COMPARE CONSTITUTIONS AND STATE LAWS

This article is written by Aryya Sinha of Xavier Law School, St. Xavier’s University, an Intern under Legal Vidhiya

ABSTRACT

Constitution is the foundation of all law in a specific jurisdiction. It establishes governmental authority, power, limitations, and grants of rights. Constitutions can be said as the basic structure under which state laws are made, and the Constitution also provides jurisdiction for the law to be made by the state; if a law is outside the jurisdiction of the Constitution and the law is called unconstitutional and is barred from getting applicable in day-to-day life. In a complete sense, the Constitution forms an upper hand over the state laws.

Keywords: jurisdiction, governmental, limitations, Constitution, the unconstitutional, applicable, upper hand.

  INTRODUCTION

Constitution is a fundamental document that outlines a government’s basic principles, rights, powers, and structure. It serves as the supreme law of the land. It establishes the framework for the organization and operation of a country or a federal system. Constitution typically takes care of the critical aspects of governance, including the separation of powers, the role of the executive, legislative and judicial branches, and the protection of individual rights and freedom. 

State Laws, on the other hand, are the statutes or legislation the laws that are enacted by the legislative bodies of individual states within a country. These laws apply within the jurisdiction of a particular state and govern various aspects of life, including criminal offenses, civil matters, family law, taxation law, education, healthcare, business laws, and labor regulations.

This research paper will discuss a few countries that will help compare constitutions and state laws. 

INDIA[1][2]

Constitution: The Indian Constitution, or the Bhartiya Sambhidhan is the supreme law of the land. The text provides the foundation for defining the fundamental political code, structure, procedures, powers, and responsibilities of governmental institutions, as well as outlining fundamental rights, guiding principles, and the duties of citizens. It is the longest-written national Constitution in the world. 

 The Constituent Assembly of India adopted it in November 26, 1949, and commenced on January 26, 1950. The Dominion of India became The Republic of India, when the Constitution took the place of the Government of India Act of 1935 was the primary law governing the nation. Article 395 of the Constitution was repealed by its framers to secure constitutional autochthony. As part of Republic Day, India honors its Constitution on January 26.

Except for scattered French and Portuguese exclaves, India was under 1858 through 1947 and saw British dominance. The same laws were implemented from 1947 to 1950 while India was a British colony. United Kingdom for these three years, as Sardar Patel and V. P. Menon convinced each princely state British Government was still in charge of the nation’s external security when it came time to sign the articles of integration with that India. As a result, when the Indian Constitution went into force on January 26, 1950, it repealed both the Indian Independence Act of 1947 and the Government of India Act of 1935. With the Constitution, India stopped being a dominion of the British Crown and changed to a sovereign, democratic republic. On November 26,1949, the Constitution’s Articles from 5, 6, 7, 8, 9, 60, 324, 366, 367 to 379, 380, 388, 391, 392, and 394 went into effect. The remaining articles went into force on January 26, 1950, known as Republic Day in India.

State laws:

 India’s legal system comprises Civil law, Common law, Customary law, religious law, and corporate law under the colonial-era legal framework. Various British-introduced laws are still in force today in somewhat modified versions. Indian laws have complied with United Nations standards since the creation of the Indian Constitution. Human rights and environmental law guidelines. In India, states are given the power to formulate laws on the subjects granted to their jurisdiction. Each state makes laws and policies within the framework of the Constitution. So each state formulating laws is bound by the framework of the CONSTITUTION. Though states have discretionary power to implement the laws within the state boundary in India, the fundamental law must follow and comply with the Constitutional guidelines, or else it will be termed null and void, known as Unconstitutional.  

Exception – Jammu and Kashmir had a special status and a constitution and were not required to follow the Indian Constitution. But now, after the revocation of the special status of Jammu & Kashmir on August 6, 2019, granted under Article 370, all the special provision given to J&K has been abolished. It now has the same privilege as other states in India. 

COMPARISON[3] –

Authority: The Indian Constitution is the supreme law of the land and provides the framework for the governance of the entire country. It establishes the central Government’s structure and powers and limits its authority. On the other hand, state laws in India are enacted by state legislatures and govern the affairs within their respective states. State laws must be consistent with the provisions of the Indian Constitution.

1. Federal Structure: Similar to the United States, India follows a federal system of Government where powers are divided between the central Government and the state governments. The Indian Constitution delineates the powers and responsibilities of both levels of Government. The central Government has authority over subjects of national importance, such as defense, foreign affairs, and interstate commerce, while the state governments have jurisdiction over matters that fall within their respective states, such as law and order, agriculture, and local governance.
2. Jurisdiction: The Indian Constitution provides a list of subjects known as the Union List, State List, and Concurrent List. The Union List contains subjects exclusively under the Central Government’s jurisdiction, and the State List includes subjects within the jurisdiction of the state governments. The Concurrent List includes subjects the central and state governments can legislate on. State laws are primarily concerned with matters within the State and Concurrent lists.
3. Flexibility: The Indian Constitution is a detailed and comprehensive document that outlines the Government’s basic structure and citizens’ fundamental rights. It sets broad principles and guidelines for governance while allowing state governments to pass laws that address local concerns and specific needs of their respective states.
4. Amendment Process: The Indian Constitution provides for a formal amendment process. Amendments can be proposed by the Central Government or initiated by the state governments, and they require the approval of both houses of Parliament and ratification by at least half of the state legislatures. On the other hand, state laws can be amended through the legislative process within each state.
5. Constitutional Protections: The Indian Constitution includes a comprehensive list of fundamental rights that guarantee certain individual rights and freedoms, such as freedom of speech, religion, and equality. These rights apply to all citizens in India. Similarly, state laws in India also protect rights and liberties. However, they cannot provide fewer rights than those guaranteed by the Indian Constitution.
6. Preemption: In case of a conflict between state laws and central laws, the laws enacted by the central Government prevail. The Indian Constitution establishes the supremacy of central laws and ensures that state laws are consistent with the constitutional framework.

It’s important to note that the Indian Constitution and state laws play essential roles in the governance and legal system of India, with the Constitution serving as the supreme law of the land and states having the authority to legislate on matters falling within their jurisdiction, as long as they comply with the provisions of the Constitution.

Discussing some popular law forms in INDIA will develop our knowledge when we move to

other countries. 

Different Forms of Law in India[4]

Constitutional and administrative law 

The Indian Constitution, which took effect on January 26, 1950, is the world’s lengthiest written Constitution. Although its administrative provisions are primarily, it also includes a number of other laws that are based on the Government of India Act 1935. drawn from

different constitutions worldwide at its creation. It provides the details of the administration of both the Union and the States. It codifies the relations between the Union Government and the State Governments. Also incorporated into the text is a chapter on the fundamental rights of citizens and a chapter on directive principles of state policy. However, the Constitution also has certain unitary features, such as granting the Federal Government exclusive amendment power, prohibiting dual citizenship, and assuming supreme authority in times of emergency.

 Criminal law

 The cornerstone of Indian criminal law is the Indian Penal Code, which was created by the British in 1860 during the British Raj. The procedural components of criminal law are governed by the Code of Criminal Procedure, 1973. In India, the death penalty is acceptable. At least 13 children were abducted and killed by Renuka Shinde and Seema Mohan Gavit, who were both found guilty of the crime. Those six are incarcerated at Yerwada Central Jail right now. They were also the first Indian women to receive the death penalty. The last execution occurred on March 20, 2020, after a trial court, had sentenced the convicts Pawan Gupta, Akshay Singh Thakur, Vinay Sharma, and Mukesh Singh to death. The Delhi High Court upheld it along with the Supreme Court of INDIA. 

Contract law 

The primary contract law in India is codified in the INDIAN CONTRACT ACT, which came into effect on September 1, 1872, and extended to all of India. It governs entrance into a contract and the consequences of breach of contract. Indian Contract law is popularly known as the mercantile law of India.

Tort law 

Tort law in India is primarily governed by judicial precedent as in other common law jurisdictions, supplemented by statutes governing damages, civil procedure, and codifying common law torts. As in other common law jurisdictions, a tort is a breach of a non – contractual duty that has caused damage to the plaintiff and is giving rise to a civil cause of action for which remedy is available. If a remedy does not exist, a tort has not been committed since the rationale of tort law is to provide a remedy to the person who has been wronged.

The United States

 Constitution of the U.S. [5] –                

 Each state in the U.S. has its own written Constitution. The supreme law of the United States of America is the United States Constitution. The date of adoption was September 17, 1787, and it has served as the foundation for the country’s Government and legal system ever since. The Constitution outlines the structure of the Federal Government, establishes the three branches of Government (the executive, legislative, and judicial branches), and defines their powers and responsibilities.

The Constitution consists of a preamble and seven articles. The preamble sets out the purpose and goals of the Government, including creating justice, preserving peace within the home, safeguarding the nation’s defense, advancing the common good, and securing the benefits of liberty.

The articles of the Constitution cover various aspects of governance. Here’s a brief overview:

• Article I: This article establishes the legislative branch, which consists of the Congress. It outlines the powers and responsibilities of Congress, including the authority to make laws and the organization of the House of Representatives and the Senate.
• Article II: This article establishes the executive branch, which includes the President of the United States. It outlines the powers and responsibilities of the President, including their role as the commander-in-chief of the armed forces and their authority to make treaties and appoint federal officials.
• Article III: This article establishes the legal system, which is composed of the Supreme Court and other federal courts. It outlines the powers and jurisdiction of the courts, including their authority to interpret and apply the law.
• Articles IV-VII: These articles cover various topics, including the relationships between states, the process for amending the Constitution, and the conditions under which the Constitution could be ratified.

The Constitution also includes a series of The Bill of Rights, then the first ten amendments, which were ratified in 1791 and protect individual rights and liberties such as the freedom of speech, religion, and the right to a fair trial. There have been additional amendments added over time, addressing various issues such as voting rights, prohibition, and presidential term limits.

The United States Constitution is considered a living document, as it can be amended to reflect societal changes and evolving interpretations of the law. It has played a crucial role in shaping the democratic governance of the United States and is widely regarded as one of the most critical documents in American history.

State Laws of the U.S.[6] –

They are considerably lengthier than the 4,543 words of the U.S.U.S. Constitution. Because they go into greater depth about the interactions between the Government and the people on a daily basis, state constitutions are all longer than 8,000 words. The Vermont Constitution, which was enacted in 1793 and had 8,295 comments as of this writing, is the shortest. The sixth Constitution of Alabama, passed in 1901 and totaling around 345,000 words before being revised in 2022, was the longest. The federal and state constitutions are organic writings that serve as the fundamental guidelines for the political and legal structures of the United States and the individual states.

The United States Constitution’s Tenth Amendment (a component “The powers are neither delegated to the United States by the Constitution, nor are they prohibited by it to the States, are reserved to the States, respectively, or to the people,” it says in Article II, Section 8 of the Bill of Rights.” According to Article 4’s Guarantee Clause, “The United States shall guarantee to every State in this Union a Republican Form of Government.” These two clauses show that when the U.S. Constitution was adopted, states did not give up their broad discretion to adopt a constitution, which are the cornerstones of state law.

Comparison – 

The United States Constitution and state laws differ in scope and purpose. Here are some key points of comparison:

1. Authority: The United States Constitution is the supreme law of the land, meaning it establishes the framework and powers of the Federal Government and limits its authority. On the other hand, state laws are enacted by state legislatures and govern the affairs within the respective states. State laws must be consistent with the provisions of the U.S.

       Constitution.

2. Jurisdiction: The U.S. Constitution applies to the entire country and establishes the federal system of Government, outlining the division of powers between the federal Government and the states. On the other hand, state laws have jurisdiction over matters not explicitly delegated to the Federal Government. This means states have the authority to legislate on various issues such as education, criminal law, property, and contract law within their borders.
3. Flexibility: The Constitution provides a broad framework for governance. At the same time, state laws can be more specific and tailored to the needs of individual states. States can pass laws that address local concerns and adapt to changing circumstances within their jurisdictions as long as they do not violate the Constitution.
4. Amendment Process: The U.S. Constitution has a formal process for amending its provisions. Amendments require the proposal of an amendment by either Congress or a constitutional convention, followed by ratification by three-fourths of the states. State laws, on the other hand, can be amended through the legislative process within each state, typically requiring the approval of the state legislature and, in some cases, the governor.
5. Constitutional Protections: The U.S. Constitution contains a Bill of Rights that guarantees certain individual rights and liberties, such as freedom of speech, religion, and due process. These rights apply to all citizens in the United States. While states have their own constitutions that may also include similar protections, they cannot provide fewer rights than those guaranteed by the U.S. Constitution.
6. Preemption: In cases where state laws conflict with federal statutes or the Constitution, the Constitution’s Supremacy Clause establishes that federal law takes precedence. This means state laws cannot override or contradict federal regulations or the Constitution.

It’s important to note that while there are differences between the U.S. Constitution and state laws, they both play essential roles in the legal system of the United States, with the Constitution serving as the overarching framework and conditions having the authority to govern within their respective jurisdictions, as long as it complies with the Constitution.

AUSTRALIA

Constitution of Australia[7] –

The Constitution of Australia is the legal framework that establishes the structure of Government, defines the powers and responsibilities of the various branches of Government, and sets out the rights and freedoms of the Australian people. It was enacted due to a series of referendums held in the Australian colonies between 1898 and 1900 and came into effect on January 1, 1901, when Australia became a federation.

Here are some key features and components of the Constitution of Australia:

1. Structure of Government: The Constitution establishes a federal system of Government, dividing powers between the Commonwealth (federal) government and the states. It creates three branches of Government: The Parliament, the Executive, and the Judiciary.
2. Parliament: The Parliament of Australia consists of the House of Representatives and the Senate. The House of Representatives represents the people and is based on population. In contrast, the Senate represents the states and provides equal representation for each state. The Parliament has the authority to make laws on matters within its legislative powers.
3. Executive: The executive power of the Commonwealth is vested in the Queen, who is represented by the Governor-General. The Governor-General performs ceremonial duties and exercises powers on the advice of the Prime Minister and the Executive Council. The Prime Minister is the head of Government and leads the political party or coalition that holds the majority in the House of Representatives.
4. Judiciary: The Constitution establishes the High Court of Australia as the highest Court in the country. It also allows for the establishment of other federal courts. The Judiciary is independent of the other branches of Government and has the power to interpret and apply the law.
5. Division of Powers: The Constitution outlines the division of powers between the Commonwealth and the states. It specifies the areas in which the federal Government has exclusive powers, such as defense, foreign affairs, and trade, and regions in which the states have control, such as education, healthcare, and transportation. There are also concurrent powers that can be exercised by both levels of Government.
6. Constitutional Amendments: The Constitution can be amended through a specific procedure. Amendments must be approved by a double majority, meaning they require a majority of voters nationwide and a majority of voters in a majority of states. The process for amending the Constitution is set out in Section 128.
7. Protection of Rights: Unlike other countries, the Australian Constitution does not include a comprehensive Bill of Rights. However, it does contain several specific provisions that protect certain rights, such as the right to freedom of religion, the right to a trial by jury, and the right to just compensation for the acquisition of property by the Government.

It’s important to note that the Constitution of Australia provides the foundation for the Australian legal system and sets the basic rules and principles for governance. However, many aspects of governance, rights, and responsibilities are also governed by other laws and statutes at the federal, state, and territory levels in Australia.

State Laws[8] –

While the Constitution of Australia establishes the framework for the federal Government and outlines its powers, state laws have jurisdiction over matters that fall within the responsibilities of the states and territories. Here are some critical aspects of state laws in Australia:

1. Legislative Authority: Each state and territory in Australia has its own Parliament, consisting of a lower house (e.g., Legislative Assembly, House of Assembly) and, in most cases, an upper house (e.g., Legislative Council, Legislative Assembly). These parliaments have the authority to make laws within their respective jurisdictions, subject to the limitations set out in the Constitution.
2. Areas of Responsibility: State laws typically govern areas such as education, healthcare, transportation, state police, local Government, state taxation, and various regulatory matters. For example, each state and territory has its own laws relating to planning and development, road regulations, and criminal offenses that fall under state jurisdiction.
3. Relationship with Federal Laws: State laws must be consistent with federal regulations and cannot contradict or override them. In case of a conflict between state and federal laws, federal law prevails due to the supremacy of federal law as established by the Constitution.
4. Variation between States and Territories: While there are many similarities, state laws can vary between different states and territories in Australia. Each jurisdiction has its own Parliament and legislative process, allowing for some degree of variation in laws and regulations. This can include differences in areas such as traffic regulations, land and property laws, and even criminal offenses.
5. Harmonization and Cooperation: In some cases, state and territory governments may work together to achieve harmonization or uniformity in certain areas of law. This can involve collaborating on model legislation, agreements, or cooperative arrangements to ensure consistency across jurisdictions, especially in areas of common interest such as consumer protection, environmental regulation, and occupational health and safety.
6. Law Enforcement: State laws are enforced by state and territory police forces, which have the responsibility for maintaining law and order within their jurisdictions. These police forces operate under the respective state laws and work in collaboration with federal law enforcement agencies when necessary.

It’s important to note that while state laws in Australia hold significant authority within their jurisdictions, they must operate within the framework of the Australian Constitution and comply with federal laws. This ensures a balance between the powers of the Federal Government and the states in the Australian legal system.

COMPARISON[9] –

State laws in Australia refer to legislation enacted by the state and territory governments within the Australian federal system. In Australia, state laws and federal laws coexist within the framework of the Australian legal system. While federal laws apply to the entire country, state laws are specific to individual states and territories. Here are some key points of comparison between state laws and federal law in Australia:

1. Legislative Authority: The Federal Government, established under the Australian Constitution, has the power to make laws on matters within its constitutional jurisdiction, such as defense, foreign affairs, trade, immigration, and taxation. State and territory governments have legislative authority over areas not specifically assigned to the Federal Government. State laws are enacted by state parliaments, and the Commonwealth Parliament passes federal laws.
2. Areas of Jurisdiction: Federal laws primarily address matters of national importance and concern, including areas such as constitutional matters, criminal law in relation to federal offenses, customs and border control, intellectual property, telecommunications, and trade and commerce between states and territories. State laws typically govern areas such as education, healthcare, transportation, state police, local Government, state taxation, and various regulatory matters within their jurisdictions.
3. Relationship and Supremacy: The Constitution of Australia establishes the supremacy of federal law. In case of a conflict between state and federal laws, federal law prevails. State laws must be consistent with federal laws and cannot contradict or override them. This ensures uniformity and consistency across the country and prevents inconsistencies or conflicts between different jurisdictions.
4. Concurrent Powers: Some law areas fall under federal and state jurisdictions. These are known as concurrent powers. In such cases, both levels of Government can pass laws on the same subject matter. However, federal law prevails if there is a conflict between federal and state laws on concurrent matters. Harmonization efforts may be undertaken to achieve consistency and coordination between federal and state laws in these areas.
5. Law Enforcement: Both federal and state laws are enforced by law enforcement agencies. Federal law enforcement agencies, such as the Australian Federal Police, have jurisdiction over federal offenses and enforce federal laws. State and territory police forces are responsible for maintaining law and order within their jurisdictions and enforcing state laws.
6. Constitutional Interpretation: The High Court of Australia is the highest Court in the country and has the authority to interpret the Constitution and resolve disputes between federal and state laws. The Court plays a crucial role in determining the scope and limits of federal and state legislative powers.

It’s important to note that while federal laws provide a unified legal framework across the country, state laws allow for variation and flexibility to address local needs and circumstances. However, the supremacy of federal law ensures consistency and uniformity in areas of national importance and prevents conflicting or inconsistent laws between jurisdictions.

CONCLUSION – 

The Constitution of each Nation is the supreme law of the land, and the States within them have different sets of laws that are governed by the Constitution. Hence, each nation is bound within the constitutional framework in formulating central and state laws. The domain and jurisdiction of state law are bounded within the state boundary. On the other hand, Constitution is for the whole land or nation.

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[1] Constitution of India – Wikipedia

[2] Legislative Department | Legislative Department | India

[3] Difference between Constitution and Law & Their Comparisons (byjus.com)

[4] Constitution of India – Wikipedia

[5] Constitution of the United States – Wikipedia

[6] State law (United States) – Wikipedia

[7] Constitution of Australia – Wikipedia

[8] Australian legal system – Wikipedia

[9] bing.com/ck/a?!&&p=0ff15dc00eb5de5dJmltdHM9MTY4NjM1NTIwMCZpZ3VpZD0wMzUyMGJlOC0yMjhmLTY5ODQtMmZiYi0xOGZmMjY4ZjZiYWYmaW5zaWQ9NTIyOA&ptn=3&hsh=3&fclid=03520be8-228f-6984-2fbb-18ff268f6baf&psq=STATE+LAW+IN+AUSTRALIA+COMAPRISON+WITH+CONSTITUTIPN&u=a1aHR0cHM6Ly9wZW8uZ292LmF1L3VuZGVyc3RhbmQtb3VyLXBhcmxpYW1lbnQvaG93LXBhcmxpYW1lbnQtd29ya3MvdGhyZWUtbGV2ZWxzLW9mLWdvdmVybm1lbnQvdGhyZWUtbGV2ZWxzLW9mLWdvdmVybm1lbnQtZ292ZXJuaW5nLWF1c3RyYWxpYS8&ntb=1