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Salient Features

• Unwritten

One of the most important features of the British constitution is its unwritten character. There is no such thing as a written, precise and compact document, which may be called as the British constitution. The main reason for this is that it is based on conventions and political traditions, which have not been laid down in any document, unlike a written constitution, which is usually a product of a constituent assembly.

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

• Evolutionary

The British constitution is a specimen of evolutionary development. It was never framed by any constituent assembly. It has an unbroken continuity of development over a period of more than a thousand years. It is said that the British Constitution is a product of wisdom and chance.

The Indian Constitution has certain similarities as well as differences on this particular aspect. It differs from the British Constitution to the extent that it is a written document and has well defined provisions. However, it too is open to evolution, given that the provision of

However, it too is open to evolution, given that the provision of an amendment is kept such, so as to allow for the Constitution to evolve according to the needs and sensibilities of the time.

• Flexibility

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 It can be passed, amended and repealed by a Simple Majority (50% of the members present and voting) of the Parliament, since no distinction is made between a constitutional law and an ordinary law.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

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

• Unitary vs. Federal Features

The British constitution has a unitary character as opposed to a federal one. All powers of the government are vested in the British Parliament, which is a sovereign body. Executive organs of the state are subordinate to the Parliament, exercise delegated powers and are answerable to it. There is only one legislature. England, Scotland, Wales etc. are administrative units and not politically autonomous units. The Indian Constitution, on the other hand, is federal.

• Parliamentary Executive

This is one important similarity between the British and the Indian Constitution. (In addition to the Sovereignty of Parliament)

Britain has a Parliamentary form of government. The King, who is sovereign, has been deprived of all his powers and authority. The real functionaries are Ministers, who belong to the majority party in the Parliament and remain in office as long as they retain its confidence.

The Prime Minister and his Ministers are responsible to the legislature for their acts and policies. In this system, the executive and legislature are not separated, as in the Presidential form of government

• Sovereignty of Parliament

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

The British Parliament is the only legislative body in the country with unfettered power of legislation. It can make, amend or repeal any law. Though in India’s case, we have legislature at state level too, yet the law making power of the Indian Parliament roughly corresponds to that of the British Parliament.

The courts have no power to question the validity of the laws passed by the British Parliament. The British Parliament may amend the constitution on its own authority, like an ordinary law of the land. It can make illegal what is legal and legalize what is illegal.

Here, there is a marked difference, vis-à-vis the power of Indian Judiciary to keep a tab on the legality of the law framed. Also, the ‘Basic Structure’ doctrine, lends the Indian Judiciary further power to question the legality of the law, in light of the fact that the Supreme Court of India is the highest interpreter of the Constitution of India.

• Role of Conventions

Conventions are known as unwritten maxims (rules) of the Constitution. They provide flexibility and avoid amendments.

Most constitutions of the world have conventions. A necessary corollary to the unwritten character of the British Constitution is that conventions play a very vital role in the British political system. For example, while the Queen has the prerogative to refuse assent to a measure passed by the British Parliament, but by convention, she doesn’t do so and the same has become a principle of the constitution itself.

However, the legal status of conventions is subordinate to the written law.

• Rule of Law

Another important feature of the British constitution is the Rule of Law. Constitutionalism or limited government is the essence of Rule of Law. This checks the arbitrary action on part of the Executive. According to Dicey, there are three principles of Rule of Law, found in Britain:

1. Protection from arbitrary arrest and the opportunity to defend oneself.
2. Equality before Law:All persons are equal before law, irrespective of their position or rank. Equality before Law is different from the concept of Administrative Law, which gives immunity of various types to public servants. In the absence of Constitution and Fundamental Rights in Britain, the judiciary protects this law. So this system is called as the Principle of Common Laws (in USA – Principle of Natural Law; in India – Maneka Gandhi case).
3. The rights of people in Britain are guaranteed by the judiciary. The Judiciary gives recognition to the common laws. Thus, the people in Britain enjoy rights, even in the absence of a Bill of Rights or Fundamental Rights.

However it has been seen that Rule of Law isn’t practiced in its real sense.

Several reasons are attributed for it:

1. Growth of Administrative Law
2. Growth of Delegated Legislation
3. Internal and External Emergencies

These developments have been termed as ‘New Despotism’.

• Independence of Judiciary

The Rule of Law in Britain is safeguarded by the provision that judges can only be removed from office for serious misbehavior and according to a procedure requiring the consent of both the Houses of Parliament. So, the judges are able to give their judgments without any fear or favor.

The same has been adopted in India, where independence of Judiciary is hailed as an unmistakable part of the Constitution (one of the features of the ‘Basic Structure’ doctrine).

Organs of the State

Executive

The Executive in Britain is called as Crown. Earlier, the Crown symbolized King. Now, the King is part of the Crown.

The Crown, as an institution, consists of the following:

1. King
2. Prime Minister
3. Council of Ministers (CoM)
4. Permanent Executive, the Civil Servants
5. Privy Council

1. Crown: King is dead. Long live the King. In Britain, initially all power lied with the King. Later on, power shifted out of the institution of the King to the institution of CoM headed by the P.M., Permanent Executive and the Privy Council etc. Today, the Crown comprises of all these institutions. Hence, the first part of the statement describes the King as a person, while the second part describes the King or Crown as an institution.

2. Nature of Monarchy: Britain has a constitutional monarchy and a constitutional monarchy is not incompatible with democracy. This is because essentially the powers of the monarch as head of the state – currently Queen Elizabeth II – are ceremonial. The most important practical power is the choice of the Member of Parliament to form a government, but invariably the monarch follows the convention that this opportunity is granted to the leader of the political party or coalition, which has majority in the House of Commons.

Despite its lack of real power, the monarchy still has several important roles to play in contemporary Britain. These include:

• Representing UK at home and abroad
• Settings standards of citizenship and family life
• Uniting people despite differences
• Allegiance of the armed forces
• Maintaining continuity of British traditions
• Preserving a Christian morality

In addition, consider the following:

Parliamentary system requires two heads:

• First head, as head of the state. He represents the nation and provides continuity to the administration.
• Second head is the head of the government. He has real powers because the house has confidence in the Prime Minister. The P.M. is the leader of the House. He represents the majority of the House.

The institution of kingship is a source of psychological satisfaction. It is said that, “with the King in the Buckingham Palace, the Englishmen sleep peacefully in their houses”. The King is of great help in critical times. He usually has a very long experience and can give valuable advice in the interest of the country.

According to Bagehot, the King has three rights:

• Right to warn
• Right to encourage
• Right to be informed

Abolishing the kingship will require an elected head. An elected head, with no real powers, will have its own set of problems. In contrast, no provision of Monarchy exists in case of Indian Constitution. Indeed, holding of titles like King etc. are forbidden as per Article 18, a Fundamental Right, thus emphasizing Equality of all Indian citizens.

3. British Prime Minister and the Council of Ministers: Britain has a Cabinet form of government. A cabinet is a plural or collegiate form of government. The power doesn’t lie in one person, but the entire Council of Ministers. The principle is, “all Ministers sink and swim together”. It is based on collective responsibility towards the Lower House. The Cabinet has its origins in the Privy Council set up to advise the King. The roles of cabinet include the following:

• Approving policy (major policy making body)
• Resolving disputes
• Constraining the Prime Minister
• Unifying government
• Unifying the parliamentary party

Moreover, the Cabinet is the ultimate body of law making in the Parliamentary system. It is formed out of the party/group, which enjoys majority in the House. The cabinet meetings are held in private.

4. British Prime Minister

• Position of the Prime Minister

1. M. is the captain of the ship of the state.
2. M. is the head of the Cabinet.
3. The party of the P.M. enjoys majority in the House.
4. He is the connecting link between the King and the Cabinet as well as the King and the Parliament.
5. The life of the House depends on the P.M. He may advice the dissolution of the House.
6. The other Ministers are appointed on the advice of the P.M.
7. The term of the other Ministers also depends on the P.M.

The P.M. as first among equals

This is also called as Primus Inter Pares or Inter Stella Luna Minores.

This explains the P.M.’s position w.r.t. other ministers. In the cabinet system, there is a principle of collective responsibility; hence other ministers are also important.

The relative position of the P.M. and other ministers in a Parliamentary system can be compared to the relative position of the President and his secretaries in the Presidential system. In the Presidential system, members of the Cabinet are chosen by the President. In USA, spoils system exists.

The Secretaries are not members of the Congress. In the Parliamentary system, ministers are also the members of either House. The P.M. cannot treat them as his subordinates.

Theoretically, the P.M. should consider himself as only first among equals, must give due respect to other members of the Cabinet and should take decisions in consultation with them. However, the P.M. is first because:

• He is the one who is appointed first, since he is the leader of the House of Commons.
• Other ministers are appointed on his advice.
• Other ministers can be removed on his advice.

P.M. as moon among stars

This statement gives a more realistic view of the position of P.M. In practice, the P.M. gains prominence and he is not simply the first among equals. Both formal and informal factors are responsible for this.

• Formal Factors:He is the link between the Parliament and the King, and ministers are appointed/removed on his advice etc.
• Informal Factors:Personality factors, position of his party, external/internal emergency like situation

Difference between the British and Indian PM

Constitutional position of the Indian P.M. is modeled on the British P.M., with one difference. In India, the PM can be a member of either House of Parliament, i.e. Lok Sabha or Rajya Sabha. However, this is not so in Britain. It is a convention in Britain that the P.M. will always be a member of the Lower House (House of Commons) only.

Privy Council

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

Permanent Civil Servants/British Bureaucrats

Indian bureaucracy is modeled on the British bureaucracy.

Some features:

• Bureaucracy in Britain is generalist
• They are expected to be politically neutral
• Recruited through competitive exams
• Enjoy a lot of immunities
• It is said that the British bureaucracy is not representative. It is still elitist
• Bureaucrats are known as New Despots
• It is said that the Bureaucracy thrives behind the cloak of ministerial responsibility
• It has also been compared with Frankenstein’s monster (overpowering the Ministers)

Legislature

Essential differences between the two systems

There is a natural tendency to compare the Parliament of India with the British Parliament.

But our Parliament and Parliamentary Institutions and procedures are not a copy of the Westminster system. There are fundamental differences between their system and ours.

British Parliament has grown through some three hundred years of history. In Britain, the Parliament can said to be the only institution, which exercises sovereign powers and on which there are no limits because there is no written constitution.

India, on the other hand, has a written constitution. Powers and authorities of every organ of the Government and every functionary are only as defined and delimited by the constitutional document.

The power of Parliament itself is also clearly defined and delimited by the Constitution. However, within its own sphere, the Parliament is supreme. Also, Parliament is a representative institution of the people.

But it is not sovereign in the sense in which the British Parliament is sovereign and can do or undo anything. The point is that in the sense of constitutional sovereignty, their powers are not limited by a constitutional document.

Moreover, our constitutional document provides for fundamental rights of the individual, which are justiciable in courts of law. And any law passed by the Parliament, which abridges any of the fundamental rights can be declared ultra vires by the courts.

The courts adjudicate the disputes and while doing so, they can interpret the constitution and the laws. Also, Parliament has the constituent powers and within certain limitations it can suitably amend the constitution.

The British Parliament is bicameral, that is there are two houses or chambers – The House of Lords (strength not fixed) and The House of Commons (strength fixed at 650 members). The House of Lords has hereditary members. Moreover, it has the largest number of Life Peers, Church/Religious peers (Ecclesiastical Peers) and Law Lords.

The House of Lords

The House of Lords is the second chamber, or upper house, of the United Kingdom’s bi-cameral (two chamber) Parliament. Together with the House of Commons and the Crown, the House of Lords form the UK Parliament. There are four types of members of the house:

1. Life peers:These make up the majority of the membership. The power to appoint belongs formally to the Crown, but members are essentially created by the Queen on the advice of the Prime Minister. Life peers’ titles cease on death.
2. Law lords:Up to 12 Lords of Appeal in Ordinary are specially appointed to hear appeals from the lower courts. They are salaried and can continue to hear appeals until they are 70 years of age.
3. Bishops:The Anglican Archbishops of Canterbury and York, the Bishops of Durham, London and Winchester and the 21 senior Diocesan Bishops from other dioceses of the Church of England hold seats in the House. This is because the Church of England is the ‘established’ Church of the State. When they retire the bishops stop being members of the House.
4. Elected Hereditary peers:The House of Lords Act, 1999 ended the right of hereditary peers to sit and vote in the House of Lords. Until then there had been about 700 hereditary members. While the Bill was being considered, an amendment was passed (known as the Weatherill amendment after Lord Weatherill who proposed it), which enabled 92 of the existing hereditary peers to remain as members.

The House of Lords can propose and make changes, known as amendments. However its powers are limited; if it doesn’t approve of a piece of legislation, it can only delay its passage into law for up to a year. After that, there are rules to ensure that the wishes of the House of Commons and the Government of the day prevail.

In fact, the House of Lords could be labeled as one of the weakest upper house in the world. Since the passage of the Act of 1919 and 1949, the House of Lords has lost all real legislative powers. It is simply a delaying chamber now. It can delay an ordinary bill for a maximum period of one year and money bill for a maximum period of one month.

In comparison to Rajya Sabha, the House of Lords is a weak house. Rajya Sabha has equal powers with Lok Sabha, as far as an ordinary bill is concerned (though, there is provision of a joint session, but it is an extraordinary device).

Rajya Sabha has equal power with Lok Sabha as far as the amendment of the Constitution is concerned. Rajya Sabha is also a delaying chamber, like the House of Lords, as far as a Money Bill is concerned. Rajya Sabha can delay the bill for a maximum of fourteen days. Rajya Sabha does have some special powers, which are not available to Lok Sabha; for example: Articles 249 and 312.

Comparison between the House of Lords and Senate of USA

• Senate is called as the strongest Upper House. It enjoys equal power with the House of Representative in the context of an Ordinary Bill, a Constitutional Bill and even in passage of a Money Bill. It is customary to introduce Money Bill in the Lower House.
• The Senate also enjoys some special powers not available to the House of Representatives. For example, ratification of international treaties, ratification of higher appointments. The House of Lords did enjoy a privilege that it used to be the highest Court of Appeal in Britain. But this has now ceased to exist, as the Supreme Court has been created by the Constitutional Reform Act, 2005 (SC established in 2009).

The House of Commons

This is the lower chamber, but the one with most authority. It is chaired by the Speaker.

Unlike the Speaker in the US House of Representatives, the post is non-political and indeed, by convention, the political parties do not contest the Parliamentary constituency held by the Speaker. The number of members varies slightly from time to time to reflect population change.

In modern practice, the Prime Minister is the head of the Government and is always a member of the majority party or coalition in the House of Commons.

The Cabinet comprises primarily leading House of Commons Members of the majority, although Members of the House of Lords have served as Cabinet ministers. In fact, designating someone outside Parliament as a “life peer” has been one recent means of bringing someone essentially from private life into the Government.

The Prime Minister, although head of the Government and an MP, is now not usually the Leader of the House of Commons.

The Leader of the House of Commons, a member of the Government, is the chief spokesman for the majority party on matters of the internal operation of the House of Commons.

The Office of the Leader issues announcements of the impending House of Commons schedule, and a routine inquiry from the Opposition’s counterpart serves as an occasion for the Leader to announce the business for the next two weeks of session.

In the House of Commons, party organizations (akin to the Republican Conference or Democratic Caucus) meet regularly to discuss policy, and to provide an opportunity for backbench party members to voice their views to ministers or shadow cabinet members in a private forum.

The Position of Speaker of the House of Commons and its Comparison with the Indian and American Speaker

Features of British Speaker

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

US Speaker (Speaker of House of Representatives)

He is expected to be a party man, not expected to be neutral; instead he favours his party. He does not have final disciplinary powers, which lie with the House itself. In USA, the Speaker can vote in the beginning.

Speaker of Lok Sabha

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

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

Judiciary

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

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

Because Parliament is sovereign, the government can seek to overturn the decisions of the courts by passing amendment legislation. The power of judicial review provides the judiciary with a potentially significant role in the policy process.

In recent decades, there has been an upsurge in judicial activism for several reasons:

• Judges have been more willing to review and quash ministerial action
• British membership of the EU
• The incorporation of the ECHR (European Convention on Human Rights) into domestic law
• Devolution of powers to elected assemblies in Scotland, Wales and Northern Ireland
• The creation of a Supreme Court in 2009.

Comparison between the Indian and British Judiciary

• Differences

1. In case of British system, the lack of concept of ‘Basic Structure’ makes amending power of the Parliament supersede any judicial pronouncement. Whereas, in case of the Indian Judiciary system, the concept of ‘Basic Structure’ has provided a potent tool to Judiciary by which it can scuttle down any Executive or Legislative action, which it deems as against the basic spirit of the Constitution.
2. British legal system is completely based on ‘Common Law System’. Common Law System implies that law is developed by the judges through their decisions, orders, or judgments (also referred to as precedents). However, unlike the British system, which is entirely based on the Common Law System, where it had originated from, the Indian system incorporates the Common Law System along with the statutory and regulatory laws.

• Similarities

1. The actions of Executive can be declared ultra vires in both the systems
2. The judiciary is considered the highest interpreter of the Constitution
3. Off late, there has been a splurge in judicial activism in Britain and judiciary is becoming more and more active. A similar evolution of judiciary has been noticeable in the Indian case too

Note: By Constitutional Reform Act, 2005 the Supreme Court has come into existence as the highest Court of Appeal. A National Judicial Appointment Commission has also been introduced.

Brief Synopsis of comparison drawn above

British Constitution

1. Product of history and the result of evolution
2. There is a difference between theory and practice
3. Flexible and unitary constitution
4. Parliamentary government
5. Rule of law and civil liberties applicable

Comparison between British Monarch and Indian President

Comparison between British Monarch and the US President