The Australian Constitution and The Indian Constitution

The Indian and Australian constitutions drew on the US Constitution’s lessons and examples. Similar to the Australian constitution, the Indian Constitution established a judicial branch that was completely independent of the legislative and executive branches.

They Faithfully imitated The judicial review process to keep all public authority recipients within the constitution and other applicable laws in the Australian constitution. However, the Indian Constitution went far further. It included a Bill of Rights until recently seen as a notion alien to the sovereignty of Parliament, which was so important to the United Kingdom’s constitutional ideals. Despite these fundamental differences, India’s and Australia’s governments and judicial systems are quite similar.

About the Australian and Indian constitutions

The country’s supreme law is the Australian constitution, and it establishes the powers and structure of Australia’s three government pillars: judiciary, executive, and legislature.

Australia’s six self-governing British colonies held several conventions between 1891 and 1898, during which they drafted the constitution. Final approval came in a series of referendums between 1898 and 1900. A slightly modified version of the final draft, on the other hand, enacts section 9 of the Commonwealth of Australia Constitution Act 1900, a British Parliament act. On 9th July 1900, the act received royal assent; on 17th September 1900 proclaimed and came into force on 1st January 1901. The constitution made the six colonies states within the new federation.

The High Court’s constitutional interpretation shaped Australian law. There are many unwritten constitutional conventions and ideas from the Westminster system incorporated into the constitution, and the textual provisions and concept of responsible government are one of these. Although the High Court and some academics believe that the 1900 act derived its legal power initially from the UK Parliament, the High Court and several academics now believe that it derives its legal authority from the Australian people. The Statute of Westminster and Australia Act 1986 are key constitutional documents.

The referendum can only amend the constitution, as per section 128. According to this, a “double majority” — a majority of state and national voters – is required to make amendments. There have only been eight amendments passed, with the most recent in 1977, contributing to the low number of successful amendments. Replacement of the monarchy with a republic, the inclusion of a preamble, and the inclusion of an Indigenous voice in the government are just some of the ongoing debates regarding further amendments.

The Indian constitution is the supreme law. It establishes powers, fundamental principles, procedures, and duties of government, as well as duties, rights, and directive principles of citizens. It’s the world’s longest written constitution. Rather than parliament, a constituent assembly created it, and its people adopted it in its preamble, giving it constitutional supremacy.   Parliament cannot amend the constitution.

In 1949, the Indian Constituent Assembly passed it, and it took effect on 26th January 1950. The replacement of the Government of India Act of 1935 with the Indian Constitution made India a Republic. According to the Constitution, Article 395 repealed prior British parliament acts. India’s constitution day is 26th January.

The Indian constitution provides equality, citizens justice, and liberty while promoting fraternity. A helium-filled container in New Delhi’s Parliament contains the original 1950 constitution, and the 42nd amendment act in 1976 added the Preamble words “secular” and “socialist” during the Emergency.

Background to the Indian constitution

In Lucknow, in 1928, the All Parties Conference formed a Constitution-making committee. The British dominated colonial India from 1857 to 1947. From 1947 to 1950, V.P. Menon and Sardar Patel convinced each princely state to sign India’s integration articles. The British government retained responsibility for the country’s external security. The replacement of the Government of India Act 1935 and the Independence Act 1947 coincided with the formation of the Indian constitution. India became an independent democratic republic with a constitution after the British Crown ceased to dominate the country. On 26th November 1949, the constitution came into effect for Articles 5, 6, 7, 8 and 9 and Articles 366, 367, 380, 391, 392, 393, and 394.

Previous legislation 

The constitution drew from various sources. With the formation of India and Pakistan, the previous Constituent Assembly was divided into two. The Amendment Act of 1935 was also a major step in creating two new countries’ constitutions. Each new assembly drafted and enacted a new constitution for each state.

How is Australian law protecting human rights?

Unlike many other liberal democracies, Australia’s constitution does not include human rights under the Australian constitution. There are other ways to ensure human rights, such as through the constitution and state and territory legislation.

The constitution provides five individual rights, including the prohibition of discrimination based on the state of residency, the right to a trial by jury, protection against property acquisition on unjust terms, and freedom of religion.

According to the High Court, individuals may have additional rights because of the constitution’s language and structure. The Court decided in 1992 that Australia’s parliamentary democracy necessarily requires a degree of individual freedom to discuss and debate political issues.

Australia’s common law emerged from the UK. ‘Judge-made’ law is a common term for common law, distinguishing it from Parliamentary laws. In addition to common law, UK law includes the 1215 Magna Carta, which was the first human rights treaty.

Inclusion of a preamble

The Australian constitution does not have a preamble, but an enactment formula prefaces the document passed by the UK Parliament.

Proposals to incorporate an Australian constitution preamble argue that a preamble could impact the High Court’s interpretation of other provisions.

In 1999, a referendum defeated a preamble drafted by then Prime Minister John Howard, which included the proposal to become a republic.

Conclusion

The Constitution of India, like the Australian Constitution fifty years earlier, draws on the American Constitution. Like the Australian Constitution, the Indian Constitution established an independent judicial branch maintaining compliance with the constitution and other laws through judicial review. But the Indian Constitution went one step further. It adopted republican principles. It also incorporated a Bill of Rights, previously considered alien to parliament’s sovereignty, central to the United Kingdom’s constitutional ideals. India’s and Australia’s government and legal systems are remarkably similar despite these important differences. Like the sovereign of the UK and the Queen and her representatives in Australia, the Indian President follows the advice of Ministers accountable to the lower house of parliament. Similar to Australia’s Governor-General, the President performs similar duties. Of course, the President is not the monarch’s representative.