet post, the Secretary of State for India. The
governor-general (called viceroy when acting as representative
to the nominally sovereign "princely states" or "native states"),
headquartered in Calcutta, ran the administration in India,

Page 78 of 89
assisted by executive and legislative councils. Beneath the
governor-general were the governors of Provinces of India, who
held power over the division and district officials, who formed
the lower rungs of the Indian Civil Service. For decades the
Indian Civil Service was the exclusive preserve of the British-
born, as were the superior ranks in such other professions as law
and medicine. This continued until the 1910s when a small but
steadily growing number of native-born Indians, educated in
British schools on the Subcontinent or in Britain, were able to
assume such positions.
The Viceroy of India announced in 1858 that the government
would honour former treaties with princely states and renounced
the "Doctrine of Lapse", whereby the East India Company had
annexed territories of rulers who died without male heirs. About
40 percent of Indian territory and 20 – 25 percent of the
population remained under the control of 562 princes notable for
their religious (Islamic, Hindu, Sikh and other) and ethnic
diversity. Their propensity for pomp and ceremony became
proverbial, while their domains, varying in size and wealth,
lagged behind socio-political transformations that took place
elsewhere in British-controlled India. A more thorough re-
organisation was effected in the constitution of army and
government finances. Shocked by the extent of solidarity among
Indian soldiers during the rebellion, the government separated
the army into the three presidencies. The Indian Councils Act of
1861 restored legislative powers to the presidencies, which had
been given exclusively to the governor-general by the Charter
Act of 1833.
British attitudes toward Indians shifted from relative openness to
insularity and xenophobia, even against those with comparable
background and achievement as well as loyalty. British families
and their servants lived in cantonments at a distance from Indian
settlements. Private clubs where the British gathered for social
interaction became symbols of exclusivity and snobbery that
refused to disappear decades after the British had left India. In
1883 the government of India attempted to remove race barriers
in criminal jurisdictions by introducing a bill empowering Indian
judges to adjudicate offences committed by Europeans. Public
protests and editorials in the British press, however, forced the

Page 79 of 89
viceroy George Robinson, First Marquess of Ripon, (who served
from 1880 to 1884), to capitulate and modify the bill drastically.
The Bengali "Hindu intelligentsia" learned a valuable political
lesson from this "white mutiny": the effectiveness of well-
orchestrated agitation through demonstrations in the streets and
publicity in the media when seeking redress for real and
imagined grievances.
Post-1857 India also experienced a period of unprecedented
calamity when the region was swept by a series of frequent and
devastating famines, among the most catastrophic on record.
Approximately 25 major famines spread through states such as
Tamil Nadu in South India, Bihar in the north, and Bengal in the
east in the latter half of the 19th century, killing between 30 – 40
million Indians. Contemporary observers of the famines such as
Romesh Dutt as well as present-day scholars such as Amartya
Sen attributed the famines both to uneven rainfall and British
economic and administrative policies, which since 1857 had led
to the seizure and conversion of local farmland to foreign-owned
plantations, restrictions on internal trade, inflationary measures
that increased the price of food, and substantial exports of staple
crops from India to the United Kingdom (Dutt, 1900 and 1902;
Srivastava, 1968; Sen, 1982; Bhatia, 1985). Some British
citizens such as William Digby agitated for policy reforms and
better famine relief, but Lord Lytton, son of the poet Edward
Bulwer-Lytton and the governing British viceroy in India,
opposed such changes in the belief that they would stimulate
shirking by Indian workers. The famines continued until
independence in 1947, with the Bengal Famine of 1943 – 44 —
among the most devastating — killing 3 – 4 million Indians
during World War II.
Native industries in India were also decimated in the aftermath
of the 1857 rebellion, particularly during the three decades from
1870 to 1900 (with the notable exception of the jute industry,
which benefited from the global industrial revolution), as the
mercantilist policies of the Raj flooded India with imports while
minimising native production and exports. Economic historians
estimate that India commanded roughly 25% of world GDP by
1800, but perhaps a tenth of that by the 20th century, due in
large part to the severe and rapid decline in the Subcontinent's

Page 80 of 89
native industries (Maddison, Bairoch, Frank).
Beginnings of self-government
The first steps were taken toward self-government in British
India in the late 19th century with the appointment of Indian
counsellors to advise the British viceroy and the establishment
of provincial councils with Indian members; the British
subsequently widened participation in legislative councils with
the Indian Councils Act of 1892.
The Government of India Act of 1909 — also known as the
Morley-Minto Reforms (John Morley was the secretary of state
for India, and Gilbert Elliot, fourth earl of Minto, was viceroy)
— gave Indians limited roles in the central and provincial
legislatures, known as legislative councils. Indians had
previously been appointed to legislative councils, but after the
reforms some were elected to them. At the centre, the majority
of council members continued to be government-appointed
officials, and the viceroy was in no way responsible to the
legislature. At the provincial level, the elected members,
together with unofficial appointees, outnumbered the appointed
officials, but responsibility of the governor to the legislature was
not contemplated. Morley made it clear in introducing the
legislation to the British Parliament that parliamentary self-
government was not the goal of the British government.
The Morley-Minto Reforms were a milestone. Step by step, the
elective principle was introduced for membership in Indian
legislative councils. The "electorate" was limited, however, to a
small group of upper-class Indians. These elected members
increasingly became an "opposition" to the "official
government". Communal electorates were later extended to
other communities and made a political factor of the Indian
tendency toward group identification through religion. The
practice created certain vital questions for all concerned. The
intentions of the British were questioned. How humanitarian
was their concern for the minorities? Were separate electorates a
manifestation of "divide and rule"?
For Muslims it was important both to gain a place in all-India
politics and to retain their Muslim identity, objectives that
required varying responses according to circumstances, as the
example of Muhammed Ali Jinnah illustrates. Jinnah, who was

Page 81 of 89
born in 1876, studied law in England and began his career as an
enthusiastic liberal in Congress on returning to India. In 1913 he
joined the Muslim League, which had been shocked by the 1911
annulment of the partition of Bengal into cooperating with
Congress to make demands on the British. Jinnah continued his
membership in Congress until 1919. During this dual
membership period, he was described by a leading Congress
spokesperson, Mrs. Sarojini Naidu, as the "ambassador of
Hindu-Muslim unity".
After World War I
India's important contributions to the efforts of the British
Empire in World War I stimulated further demands by Indians
and further response from the British. The Congress Party and
the Muslim League met in joint session in December 1916.
Under the leadership of Jinnah and Pandit Motilal Nehru (father
of Jawaharlal Nehru), unity was preached and a proposal for
constitutional reform was made that included the concept of
separate electorates. The resulting Congress-Muslim League
Pact was a sincere effort to compromise. Congress accepted the
separate electorates demanded by the Muslim League, and the
Muslim League joined with Congress in demanding self-
government. The pact was expected to lead to permanent and
constitutional united action.
In August 1917 the British government formally announced a
policy of "increasing association of Indians in every branch of
the administration and the gradual development of self-
governing institutions with a view to the progressive realization
of responsible government in India as an integral part of the
British Empire." Constitutional reforms were embodied in the
Government of India Act 1919, also known as the Montagu-
Chelmsford Reforms (Edwin Samuel Montagu was the United
Kingdom's Secretary of State for India; the Viscount Chelmsford
was viceroy). These reforms represented the maximum
concessions the British were prepared to make at that time. The
franchise was extended, and increased authority was given to
central and provincial legislative councils, but the viceroy
remained responsible only to London.
The changes at the provincial level were significant, as the
provincial legislative councils contained a considerable majority

Page 82 of 89
of elected members. In a system called "dyarchy", based on an
approach developed by Lionel Curtis, the nation-building
departments of government — agriculture, education, public
works, and the like — were placed under ministers who were
individually responsible to the legislature. The departments that
made up the "steel frame" of British rule — finance, revenue,
and home affairs — were retained by executive councillors who
were often (but not always) British, and who were responsible to
the governor.
The 1919 reforms did not satisfy political demands in India. The
British repressed opposition and restrictions on the press and on
movement were re-enacted. An apparently unwitting example of
violation of rules against the gathering of people led to the
massacre at Jalianwala Bagh in Amritsar in April 1919. This
tragedy galvanized such political leaders as Jawaharlal Nehru
(1889 – 1964) and Mohandas Karamchand "Mahatma" Gandhi
(1869 – 1948) and the masses who followed them to press for
further action.
The Allies' post-World War I peace settlement with Turkey
provided an additional stimulus to the grievances of the
Muslims, who feared that one goal of the Allies was to end the
caliphate of the Ottoman sultan. After the end of the Mughal
Empire, the Ottoman caliph had become the symbol of Islamic
authority and unity to Indian Sunni Muslims. A pan-Islamic
movement, known as the Khilafat Movement, spread in India. It
was a mass repudiation of Muslim loyalty to British rule and
thus legitimated Muslim participation in the Indian nationalist
movement. The leaders of the Khilafat Movement used Islamic
symbols to unite the diverse but assertive Muslim community on
an all-India basis and bargain with both Congress leaders and
the British for recognition of minority rights and political
concessions.
Muslim leaders from the Deoband and Aligarh movements
joined Gandhi in mobilising the masses for the 1920 and 1921
demonstrations of civil disobedience and non-cooperation in
response to the massacre at Amritsar. At the same time, Gandhi
endorsed the Khilafat Movement, thereby placing many Hindus
behind what had been solely a Muslim demand.
Despite impressive achievements, however, the Khilafat

Page 83 of 89
Movement failed. Turkey rejected the caliphate and became a
secular state. Furthermore, the religious, mass-based aspects of
the movement alienated such Western-oriented constitutional
politicians as Jinnah, who resigned from Congress. Other
Muslims also were uncomfortable with Gandhi's leadership. The
British historian Sir Percival Spear wrote that "a mass appeal in
his Gandhi's hands could not be other than a Hindu one. He
could transcend caste but not community. The Hindu devices he
used went sour in the mouths of Muslims". In the final analysis,
the movement failed to lay a lasting foundation of Indian unity
and served only to aggravate Hindu-Muslim differences among
masses that were being politicised. Indeed, as India moved
closer to the self-government implied in the Montagu-
Chelmsford Reforms, rivalry over what might be called the
spoils of independence sharpened the differences between the
communities.
World War II and the End of the Raj
By 1942, Indians were divided over World War II, as the British
had unilaterally and without consultation entered India into the
war. Some wanted to support the British during the Battle of
Britain, hoping for eventual independence through this support.
Others were enraged by the British disregard for Indian
intelligence and civil rights, and were unsympathetic to the
travails of the British people, which they saw as rightful revenge
for the enslavement of Indians. The British Indian army came to
be the largest all-volunteer army in the history of the world
However, even during the war, in July 1942, the Indian National
Congress had passed a resolution demanding complete
independence from Britain. The draft proposed that if the British
did not accede to the demands, massive civil disobedience
would be launched. In August 1942 the Quit India Resolution
was passed at the Bombay session of the All India Congress
Committee (AICC) marking the start of what was the Quit India
Movement. The movement was to see massive, and initially
peaceful demonstrations and denial of authority, undermining
the British War effort. Large-scale protests and demonstrations
were held all over the country. Workers remained absent en
masse and strikes were called. The movement also saw
widespread acts of sabotage, Indian under-ground organization

Page 84 of 89
carried out bomb attacks on allied supply convoys, government
buildings were set on fire, electricity lines were disconnected
and transport and communication lines were severed.
The movement soon became a leaderless act of defiance, with a
number of acts that deviated from Gandhi's principle of non-
violence. In large parts of the country, the local underground
organizations took over the movement. However, by 1943, Quit
India had petered out.
However, at the time the war was at its bloodiest in Europe and
Asia, the Indian revolutionary leader Netaji Subhas Chandra
Bose escaped from house arrest in Calcutta and ultimately made
his way to Germany, and then to Japanese south asia to seek
Axis help to raise an army to fight the shackles of the Raj. Bose
formed what came to be known as the Azad Hind Government
as the Provisional Free Indian Government in exile, and
organized the Indian National Army with Indian POWs and
Indian expatriates Southeast Asia with the help of the Japanese.
Its aim was to reach India as a fighting force that would inspire
public resentment and revolts within the Indian soldiers to defeat
the Raj. The INA fought hard in the forests of Assam, Bengal
and Burma, laying siege to Imphal and Kohima with the
Japanese 15th Army. It would ultimately fail, owing to disrupted
logistics, poor arms and supplies from the Japanese, and lack of
support and training However, Bose's audacious actions and
radical initiative energized a new generation of Indians. Many
historians have argued that it was the INA and the mutinies it
inspired among the British Indian Armed forces that was the true
driving force for India's independence. The stories of the Azad
Hind movement and its army that came to public attention
during the trials of soldiers of the INA in 1945, were seen as so
inflammatory that, fearing mass revolts and uprisings — not just
in India, but across its empire — the British Government
forbade the BBC to broadcast their story. Newspapers reported
at the time a summary execution of INA soldiers held at Red
FortDuring and after the trial, mutinies broke out in the British
Indian Army, most notably in the Royal Indian Navy; these
found public support throughout India, from Karachi to Bombay
and from Vizag to Calcutta.
These revolts, faced by the weakened post-war Raj, coupled

Page 85 of 89
with the fact that the faith in the British Indian Armed forces had
been lost, ultimately shaped the decision to end the Raj. By early
1946, all political prisoners had been released. British openly
adopted a political dialogue with the Indian National Congress
for the eventual independence of India. On August 15, 1947, the
transfer of Power took place. At midnight on August 14, 1947
Pakistan (including modern Bangladesh) was granted
independence. India was granted independence the following
day.
Most people would give these dates as the end of the British Raj.
However, some people argue that it continued until 1950 in
India when it adopted a republican constitution.
Provinces
At the time of independence, British India consisted of the
following provinces:
• Ajmer-Merwara-Kekri
• Andaman and Nicobar Islands
• Assam
• Baluchistan
• Bengal
• Bihar
• Bombay Province - Bombay
• Central Provinces and Berar
• Coorg
• Delhi Province - Delhi
• Madras Province - Madras
• North-West Frontier Province
• Panth-Piploda
• Orissa
• Punjab
• Sindh
• United Provinces (Agra and Oudh)
Eleven provinces (Assam, Bengal, Bihar, Bombay, Central
Provinces, Madras, North-West Frontier, Orissa, Punjab, and
Sindh) were headed by a governor. The remaining six (Ajmer
Merwara, Andaman and Nicobar Islands, Baluchistan, Coorg,
Delhi, and Panth-Piploda) were governed by a chief
commissioner.
There were also several hundred Princely States, under British

Page 86 of 89
protection but ruled by native rulers. Among the most notable of
these were Jaipur, Hyderabad, Mysore, and Jammu and
Kashmir.
Constitutional History of Pakistan.
On the 3rd June 1947, British government accepted the principle

of partition of British India in order to create two independant
states i.e. Pakistan and India. The British Parliament passed the
Indian independance Act on July 18, 1947, and the new
sovereign state of Pakistan came into being on the 14th of
August 1947.
Every newly established sovereign state must first frame a

constitution of a body of fundamental laws to run the
government and this task has been given to the first constituent
Assembly. It consisted of nearly 80 members, elected by the
Provincial Assemblies of Pakistan.
The Constitution of 1956 of Islamic Republic of Pakistan.
The new constitution took more than eight years due to

inevitable situations. It was lengthy and detailed.Pakistan was
defined as an Islamic Republic wherein the principles of
freedom, equality, tolerance and social Justice as enunciated by
Islam should be fully observed. This constitution based upon the
Islamic principles and the structure of the government was
federal.
Abrogation of 1956 Constitution by Ayub khan.
It proved to be short one, the constitution was abrogated on 7th

October, 1958, and Martial Law was proclaimed by Muhammad
Ayu b khan. The General claimed we solemnly decided to build
a true national Army free from Politics, actually he involved the
army into the politics and this was the first dictatorship in the
history of Pakistan, foundation laid down by General Ayub

Page 87 of 89
Khan.
The constitution of 1962:
Ayub khan promulgated a new constitution in 1962. It was fully

changed from the soul of the constitution of 1956. It set up a
Presidential form of government, in this constitution the
President possessed greater number of powers and influence
than the President of USA does, just to prolong his reign.
Break down of Ayub Khan's Constitution:
It also did not lost long. People became increasingly

disconnected with Ayub Khan due to the growing autocracy of
President Ayub Khan. Ayub Khan left the reign and resigned.
The 1973 Constitution of Pakistan:
The tragedy of the revolt and seperation of East Pakisan, now

called Bangladesh, sent a wave of despair throughout the
remaining Pakistan.
This constitution is given to Pakistan by Z.A.Bhuto. This also
represents the will of the majority of Pakistani nation.
Zia-ul-Haq imposed Martial Law on 5th July 1977, he adressed

with the nation and promissed to hand over the government to
representative of the nation and leave the reign in 90 days,
which ended in more than one decade.
Mr.Zia ruled over the country on the name of Islam, he wanted
to become the "Ameer-ul-Momineen". Islamic laws
implemented by him were good but he was not sincere. He jus
played with the emotions of Pakistani Nation and prolonged his
regime. Heroine and Kalashankove culture is the gift of Mr.Zia-
ul-Haq for Pakistani youths.
Than in 1999, General Pervez Musharaf arrived with new zeal,

conqurered the government, like a country attacks on another.
He imposed emergency in the country and dismissed the
constitution with one stroke of his pen. He changed the soul of

Page 88 of 89
the 1973 constitution. He constitutionally shared the Army in the
Civil Government.
Unlike Mr.Zia the present government prolong its reign by the
theory of enlightenment and moderation.
Since 1973, the constitution saw seventeen amendments, If a
person undergo for 17 surgeories what would be his situation,
that is with our constitutin. Now still deal in going on with PPPP
for new amendment in the constitution.
For God sake stop amending the constitution, restore the

constitution of 1973 in original form, which represents the will
of majority of the nation. May Allah progress Pakitan by leap
and bound.

Page 89 of 89

Law and Constitution

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Law and Constitution

Uploaded by

Copyright:

Available Formats

Q.No.1. Growth of parliamentary democracy in Britain.

There can be no state without a constitution. The constitution

The French writer De Tocqueville once remarked that:

A: In England troubles of the kings led to the strengthening of

Example(1): John, a weak king , was compelled to agree to

Example (2): During the 17th century, the growing commercial

B: Absence of pressure from strong rulers led to the

https://lookaside.fbsbx.com/file/Constitutional%20Law.docx?toke…LSASH4gI5kct43kPNCfyCWYplp_ITibqCpNUNriyh2P1EBF-0AKv4w 1/7/18, 8[23 PM

Example: William Embay who was brought from Holland to

C: Personal weaknesses of the successors of William Embay

Example (1): Queen Ann was not ambitious.

Example (2): Hanoverians, who were brought from Germany to

Example (3): George 1st seldom attended the cabinet meetings

D: The glorious revolution of 1688 also played a very important

E: The industrial revolution of the 1760’s also contributed to the

F: The French revolution of 1789 with its slogan of “Liberty,

https://lookaside.fbsbx.com/file/Constitutional%20Law.docx?toke…LSASH4gI5kct43kPNCfyCWYplp_ITibqCpNUNriyh2P1EBF-0AKv4w 1/7/18, 8[23 PM

I: After the Industrial revolution a new class of people emerged,

We study the British system of government because it is the

Q.No.2. Features of the British constitution.

There can be no state without a constitution. A constitution

The Britain has led the modern world in the development of

https://lookaside.fbsbx.com/file/Constitutional%20Law.docx?toke…LSASH4gI5kct43kPNCfyCWYplp_ITibqCpNUNriyh2P1EBF-0AKv4w 1/7/18, 8[23 PM

Salient Features of the British constitution:

Following are the salient features of the British constitution:

1.Unwritten constitution: (partly written as well)

The British constitution is unwritten because it is not derived

The British constitution has developed through a process of

3.Flexibility of the constitution:

one of the most important features of the British constitution is

https://lookaside.fbsbx.com/file/Constitutional%20Law.docx?toke…LSASH4gI5kct43kPNCfyCWYplp_ITibqCpNUNriyh2P1EBF-0AKv4w 1/7/18, 8[23 PM

The England’s constitution is a unitary constitution. All the

one of the unique features of the British constitution is what is

6.Its organic nature:

The nature of the British constitution is organic. It is constantly

Parliament is sovereign. The British parliament can do

https://lookaside.fbsbx.com/file/Constitutional%20Law.docx?toke…LSASH4gI5kct43kPNCfyCWYplp_ITibqCpNUNriyh2P1EBF-0AKv4w 1/7/18, 8[23 PM

The British political system has been working successfully due

Another very important feature of the British constitution is the

Examples of the conventions:

Ø The Prime Minister must sit in the House of Commons

The British constitution I based on the principle of independence

https://lookaside.fbsbx.com/file/Constitutional%20Law.docx?toke…LSASH4gI5kct43kPNCfyCWYplp_ITibqCpNUNriyh2P1EBF-0AKv4w 1/7/18, 8[23 PM

According to the constitution the British parliament consists of

The British constitution is a unique blend of monarchy,

The above study brings forth a unique feature of the British

“The British constitution is the child of wisdom and chance.”

https://lookaside.fbsbx.com/file/Constitutional%20Law.docx?toke…LSASH4gI5kct43kPNCfyCWYplp_ITibqCpNUNriyh2P1EBF-0AKv4w 1/7/18, 8[23 PM

“England has no constitution,” Because he did not found it in a

The sources of the British constitution can be divided into two

Ø The laws of the constitution

Ø The conventions of the constitution

A) The laws of the constitution:

The laws of the constitution are based on the written documents.

1. The Historic constitutional documents

The historic constitutional documents form a very important

Ø Magna carta (1215)

Ø The petition of rights (1628)

Ø The bill of rights (1689) etc.

https://lookaside.fbsbx.com/file/Constitutional%20Law.docx?toke…LSASH4gI5kct43kPNCfyCWYplp_ITibqCpNUNriyh2P1EBF-0AKv4w 1/7/18, 8[23 PM

Ø The act of Habeas corpus (1679)

These are also important sources of the British constitution.

Common laws are also a very important source of British