Comparison of Constitutional Aspects - India and Pakistan

What is the issue?

• With new Prime-Ministership of Imran Khan, a noteworthy transformation is expected in the nation State of Pakistan.
• In this backdrop, a comparison between India and Pakistan in key government and law aspects is attempted here.

What are the key Constitution-related differences?

• Preamble - The preamble of the Islamic Republic of Pakistan begins with an invocation of “Almighty Allah”.
• It mentions the “Founder of Pakistan, Quaid-i-Azam Mohammad Ali Jinnah”.
• It promises “adequate provision” to “safeguard the legitimate interests of minorities and backward and depressed classes”.
• It also promises to protect “the independence of the judiciary”.
• The Constituent Assembly of India had rejected any reference to God or to the Father of the Nation, Mahatma Gandhi.
• The preamble to the Indian Constitution is more compact.
• It encapsulates, but doesn’t explicitly mention, the rights of minorities and independence of the judiciary.
• Rights - Pakistan’s constitution recognises the right to privacy.
• This was recently declared a fundamental right by the Supreme Court in India.
• Pakistan constitution also recognises the right to education for children from ages 5 to 16.
• In India, the Right of Children to Free and Compulsory Education Act, 2009 guarantees education to children between ages 6 and 14.
• Pakistan’s constitution guarantees the right to information and declares human dignity as inviolable.
• India passed The Right to Information Act in 2005, in this regard.
• Freedom - Unlike the Indian constitution, Pakistan's specifically mentions the freedom of the press.
• But this freedom is subject to the “glory of Islam”.
• Pakistan has a regressive and widely abused blasphemy law that carries mandatory death penalty.
• Also, its freedom of religion is conditional, and unlike in India, available only to citizens.

How is the Judiciary handled?

• Appointments - Pakistan’s government has no role in the appointment of the country’s Chief Justice.
• The President appoints the senior most Judge of the Supreme Court as the Chief Justice of Pakistan.
• India’s Supreme Court in 2015 struck down the National Judicial Appointments Commission.
• It was intended to decide appointments and transfers of judges of the higher judiciary.
• But Pakistan has had its own version of the commission since 2010.
• There are six judges, a senior advocate, and two government nominees on it.
• Its recommendations go to an eight-member committee of Parliament which confirms nominations by majority vote.
• Misconduct - Pakistan’s constitution provides for a supreme judicial council to deal with alleged judicial misconduct.
• It consists of the Chief Justice, two seniormost judges of the Supreme Court, and two seniormost Chief Justices of High Courts.
• If council concludes that a judge is “incapable of performing duties” or is guilty of “misconduct”, impeachment by the President follows.
• Contrastingly, in India, the key role in impeachment is that of the Parliament.
• Also, the grounds for action are more stringent i.e. “proved misbehaviour or incapacity”.

How are elections and government formation different?

• PM - In Pakistan the Prime Minister resigns ahead of the elections.
• The Leader of Opposition and the PM together select a caretaker PM.
• If they cannot agree, each will send two names to the Speaker.
• Speaker will then refer it to a parliamentary committee.
• The Committee has equal representation from the ruling and opposition parties.
• Government - The PM and provincial Chief Ministers are elected by the newly constituted House in India.
• Hence, the Pakistani constitution has no provision for a confidence vote (after elections).
• Also, if two candidates are tied, voting continues until one secures a majority.
• So unlike in India, the President or Governors have no role even if no party has a clear majority.
• No-confidence - A motion of no-confidence can be moved by 20% of members.
• It will succeed if passed by a majority of the total membership of the House.
• In India, it must be passed by a simple majority of those present and voting.
• Candidates - Muslim candidates in Pakistan’s elections have to be of good character, wise, righteous, honest, and non-profligate.
• They should have adequate knowledge of Islam, and should not have committed any major sin.
• In India, the eligibility conditions and qualifications are more of a legal nature and not related to religion.
• EC - In India, Election Commissioners are chosen by the government and are generally IAS officers.
• The process is more complex in Pakistan.
• The Chief Election Commissioner has to be a sitting or retired judge of the Supreme Court or a High Court.
• If not, he/she should be qualified to be appointed as an SC judge.
• The PM in consultation with the Leader of Opposition forwards three names to a 12-member parliamentary committee.
• The committee has equal representation from the government and the opposition.
• The Election Commission has four other members.
• Each will be a judge from one of the four provincial High Courts of Punjab, Sindh, Balochistan and Khyber Pakhtunkhwa.
• The Election Commission of Pakistan has the financial autonomy over issues relate with it.
• India’s Election Commission does not have such autonomy as appeals can be made in the Court.
• Reservations - Of the 342 seats in the National Assembly in Pakistan, 272 are filled by direct elections.
• Among the rest, sixty seats are reserved for women.
• 10 seats are reserved for religious minorities.
• These are filled by proportional representation among parties that get more than 5% of the popular vote.
• The four provincial assemblies have their own quantums of reservations for both women and minorities.
• Parties must give 5% of tickets to women candidates in the general seats.
• If less than 10% women voters cast their votes in any constituency, the result there is nullified.

Source: Indian Express