INTERNAL ASSIGNMENT

COMPARITIVE CONSTITUTION

A COMPARITIVE ANALYSIS OF THE

CONSTITUTIONAL FRAMEWORK AND
FUNDAMENTAL RIGHTS IN SAUDI ARABIA &
INDIA

Sudev Singh

Division B

B.A. LLB

17010125169
Introduction

The State of Saudi Arabia has no formal written Constitution. The term ‘constitution or
Dustur is widely rejected amongst the Saudi population as it is believed that only the Holy
Book of Quran is qualified to be an official commandment. The Basic Law of Saudi Arabia is
a charter resembling a constitution, which however acknowledges that the real Constitution is
ultimately the Quran. The state forbids elections as well as the existence of political parties.
As a result, politics in Saudi Arabia is contested usually amongst members within the
extensive Saudi Royal family. The estimated seven thousand or so princes within the family
head all of the ministries within the government. In stark contrast to the Arab country, India
has the world’s longest constitution which has been drafted from an amalgamation of various
constitutions from different countries. In addition, it is a deliberately secular document as is
clearly stated in the very Preamble to the Constitution of India. Saudi Arabia, admittedly
averse to outside interference and vehemently set in their own ways, adopt a drastically
different approach to their constitutional framework.

Background

The Kingdom of Saudi Arabia is an absolute monarchy which has been functioning under the
iron hand of the Al Saud Family since 1932. Salman bin Abdulaziz Al Saud is the
current King of Saudi Arabia, and his son Mohammed Bin Salman is the Crown Prince. The
King is the seventh ruler of the country since it gained independence from the Ottoman
empire. For over 50 years, the governance Saudi Arabia has sustained through an alliance
between the Royal Family and the religious ulema, who are a body of Muslim scholars
recognized as having specialist knowledge of Islamic sacred law and theology. There exists
ideological as well as historical reasoning behind the state not having a standalone written
Constitution, nor a solid legislative body/institution for the drafting of laws. The Saudis
believe that the only document capable of attaining the finality and precedence accorded to a
constitution is the Holy Quran and thus the government has always maintained that the Holy
Book serves as the State Constitution. The lack of any official legislative institution can be
explained along the same lines, as separately conceived legislation is considered inconsistent
with the concept of Shari’ah, which is the divine law under Islam that forms the basis of the
legal system in Saudi Arabia.
The Indian constitution on the other hand has painstakingly crafted amendments and laws to
achieve the objective of a functional democracy and a government of, for and by the people.
There are deliberate safeguards in place detailing separation of powers between organs of the
government, and the functions of legislature and judiciary are systematically laid out. Thus,
there is a clear effort to separate religion from the state and not have it be an influencing
factor in any aspect of governance whatsoever.

Issues identified

Both sets of governments and their guiding constitutions are prone to flaws and mishandling
by persons in power, as is natural in all systems of governance. The issue with India is that
despite having multiple safeguards in place to protect from the ruling party exercising power
to the point of autocracy, it has succumbed to exactly what was to be guarded against.

The problem thus lies with loopholes in the constitution which allow a political party that
wins by crushing majority to undo centuries of history and alter legislation to further their
own agenda. A party with majority in the Houses of Parliament can essentially force into
existence whatever laws they feel will suit their narrative. This has clearly been demonstrated
beyond reasonable doubt under the current regime in India.

As regards Saudi Arabia, the issue therein lies more with lack of intent rather than flawed
application within the constitution. The country is extremely set in their ways, so much so
that bare minimum reforms such as women being permitted to drive have only been ushered
in three years ago in 2018, rather unwillingly. This is down to the fact that the country holds
its values, traditions and practices which stem ultimately from religion extremely close to
heart, and do not allow adulteration to the core tenets of Islam in any diktat or policy. Such
steadfastness therefore leads to undesirable casualties, as the Arab country is widely known
for egregious violations of human rights and an indifference to what the outside world
considers to be ethical practice. In Saudi society it is generally believed that the role of
women is limited to maintaining the structure of family and subsequently society. 1 The
country’s constitution is indelibly interwoven with the State religion, which follows the Holy
scriptures and subsequent interpretations therefrom by the aforementioned ulemas down to

1
Marianne Alireza, Women of Saudi Arabia (National Geographic, 1987), 423-453.
the letter. A non-secular constitution is bound to be faulted for favouritism, which by itself
may be excused as the right of a sovereign state; although the denial of universal fundamental
rights cannot.

Literature Review

The Recent Constitutional Reforms in Saudi Arabia by Rashed Aba-Namay2

The article on JSTOR is an extremely in-depth publication on how Saudi Arabian reforms are
breaking new ground slowly but surely, while keeping solid reference to context by stating
what the country used to be like and how the Quran was and still is considered akin and
above a state constitution. It also explains the reasoning behind the country not having
drafted separate legislation of even employing a legislative body amongst other findings
which lend a great deal of clarity.

Constitution - The Kingdom of Saudi Arabia (weebly.com)3

The Article performs a thorough article wise analysis of how religion is intertwined
inescapably within the Constitution of Saudi Arabia, while also giving an overview of how
the governance of the state is set up and who the important powers are and how they function.

Women in Saudi Arabia Status, Rights, and Limitations4

The thoroughly researched and somewhat specific writing lends a great understanding of how
women exist in the State of Saudi Arabia, and how different it is from nations such as India
and the West. The ideals that are conformed to are covered and spelt out to convey the vast
difference between cultures as well as the deprivation of rights that women must undergo
simply because of their gender.

Body
2
Rashed Aba-Namay, The Recent Constitutional Reforms in Saudi Arabia, The International and Comparative
Law Quarterly Vol. 42, No. 2 (Apr., 1993), pp. 295-331 (37 pages), Published By: Cambridge University Press
3
Rebecca Paterson, The Constitution of Saudi Arabia,
https://thekingdomofsaudiarabia.weebly.com/constitution.html
4
Safaa Fouad Rajkhan, Women in Saudi Arabia Status, Rights, and Limitations, June 2014, University of
Washington Bothell
The Basic Law of Saudi Arabia or the Basic System of Governance (Arabic: ‫النظام األساسي‬
‫للحكم‬, Al Nidham Al Asasi lil Hukm) is a charter resembling a constitution containing nine
chapters with 83 Articles within them. This charter in Article One states that Saudi Arabia’s
constitution is the Sunna or traditions of the Prophet, along with the Holy Book of Quran.
This charter cannot override Islamic laws, although this is not an unusual occurrence, as even
the Greek Constitution lists the official religion of the State.

The Indian Constitution conversely under Article 14 specifies that there must be no
discrimination on the basis of creed or religion in any way shape or sphere. There is thus a
conscious effort to separate the state from religion, closely resembling
disestablishmentarianism under the charter.

The King in an absolute monarchy such as Saudi Arabia can usually perform judicial,
executive as well as legislative functions in whatever capacity they see fit. The King however
has advisors in the form of a council including ulema, who are supposed experts in practicing
and interpreting the teachings of the Quran and Sharia law. Such scholars in Saudi Arabia are
primarily from the Al ash-Sheikh family, who have descended from Muhammad ibn Abd al-
Wahhab, who founded the sect of Sunni Islam in the 18th century. 5 The Al-Saud and Al ash-
Sheikh families are closely interrelated, and have worked collaboratively in power for over
two centuries.

Members of judiciaries in both India and Saudi Arabia are selected based on their merit. The
benchmarks too are quite similar, in that judges must have mastery over the State constitution
and the core tenets thereof, along with a deep understanding of what the law of the land is
and how it must be interpreted. The difference is only what makes up the law of the land, and
that members of the Saudi clergy are given preference owing to their expertise over the
Quran.

The members of judiciary in Saudi Arabia decide cases based on their interpretation of the
Quran. Modern areas such as corporate law, which are not accounted for within the holy
scriptures are subject to decisions by royal decree, or the King’s justice on the advice of his
clergy. Even legal compensation is unequal in the country, as while Muslim complainants
receive their amounts in full, people of other faiths are entitled to half or even less.

Critical Analysis

5
Robert Lacey, The Kingdom: Arabia and the House of Sa'ud (New York: Harcourt Brace Jovanovich, 1981).
The Human Rights Watch has accused the committee of the Interior Ministry which drafted
The Basic Law of Saudi Arabia with serious violations of human rights. The Basic Law
makes no mention about women, who are largely ignored and denied basic rights to
essentially forfeit their independence into the hands of the vastly dominant male governed
society. Amnesty International in their report in 2000 opined upon the inferior status of
women and lack of recognition accorded to them within society.6

Islamic clergy such as muftis and sheikhs dominate legal positions in Saudi Arabia, and rely
upon The Basic Law in consonance with the Quran and Islamic jurisprudence which falls
under Sharia. Numerous positions of power are also reserved for such men of religion
including those of judges in courts as well as those who preach to the masses. The integration
of all political and religious institutions into one governing body was done in the eighteenth
century. Further, religious institutions are predominantly in control of most if not all the
affairs of the State, and permeate to the judiciary which is occupied exclusively by male
members.

The V-Dem Institute, an independent research organisation based in Sweden, has declared
India an “electoral autocracy” under the rule of the Hindu Nationalist BJP, downgrading the
world’s largest democracy from its 2019 ranking. The much-celebrated independence of
judiciary was also brought to its knees when sitting Chief Justice of India Ranjan Gogoi was
allowed to be part of the bench of judges adjudicating in proceedings wherein he himself was
accused of sexual assault, violating the sacred tenet that one must not be a judge in their own
trial.

Saudi Arabia’s Constitution was adopted in 1992, and stands undeniable proof that Saudi
Arabia is a religious state. This is to mean that there is no separation between the laws laid
down by the religion practiced and the laws of the state. Extract from scripture:

‘God’s Book and the Sunnah of His Prophet are its constitution.’

The corruption of the relationship between religion and the state is a result of unfiltered
reverence to Holy Scripture and the clergy which affects Saudi Arabian society collectively;
Muslims as well as others. Saudi Arabia although by and large follows its constitutional
guidelines, still often allows for preferential treatment for Muslims, and widespread
6
As’ad Abukhalil, the battle for Saudi Arabia royalty, fundamentalism, and global power, (Unabridged. ed. New
York: Seven Stories Press, 2014), 126
infringement of human rights. The vast majority of articles in the country’s constitution are
injected with influence of Islam or simply adhere to what is inscribed in the Quran or under
Sharia Law.

The Constitution of India has also been criticised for fallacies such as the inclusion of
pointless reservation under Articles 330, 332 & 334 as it provides preferential treatment
based on caste rather than a more functional economic criterion. Although backward castes
have been systematically oppressed, many of them suffer no financial impediment today and
avail benefit at the cost of someone who might actually need the assistance of reservation due
to poverty.

Article 25 however accords the right to every citizen to practice and propagate whatever
religion or lack thereof they may choose to, and face no detriment whatsoever as a result in
any sphere of society.

Articles of the Saudi Constitution showcasing reliance on Islam:

Article 3 details the inseparable relationship between the religion and state as the declaration
of faith under Islam is to be inscribed on Saudi Arabia’s national flag.

Article 7 specifies that there is no separation between church and state as the government
itself gets legitimacy from the Quran and Prophet of Islam.

 Article 8 reveals that whether it be human rights, equality or justice, they must all be
considered within the purview of religious tenets and that Sharia supersedes every
government proclamation.

Article 9 directs that all members of society will be brought up with Islamic values to learn
obedience to God and in turn, to the King who is granted his power through the Prophet and
his teachings. 

Article 13 states that the education of younger generations will focus on instilling within
them the Islamic faith and its tenets thereto above all else.
Article 23 conveys the state’s deeply rooted connection to the Islamic faith as the religious
laws themselves form laws of the state.

Article 26 reveals that human rights may be protected in Saudi Arabia, however only when it
is in consonance with the Islamic law, with disregard to those who practice differently.

Article 46 & 48 state how the judiciary remains an independent authority except when their
judgment interferes with Islamic law. People who violate religious law whether followers of
Islam or not, are judged accordingly as if they were a part of it.

Conclusion

It is thus apparent that the Constitution of Saudi Arabia is greatly influenced by the tenets of
Islam. As a result, even though the Constitution is substantially acted upon, there is no scope
for anything that goes beyond the purview of religious texts and their interpretation by the
clergy. The constitution contains provisions for public welfare, and upliftment of the people
alongside furtherance of education. Unfortunately, every single iteration in the Constitution
of Saudi Arabia is subservient to the scriptures and guidelines under the Holy Quran and
Sharia Law.

India for all its secular trope, is still prone to aggressive nationalism and misplaced pseudo-
patriotism amongst all its diversity of thought and culture, which has recently increasingly led
to clashes between different faiths, and a confusion amongst the general public regarding
whether the State is secular or for the Hindus. This may be blamed upon the fact that the
ruling party has a clear nationalist agenda to further, and their success at it merely points to
the conclusion that there are not enough safeguards in our current Constitutional framework
to prevent it from being hijacked for self-serving propaganda by individuals in power. The
judiciary is an organ of paramount importance, and yet is liable to be influence by
nominations from the ruling party through the Prime Minister, to incur weightage within the
courts of the land. Such liberties may well be revoked, as they dangerously dilute the
independence and objectiveness of the justice system. Although basic human rights may be
better scripted on paper, their enforcement leaves a lot to be desired when clashes of a
religious nature occur.
Bibliography

ICL > Saudi Arabia > Constitution (unibe.ch)

The Recent Constitutional Reforms in Saudi Arabia on JSTOR

Law of the Judiciary | The Embassy of The Kingdom of Saudi Arabia (saudiembassy.net)

Rajkhan - Capstone.pdf (washington.edu)

Basic Law of Saudi Arabia - Wikipedia