India and Other Constitutions: Sources of the Constitution

The suspension of Fundamental Rights during an Emergency was drawn from the Weimar Constitution of Germany (1919), whose Article 48 let the President suspend basic rights. In India, Article 358 suspends Article 19 automatically during a national emergency declared on the ground of war or external aggression, and Article 359 lets the President suspend the enforcement of other rights; since the 44th Amendment (1978), Articles 20 and 21 cannot be suspended. The emergency scheme as a whole also draws on the Government of India Act, 1935.

The Concurrent List (List III of the Seventh Schedule) was taken from the Australian Constitution, where many powers are shared by the Commonwealth and the States. Australia also supplied freedom of trade, commerce and intercourse (Part XIII) and the joint sitting of the two Houses (Article 108 in India). If a Union law and a State law on a Concurrent subject conflict, the Union law generally prevails under Article 254.

Article 248 and Entry 97 of the Union List vest residuary powers in Parliament, a feature taken from Canada. Canada also gave India the federation with a strong Centre, the appointment of State Governors by the Centre and the advisory jurisdiction of the Supreme Court. In the USA and Australia the residuary field lies with the States, and under the Government of India Act, 1935 it was given to the Governor-General.

From the USA India took Fundamental Rights, judicial review, the independence of the judiciary, impeachment of the President, the removal of Supreme Court and High Court judges, and the post of Vice-President, who, as in the USA, presides over the Upper House. The Concurrent List came from Australia; the US Constitution has no list of shared subjects. So the Concurrent List is the feature not borrowed from the USA.

Judicial review is credited to the USA, where it grew from Marbury v. Madison (1803). The joint sitting of the two Houses (Article 108) came from Australia, the nomination of members to the Rajya Sabha (Article 80) from Ireland, and the advisory jurisdiction of the Supreme Court (Article 143) from Canada. So the code is A-4, B-3, C-2, D-1.

The procedure for amendment and the election of members of the Rajya Sabha are credited to the South African Constitution. In India some provisions change by a simple majority outside Article 368, most need a special majority of each House under Article 368, and provisions affecting the federal structure also need ratification by half of the State Legislatures. Britain, with an uncodified constitution changed by ordinary Acts, has no special amendment procedure to lend.

Three features are British. The rule of law (Dicey's idea, reflected in the equality clause of Article 14), single citizenship and the prerogative writs (habeas corpus, mandamus, prohibition, certiorari and quo warranto, now under Articles 32 and 226) come from Britain, along with parliamentary government, the cabinet system and bicameralism. Impeachment of the President (Article 61) came from the USA; Britain, with a hereditary monarch, has no such procedure.

Statement 1 is correct: the indirect election of the President by an electoral college under the system of proportional representation by single transferable vote (Article 55(3)) is credited to Ireland. Statement 2 is incorrect: the election of Rajya Sabha members by the elected members of the State Assemblies (Article 80(4)) is credited to South Africa, which also gave the amendment procedure. Ireland's link with the Rajya Sabha is only the nomination of members.