Comparative Constitutional Law Notes | LL.M. Semester 2 | Mumbai University | munotes

The United States. The Constitution of the United States, framed at Philadelphia in 1787, ratified 1788, in operation from 4 March 1789. Its provisions are seven Articles, numbered in Roman: Article I is the legislature, Article II the executive, Article III the judiciary. Each Article is divided into sections and clauses, so a full citation reads "Article I, section 8, clause 3".

The twenty seven Amendments are a separate series, also numbered in Roman, and they are not related to the Articles. There is an Article V and there is a Fifth Amendment, and they have nothing to do with each other: Article V is the amending procedure, the Fifth Amendment is due process and self-incrimination. This book writes "the Fifth Amendment" and "Article V" and never abbreviates either.

The United Kingdom. There is no document. The constitution is found in statutes, in the royal prerogative, in the common law, in conventions, and in works of authority. The statutes this book quotes are Magna Carta 1297 chapter XXIX, the Bill of Rights 1689, the Parliament Acts 1911 and 1949, the Senior Courts Act 1981, the Human Rights Act 1998, the Constitutional Reform Act 2005, the European Union (Withdrawal) Act 2018 and the Dissolution and Calling of Parliament Act 2022. They are cited by section.

Switzerland. The Federal Constitution of the Swiss Confederation of 18 April 1999, in force 1 January 2000, the third Swiss constitution after those of 1848 and 1874. Its provisions are articles, 1 to 197, in six Titles. The Federal Chancellery heads every one of them "Art. 5", never "Article 5", and it inserts new provisions with a lower-case letter, so there is an article 5a and an article 121a between 121 and 122.

English is not an official language of the Swiss Confederation. The English version is a translation published by the Chancellery for information and has no legal force. The article numbers are the German text's own, so citing by number is safe; every quotation in this book is the Confederation's own English rendering and is marked as such.

Germany. The Basic Law for the Federal Republic of Germany, of 23 May 1949. Its provisions are articles, 1 to 146, with lettered insertions in lower case (20a, 23, 45a, 91a to 91e, 104a, 115a to 115l). It is called a Basic Law and not a constitution because in 1949 it was meant to be provisional until reunification; article 146 still contemplates its replacement, and it was not replaced in 1990.

Ireland. Bunreacht na hEireann, the Constitution of Ireland, adopted by referendum 1 July 1937, in force 29 December 1937. Fifty Articles, each divided into sections and subsections in a distinctive style, so a citation reads "Article 40.3.1" or "Article 15.2.1".

Canada. Two Acts and no single document. The Constitution Act, 1867, formerly the British North America Act, has 147 sections and contains the division of powers. The Constitution Act, 1982 has 61 sections and contains the Canadian Charter of Rights and Freedoms (sections 1 to 34), the aboriginal rights provision, the amending procedures, and the supremacy clause in section 52.

Both Acts number from 1, so "section 91" is meaningless without the year. Section 91 of the 1867 Act is the federal legislative list; section 33 of the 1982 Act is the notwithstanding clause. This book always names the Act.

The vocabulary this book uses without stopping

Defined here once, and used everywhere afterwards.

Constitution. The body of rules, written or unwritten, that establishes the organs of a State, distributes power among them, limits that power, and provides for its own change.

Constitutionalism. The idea that the power of government must be limited by law, and that those limits must be effective. It is not the same thing as having a constitution, which is the point of [A Constitution Without Constitutionalism].

Codified. Reduced to a single document. Uncodified means not so reduced. Not the same as written and unwritten: see [Written and Unwritten, Codified and Uncodified].

Entrenched. Protected against ordinary legislative change, usually by a special amending procedure.

Federal. Having two levels of government, each with powers it holds under the constitution and not by grant from the other. Unitary means one level of government from which all other authority derives.

Justiciable. Capable of being decided by a court. A provision may be part of a constitution and not justiciable, which is what the Irish and Indian directive principles are.

Ratio decidendi. The principle of law on which a decision actually rests, and the only part of a judgment that binds later courts. Obiter dictum is an observation not necessary to the decision: it persuades, it does not bind.

Ultra vires. Beyond the powers. A legislative act outside the competence given by the constitution.

How a chapter here is built

Every chapter opens with the idea in one plain line and then in exam wording. It says why the law has the thing at all, sets out the provisions with their exact numbers, breaks them down, works an example, gives the leading cases with their facts and what they held, tables the distinctions that carry marks, names what beginners get wrong, states the limits and criticisms, and ends with a short revision list and questions with their answers.

Names in square brackets, like [The Rule of Law], are other chapters of this book.

A worked example

An examiner asks: "How do the constitutional models of federalism in India, the United States, Germany and Ireland reflect different approaches to the distribution of governmental powers?"

Read the instruction. Four named systems, and one named question about them. An answer that describes Indian federalism at length and mentions the other three in a sentence has not answered it.

Find the provision in each. Article 246 and the Seventh Schedule; Article I section 8 and the Tenth Amendment; articles 70 to 74 of the Basic Law; and, for Ireland, Article 15.2.1, which vests the sole and exclusive law-making power in the Oireachtas, so the honest answer is that Ireland is not federal at all and is on the list for a different reason.

Find the difference that matters. Where the residue goes, how many lists there are, and who administers the law once it is made.

Then the cases, one for each proposition, not a list.

That is the shape of every answer on this paper, and it is why this book is arranged by question rather than by country.

What beginners get wrong

"Comparative constitutional law means knowing seven constitutions." It means knowing what to compare them on. A student who knows six axes and can place any system on each of them will answer better than one who has memorised seven documents and no framework.

"The Indian material is the important part." India appears in seven of the nine topics, so it is the spine. But four of the nine topics name other countries first, and an answer on the Swiss amending process that talks mostly about article 368 has answered a different question.

"Foreign law can be taken from an Indian judgment." It cannot, and this is the commonest failure in a comparative answer. An Indian judgment's account of American law is an Indian court's understanding, offered for an Indian purpose. Every foreign proposition in this book comes from that country's own court in that country's own report, and yours should too.

Quick revision

1. Paper 26913, LL.M. Semester II, Group I, three hours, 100 marks, seven questions, answer any four.
2. Nine topics in four modules, each naming a theme and then the countries.
3. India: 395 articles; USA: 7 Articles plus 27 separate Amendments; Switzerland: 197 articles headed "Art."; Germany: 146 articles; Ireland: 50 Articles; Canada: two Acts, 147 and 61 sections; the UK: no document.
4. Article V is the American amending clause; the Fifth Amendment is due process. They are unrelated.
5. Section 91 is Canadian federal power under the 1867 Act; section 33 is the override under the 1982 Act.
6. The syllabus asks for comparison, not for seven descriptions.

Test yourself

1. A question asks you to "compare the fundamentals" of five constitutions. What is the difference between a good answer and a bad one? A bad answer describes each constitution in turn. A good answer chooses axes, such as form, rigidity, distribution of power, executive type, rights and judicial review, and places all five on each axis, so the examiner can see the comparison rather than reconstruct it.

2. Why is it wrong to cite "Article 5 of the Swiss Constitution" from an Indian textbook's account of it? Because the proposition would rest on a second-hand description rather than on the text or the court that owns it. The Confederation publishes its own English version, and that is the only safe source. The same rule applies to every foreign system on this syllabus.

3. What is the difference between Article V and the Fifth Amendment of the United States Constitution? Article V is part of the original 1787 document and lays down how the Constitution may be amended. The Fifth Amendment is one of the twenty seven later amendments and guarantees, among other things, due process of law and the privilege against self-incrimination. They belong to two separate numbering series.

4. Why does this book always write "section 91 of the Constitution Act, 1867" rather than "section 91"? Because Canada has two constitutional Acts, both numbered from section 1. Section 91 of the 1867 Act is the federal legislative list; there is also a section 91 in no other constitutional Act, but sections 1 to 61 of the 1982 Act overlap the 1867 numbering completely, so an unqualified section number is ambiguous.

2. It distributes power. Between the organs, which is separation of powers, and between levels, which is federalism. Article 246 and the Seventh Schedule in India; sections 91 and 92 of the Constitution Act 1867; article 3 and articles 42 to 49 in Switzerland; articles 70 to 74 of the Basic Law.

3. It limits power. By guaranteeing rights against the State, by requiring procedures, and by making some things impossible. Part III of the Indian Constitution, the American Bill of Rights, the Canadian Charter, articles 7 to 36 of the Swiss Constitution, articles 1 to 19 of the Basic Law, Articles 40 to 44 of the Irish Constitution.

4. It provides for its own change. Article 368 in India, Article V in the United States, articles 192 to 195 in Switzerland, Part V of the Constitution Act 1982, article 79 of the Basic Law, Articles 46 and 47 in Ireland. In the United Kingdom, an ordinary Act of Parliament does it.

A worked example: three ways of doing the same job

Suppose a government wants to detain people without trial during an emergency. Watch the four jobs at work.

In India the constitution has anticipated it. Article 352 lets the President proclaim an emergency; article 358 suspends article 19 during a war emergency; article 359 lets the President suspend the enforcement of certain rights, but the Forty Fourth Amendment of 1978 removed articles 20 and 21 from what may be suspended. So the answer is in the text, and the text was rewritten after the experience of 1975 to 1977.

In the United States the constitution has almost nothing to say. There is no emergency chapter. Article I section 9 provides only that the privilege of the writ of habeas corpus shall not be suspended unless in cases of rebellion or invasion the public safety may require it. The answer therefore came from a court, and in Korematsu v. United States, 323 U.S. 214 (1944), it came out badly: the Court upheld the exclusion of American citizens of Japanese descent from the West Coast on the ground of military necessity, while stating the rule that all legal restrictions curtailing the civil rights of a single racial group are immediately suspect and must be subjected to the most rigid scrutiny.

In the United Kingdom the answer is a statute, and a court reading it. Regulation 18B of the Defence (General) Regulations 1939 allowed the Home Secretary to detain a person if he had reasonable cause to believe him of hostile associations. In Liversidge v. Anderson, [1942] AC 206, the House of Lords held by a majority that the words meant no more than that the minister thought he had reasonable cause, so the sufficiency of his grounds could not be examined. Lord Atkin dissented, and his dissent is now treated as the correct view.

Three constitutions, one problem, three completely different places to look for the answer: a text, a court, a statute. That is comparative constitutional law in miniature.

The cases

Facts. Korematsu v. United States, 323 U.S. 214 (1944), arose out of the wartime exclusion of Americans of Japanese descent from the West Coast. Fred Korematsu, an American citizen, was convicted of remaining in a designated military area in California contrary to Civilian Exclusion Order No. 34. No question was raised as to his loyalty.

Held, by Black J for the Court. The conviction stood, on the ground of military necessity. The same opinion nevertheless laid down that all legal restrictions curtailing the civil rights of a single racial group are immediately suspect and must be subjected to the most rigid scrutiny, and that pressing public necessity may sometimes justify such restrictions but racial antagonism never can. Murphy J dissented, saying the exclusion went over the very brink of constitutional power and fell into the ugly abyss of racism.

Why it matters here. A constitution with no emergency chapter leaves the whole question to a court, and this is the standing example of a court failing under that weight. The formula it laid down while failing is the one that now governs American affirmative action, which is why the case reappears in [Strict Scrutiny and Compelling Interest].

Facts. Liversidge v. Anderson, [1942] AC 206, arose under regulation 18B of the Defence (General) Regulations 1939, which provided that if the Secretary of State had reasonable cause to believe a person to be of hostile origin or associations, and that it was necessary to exercise control over him, he might order his detention. Robert Liversidge, detained, sought particulars of the grounds.

Held, by the majority. The words meant no more than that the Secretary of State thought he had reasonable cause, so the objective sufficiency of the grounds was not open to review. Lord Atkin dissented, and his dissent is now treated as the correct view.

Why it matters here. An uncodified constitution answers an emergency question by construing a statute, with no higher law to appeal to. The Indian parallel is Additional District Magistrate, Jabalpur v. Shivakant Shukla, AIR 1976 SC 1207, worked in [Emergency, Derogation and Suspension].

Distinctions

In the United Kingdom the first, second and third rows do not hold, and that is exactly what makes it worth studying.

What it does NOT mean

A constitution is not a code of everything the State does. It is a framework. India's is unusually detailed and still leaves nine tenths of the working of government to ordinary law.

A constitution is not a guarantee. A State can have an admirable constitution and no constitutionalism at all. [A Constitution Without Constitutionalism] is that chapter.

A constitution is not necessarily one document. Two of MU's seven, the United Kingdom and Canada, are not. Canada is at least a defined set of instruments; the United Kingdom is not even that.

Limits and criticism

The four-jobs account is useful and incomplete. Three objections are worth knowing.

It says nothing about legitimacy. A constitution imposed by an occupying power does the four jobs and may still be rejected by the people it governs. The Basic Law's own article 146 acknowledges this by contemplating a constitution adopted by a free decision of the German people.

It treats the text as the constitution. The working constitution of any State includes a great deal that no text mentions: conventions, party discipline, the practice of the civil service. Module I topic 2 is entirely about that gap.

It assumes the constitution is being obeyed. The four jobs are descriptions of what a constitution says. Whether it is followed is a separate question and, for the citizen, the only one that matters.

Quick revision

1. A constitution constitutes the organs, distributes power, limits power and provides for its own change.
2. Each of MU's seven answered a specific historical problem, and the design follows the problem.
3. India anticipates emergency in the text; the United States leaves it to the courts; the United Kingdom to a statute and its construction.
4. Korematsu v. United States, 323 U.S. 214 (1944): exclusion upheld, but the immediately-suspect and rigid-scrutiny formula was laid down in the same opinion.
5. Liversidge v. Anderson, [1942] AC 206: majority declined objective review; Lord Atkin's dissent is now the accepted view.
6. Constitution against ordinary law: creates the power, changed specially, prevails in conflict. All three fail in the United Kingdom.

Test yourself

1. State the four functions of a constitution and give one provision for each from a different country. Constituting the organs: Article III section 1, United States Constitution, vesting the judicial power. Distributing power: section 91, Constitution Act 1867, listing federal powers. Limiting power: article 1 of the German Basic Law, human dignity. Providing for change: articles 192 to 195 of the Swiss Constitution, total and partial revision.

2. Why does the American Constitution have no chapter on emergency, and what follows? Its framers were building limits against a central government and did not provide a general emergency power; the only relevant clause is the suspension of habeas corpus in Article I section 9. What follows is that emergency questions reach the courts as ordinary constitutional litigation, which is how Korematsu arose and why the American answer is judicial rather than textual.

3. How does the Indian Constitution's treatment of emergency differ, and what changed it? Part XVIII provides expressly for three kinds of emergency and for the suspension of the enforcement of rights under article 359. The Forty Fourth Amendment of 1978, enacted after the Emergency of 1975 to 1977, removed articles 20 and 21 from the reach of that suspension, so the right to life and the protections against retrospective punishment can no longer be suspended.

4. "A constitution is a solution to a problem." Illustrate from two of MU's seven. The German Basic Law of 1949 answered the destruction of the Weimar democracy by putting human dignity first, entrenching the federal order and the principles of articles 1 and 20 against amendment in article 79(3), and requiring a constructive vote of no confidence. The Canadian Constitution Act 1867 answered the American civil war by giving the residue and the important heads of power to the centre rather than to the provinces.

Limits that bite. A prohibition with no consequence is not a limit. The American Bill of Rights bites because a court will set a statute aside; the Indian Part III bites because article 32 makes the remedy itself a fundamental right.

Division of power. Between organs and, in a federation, between levels, so that no single body can do everything.

An independent adjudicator. Somebody outside the political branches must be able to say authoritatively that a limit has been crossed. Which is why Module III's topic on the judiciary is not a separate subject but the same subject seen from the other end.

A lawful route to change. Constitutionalism does not mean that a constitution can never change. It means that change follows a known procedure rather than a seizure.

Accountability. Elections, a free press, a legislature that can question the executive. These are not in every constitutional text and are indispensable in practice.

A worked example

Suppose the government of a State wishes to detain critics of its policy for six months without charge, and passes an Act to that effect. Follow the Act through four of MU's seven systems and constitutionalism becomes concrete.

India. The Act meets article 22, which permits preventive detention but conditions it: the detenu must be told the grounds, an Advisory Board of persons qualified to be High Court judges must report within three months, and the law must fix the maximum period. The Act also meets article 21, and after Maneka Gandhi v. Union of India, AIR 1978 SC 597, the procedure it lays down must be fair, just and reasonable rather than merely enacted. If it fails either test a court will strike it down under article 13.

The United States. There is no preventive detention power in peacetime at all. The Fourth, Fifth and Sixth Amendments require probable cause, a charge and a speedy trial, and Article I section 9 permits suspension of habeas corpus only in cases of rebellion or invasion. The Act would not survive.

The United Kingdom. Parliament may enact it, and no court may set it aside. What a court may do is read it compatibly with the Convention rights under section 3 of the Human Rights Act 1998, and if that is impossible, declare it incompatible under section 4, which does not affect its validity. That is exactly what happened in A v. Secretary of State for the Home Department, [2004] UKHL 56.

Germany. The Act would be tested against article 2(2) and article 104 of the Basic Law, and, if the government tried to amend the Basic Law to save it, against article 79(3), because the principles of articles 1 and 20 are unamendable.

Four systems, four answers, and only one of them, the British, in which the legislature has the last word.

The cases

Facts. A v. Secretary of State for the Home Department, [2004] UKHL 56, [2005] 2 AC 68, the Belmarsh case, concerned section 23 of the Anti-terrorism, Crime and Security Act 2001, which allowed the indefinite detention without trial of foreign nationals certified as suspected international terrorists who could not be deported. The United Kingdom had derogated from article 5 of the European Convention in order to enact it.

Held, by a House of nine, Lord Walker dissenting. The derogation order was quashed and a declaration was made under section 4 of the Human Rights Act 1998 that section 23 was incompatible with articles 5 and 14 of the Convention, in so far as it was disproportionate and permitted detention in a way that discriminated on the ground of nationality or immigration status. Lord Nicholls put the principle in a sentence: indefinite imprisonment without charge or trial is anathema in any country which observes the rule of law.

Why it matters here. It is the best available demonstration of constitutionalism without a supreme constitution. The section remained law after the declaration; what changed it was Parliament, which replaced the scheme in 2005. The limit was real and it was not judicial invalidation.

Facts. Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225, was a challenge by the head of a Kerala mutt to land reform legislation, which grew into a challenge to the Twenty Fourth, Twenty Fifth and Twenty Ninth Amendments and to the extent of the amending power itself. Thirteen judges heard it over sixty eight days.

Held, by seven to six. Article 368 does not confer a power to alter the basic structure or framework of the Constitution. Parliament may amend any provision, including Part III, but not so as to destroy the Constitution's essential features.

Why it matters here. It is constitutionalism asserted against the amending power itself, in a text that contains no article 79(3). Worked in full in [The Basic Structure Doctrine].

Distinctions

What beginners get wrong

"Constitutionalism means having a written constitution." It does not. The United Kingdom has no codified constitution and a strong tradition of constitutionalism; several States with elaborate written constitutions have none. The distinction is the subject of [A Constitution Without Constitutionalism].

"Constitutionalism means the courts are supreme." It means power is limited, not that judges hold the limit. Switzerland limits federal legislative power and forbids its Federal Supreme Court to set a federal Act aside, by article 190; the check there is the referendum under article 141.

"Constitutionalism is a Western idea." The devices are traceable to particular Western failures, but the idea that a ruler is bound is not confined to any tradition, and the Indian Constitution's framers adopted, adapted and improved on the machinery rather than importing it.

Limits and criticism

It can protect an unjust settlement. Entrenchment freezes whatever was entrenched. The American Constitution protected slavery until 1865 and Plessy v. Ferguson, 163 U.S. 537 (1896), used the equal protection clause itself to license segregation for fifty eight years.

It can obstruct redistribution. Much of the Indian constitutional history from 1951 to 1978 is a collision between a right to property and land reform, which produced the First, Fourth, Seventeenth, Twenty Fifth and Forty Fourth Amendments.

It depends on things law cannot supply. A constitution cannot make judges brave, ministers honest or citizens attentive. Korematsu and Liversidge were decided under two of the strongest constitutional traditions in the world.

Quick revision

1. Constitutionalism is limited government made effective, not merely proclaimed.
2. Its elements: a superior law, limits that bite, division of power, an independent adjudicator, a lawful route to change, and accountability.
3. Magna Carta 1297 chapter XXIX asserts the limit; the American Constitution builds the machinery; article 79(3) of the Basic Law puts some things outside amendment altogether.
4. India: article 13 voids inconsistent law, article 32 guarantees the remedy. Canada: section 52(1) of the Constitution Act 1982.
5. A v. Secretary of State for the Home Department, [2004] UKHL 56: a declaration of incompatibility, and the section stayed law until Parliament changed it.
6. Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225: seven to six, no power to destroy the basic structure.
7. Having a constitution and having constitutionalism are separate questions.

Test yourself

1. Define constitutionalism in exam wording and name its elements. Constitutionalism is the doctrine that governmental power derives from and is bound by a superior law, together with the machinery that makes the limitation real: a superior law, enforceable limits, division of power between organs and levels, an independent adjudicator, a lawful amending procedure, and political accountability.

2. "A State with a written constitution necessarily has constitutionalism." Discuss. False. The written text is evidence of an intention to limit power; whether power is limited is a question about practice. India's own Emergency of 1975 to 1977 was carried out under the Constitution, using articles 352, 356, 358 and 359 and a series of amendments, which is why the distinction is on the syllabus.

3. How can the United Kingdom be said to have constitutionalism when Parliament is sovereign? Because the limits operate through means other than invalidation: the executive may do nothing without legal authority (Entick v. Carrington); ministers are answerable to Parliament and to the courts for the legality of their acts (M v. Home Office); legislation is read compatibly with rights under section 3 of the Human Rights Act 1998, and where it cannot be, the incompatibility is declared under section 4 and Parliament responds.

4. What does article 79(3) of the German Basic Law add to constitutionalism that article 368 of the Indian Constitution does not contain? An express, textual limit on the amending power: amendments affecting the federal division, the participation of the Lander in legislation, or the principles of articles 1 and 20 are inadmissible. India's limit is judicial, read into article 368 in Kesavananda Bharati, and is therefore a doctrine rather than a provision.

The device the systems disagree about: judicial review

Five of MU's seven give a court power to hold a statute void. The two that do not are instructive.

The United Kingdom has no such power because Parliament is sovereign. British Railways Board v. Pickin, [1974] AC 765, states it as bluntly as it can be stated. What the courts have instead is the interpretive obligation in section 3 of the Human Rights Act 1998 and the declaration of incompatibility in section 4.

Switzerland has a supreme constitution and forbids the review of federal statutes. Article 190 provides that federal Acts and international law are binding on the Federal Supreme Court and the other judicial authorities. Cantonal law can be reviewed; federal law cannot. The Swiss answer is that the check has already been applied politically, because under article 141 fifty thousand voters may demand a referendum on a federal Act.

That is worth sitting with. Switzerland has the strongest popular control of legislation in the world and the weakest judicial control of it, and the two facts are connected.

A worked example

Parliament passes an Act providing that a person who publishes material tending to bring the government into hatred shall be punished with imprisonment for three years, and that no court shall inquire into the truth of the publication.

Enumeration does not help in India: Entry 1 of List II and Entry 1 of List III give the legislative competence.

Prohibition does. Article 19(1)(a) guarantees freedom of speech, and article 19(2) permits reasonable restrictions only on the eight listed grounds. "Tending to bring the government into hatred" is not one of them unless it can be brought under public order, and Kedar Nath Singh v. State of Bihar, AIR 1962 SC 955, read the sedition provision down so as to reach only incitement to violence or public disorder.

Remedy does. A citizen moves the Supreme Court under article 32 or a High Court under article 226.

Judicial review completes it. Under article 13(2) the law is void to the extent of the inconsistency.

In the United Kingdom the same Act would be law. A court would try to read it compatibly with article 10 of the Convention under section 3 of the Human Rights Act 1998, and failing that would declare it incompatible under section 4, leaving the Act in force.

In Switzerland the Act would be tested against article 16 of the Federal Constitution, but if it were a federal Act the Federal Supreme Court could not set it aside because of article 190. Fifty thousand signatures would put it to a referendum instead.

The cases

Facts. British Railways Board v. Pickin, [1974] AC 765, arose out of a private Act obtained by the Board. Pickin alleged that the Board had fraudulently misled Parliament in obtaining it, and pleaded the fraud in answer to the operation of section 18 of the Act.

Held, by the House of Lords. The plea was struck out. A litigant is not entitled to go behind the Act to show that a section should not be enforced, nor entitled to examine proceedings in Parliament to show that the promoters caused him loss by fraudulently misleading it.

Why it matters here. It fixes the point at which the British system differs from every other on this syllabus: there is no device by which a British court can refuse effect to an Act of Parliament on any ground whatever.

Facts. United States v. Lopez, 514 U.S. 549 (1995), concerned the Gun-Free School Zones Act 1990, which made possession of a firearm in a school zone a federal offence. Alfonso Lopez, a school student, was convicted under it and argued that Congress had no power to enact it.

Held, by Rehnquist CJ for a Court of five to four. The Act exceeded the commerce power. Congress may reach activities that substantially affect interstate commerce, but the possession of a gun in a local school zone is in no sense an economic activity that would, through repetition elsewhere, have such an effect.

Why it matters here. It shows enumeration working as a limit six decades after most observers had written it off, and it has no Indian counterpart, because article 248 leaves no residue outside the Union's reach.

Distinctions

What beginners get wrong

"Limited government means weak government." It does not. The United States has enumerated federal powers and one of the most powerful governments on earth; the limits are on the manner and the subject, not on the strength.

"If a court can strike down a law, government is limited; otherwise it is not." The British and Swiss counter-examples are on the syllabus precisely to make this claim untenable.

"The residue matters little." It decides who wins when the constitution is silent about a new problem. Data protection, the internet and climate change were in nobody's list.

Limits and criticism

Devices can be circumvented by amendment. India's answer is the basic structure doctrine; Germany's is article 79(3); the American answer is that Article V is hard enough to make the question rare.

Devices can be suspended. Article 358 suspends article 19 during a war emergency and article 359 permits the suspension of the enforcement of rights, though not of articles 20 and 21 since 1978.

Devices depend on standing and cost. A right enforceable only by a litigant who can reach the Supreme Court is limited in practice, which is why Indian public interest litigation, treated in [Standing and Public Interest Litigation], matters to this chapter.

Quick revision

1. Six devices: enumeration, prohibition, rights with a remedy, separation of powers, federalism, entrenchment.
2. Judicial review is a seventh and the systems disagree about it: five of seven have it over statutes, the United Kingdom and Switzerland do not.
3. Article 190 of the Swiss Constitution: federal Acts bind the Federal Supreme Court. Article 141: fifty thousand voters may demand a referendum on one.
4. India: article 13 voids, article 32 gives the remedy, article 248 keeps the residue at the centre.
5. United States: Article I section 8 enumerates, the Tenth Amendment reserves, Article I section 9 prohibits.
6. British Railways Board v. Pickin, [1974] AC 765: no going behind an Act.
7. United States v. Lopez, 514 U.S. 549 (1995): the commerce power has an edge.

Test yourself

1. List the devices of limited government and say which one India relies on most heavily. Enumeration, prohibition, rights with a remedy, separation of powers, federalism and entrenchment. India relies most heavily on rights with a remedy: Part III combined with articles 13, 32 and 226, because article 248 makes enumeration a weak limit and the Indian separation of powers is not strict.

2. How is legislative power limited in Switzerland if the Federal Supreme Court may not set a federal Act aside? By the people. Article 141 allows fifty thousand voters, or eight cantons, to demand a referendum on a federal Act, and article 190 assumes that this political check has already operated. Cantonal law remains judicially reviewable.

3. Why does United States v. Lopez have no Indian equivalent? Because the Indian Constitution leaves no gap. Article 248 read with Entry 97 of List I gives Parliament the residuary power, so a subject that appears on no list is still within the Union's competence; there is no argument that the power was never granted.

4. A statute in the United Kingdom plainly breaches a Convention right. What can a court do? Three things and no more: read it compatibly under section 3 of the Human Rights Act 1998 if that is possible; if it is not, declare the incompatibility under section 4, which does not affect the validity or continuing operation of the provision; and, where the act complained of is that of a public authority rather than the statute itself, grant a remedy under sections 7 and 8. Only Parliament, or a minister by remedial order under section 10, can change the statute.

The third meaning is the one that dates. It describes a constitution built by courts, which is what the English had and what nobody else on this syllabus has.

The two modern accounts

The formal, or thin, account. The rule of law is about the form of legal rules, not their content. Laws should be prospective, published, clear, stable, general, not contradictory, capable of being obeyed, and applied as announced. A wicked law that satisfies all of that satisfies the rule of law, and must be attacked on other grounds. The virtue of the formal account is that it is testable.

The substantive, or thick, account. The rule of law includes some minimum content: that the law must respect human dignity, that there must be access to courts, that certain rights are not to be invaded whatever the form. The virtue is that it matches how the phrase is used in political argument; the difficulty is that it collapses the rule of law into a general theory of justice.

Indian law leans substantive. Article 14 has been read since E.P. Royappa v. State of Tamil Nadu, AIR 1974 SC 555, as forbidding arbitrariness as such, which is a content-based limit and not a formal one.

Where the phrase appears in a text

Students often assume the rule of law is unwritten everywhere. Three of MU's seven put it in the instrument.

United Kingdom. Section 1 of the Constitutional Reform Act 2005 provides that the Act does not adversely affect "the existing constitutional principle of the rule of law", or the Lord Chancellor's existing constitutional role in relation to that principle. Parliament acknowledged the principle without defining it.

Canada. The preamble to the Canadian Charter of Rights and Freedoms recites that Canada is founded upon principles that recognise the supremacy of God and the rule of law.

Switzerland. Article 5 of the Federal Constitution is headed by the Confederation's own translation as the rule of law, and provides that all activities of the state are based on and limited by law, that state action must be in the public interest and proportionate, and that public bodies and private persons must act in good faith.

India does not use the phrase in the text, and has the strongest machinery of the four: article 14, article 21, article 32, and article 265, that no tax shall be levied or collected except by authority of law.

A worked example

A district collector, without any statutory power, orders that no procession may pass along a particular road for a month, and the police enforce the order.

In England after Entick the order is a trespass on the highway rights of every person affected, and no defence exists, because no statute or common law rule authorised it.

In India the collector's act fails at three points. It is not authorised by law, so article 21 is breached because the deprivation of liberty is not by procedure established by law. It restricts article 19(1)(b), and article 19(3) permits only restrictions imposed by law. And under article 14 as read in E.P. Royappa an act with no rule behind it is arbitrary.

In the United Kingdom today there is the additional route of M v. Home Office, [1994] 1 AC 377: if the collector's counterpart disobeyed a court order, a finding of contempt could be made against him in his official capacity.

The cases

Facts. Entick v. Carrington, (1765) 19 St Tr 1029, arose when the King's messengers, acting on a warrant of the Secretary of State, broke into John Entick's house and carried away his papers on suspicion of seditious libel. Entick sued in trespass.

Held, by Lord Camden CJ. The warrant was illegal and the trespass actionable. No such power was to be found in the law books from the first Year-Book to the present time, and a power to issue such a warrant was contrary to the genius of the law of England. The practice of Secretaries of State since the Revolution did not make it lawful.

Why it matters here. It is the concrete form of the rule of law: the executive may do nothing without legal authority, and the burden is on the executive to show where the authority is.

Facts. M v. Home Office, [1994] 1 AC 377, concerned a Zairean asylum seeker removed from the United Kingdom in breach of an undertaking to the court and of an order made by a judge at night. Contempt proceedings were brought against the Home Secretary.

Held, by the House of Lords. A finding of contempt could be made against a minister of the Crown. The order was amended so that the finding lay against the Secretary of State for Home Affairs in his official capacity rather than personally, and the appeal and cross-appeal were dismissed.

Why it matters here. It answers Dicey's second meaning in the modern form: the government is subject to the ordinary jurisdiction of the ordinary courts, including their coercive jurisdiction.

Distinctions

What beginners get wrong

"The rule of law means all laws must be obeyed." That is closer to rule by law. The doctrine is about who is bound and how law is made and applied, not about the duty of obedience.

"Dicey's second meaning bars any special rules for officials." Dicey thought so, and Indian and English law do not. Article 361 gives the President and Governors immunity from court process; the Public Servants (Inquiries) Act and service rules apply only to officials. What the doctrine forbids is exempting officials from legal control, not having rules addressed to them.

"Discretion is contrary to the rule of law." Unstructured discretion is. Modern administrative law accepts discretion and controls it, by requiring it to be exercised for a proper purpose, on relevant considerations, and reasonably.

Limits and criticism

It says nothing about who makes the law. A perfectly law-governed autocracy is possible in theory, which is why the rule of law is a necessary and not a sufficient condition of a decent constitution.

Dicey's account was inaccurate even about England. He denied that England had administrative law at all, and it plainly does.

Emergencies test it hardest. Liversidge v. Anderson, [1942] AC 206, and Additional District Magistrate, Jabalpur v. Shivakant Shukla, AIR 1976 SC 1207, are the two standing examples of courts abandoning the doctrine when it mattered most; both are now repudiated.

Quick revision

1. Rule of law: public power must be authorised and controlled by law; law must be certain, general, prospective and public; independent courts apply it to government and citizen alike.
2. Dicey's three meanings: supremacy of regular law over arbitrary power; equality before the ordinary law and courts; the constitution as the result of ordinary law.
3. Formal account: form of rules. Substantive account: minimum content. India leans substantive through article 14 and E.P. Royappa.
4. In the text: section 1 of the Constitutional Reform Act 2005; the Charter preamble in Canada; article 5 of the Swiss Constitution. Not in the Indian text.
5. Entick v. Carrington, (1765) 19 St Tr 1029: no power to be found in the law books, so the warrant was illegal.
6. M v. Home Office, [1994] 1 AC 377: contempt lies against a minister in his official capacity.
7. Article 265: no tax without authority of law.

Test yourself

1. State Dicey's three meanings and say which has worn worst. Supremacy of regular law over arbitrary power; equality before the ordinary law and the ordinary courts; and the constitution as the result of ordinary law rather than its source. The third has worn worst, because it describes a judge-made constitution and none of MU's other six systems has one; the second has worn badly too, because Dicey's objection to separate administrative jurisdiction is not now accepted.

2. Why is Entick v. Carrington still cited in a comparative paper? Because it states the burden the right way round. The question is not whether the executive act was sensible but where the power came from, and the answer must be a legal source. Every system on this syllabus accepts that proposition; they differ only in what happens when it is broken.

3. Contrast the formal and substantive accounts, and place Indian law. The formal account judges rules by their form: clear, prospective, general, applied as announced. The substantive account requires minimum content as well. Indian law is substantive, because article 14 has been read since E.P. Royappa v. State of Tamil Nadu, AIR 1974 SC 555, to strike at arbitrariness itself, which is a judgment about content and not about form.

4. Where does the phrase "rule of law" actually appear in the constitutional texts on this syllabus? In section 1 of the United Kingdom's Constitutional Reform Act 2005, in the preamble to the Canadian Charter of Rights and Freedoms, and in article 5 of the Swiss Federal Constitution, which requires state action to be based on and limited by law, in the public interest and proportionate. It does not appear in the Indian, American, German or Irish texts.

India's text separates only the judiciary, and even that as a directive principle: article 50 requires the State to take steps to separate the judiciary from the executive in the public services of the State. Articles 121 and 211 forbid discussion in Parliament and in a State legislature of the conduct of a judge in the discharge of his duties, and articles 122 and 212 forbid a court from inquiring into the validity of proceedings in the legislature on the ground of any alleged irregularity of procedure.

The Swiss form, which is neither. The Federal Assembly elects the Federal Council under article 175 and elects the judges of the Federal Supreme Court under article 168, and article 190 forbids the Court to set aside a federal Act. Article 144 forbids a member of the Federal Assembly, the Federal Council or a federal court from belonging to more than one of them at once, so the personnel are separated even though the functions are not.

A worked example

Parliament passes an Act providing that a named person shall be imprisoned for two years for a described past act.

In the United States this is a bill of attainder, forbidden in terms by Article I section 9. It is legislative in form and judicial in substance: the legislature has tried the person.

In India article 20(1) forbids conviction for an offence except for the violation of a law in force at the time of the act, which deals with retrospectivity, and article 14 and article 21 supply the rest: a law aimed at one named person is a classification with no intelligible differentia, and the deprivation of liberty is not by a procedure that is fair and just.

In the United Kingdom the Act is valid, because no court may go behind an Act of Parliament: British Railways Board v. Pickin, [1974] AC 765.

Three systems and three different reasons, and only the American one is a separation-of-powers reason.

The cases

Facts. Immigration and Naturalization Service v. Chadha, 462 U.S. 919 (1983), concerned section 244(c)(2) of the Immigration and Nationality Act, which allowed either House of Congress, acting alone, to veto the Attorney General's decision to suspend the deportation of a named individual. The House of Representatives passed a resolution vetoing the suspension of Chadha's deportation.

Held, by Burger CJ for the Court. The one-House veto was unconstitutional. The purposes underlying the Presentment Clauses of Article I section 7 and the bicameral requirement of Article I sections 1 and 7 governed the case: action that is legislative in character must pass both Houses and be presented to the President.

Why it matters here. It shows the strict form doing real work. The device struck down existed in some two hundred federal statutes, and it fell because it was a legislative act performed in a way the constitutional structure did not permit.

Facts. Rai Sahib Ram Jawaya Kapur v. State of Punjab, AIR 1955 SC 549, was a challenge by publishers to the Punjab government's scheme for the nationalisation of school textbooks, carried on without legislation.

Held, by Mukherjea CJ for the Court. The Indian Constitution has not indeed recognised the doctrine of separation of powers in its absolute rigidity, but the functions of the different parts or branches of the government have been sufficiently differentiated, and consequently it can very well be said that our Constitution does not contemplate assumption by one organ of functions that essentially belong to another. The executive could carry on the trade without a statute so long as no citizen's rights were affected and no expenditure required legislative sanction.

Why it matters here. It is the standard Indian statement, and it is deliberately two-sided: the doctrine is not absolute, and it is not absent.

Distinctions

What beginners get wrong

"India follows the separation of powers." India separates the judiciary and fuses the other two. Saying it "follows the doctrine" without that qualification is the single commonest error on this topic.

"Delegated legislation breaches the doctrine." It does not, provided the legislature lays down the policy and the standard. In re The Delhi Laws Act, 1912, AIR 1951 SC 332, settled that essential legislative functions cannot be delegated but subordinate ones can.

"Switzerland has no separation of powers because parliament elects the executive." Article 144 separates the personnel absolutely. What Switzerland lacks is a separation of the executive from parliamentary confidence, and even that is inverted: the Federal Council cannot be dismissed.

Limits and criticism

The three functions do not divide cleanly. Rule-making by the executive, adjudication by tribunals and contempt powers in legislatures are all normal and all cross the lines.

Strict separation produces deadlock. The American government has repeatedly failed to pass a budget, which cannot happen in a Westminster system because a government that cannot pass a budget is not a government.

Fusion produces executive dominance. A Westminster executive with a majority controls the legislature's time, its agenda and its outcome, which is why the Indian debate about accountability is a debate about committees and about the Rajya Sabha rather than about the doctrine.

Quick revision

1. Montesquieu, 1748: no liberty where the legislative and executive are united, or where the judicial is not separate.
2. United States: Article I section 1, Article II section 1, Article III section 1, and Article I section 6 separating personnel.
3. India: article 50 as a directive principle; articles 121 and 211 protect judges from legislative discussion; articles 122 and 212 protect legislative proceedings from judicial inquiry.
4. Switzerland: article 175 (Assembly elects the Council), article 168 (Assembly elects the judges), article 144 (no dual membership), article 190 (no review of federal Acts).
5. INS v. Chadha, 462 U.S. 919 (1983): the one-House veto fails bicameralism and presentment.
6. Rai Sahib Ram Jawaya Kapur v. State of Punjab, AIR 1955 SC 549: not absolute rigidity, but no assumption by one organ of another's essential functions.
7. Strict separation risks deadlock; fusion risks executive dominance.

Test yourself

1. State the doctrine and describe the Indian position accurately. The doctrine requires the legislative, executive and judicial functions to be vested in distinct organs with distinct personnel, none exercising another's function. India does not adopt it in absolute rigidity: the executive is drawn from and answerable to the legislature, and article 75(5) assumes the overlap. What India does separate is the judiciary, by article 50 as a directive and by the appointment, tenure and removal provisions in articles 124 and 217, reinforced by articles 121, 122, 211 and 212.

2. Why could a legislative veto survive in a Westminster system but not in the United States? Because in a Westminster system the executive is answerable to the legislature by confidence, so control of executive decisions by the House is the normal constitutional relationship. In the United States the executive is separate, and Article I permits the House to act on the legal rights of individuals only by legislation, which means bicameral passage and presentment to the President: INS v. Chadha.

3. Does the separation of powers require judicial review? No, and Switzerland is the proof. Article 144 separates the personnel of the Assembly, the Council and the courts absolutely, and article 190 nevertheless binds the Federal Supreme Court to apply federal Acts. Separation is about who exercises which function; judicial review is about who has the last word.

4. Give one respect in which each organ routinely performs another's function, and say why that is tolerated. A legislature adjudicates when it punishes contempt of itself, tolerated because it is incidental to its own proceedings. An executive legislates when it makes rules under a statute, tolerated because the legislature has laid down the policy and the standard: In re The Delhi Laws Act, 1912. A court legislates when it lays down guidelines for future cases, tolerated because it is incidental to deciding the dispute before it, and criticised when it is not.

At the end of that sequence India had its Constitution, complete and unrepealed, and no constitutionalism.

What restored it

Two things, and the order matters.

An election. In March 1977 the government lost. That is a political fact and not a legal one, and it is the first answer to the question of what limits power.

Then law. The Forty Fourth Amendment of 1978 rewrote the emergency provisions: "internal disturbance" in article 352 was replaced by "armed rebellion"; the Proclamation now requires a written recommendation of the Cabinet; it must be approved by both Houses by a special majority within a month and lapses after six months unless renewed; article 358 was confined to war and external aggression; and article 359 was amended so that the enforcement of articles 20 and 21 can never be suspended.

And the courts moved. Minerva Mills Ltd. v. Union of India, AIR 1980 SC 1789, struck down the clauses of the Forty Second Amendment that had purported to place amendments beyond challenge and to give the directive principles primacy over the fundamental rights, holding that limited amending power is itself a basic feature.

A worked example

Suppose a government wishes to postpone a general election for three years.

In India today it cannot be done by ordinary law. Article 83(2) fixes the House's term at five years, extendable by law during a Proclamation of Emergency by one year at a time and not beyond six months after the Proclamation ceases. To go further would need an amendment under article 368, and an amendment destroying free and fair elections would face the basic structure doctrine, democracy having been held a basic feature.

In the United Kingdom it could be done by Act of Parliament, and has been: the life of Parliament was extended annually during both world wars. Section 2 of the Parliament Act 1911 expressly excludes a Bill extending the maximum duration of Parliament from the procedure that bypasses the House of Lords, which means the Lords retain an absolute veto on exactly that Bill. That is the British answer, and it is structural rather than judicial.

In the United States it could not be done at all without amending the Constitution, because Article I section 2 fixes the term of Representatives at two years and the Seventeenth Amendment fixes the Senate's at six.

The cases

Facts. Additional District Magistrate, Jabalpur v. Shivakant Shukla, AIR 1976 SC 1207, arose from habeas corpus petitions by persons detained under the Maintenance of Internal Security Act during the Emergency, at a time when a Presidential order under article 359 had suspended the right to move any court for the enforcement of articles 14, 21 and 22.

Held, by four to one. No person had any locus standi to move a High Court under article 226 for habeas corpus to enforce the right to personal liberty during the operation of the order. Khanna J dissented, holding that the State had no power to deprive a person of life or liberty without the authority of law even in the absence of article 21.

Why it matters here. It is the constitutional low point of the Indian judiciary and the clearest demonstration that a written guarantee is worth what the institutions enforcing it are worth. It has since been described as erroneous by the Supreme Court itself in the nine-judge decision in Justice K.S. Puttaswamy (Retd.) v. Union of India, (2017) 10 SCC 1.

Facts. Minerva Mills Ltd. v. Union of India, AIR 1980 SC 1789, challenged sections 4 and 55 of the Constitution (Forty Second Amendment) Act 1976, which had given the directive principles primacy over articles 14 and 19 and had declared that no amendment should be called in question in any court.

Held, by the Court. Both were void. The limited nature of the amending power is itself a basic feature, and a power to destroy cannot be a power to amend; the harmony and balance between the fundamental rights and the directive principles is also a basic feature.

Why it matters here. It is the legal half of the restoration, and it decides the second of the three routes above: an amending power cannot be used to remove the check on the amending power.

Distinctions

What beginners get wrong

"The Emergency was unconstitutional." Most of it was not, and that is the point. It was carried out through articles 352, 358, 359 and 368, and the courts largely upheld it. What followed was not the enforcement of the Constitution but its amendment.

"A bill of rights prevents this." India had one of the most detailed bills of rights in the world in 1975.

"It cannot happen where courts are strong." The Supreme Court of India in 1975 had already decided Kesavananda Bharati and was, on any view, a strong court.

Limits and criticism

The distinction can be used too loosely. Every unpopular measure is now described as a breach of constitutionalism. The idea is useful only if it is kept to the effectiveness of limits rather than to disagreement about policy.

Capture is hard to prove and hard to litigate. It leaves no trace in the statute book, which is why the constitutional response to it is political and journalistic before it is legal.

No design is proof against it. Article 79(3) of the German Basic Law is the strongest textual answer in existence, and it is a rule addressed to the same institutions that would be doing the dismantling.

Quick revision

1. Having a constitution is a question of form; constitutionalism is a question of whether limits work.
2. The gap opens by suspension, by amendment, or by capture.
3. India 1975 to 1977: article 352 on internal disturbance, article 358 suspending article 19, article 359 orders suspending the remedy for articles 14, 21 and 22.
4. Additional District Magistrate, Jabalpur v. Shivakant Shukla, AIR 1976 SC 1207: no locus standi for habeas corpus; Khanna J dissenting; described as erroneous in Puttaswamy.
5. The Forty Fourth Amendment 1978: armed rebellion, written Cabinet recommendation, special majority within a month, six-month limit, articles 20 and 21 never suspendable.
6. Minerva Mills Ltd. v. Union of India, AIR 1980 SC 1789: limited amending power is a basic feature.
7. The first restraint was an election. The law followed it.

Test yourself

1. Explain, with provisions, how the Indian Constitution was used against itself between 1975 and 1977. A Proclamation under article 352 on the ground of internal disturbance brought article 358 into operation, suspending article 19; orders under article 359 suspended the right to move any court to enforce articles 14, 21 and 22; the Thirty Eighth Amendment made the President's satisfaction non-justiciable; the Thirty Ninth removed the Prime Minister's election from judicial scrutiny; and the Forty Second curtailed judicial review and declared amendments unchallengeable.

2. What did the Forty Fourth Amendment change, and why does each change matter? It replaced "internal disturbance" with "armed rebellion", so the ground is narrower; it required a written Cabinet recommendation, so the decision cannot be one person's; it required approval by both Houses by special majority within a month and set a six-month renewal cycle, so the legislature must keep re-authorising it; it confined article 358 to war and external aggression; and it removed articles 20 and 21 from the reach of article 359, so the right to life can no longer be made unenforceable.

3. Why is Minerva Mills the legal answer to the second route, and not Kesavananda? Kesavananda Bharati established that the amending power cannot destroy the basic structure. Minerva Mills applied that to the amending power itself, striking down the clause that said no amendment could be called in question, and holding the limited nature of the amending power to be a basic feature. Without it, the doctrine could have been amended out of existence.

4. Can a constitution be designed so that this cannot happen? Only up to a point. Article 79(3) of the German Basic Law makes certain amendments inadmissible and article 20(4) gives a right of resistance; India's basic structure doctrine does similar work judicially. But every such rule is addressed to the same courts, legislatures and executives that would be involved in dismantling the constitution, so the ultimate check is political: elections, a free press and an attentive public.

Conventions. Treated in the whole of topic 2.

Works of authority. Erskine May on parliamentary practice, Dicey, Bagehot. These are not law and are treated as evidence of what the practice is.

Does the absence of a code matter?

Three consequences follow, and they are what a comparative answer should say.

First, no hierarchy of laws, until the courts made one. In an uncodified system every Act has the same status, and a later Act impliedly repeals an earlier inconsistent one. That principle was modified in Thoburn v. Sunderland City Council, [2002] EWHC 195 (Admin), where the Divisional Court held that there are classes of legislative provision which cannot be repealed by mere implication, and that the European Communities Act 1972 was a constitutional statute of that kind. Which statutes are constitutional is a question for the courts, "to which the scope and nature of Parliamentary sovereignty are ultimately confided".

Second, constitutional change by ordinary majority. The House of Lords Act 1999 removed most hereditary peers; the Constitutional Reform Act 2005 created a Supreme Court and reformed the office of Lord Chancellor; the Fixed-term Parliaments Act 2011 removed the prerogative of dissolution and the Dissolution and Calling of Parliament Act 2022 restored it. Each of these would be a constitutional amendment anywhere else.

Third, uncertainty. Nobody could say with confidence in 2019 whether the courts would review a prorogation. The answer came from R (Miller) v. The Prime Minister, [2019] UKSC 41, and it was not obvious in advance.

A worked example

A government wishes to abolish the second chamber of the legislature.

In the United Kingdom an Act of Parliament suffices, and if the House of Lords refuses to pass it, the Parliament Acts procedure can be used to pass it without them after the delay in section 2 of the 1911 Act as amended by the 1949 Act. There is no legal obstacle.

In Canada it cannot be done at all except by the unanimous consent procedure. In Reference re Senate Reform, 2014 SCC 32, decided on 25 April 2014, the Supreme Court of Canada held that abolition falls under section 41, requiring resolutions of the Senate, the House of Commons and the legislative assembly of every province.

In India abolition of the Rajya Sabha would require an amendment under article 368 ratified by the legislatures of not less than one half of the States, because it would change article 80 and the representation of States in Parliament, and it would face a basic structure challenge on federalism.

The cases

Facts. Thoburn v. Sunderland City Council, [2002] EWHC 195 (Admin), [2003] QB 151, was a prosecution of market traders who sold goods in imperial units. They argued that the Weights and Measures Act 1985, being later, had impliedly repealed the European Communities Act 1972 so far as it required metric units.

Held, by Laws LJ and Crane J. The common law had created exceptions to the doctrine of implied repeal, "a doctrine which was always the common law's own creature". There are now classes or types of legislative provision which cannot be repealed by mere implication, and the European Communities Act is a constitutional statute of that class. Which statutes are constitutional is for the courts, to which the scope and nature of parliamentary sovereignty are ultimately confided.

Why it matters here. It shows an uncodified constitution growing a hierarchy of laws by judicial decision, which is precisely the work a codified constitution does by its own terms.

Facts. Reference re Senate Reform, 2014 SCC 32, decided on 25 April 2014, was a reference by the Governor in Council asking whether Parliament could unilaterally introduce consultative elections for senators, impose term limits, and abolish the Senate.

Held, by the Court, unanimously. It could not. Part V of the Constitution Act 1982 provides four categories of amending procedure, of which the general one is the 7/50 procedure under section 38 complemented by section 42, requiring a substantial degree of consensus between Parliament and the provincial legislatures; the unanimous consent procedure under section 41 covers the listed matters, and abolition of the Senate falls within it.

Why it matters here. It is the exact opposite of the British position on the same question, and the pair makes the codified/uncodified distinction concrete rather than definitional.

Distinctions

What beginners get wrong

"The British constitution is unwritten." Say uncodified. If you must say unwritten, say at once that a great deal of it is in writing and give two statutes.

"Canada is uncodified like Britain." Canada is a defined set of enacted instruments, listed in section 52(2) of the Constitution Act 1982, with a supremacy clause and entrenched amending procedures. It is codified in more than one document, which is not the same thing.

"An uncodified constitution has no constitutional law." It has a great deal, and Miller No 1, Miller No 2, Jackson and Thoburn are four leading modern examples in fifteen years.

Limits and criticism

The distinction is one of degree. Israel has Basic Laws that are constitutional in force and were enacted separately over decades; New Zealand has a Constitution Act 1986 that is not entrenched.

Codification does not settle meaning. The American document is short and the disagreements about it are enormous.

Uncodified systems can be more rights-protective in practice than codified ones. The comparison must be with how a system behaves, not with its form.

Quick revision

1. Codified means one instrument of superior force; uncodified means dispersed. Written and unwritten are the older, inaccurate labels for the same distinction.
2. The British constitution: statutes, prerogative, common law, conventions, works of authority.
3. Bill of Rights 1689 article 9: freedom of speech and debates in Parliament not to be impeached or questioned in any court.
4. Thoburn v. Sunderland City Council, [2002] EWHC 195 (Admin): constitutional statutes cannot be impliedly repealed.
5. Reference re Senate Reform, 2014 SCC 32: abolition of the Senate needs unanimous provincial consent under section 41.
6. Consequences of no code: no hierarchy of laws by default, change by ordinary majority, and uncertainty.
7. Canada is codified in several instruments, listed in section 52(2) of the Constitution Act 1982.

Test yourself

1. "The British constitution is unwritten." Correct the statement and justify the correction. It is uncodified, not unwritten. Magna Carta 1297, the Bill of Rights 1689, the Parliament Acts 1911 and 1949, the Human Rights Act 1998 and the Constitutional Reform Act 2005 are all written and all constitutional. What Britain lacks is a single instrument of superior legal force alterable only by a special procedure.

2. What did Thoburn change, and why is it significant for the classification? It held that constitutional statutes are immune from implied repeal, so an ordinary later Act does not displace them unless it says so expressly. That gives an uncodified constitution something a codified one has by definition, a hierarchy of laws, and it locates the power to decide which statutes are constitutional in the courts.

3. Compare the abolition of a second chamber in the United Kingdom, Canada and India. In the United Kingdom an ordinary Act suffices, and section 2 of the Parliament Act 1911 as amended even provides a route without the Lords' consent. In Canada abolition needs unanimous consent under section 41 of the Constitution Act 1982: Reference re Senate Reform. In India it needs an amendment under article 368 ratified by half the State legislatures, and would face a basic structure objection on federalism.

4. Name two things that are part of a codified constitution's working arrangements but appear nowhere in its text. In the United States, political parties and the President's cabinet, neither of which is mentioned in the 1787 document; the two-term limit was also purely conventional until the Twenty Second Amendment. In India, coalition formation and the position of the Leader of the Opposition are governed by practice and by ordinary law rather than by the Constitution.

The United States: the hardest in operation. Article V requires proposal by two thirds of both Houses of Congress, or by a convention called on the application of two thirds of the State legislatures, and ratification by three quarters of the States, which is thirty eight of fifty.

The trap: rigidity as written and rigidity in operation

Read only the procedures and you would say Switzerland is more rigid than India, because Switzerland requires a double popular majority and India requires only legislative majorities.

Count the amendments and the ranking reverses in an instructive way.

The United States Constitution has been amended twenty seven times in two hundred and thirty seven years, and the first ten came as a single package in 1791. The Twenty Seventh, on congressional pay, was proposed in 1789 and ratified in 1992, two hundred and two years later.

The Indian Constitution has been amended more than a hundred times in seventy five years.

The Swiss Constitution, on paper the most demanding, has been amended very frequently, because article 139 lets a hundred thousand voters put a proposal on the ballot directly, so amendment is a normal channel of politics rather than an extraordinary event.

The lesson is that a procedure's difficulty depends on the political system it sits in. The American procedure requires agreement across thirty eight States in a country with two polarised parties, and that is why it is hard. The Swiss procedure requires a majority of voters in a country used to voting four times a year, and that is why it is not.

A worked example

A government wishes to add a right to housing to the constitution.

In the United Kingdom an Act would do it, and the right would be as vulnerable as any other statutory right.

In India it would go under article 368 by a special majority of both Houses. If it were inserted in Part III it would need no State ratification, because Part III is not in the proviso. It would then be enforceable under article 32.

In Ireland the Bill would pass both Houses and go to a referendum under Article 47.

In Switzerland either the Federal Assembly proposes it or a hundred thousand voters do, and in either case article 140 sends it to a compulsory vote requiring a double majority.

In the United States two thirds of both Houses would have to propose it and thirty eight State legislatures ratify it, and no amendment has been ratified since 1992.

In Germany two thirds of the Bundestag and two thirds of the Bundesrat, and the addition would not touch article 79(3).

Six systems and six answers, from an afternoon in Westminster to a practical impossibility in Washington.

The cases

Facts. Dillon v. Gloss, 256 U.S. 368 (1921), was brought by a prisoner held under the National Prohibition Act, who argued that the Eighteenth Amendment was invalid because Congress had attached a seven-year time limit to its ratification, a condition not mentioned in Article V.

Held, by Van Devanter J for the Court. Congress may fix a definite period. "We conclude that the fair inference or implication from article 5 is that the ratification must be within some reasonable time after the proposal", and of the power of Congress, keeping within reasonable limits, to fix a definite period, the Court entertained no doubt.

Why it matters here. Rigidity is not only about numbers. A procedure that leaves a proposal open indefinitely is less rigid in effect than one that closes it, because the political moment can be waited out.

Facts. Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225, is worked in full in [The Basic Structure Doctrine]; for this chapter what matters is that thirteen judges were asked how far the special majority in article 368 could reach.

Held, by seven to six. Article 368 confers no power to alter the basic structure or framework of the Constitution.

Why it matters here. India's procedure is only moderately rigid on paper, and the doctrine adds a limit that no counting of majorities would disclose. A comparative answer that ranks India by its majorities alone has missed the most important thing about it.

Distinctions

What beginners get wrong

"Rigid means it cannot be changed." It means the procedure is harder. Switzerland is rigid and changes constantly.

"India has a flexible constitution." It has all three degrees at once, which is the interesting fact about it, and its most important limit, the basic structure doctrine, is not a procedure at all.

"A rigid constitution is a better constitution." Rigidity protects whatever is in the text, including what should not be there. The American Constitution's rigidity protected slavery until it took a civil war and the Thirteenth Amendment to remove it.

Limits and criticism

The classification measures the wrong thing on its own. What matters is whether the constitution changes appropriately, not how often.

Judicial interpretation is a substitute for amendment. In the United States, where formal amendment is nearly impossible, constitutional change happens through the Supreme Court, which is why the appointment of a Justice is a political event of the first order and why Dobbs v. Jackson Women's Health Organization, 597 U.S. 215 (2022), could reverse fifty years of settled doctrine without a word of the text changing.

Rigidity can be evaded. A government that cannot amend may achieve the same result by ordinary legislation, by executive action, or by appointing judges who read the text differently.

Quick revision

1. Rigid: special amending procedure. Flexible: ordinary legislative process. It is a matter of degree.
2. United Kingdom: fully flexible; only section 2(1) of the Parliament Act 1911 protects the duration of Parliament, and only procedurally.
3. India: three routes under and outside article 368, with State ratification for the proviso matters.
4. Switzerland: compulsory referendum with a double majority under article 140, plus the popular initiative under article 139.
5. United States: Article V, two thirds and three quarters, twenty seven amendments in two hundred and thirty seven years.
6. Dillon v. Gloss, 256 U.S. 368 (1921): ratification must be within a reasonable time and Congress may fix the period.
7. Kesavananda Bharati: the basic structure limit is not a matter of majorities and does not show up in the procedure.

Test yourself

1. Define rigidity and explain why the American Constitution is more rigid in practice than the Swiss. Rigidity is the demandingness of the amending procedure relative to ordinary legislation. Article V requires agreement across two thirds of Congress and three quarters of the States in a polarised two-party system, so it has produced twenty seven amendments; the Swiss procedure requires a popular double majority in a country where constitutional voting is routine and where a hundred thousand signatures can start it, so it has produced very many.

2. Is India's Constitution rigid or flexible? Answer precisely. Both, by design. Matters such as the creation of States under articles 3 and 4 change by simple majority outside article 368; most of the Constitution changes by a special majority of each House; the matters in the proviso to article 368(2) additionally need ratification by half the State legislatures. Beyond all three sits the basic structure doctrine, which no majority can satisfy.

3. What does Dillon v. Gloss add to the study of rigidity? That the time available for ratification is part of the procedure's difficulty. The Court inferred from Article V that ratification must occur within a reasonable time and held that Congress may fix a definite period, which prevents a proposal being revived in a wholly different political era.

4. Why can a rigid constitution still change substantially without any amendment? Because interpretation does the work. Where amendment is practically closed, constitutional development moves to the courts, and a change of doctrine has the same effect as a change of text: Dobbs v. Jackson Women's Health Organization, 597 U.S. 215 (2022), overruled Roe v. Wade, 410 U.S. 113 (1973), and the Constitution was not altered by a word.

Unitary: Ireland, and the United Kingdom.

India satisfies all four conditions and is nevertheless described by many writers as quasi-federal, because the centre can redraw the States by ordinary law under articles 3 and 4, because the residue is central, because emergency provisions can convert the system into a unitary one, and because the Governor of a State is appointed by the Union. The argument is examined in [Quasi-Federal: the Argument About India]; for classification purposes it is federal, and the Supreme Court has said so repeatedly since State of West Bengal v. Union of India, AIR 1963 SC 1241.

Ireland is the control case, and it is worth being exact. Article 15.2.1 provides that the sole and exclusive power of making laws for the State is vested in the Oireachtas, and no other legislative authority has power to make laws for the State. Article 28A, inserted in 1999, recognises the role of local government and requires local elections at least every five years, but that is guaranteed local government, not a second order of legislature. Ireland is therefore a unitary State with a written, rigid, judicially enforced constitution, which is exactly why it is useful: it separates federalism from the other features it usually travels with.

The United Kingdom is unitary in law and devolved in practice. The Scottish Parliament, the Senedd and the Northern Ireland Assembly exercise power conferred by Acts of the Westminster Parliament, and in strict law those Acts can be repealed. The Sewel convention, that Westminster will not normally legislate on devolved matters without consent, is a convention, and R (Miller) v. Secretary of State for Exiting the European Union, [2017] UKSC 5, held that the courts will not enforce it even though it is written into section 28(8) of the Scotland Act 1998.

A worked example

A regional government wishes to legislate on a subject the central government also claims.

In a federation the question is one of competence, decided by the umpire. In India the court asks which List the subject falls in, applies the doctrine of pith and substance, and if both are competent applies article 254 on repugnancy. In Canada it asks whether the matter falls in section 91 or section 92 and applies the same pith-and-substance reasoning, which India took from the Privy Council's Canadian appeals.

In a unitary State the question does not arise in that form. In Ireland the Oireachtas has the sole and exclusive power, so a local authority acts only within powers conferred by statute and an excess is ultra vires. In the United Kingdom a devolved Act outside competence is invalid under the devolution statutes, which is a statutory limit rather than a constitutional division.

The cases

Facts. State of West Bengal v. Union of India, AIR 1963 SC 1241, arose when the Union enacted the Coal Bearing Areas (Acquisition and Development) Act 1957 and sought to acquire land vested in the State of West Bengal. The State sued under article 131, arguing that the Constitution was federal and that the Union could not acquire State property.

Held, by the majority. The Indian Constitution is not traditionally federal. The Court pointed to the absence of a separate constitution for each State, the power of Parliament to alter State boundaries under articles 3 and 4, the single citizenship, the unified judiciary and the residuary power at the centre, and held the Act valid.

Why it matters here. It is the origin of the quasi-federal argument in the Supreme Court's own words. It should be read with S.R. Bommai v. Union of India, (1994) 3 SCC 1, where the Court held federalism to be a basic feature, and the two together are the honest answer to the classification question for India.

Facts. Reference re Greenhouse Gas Pollution Pricing Act, 2021 SCC 11, decided on 25 March 2021, was a challenge by three provinces to a federal Act setting national minimum standards for greenhouse gas pricing.

Held, by Wagner CJ for a majority of six to three. The Act was valid. Establishing minimum national standards of greenhouse gas price stringency is a matter of national concern falling within Parliament's power to legislate for the peace, order and good government of Canada under the opening words of section 91 of the Constitution Act 1867.

Why it matters here. It shows the residuary clause India deliberately did not copy doing work in the twenty first century, on a problem no framer anticipated, and it is the best modern illustration of how a federal division adapts.

Distinctions

What beginners get wrong

"India is not federal because the centre is strong." Strength of the centre is a variable within federalism, not a departure from it. Canada's centre is strong and nobody doubts Canada is federal.

"Devolution makes the United Kingdom federal." It does not, because the devolved legislatures hold statutory power. Federalism requires that the regional power be constitutionally held.

"Ireland is federal because it has local government." Article 28A guarantees local government and Article 15.2.1 says the Oireachtas has the sole and exclusive law-making power. Local authorities are not a level of legislature.

Limits and criticism

The classification is binary and reality is a spectrum. Between the American federation and the Irish unitary State lie devolution, regionalism, asymmetric arrangements and treaty-based unions.

It says nothing about how power is actually exercised. Fiscal dependence can hollow out a formal federal division, which is why [Fiscal Federalism and Equalisation] matters more to the working of a federation than the lists do.

The four conditions describe the design, not the practice. A federation whose umpire is not independent is federal on paper only, which returns the argument to [A Constitution Without Constitutionalism].

Quick revision

1. Federal: two levels, each holding power under the constitution. Unitary: one level, all else delegated.
2. Four conditions: a written constitution, a distribution of powers, supremacy of the constitution, and an umpire.
3. Coming together leaves the residue with the units (Tenth Amendment, Swiss article 3); holding together keeps it at the centre (article 248 and Entry 97; section 91 opening words).
4. MU's seven: federal are the USA, Switzerland, Canada, Germany and India; unitary are Ireland and the United Kingdom.
5. Ireland: Article 15.2.1 sole and exclusive legislative power; Article 28A local government only.
6. State of West Bengal v. Union of India, AIR 1963 SC 1241: not traditionally federal. S.R. Bommai v. Union of India, (1994) 3 SCC 1: federalism is a basic feature.
7. Reference re Greenhouse Gas Pollution Pricing Act, 2021 SCC 11: national concern under peace, order and good government.

Test yourself

1. State the four conditions of a federal constitution and apply them to India. A written constitution: yes. A distribution of powers: articles 245 and 246 with the Seventh Schedule's three Lists. Supremacy of the constitution: article 13 and the rigidity of article 368 for the proviso matters. An umpire: the Supreme Court, with original jurisdiction under article 131. All four are present, so India is federal, with the qualifications discussed under the quasi-federal argument.

2. Why is Ireland on the syllabus under federalism when it is not a federal State? Because MU lists it there, and because the honest answer is instructive. Article 15.2.1 vests the sole and exclusive law-making power in the Oireachtas and Article 28A guarantees local government only. Ireland's real contribution to the Indian Constitution is Article 45, the directive principles of social policy, and an answer should say so rather than manufacture an Irish federalism.

3. Distinguish coming-together from holding-together federations and give the provision that shows the difference. Coming-together federations are formed by previously sovereign units and leave the residue with them: the Tenth Amendment in the United States, article 3 of the Swiss Constitution. Holding-together federations are formed by devolving power from an existing central authority and keep the residue at the centre: article 248 with Entry 97 of List I in India, and the peace, order and good government words opening section 91 of the Constitution Act 1867.

4. Does devolution make a unitary State federal? No. The test is the source of the regional power. A devolved legislature exercises power conferred by an Act of the central legislature, which can in law be amended or repealed; a federal unit holds power under the constitution, which the centre cannot alter unilaterally. The Sewel convention is a political restraint on Westminster and the Supreme Court declined to enforce it in R (Miller) v. Secretary of State for Exiting the European Union, [2017] UKSC 5.

Germany elects its Federal President under article 54 by a Federal Convention consisting of the members of the Bundestag and an equal number of members elected by the Land parliaments, for five years, once renewable.

Switzerland has no head of State in the usual sense. The Federal Council of seven is the collective head of State and of government, and its President, elected annually by the Federal Assembly under article 176, is chairman for the year.

Evolved and enacted

Evolved. The United Kingdom, and only the United Kingdom among MU's seven. There is no founding act. Magna Carta 1215, the Bill of Rights 1689, the Act of Settlement 1700, the Acts of Union, the Parliament Acts and the twentieth-century statutes are a sequence, not a constitution-making moment.

Enacted. India, adopted by the Constituent Assembly on 26 November 1949. The United States, framed at Philadelphia in 1787 and ratified in 1788. Ireland, adopted by the people at a referendum on 1 July 1937. Germany, adopted by the Parliamentary Council on 23 May 1949. Switzerland, adopted by popular vote on 18 April 1999.

Canada is a hybrid, and instructive. The Constitution Act 1867 was an Act of the Parliament of the United Kingdom, so Canada's founding instrument was enacted, but not by Canadians. Patriation in 1982 was the enacting moment for Canada itself, and Reference re Resolution to Amend the Constitution, [1981] 1 SCR 753, is the case in which the Supreme Court of Canada was asked whether it could be done without provincial consent.

A worked example

Suppose the head of State refuses to sign a Bill duly passed by the legislature.

In India article 111 permits the President to withhold assent, or to return a Bill other than a Money Bill for reconsideration; if the Houses pass it again, with or without amendment, he shall not withhold assent. There is no time limit in the article, which is why the corresponding provision for Governors, article 200, has produced the recent litigation described in [The Conventions of the Indian Constitution].

In the United Kingdom the monarch's refusal is unthinkable rather than unlawful. Assent has not been refused since 1708, and the rule against refusing is a convention, not a statute.

In Ireland Article 26 gives the President a lawful alternative: refer the Bill to the Supreme Court, which decides its constitutionality, and if the Court upholds it the President must sign, and the Bill can never afterwards be questioned.

Three heads of State, three legal positions, and the Irish one shows that a formal head of State can be given a real, bounded power without becoming a political actor.

The cases

Facts. Rai Sahib Ram Jawaya Kapur v. State of Punjab, AIR 1955 SC 549, concerned the Punjab government's nationalisation of school textbooks, carried on without any statute, and required the Court to describe the nature of the Indian executive.

Held, by Mukherjea CJ. The President has been made a formal or constitutional head of the executive; the real executive power is vested in the Council of Ministers, which is answerable to the legislature. The Court added that the Constitution does not recognise the separation of powers in absolute rigidity but that one organ may not assume functions essentially belonging to another.

Why it matters here. It states, in the Supreme Court's own words, the point of this chapter: the Indian President's position is that of a constitutional monarch in a republic.

Facts. Reference re Resolution to Amend the Constitution, [1981] 1 SCR 753, decided on 28 September 1981, was a reference on whether the federal government could ask the United Kingdom Parliament to patriate and amend the Canadian constitution without provincial agreement.

Held. By seven to two, the resolution was lawful; by six to three, it was unconstitutional in the conventional sense, a convention requiring "a substantial degree of provincial consent", though the Court declined to devise a formula in the abstract.

Why it matters here. It is the moment an evolved-and-imported constitution became an enacted one, and it shows that the transition was made by political negotiation prompted by a court that would not enforce the rule it had found.

Distinctions

What beginners get wrong

"A monarchy cannot be democratic." The United Kingdom and Canada are on the syllabus as counter-examples, and both have universal suffrage, responsible government and independent courts.

"A republic means an elected executive." It means an elected head of State. India's President is elected and is not the executive in substance; the United States President is elected and is.

"Evolved constitutions are old and enacted ones are modern." The Swiss constitutional tradition runs from 1848 and its current text is from 1999; the American text is from 1787 and is enacted. Age and mode of origin are different questions.

Limits and criticism

The republican/monarchical axis has become nearly ornamental. In a constitutional monarchy the office is filled differently and behaves identically, so the axis tells you about history rather than about power.

The evolved/enacted axis conceals continuity. India's Constitution is enacted, and a great deal of it, the parliamentary executive, the office of Governor, the emergency provisions and the legislative lists, came from the Government of India Act 1935.

Neither axis predicts rights protection or the strength of the courts, which is why [Where MU's Seven Constitutions Fall] places the systems on all the axes together.

Quick revision

1. Republic: elected head of State. Monarchy: hereditary. Five of MU's seven are republics; the United Kingdom and Canada share a monarch.
2. India: article 54 electoral college, article 55 weighting, article 56 five-year term, article 61 impeachment, article 74(1) binding advice.
3. Ireland: Article 12 direct election for seven years; Article 26 reference of a Bill; Article 27 refusal of a dissolution.
4. Germany: article 54, Federal Convention. Switzerland: no single head of State; article 176 rotating Presidency of the Federal Council.
5. Evolved: the United Kingdom alone. Enacted: 1787 USA, 1867 and 1982 Canada, 1937 Ireland, 1949 Germany and India, 1999 Switzerland.
6. Rai Sahib Ram Jawaya Kapur v. State of Punjab, AIR 1955 SC 549: the President is a formal or constitutional head.
7. The axes are independent: position on one predicts nothing about the others.

Test yourself

1. India and the United Kingdom have heads of State chosen in completely different ways and doing the same job. Explain. The Indian President is elected under article 54 by an electoral college for a five-year term; the British monarch inherits. Both give assent, appoint the head of government, and act on ministerial advice, which article 74(1) makes binding in India and convention makes binding in the United Kingdom. The mode of appointment differs; the constitutional function does not.

2. What can the President of Ireland do that the President of India cannot? Refer a Bill to the Supreme Court under Article 26 for a decision on its constitutionality, after which the Bill, if upheld, can never afterwards be questioned; and refuse a dissolution under Article 27 to a Taoiseach who has ceased to retain the support of a majority in the Dail. The Indian President may withhold assent or return a Bill under article 111, but must assent if it is passed again.

3. Why is Canada described as both evolved and enacted? Its founding instrument, the Constitution Act 1867, was an Act of the United Kingdom Parliament, so the constitution was enacted but not by Canadians, and it developed thereafter partly by convention. Patriation in 1982 was the moment Canada enacted its own amending procedures and Charter, and Reference re Resolution to Amend the Constitution, [1981] 1 SCR 753, is the decision that shaped how it was done.

4. What is the head of State in Switzerland? There is none in the usual sense. The Federal Council of seven, elected by the United Federal Assembly under article 175, is the collective head of State and of government, and one of the seven serves as President for a year under article 176. No individual holds the office of head of State.

Fused powers: yes as to the executive and legislature, separated as to the judiciary by articles 50, 121, 122, 211, 212, 124 and 217.

Republican: yes, with an indirectly elected President who acts on binding advice.

That paragraph is a complete classification answer for one system. Six of those, arranged as a table, is a complete answer for the topic.

What the scheme cannot see

Three things, and each of them is examined on this paper.

First, conventions. Wheare's axes are about the text. The British constitution is not merely uncodified: the rules that actually determine who governs, that the monarch assents, that the Prime Minister commands a majority, that ministers are collectively responsible, are conventions and appear on no axis. Nor do the American conventions, or the Indian ones. The whole of topic 2 lives in the gap Wheare's classification leaves.

Second, the difference between the text and the working constitution. A constitution can be supreme, rigid, federal and republican on paper and none of those things in practice, which is [A Constitution Without Constitutionalism].

Third, asymmetry and hybridity. The axes are binary and real systems are not. Article 370 gave Jammu and Kashmir a special position within a federal India; Quebec's position in Canada, the cantonal exceptions in Switzerland, and the devolved but unitary United Kingdom are all points between the poles. The classification pushes them to one end or the other and loses the information.

A fourth criticism is worth knowing because it is the modern one: the axes describe the eighteenth and nineteenth-century design choices and say nothing about the twentieth-century ones, such as whether there is a constitutional court, whether rights bind private persons, whether the constitution has a social and economic programme, and whether it provides for supranational integration.

A worked example

Classify the United Kingdom on Wheare's six and see the difficulty.

Written: uncodified, though largely written. Rigid: flexible; any Act may change any rule. Supreme: the constitution is not supreme over Parliament; Parliament is supreme. Federal: unitary, with devolution. Separated: fused. Republican: monarchical.

Every answer is at one end of its axis, and the classification tells you almost nothing about how the United Kingdom is actually governed, about the Human Rights Act, about Thoburn's constitutional statutes, about the Sewel convention, or about the Supreme Court created in 2005. That is the criticism in concrete form.

The cases

Facts. Reference re Senate Reform, 2014 SCC 32, decided on 25 April 2014, asked whether the Parliament of Canada could unilaterally introduce consultative elections for senators, impose term limits, or abolish the Senate.

Held, unanimously. It could not. Part V of the Constitution Act 1982 provides four categories of amending procedure, the general one being the 7/50 procedure of section 38 complemented by section 42, and abolition of the Senate falls under the unanimous consent procedure in section 41.

Why it matters here. It shows Wheare's third axis, supreme and subordinate, at the moment it stopped applying to Canada. Before 1982 a Canadian amendment meant asking Westminster; after 1982 it means Part V, and the classification of the Canadian constitution changed without the country changing.

Facts. S.R. Bommai v. Union of India, (1994) 3 SCC 1, arose out of Presidential proclamations under article 356 dismissing State governments, and required the Supreme Court to decide whether the proclamations were justiciable and what federalism means in India.

Held, by a Bench of nine. A proclamation under article 356 is justiciable; the President's satisfaction must rest on relevant material; the dissolution of a State Assembly should not take place before both Houses of Parliament approve; and federalism is a basic feature of the Constitution.

Why it matters here. It is the modern Indian answer to the fourth axis, and it shows why Wheare's binary is inadequate: India was held federal in principle in the same judgment that upheld the centre's power to dismiss a State government on the President's satisfaction.

Distinctions

What beginners get wrong

"Wheare's classification is a list of types of constitution." It is a list of axes. A constitution is not "a Wheare type"; it has a position on each of six independent questions.

"The axes correlate." They do not. Ireland is republican, unitary, rigid, supreme, fused and codified; the United States is republican, federal, rigid, supreme, separated and codified. They agree on three and differ on three.

"Classification is the whole of topic 1." MU prints constitutionalism first. Classification is the vocabulary; constitutionalism is the point.

Limits and criticism

It is a taxonomy of texts. Wheare himself said that what matters is what happens under a constitution, and his axes cannot record that.

It predates the constitutional court. Germany's Federal Constitutional Court, created in 1951, and its jurisdiction over abstract review, individual complaints and disputes between organs, is a design choice with no place on the six axes, and it has been copied far more widely since than any of them.

It predates supranational law. Where does a member State of the European Union sit on supreme and subordinate? The German answer in the Lisbon judgment, 2 BvE 2/08, decided on 30 June 2009, was that the Federal Constitutional Court retains an identity review of whether the Basic Law's inviolable core is respected, which is a third position the axis has no room for.

Quick revision

1. Wheare's six pairs: written and unwritten; rigid and flexible; supreme and subordinate; federal and unitary; separated and fused; republican and monarchical.
2. The axes are independent; a position on one predicts nothing about another.
3. India on the six: codified; partly rigid with the basic structure above it; supreme; federal and centralised; fused except the judiciary; republican.
4. What the scheme misses: conventions, the gap between text and practice, and asymmetry.
5. Modern gaps: constitutional courts, horizontal effect, social and economic programmes, supranational integration.
6. Reference re Senate Reform, 2014 SCC 32: Canada's amending procedures after the change from subordinate to supreme.
7. S.R. Bommai v. Union of India, (1994) 3 SCC 1: federalism is a basic feature, and article 356 is justiciable.

Test yourself

1. Set out Wheare's six axes and classify the Swiss Constitution on each. Written: codified, 197 articles. Rigid: highly, article 140 requiring a compulsory referendum with a double majority. Supreme: yes, though article 190 bars the Federal Supreme Court from setting a federal Act aside. Federal: yes, article 3 leaving sovereignty with the cantons except as limited. Separated or fused: neither in the usual sense; the Federal Assembly elects the Federal Council under article 175 and cannot dismiss it, and article 144 forbids dual membership. Republican: yes, with no single head of State.

2. Give three things Wheare's classification cannot record, with an example of each. Conventions: that the British monarch assents to legislation appears on no axis. The gap between text and practice: India between 1975 and 1977 was supreme, rigid and federal on paper. Asymmetry: article 370 of the Indian Constitution, Quebec in Canada, and devolution in the United Kingdom all sit between the poles of the federal axis.

3. Where does a member State of the European Union sit on the supreme and subordinate axis? Neither cleanly. Its constitution is supreme within the domestic legal order, and European law claims primacy within its own field. The German answer, in the Lisbon judgment of 30 June 2009 and in the PSPP decision of 5 May 2020, is that integration is accepted but the Federal Constitutional Court retains an ultra vires and identity review under article 23(1) read with article 79(3).

4. Why does MU print "Constitutionalism" before "Classification of Constitutions"? Because classification is the vocabulary and constitutionalism is the substance. Knowing that a constitution is codified, rigid, supreme and federal tells you what kind of document it is; knowing whether the limits it imposes are effective tells you what kind of State it governs, and only the second question is worth answering on its own.

Switzerland on the separated-powers axis. The Federal Assembly elects the Federal Council under article 175 and elects the judges of the Federal Supreme Court under article 168, which looks like fusion. But article 144 forbids a person from belonging to more than one of the three at once, which is a stricter separation of personnel than any Westminster system has, and the Federal Council cannot be removed by a vote of no confidence, which is a stricter separation of tenure than the United States has for its Cabinet. Switzerland is neither fused nor separated; it is a third design, and an answer should say so.

Ireland on the federal axis. MU lists Ireland under federalism in topic 5. Article 15.2.1 vests the sole and exclusive power of making laws for the State in the Oireachtas. Article 28A recognises local government and requires elections at least every five years, which is a constitutional guarantee of local government and not a division of legislative power. Ireland is unitary, and its place on this syllabus is earned by Article 45 and the directive principles.

What the table shows

Three things worth saying in an answer.

The axes do not correlate. India and the United States are both codified, supreme, federal republics, and they differ completely on the executive. Ireland and the United Kingdom are both unitary and fused, and differ completely on codification and supremacy.

Rigidity and change do not correlate. Switzerland is the most rigid on paper and among the most frequently amended; the United States is the most rigid in operation and the least amended; India is only moderately rigid and has been amended more than a hundred times.

Judicial review is not the same as constitutional supremacy. Switzerland has a supreme constitution and no review of federal Acts. The United Kingdom has review of executive action and no supreme constitution. The two ideas come apart, which is the subject of the next chapter.

A worked example

An examiner asks: "Classify the constitutions of India, the United Kingdom and Switzerland, and state which of them best secures constitutionalism."

The first half is the table, three rows of it.

The second half is the argument, and there is no single right answer, only a well-supported one. A good answer says that each secures constitutionalism by a different mechanism: India by an enforceable bill of rights with a guaranteed remedy under article 32 and a judicially created limit on amendment; the United Kingdom by political accountability, the interpretive duty in section 3 of the Human Rights Act 1998 and judicial control of executive action; Switzerland by direct popular control, since fifty thousand voters can demand a referendum on any federal Act under article 141. It then notes that each mechanism has a matching weakness: India's depends on the courts, and Additional District Magistrate, Jabalpur v. Shivakant Shukla, AIR 1976 SC 1207, shows what happens when they yield; the United Kingdom's depends on Parliament, and the exclusion of sections 2, 3 and 6 to 9 of the Human Rights Act by the Safety of Rwanda (Asylum and Immigration) Act 2024 shows how quickly it can be withdrawn; Switzerland's depends on the electorate, and a majority can amend the Constitution against a minority.

The cases

Facts. Jackson v. Attorney General, [2005] UKHL 56, [2006] 1 AC 262, was a challenge to the Hunting Act 2004, passed under the Parliament Act 1949 procedure without the consent of the House of Lords. The claimants said the 1949 Act was itself invalid, because it had been made under the 1911 Act without the Lords' consent, so that the 1911 procedure had been used to enlarge itself.

Held, by a House of nine. The 1949 Act was valid and so was the Hunting Act; on the true construction of the 1911 Act, an Act of that kind could be made by that procedure. Several of their Lordships added, obiter, that parliamentary sovereignty might not be absolute in every conceivable case.

Why it matters here. It is the nearest the United Kingdom comes to a case about its own amending procedure, and it is the evidence for the qualification on the supreme axis.

Facts. S.R. Bommai v. Union of India, (1994) 3 SCC 1, arose out of proclamations under article 356 dissolving State Assemblies.

Held, by nine judges. The proclamation is justiciable, must rest on relevant material, and the Assembly should not be dissolved before both Houses of Parliament approve; federalism is a basic feature of the Constitution.

Why it matters here. It is the authority for placing India on the federal side of the axis while acknowledging the centralising provisions, which is the whole of the Indian argument in one case.

Distinctions

What beginners get wrong

"India is quasi-federal, and that settles it." The phrase is a label attached in 1963 to a system a nine-judge Bench described as federal in 1994. Use both authorities and argue.

"Switzerland has no separation of powers." Article 144 separates the personnel absolutely. What it lacks is a Westminster confidence relationship and an American separately elected executive.

"The United Kingdom's constitution is not supreme, so it has no constitutional law." It has a great deal, and the last twenty years have produced Thoburn, Jackson, Miller No 1 and Miller No 2.

Quick revision

1. Codified: all but the United Kingdom. Canada in several instruments.
2. Supreme: all but the United Kingdom; Switzerland with the article 190 qualification.
3. Federal: the USA, Switzerland, Canada, Germany, India. Unitary: Ireland, the United Kingdom.
4. Executive: separated in the USA; fused in India, the UK, Canada, Ireland and Germany; collegial in Switzerland.
5. Head of State: republics except the United Kingdom and Canada; Switzerland has none.
6. Four arguments to make rather than assert: India on federalism, the United Kingdom on supremacy, Switzerland on separation, Ireland on federalism.
7. Judicial review and constitutional supremacy are different questions.

Test yourself

1. Place all seven systems on the federal and unitary axis, with the provision that decides each. Federal: the United States (Tenth Amendment), Switzerland (article 3), Canada (sections 91 and 92 of the Constitution Act 1867), Germany (articles 30 and 70 of the Basic Law), India (articles 245 and 246 with the Seventh Schedule). Unitary: Ireland (Article 15.2.1), the United Kingdom (no constitutional division; devolution is statutory).

2. "The United Kingdom's constitution is not supreme." Is that still an accurate statement? Substantially yes. British Railways Board v. Pickin remains good law and no court may set an Act aside. But three qualifications matter: constitutional statutes resist implied repeal after Thoburn; sections 3 and 4 of the Human Rights Act give courts a strong interpretive duty and a power to declare incompatibility; and Jackson contains obiter doubts about whether sovereignty is absolute.

3. Why is Switzerland neither a separated nor a fused system? Because it separates the personnel absolutely under article 144, which no Westminster system does, while making the executive elected by and not dismissible by the legislature, which no presidential system does. The Federal Council serves a fixed four-year term whatever the Assembly thinks of it.

4. Which of the seven secures constitutionalism best, and how should the question be answered? By identifying the mechanism each relies on and its matching weakness, not by ranking. India relies on enforceable rights with a guaranteed remedy and a judicial limit on amendment, and depends on the courts. The United Kingdom relies on political accountability and interpretation, and depends on Parliament's restraint. Switzerland relies on direct popular control under article 141, and depends on the electorate. Each has failed in the way its own design makes possible.

Canada, section 52(1) of the Constitution Act 1982: the Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with its provisions is, to the extent of the inconsistency, of no force or effect.

United States, Article VI: the Constitution, and the laws made in pursuance thereof, shall be the supreme law of the land, and the judges in every State shall be bound thereby.

United Kingdom: nothing corresponds. The supremacy is Parliament's.

Judicial review: strong form and weak form

Strong form. The court may hold the statute void, and it ceases to have effect. India under article 13; Canada under section 52(1); the United States since Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803); Germany, where the Federal Constitutional Court may declare a law void; Ireland under Article 34.

Weak form. The court may declare the statute incompatible, and it remains law until the legislature acts. The United Kingdom under sections 3 and 4 of the Human Rights Act 1998. Section 3 requires legislation to be read compatibly with the Convention rights so far as it is possible to do so, and section 4(6) provides in terms that a declaration of incompatibility does not affect the validity, continuing operation or enforcement of the provision and is not binding on the parties.

No review of statutes at all. Switzerland, for federal Acts, under article 190. Cantonal law remains reviewable, and the political substitute is article 141, which allows fifty thousand voters or eight cantons to demand a referendum on a federal Act.

And one hybrid. Canada has strong-form review under section 52(1) and a legislative override in section 33 of the Constitution Act 1982, by which Parliament or a provincial legislature may expressly declare that an Act shall operate notwithstanding sections 2 or 7 to 15 of the Charter, for five renewable years. No other system on this syllabus has an override.

A worked example

A legislature enacts that persons of a named description may not hold public office.

India. The Act is inconsistent with articles 14 and 16 and is void under article 13(2). A citizen moves the Supreme Court under article 32 or a High Court under article 226. If the legislature amends the Constitution to save it, the amendment faces the basic structure doctrine.

Canada. The Act is inconsistent with section 15 of the Charter and is of no force or effect under section 52(1). But the legislature may re-enact it with a section 33 declaration, and it will then operate for five years notwithstanding section 15, as the standard override upheld in Ford v. Quebec (Attorney General), [1988] 2 SCR 712, decided on 15 December 1988, shows.

United Kingdom. The Act is law. The courts read it compatibly with article 14 of the Convention if possible under section 3; if not, they declare it incompatible under section 4, and it stays in force until Parliament or a remedial order under section 10 changes it.

Switzerland. If it is a federal Act, the Federal Supreme Court must apply it under article 190. Fifty thousand voters may demand a referendum under article 141, and the electorate decides.

Four systems with the same constitutional prohibition and four different consequences.

The cases

Facts. Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803), arose when William Marbury's commission as a justice of the peace, signed and sealed under the outgoing administration, was not delivered. He moved the Supreme Court directly for a mandamus, relying on section 13 of the Judiciary Act 1789.

Held, by Marshall CJ for the Court. Marbury had a right and a remedy lay for its withholding, but not in that court: section 13, so far as it purported to enlarge the Supreme Court's original jurisdiction beyond Article III, was repugnant to the Constitution and void. A legislative act contrary to the constitution is not law, and it is emphatically the province and duty of the judicial department to say what the law is.

Why it matters here. It is the origin of strong-form judicial review, and it was an inference from supremacy rather than an express grant. India needed no such inference, because article 13 confers the power in terms.

Facts. Ford v. Quebec (Attorney General), [1988] 2 SCR 712, decided on 15 December 1988, concerned Quebec's Charter of the French Language, which required public signs to be in French only, and a standard omnibus override enacted under section 33 covering Quebec's statutes.

Held, unanimously. Answering the reference question whether the provisions were inconsistent with section 33(1) of the Constitution Act 1982 and therefore inoperative under section 52(1), the Court answered no, except so far as one section operated retrospectively: a standard, omnibus declaration is formally valid, because section 33 requires only an express declaration that the Act shall operate notwithstanding the named provisions. The French-only requirement nevertheless failed on the freedom-of-expression ground that the override did not cover.

Why it matters here. It is the only worked example anywhere on this syllabus of a legislature lawfully setting aside a bill of rights, and it is the reason Canada belongs on the hybrid row.

Distinctions

What beginners get wrong

"A supreme constitution implies judicial review." Switzerland disproves it. Supremacy says which law prevails; it does not say who decides.

"Weak-form review is not really review." It changes outcomes. After the declaration in A v. Secretary of State for the Home Department, [2004] UKHL 56, Parliament replaced the detention scheme within months.

"Entrenchment is always procedural." Article 79(3) is absolute, and the Indian basic structure doctrine is judicial. Three different kinds.

Limits and criticism

Strong-form review is countermajoritarian. An unelected court sets aside the decision of an elected legislature. The Swiss answer is to give the decision to the electorate instead; the Canadian answer is the override; the Indian answer is that the Constitution is itself the people's act.

Weak-form review can be ignored. A declaration of incompatibility binds nobody, and the exclusion of sections 2, 3 and 6 to 9 of the Human Rights Act for one subject matter by the Safety of Rwanda (Asylum and Immigration) Act 2024 shows how far a sovereign Parliament may go.

Entrenchment protects the past. What is entrenched is whatever the framers thought worth protecting, and later generations inherit it whether or not they agree.

Quick revision

1. Entrenchment: special procedure or absolute bar. Supremacy: priority in a conflict. Judicial review: a court's power to enforce them. Three separate ideas.
2. Entrenchment has three strengths: procedural (article 368, Article V, article 140), absolute (article 79(3)), judicial (the basic structure doctrine).
3. Supremacy in the texts: article 13(2) India, section 52(1) Canada, Article VI United States.
4. Strong-form review: India, USA, Canada, Germany, Ireland. Weak form: the United Kingdom, sections 3 and 4 of the Human Rights Act. None for federal Acts: Switzerland, article 190.
5. Canada's section 33 override: an express declaration, five renewable years, sections 2 and 7 to 15 of the Charter.
6. Marbury v. Madison, 5 U.S. 137 (1803): a legislative act contrary to the constitution is void, and it is the province of the judiciary to say what the law is.
7. Ford v. Quebec (Attorney General), [1988] 2 SCR 712: a standard omnibus override is formally valid.

Test yourself

1. Distinguish entrenchment, supremacy and judicial review, and give a system that has one without another. Entrenchment protects a provision from ordinary change; supremacy gives it priority in a conflict; judicial review is the power of a court to enforce either. Switzerland has entrenchment and supremacy without judicial review of federal Acts, by article 190. The United Kingdom has judicial review of executive action without either entrenchment or constitutional supremacy.

2. Compare strong-form and weak-form review, with the provisions. In strong-form review the court holds the statute void and it ceases to operate: article 13(2) of the Indian Constitution, section 52(1) of the Constitution Act 1982. In weak-form review the court may only read the statute compatibly, under section 3 of the Human Rights Act 1998, or declare an incompatibility under section 4, which by section 4(6) does not affect the validity, continuing operation or enforcement of the provision.

3. What does section 33 of the Constitution Act 1982 allow, and what does Ford decide about it? It allows Parliament or a provincial legislature to declare expressly that an Act shall operate notwithstanding sections 2 or 7 to 15 of the Charter, for five years, renewable. Ford v. Quebec (Attorney General) held that a standard, omnibus declaration covering a legislature's statutes is formally valid, because section 33 requires only an express declaration and not a justification.

4. Why did Marbury v. Madison have to be argued at all, and why does India not need the argument? Because the American Constitution does not say that a court may set a statute aside; the power had to be inferred from the supremacy clause in Article VI and from the nature of a written constitution of limited powers. Article 13(2) of the Indian Constitution says in terms that a law contravening Part III is void, and article 32 makes the remedy a fundamental right, so the power is conferred rather than inferred.

A worked example

A Prime Minister loses a vote of no confidence in the lower House and refuses to resign.

The law. In India, article 75(2) provides that ministers hold office during the pleasure of the President, and article 75(3) that the Council of Ministers is collectively responsible to the House of the People. The word "responsible" is not defined and no article says the government must resign.

The convention. A government defeated on confidence resigns or advises a dissolution. It has been followed at least since 1979 in India, when the Desai government resigned, and in 1990, 1997, 1999 and 2018 at various levels.

The enforcement. No citizen can sue for the resignation. What happens instead is that the President, exercising the power under article 75(2), acts, and the political system, the press and the next election do the rest.

That is the pattern everywhere: the convention supplies the rule, and the legal power supplies the mechanism by which its breach is corrected.

The cases

Facts. Reference re Resolution to Amend the Constitution, [1981] 1 SCR 753, decided on 28 September 1981, was a reference by three provinces asking whether the federal government could ask the United Kingdom Parliament to patriate and amend the Canadian constitution, including the addition of a Charter of Rights, with the agreement of only two provinces. The questions asked expressly both about law and about convention.

Held. By seven to two, the resolution was lawful: no rule of law required provincial consent. By six to three it was unconstitutional in the conventional sense, a convention requiring a substantial degree of provincial consent. The Court refused to say how much, holding that it would not be appropriate to devise in the abstract a specific formula indicating in positive terms what measure of provincial agreement is required.

Why it matters here. It is the single most important authority anywhere on conventions, because a court did all three things at once: found a convention, held it broken, and declined to enforce it. Worked in full in [Canada, and a Court Asked to Find a Convention].

Facts. R (Miller) v. Secretary of State for Exiting the European Union, [2017] UKSC 5, [2018] AC 61, concerned whether the United Kingdom government could give notice of withdrawal from the European Union under the prerogative. A second question was whether the Sewel convention, that Westminster will not normally legislate on devolved matters without the consent of the devolved legislature, required consent.

Held, by eight to three on the main question. An Act of Parliament was required, because withdrawal would remove rights that the European Communities Act 1972 had made part of domestic law and the prerogative cannot alter domestic law. On the second question the Court held unanimously that the Sewel convention, although recorded in section 28(8) of the Scotland Act 1998, is a political convention that the courts will not enforce.

Why it matters here. It shows the boundary from the other side: the courts will police the limits of a legal power strictly, and will not police a convention at all, even one Parliament has written into a statute.

Distinctions

What beginners get wrong

"Conventions apply only in the United Kingdom." They operate in every system on this syllabus, including the two with the most detailed texts. The American two-term convention governed the Presidency for a hundred and fifty years.

"A convention written into a statute becomes law." Miller No 1 holds the opposite for the Sewel convention in section 28(8) of the Scotland Act 1998. What matters is whether the provision was intended to create a legal obligation.

"Conventions are unimportant because they cannot be enforced." They determine who governs. The rule that the monarch appoints as Prime Minister the person who can command the confidence of the Commons is a convention, and nothing more important happens in the British constitution.

Limits and criticism

They are uncertain at the edges. How much provincial consent is substantial? The Supreme Court of Canada would not say.

They can be broken with no legal consequence. The remedy is political, and where the political system is weak the convention is weak.

They can be codified into rigidity. The Fixed-term Parliaments Act 2011 converted the convention on dissolution into statute, and the Dissolution and Calling of Parliament Act 2022 repealed it and revived the prerogative, adding an ouster clause in section 3.

Quick revision

1. A convention is a non-legal rule of constitutional behaviour, accepted as binding, unenforceable in court.
2. Three elements: precedents, a belief in the actors that they were bound, and a constitutional reason.
3. Conventions fill the gap between the width of a legal power and the way it is meant to be used: section 55 of the Constitution Act 1867, article 111 of the Indian Constitution.
4. Not a usage, not a moral rule, not necessarily unwritten.
5. Reference re Resolution to Amend the Constitution, [1981] 1 SCR 753: lawful by seven to two, unconstitutional by convention by six to three, unenforceable.
6. R (Miller) v. Secretary of State for Exiting the European Union, [2017] UKSC 5: the Sewel convention is not enforceable even though it is in section 28(8) of the Scotland Act 1998.
7. Conventions operate in written constitutions too.

Test yourself

1. Define a constitutional convention and distinguish it from a usage and from law. A convention is a rule of constitutional behaviour, established by precedent, accepted as obligatory by those to whom it applies, supported by a constitutional reason, and unenforceable in court. A usage is a practice with no sense of obligation. Law is enforceable by a court with a remedy; a convention is enforced only politically.

2. Give two provisions whose legal width is cut down by convention, from two systems. Section 55 of the Constitution Act 1867 permits the Governor General to withhold assent or reserve a Bill, and convention forbids it; assent has not been withheld since 1878. Article 111 of the Indian Constitution permits the President to withhold assent to a Bill, and convention, reinforced since 1976 by article 74(1), requires him to act on ministerial advice.

3. Does writing a convention into a statute make it enforceable? Not necessarily. In R (Miller) v. Secretary of State for Exiting the European Union, [2017] UKSC 5, the Sewel convention was recorded in section 28(8) of the Scotland Act 1998 and the Supreme Court held it remained a political convention which the courts would not enforce. The question is whether Parliament intended to impose a legal obligation, and language that merely recognises a practice does not.

4. Why does a convention need a reason as well as precedents? Because otherwise every repeated practice would be a convention. The reason is what ties the rule to a constitutional principle, such as responsible government or the impartiality of the Speaker, and it is also what allows the rule to be applied to a situation the precedents did not cover.

Second, the division is too clean. Dicey treated law and convention as separate boxes, and modern practice shows constant traffic between them.

Conventions become law. The two-term convention on the American Presidency became the Twenty Second Amendment in 1951. The convention that the President of India acts on advice became article 74(1) as amended in 1976. The convention that the Lords defer to the Commons on money was written into section 1 of the Parliament Act 1911.

Courts recognise conventions without enforcing them. The Supreme Court of Canada found a convention in Reference re Resolution to Amend the Constitution, [1981] 1 SCR 753, decided on 28 September 1981, and declined to enforce it. The United Kingdom Supreme Court in R (Miller) v. The Prime Minister, [2019] UKSC 41, derived a legal limit on prorogation from two principles it identified as fundamental, parliamentary sovereignty and the accountability of the executive to Parliament, which are the principles conventions serve.

A worked example

The Governor of a State receives a Bill passed by the Legislative Assembly and neither assents, nor withholds assent, nor reserves it for the President. He does nothing, for two years.

Dicey's analysis. Article 200 gives the Governor a legal power expressed in the alternative. The convention is that he acts, and acts on the advice of his Council of Ministers. Breaking it breaks no law directly, and on Dicey's account it should eventually collide with the legal system, because government becomes impossible without legislation.

What actually happened. The question reached the Supreme Court of India in State of Tamil Nadu v. Governor of Tamil Nadu, and then, on a Presidential Reference, in In re Assent, Withholding or Reservation of Bills by the Governor and the President, decided on 20 November 2025. The Court held that no timelines may be judicially prescribed for the exercise of the functions under articles 200 and 201, that no deemed assent may be granted under article 142, and that the exercise of the article 200 function is not justiciable on its merits, while a limited mandamus lies where there is prolonged, unexplained and indefinite inaction.

That last qualification is exactly the modern position on Dicey: the convention is not enforced, and the courts will not leave its total abandonment without any remedy either.

The cases

Facts. In re Assent, Withholding or Reservation of Bills by the Governor and the President was a Presidential Reference under article 143 arising from the dispute about Governors sitting on Bills, and specifically from the earlier decision in State of Tamil Nadu v. Governor of Tamil Nadu.

Held, by a Bench presided over by Gavai C.J., decided on 20 November 2025. No timelines may be judicially prescribed for the exercise of the Governor's or the President's functions under articles 200 and 201; no deemed assent may be granted under article 142; the article 200 function is not justiciable on its merits; but a limited mandamus lies against prolonged, unexplained and indefinite inaction.

Why it matters here. It is the current Indian law on a convention that had been broken, and it shows the courts holding a line: the exercise of the power is political, its total non-exercise is not beyond remedy.

Facts. Reference re Resolution to Amend the Constitution, [1981] 1 SCR 753, decided on 28 September 1981, asked the Supreme Court of Canada both a legal question and a conventional one about patriation.

Held. Lawful by seven to two; unconstitutional in the conventional sense by six to three, a convention requiring a substantial degree of provincial consent, with the Court declining to devise a formula.

Why it matters here. It is the answer to Dicey's second objection in the clearest possible form: a court can find and declare a convention while keeping it outside the law.

Distinctions

What beginners get wrong

"Dicey said conventions are unimportant." He said the opposite. He said they determine how the discretionary powers of the Crown are exercised, and that they are the rules of constitutional morality.

"Dicey's sanction argument is simply wrong." It is incomplete. For the conventions about summoning Parliament and voting supply it is exactly right, and those were the conventions he had in mind.

"Law and convention are two sealed boxes." They are two categories with continuous traffic. Give an example in each direction: the Twenty Second Amendment for convention becoming law, and the Fixed-term Parliaments Act 2011 followed by the Dissolution and Calling of Parliament Act 2022 for law returning to convention.

Limits and criticism

Dicey wrote about one constitution. His account was of the British constitution in 1885, and the systems that have since adopted conventions have adapted them.

He underestimated the courts. He did not foresee a court declaring a convention breached, which is what happened in Canada in 1981.

He treated the categories as stable. The last forty years show conventions being codified, statutes being repealed to restore conventions, and courts deriving legal principles from the values conventions protect.

Quick revision

1. Dicey (1885): the law of the constitution, enforced by courts; the conventions of the constitution, not enforced.
2. His examples: assent to Bills, resignation on loss of confidence, annual meeting of Parliament.
3. His answer to why conventions are obeyed: breach leads to breach of law, because supply and the annual Army Act lapse.
4. Jennings's objection: many conventions carry no legal consequence at all.
5. Second objection: the boxes leak. Two-term convention to the Twenty Second Amendment; article 74(1) as amended in 1976.
6. Reference re Resolution to Amend the Constitution, [1981] 1 SCR 753: found, declared breached, not enforced.
7. In re Assent, Withholding or Reservation of Bills, decided 20 November 2025: no timelines, no deemed assent, not justiciable on the merits, limited mandamus for indefinite inaction.

Test yourself

1. State Dicey's division and his explanation of why conventions are obeyed. He divided the rules of the constitution into laws enforced by the courts and conventions, understandings and practices that are not. He said conventions are obeyed because their breach leads to a breach of law: if Parliament were not summoned within a year, the annual Army Act and the annual votes of supply would lapse, so ministers maintaining the army and collecting taxes would be acting unlawfully.

2. Give the two standard objections to Dicey's account. First, the sanction is often absent: refusing assent to a Bill or refusing to resign after a defeat breaks no law on the day it happens, so Dicey's mechanism explains only some conventions. Second, the division is too clean: conventions become law, as with the Twenty Second Amendment and article 74(1) as amended in 1976, and courts recognise conventions without enforcing them.

3. What is the current Indian law where a Governor simply does not act on a Bill? In re Assent, Withholding or Reservation of Bills by the Governor and the President, decided on 20 November 2025, holds that no timelines may be judicially prescribed under articles 200 and 201, that no deemed assent may be granted under article 142, and that the exercise of the article 200 function is not justiciable on its merits, but that a limited mandamus lies where there is prolonged, unexplained and indefinite inaction.

4. Is Dicey's account still worth learning? Yes, as the classical statement and as the vocabulary everything since has used. It should be given accurately, then qualified: the sanction argument works for the conventions of supply and summoning and not for others, and the sealed categories leak in both directions, as the Canadian Patriation Reference and the two British dissolution statutes of 2011 and 2022 show.

Notice what has happened. Once the rule is in article 75(5), the question is no longer a question about a convention at all. That is [Conventions That Have Hardened Into Law].

Now take a rule that is still conventional: that the Speaker of the Lok Sabha, once elected, acts impartially and by practice severs active political ties.

Precedents. Mixed. Some Speakers have resigned from their party; most have not.

Obligation. The impartiality is treated as obligatory; the resignation from the party is not.

Reason. The office must be trusted by the minority, and a Speaker who is a party manager cannot be.

So the convention is that the Speaker acts impartially, and there is no convention that he leaves his party. Jennings's test separates the two, and a practice-counting approach would not.

A worked example

The Prime Minister proposes to advise a dissolution at a moment of political convenience, and it is said that a convention requires the Cabinet's agreement first.

Precedents. Are there instances of a Prime Minister seeking Cabinet agreement, and instances of one not doing so? A single instance is not a practice, and an unbroken run of instances is not by itself a convention either.

Belief in a rule. Did the actors think they were bound, or were they merely acting prudently? Contemporaneous statements are the evidence, and an actor who explains that he consulted because it was wise rather than because he had to is evidence against the rule.

A reason. Is there a constitutional reason for the rule, in this instance the collective responsibility of the Cabinet for advice tendered to the Crown?

And the result. If the third limb is satisfied but the first two are thin, Jennings would say the rule is desirable and not yet a convention; if the first two are satisfied and the third cannot be stated, what exists is a habit.

The cases

Facts. Reference re Resolution to Amend the Constitution, [1981] 1 SCR 753, decided on 28 September 1981, asked whether a convention required provincial consent before the federal government sought an amendment from the United Kingdom Parliament affecting provincial powers. The Court had to decide whether a convention existed at all, and it applied Jennings's three questions by name.

Held, by six to three on the convention question. The precedents showed that provincial agreement had been sought and obtained in every relevant case; the actors had treated agreement as necessary; and the reason was the federal principle, since a unilateral power would allow the centre to alter the provinces' powers at will. A convention therefore existed requiring a substantial degree of provincial consent. The Court declined to devise in the abstract a specific formula indicating in positive terms what measure of provincial agreement is required.

Why it matters here. It is the only judicial application of the test at the highest level, and it is where an examiner expects it to be cited.

Facts. R (Miller) v. Secretary of State for Exiting the European Union, [2017] UKSC 5, [2018] AC 61, considered whether the Sewel convention, that Westminster will not normally legislate on devolved matters without consent, obliged the government to obtain the consent of the devolved legislatures before triggering article 50.

Held, unanimously on that question. The convention was a political convention which the courts would not enforce, notwithstanding that it was recorded in section 28(8) of the Scotland Act 1998.

Why it matters here. It shows the limit of the test. Establishing that a convention exists, which nobody disputed, does not make it justiciable, and the two questions must be kept apart in an answer.

Distinctions

What beginners get wrong

"Jennings's test requires many precedents." He said the opposite: a single precedent with a good reason may be enough.

"If a convention exists, a court will act on it." Miller No 1 is the answer. Existence and enforceability are different questions.

"The test is a legal test." It is a test for identifying a non-legal rule, and it was applied by a court only because the Canadian reference procedure allowed a question of convention to be asked. In ordinary litigation the question does not arise in that form.

Limits and criticism

Limb two is hard to prove. The beliefs of politicians are not usually recorded, and where they are, they are self-serving.

Limb three can be manufactured. A reason can be found for almost any practice, so the third limb may not filter as much as Jennings hoped.

The test says nothing about breach. It identifies a rule and is silent about what follows when the rule is broken, which is why the Patriation Reference had to answer two separate questions.

Quick revision

1. Jennings: precedents; a sense of obligation in the actors; a reason for the rule.
2. One precedent with a good reason may suffice; many precedents without a reason do not.
3. The second limb separates a convention from a usage.
4. The third limb allows extension to new circumstances the precedents never covered.
5. Reference re Resolution to Amend the Constitution, [1981] 1 SCR 753: the test applied, a convention found, and not enforced.
6. R (Miller) v. Secretary of State for Exiting the European Union, [2017] UKSC 5: existence does not imply enforceability.
7. Article 75(5) of the Indian Constitution shows a convention that has become law and left the test behind.

Test yourself

1. State Jennings's test and its internal weighting. Three questions: what are the precedents, did the actors believe they were bound, and is there a reason for the rule. Jennings weighted the third heavily: a single precedent with a good reason may establish a convention, while a string of precedents with no reason establishes nothing unless it is perfectly certain that those concerned regarded themselves as bound.

2. Apply the test to the rule that the Speaker of a legislature acts impartially. Precedents: the practice is uniform in India, the United Kingdom and Canada. Obligation: departures are treated as breaches and are defended rather than asserted as a right, which is evidence of a felt obligation. Reason: the office must command the confidence of the minority, since the Speaker controls debate, recognition and the admissibility of motions. The convention therefore exists, though the associated British practice of leaving one's party does not exist in India.

3. Does establishing a convention under Jennings's test make it enforceable? No. Reference re Resolution to Amend the Constitution found a convention and declined to enforce it; R (Miller) v. Secretary of State for Exiting the European Union accepted the Sewel convention and held it non-justiciable even though section 28(8) of the Scotland Act 1998 recorded it. Existence is one question and justiciability is another.

4. Why is the third limb the most important? Because it supplies the principle the rule serves, which does two things: it distinguishes a convention from a repeated habit, and it allows the rule to be applied to a situation the precedents never faced. In the Patriation Reference the reason was the federal principle, and it is what allowed the Court to say that provincial consent was required for an amendment of a kind that had never previously been attempted.

A convention broken and answered by the courts: India, 2025. Governors withheld action on Bills for extended periods, contrary to the convention that article 200 is exercised on ministerial advice and within a reasonable time. In In re Assent, Withholding or Reservation of Bills by the Governor and the President, decided on 20 November 2025, the Supreme Court held that no timelines may be judicially prescribed, that no deemed assent may be granted under article 142, and that the article 200 function is not justiciable on its merits, while a limited mandamus lies against prolonged, unexplained and indefinite inaction.

Three breaches, three different mechanisms of correction, and none of them Dicey's.

A worked example

A Chief Minister loses a vote of confidence in the Legislative Assembly and refuses to resign.

Step one: the convention. A ministry defeated on confidence resigns or advises a dissolution.

Step two: the legal power behind it. Article 164(1) provides that the Chief Minister shall be appointed by the Governor and the other ministers appointed by the Governor on his advice, and article 164(2) that the Council of Ministers shall be collectively responsible to the Legislative Assembly. Under article 164(1) ministers hold office during the pleasure of the Governor.

Step three: what happens. The Governor, on the basis of the House's vote, withdraws pleasure and dismisses the ministry, then invites the person who appears able to command a majority. The convention is not enforced; the legal power it constrained is exercised.

Step four: the check on that. The Governor's own action is subject to the discipline of S.R. Bommai v. Union of India, (1994) 3 SCC 1, which held that the proper forum for testing majority support is the floor of the House and that a proclamation under article 356 is justiciable.

The cases

Facts. S.R. Bommai v. Union of India, (1994) 3 SCC 1, arose from a series of Presidential proclamations under article 356 dismissing State governments, in some cases without a floor test.

Held, by a Bench of nine. A proclamation under article 356 is justiciable; the President's satisfaction must be based on relevant material; the floor of the House is the appropriate forum for testing whether a ministry has lost majority support; the Assembly should not be dissolved before both Houses of Parliament approve the proclamation; and federalism and secularism are basic features.

Why it matters here. It converts a convention about how majority support is tested into a legal requirement enforceable on judicial review of the proclamation. The convention did not become law; the legal power built on it did.

Facts. R (Miller) v. The Prime Minister, [2019] UKSC 41, [2020] AC 373, concerned the prorogation of Parliament for five weeks in the run-up to the United Kingdom's departure from the European Union.

Held, by a unanimous court of eleven. The advice to prorogue was unlawful and the prorogation null and of no effect. The limit was derived from two principles the Court identified as fundamental: parliamentary sovereignty and the accountability of the executive to Parliament.

Why it matters here. It shows the fourth mechanism: a court deriving a legal limit from the values a convention protects, rather than enforcing the convention itself.

Distinctions

What beginners get wrong

"Conventions have no sanction." They have several, and none of them is a decree of a court ordering compliance with the convention as such.

"Dicey's answer is the answer." It is one answer, and it fits the conventions he was writing about. Say so, and then give the others.

"A convention is worthless once broken." The Patriation Reference is the counter-example: the convention was broken, declared broken, and then complied with, in that order and within two months.

Limits and criticism

Political cost depends on politics. Where an executive has a large majority, a compliant legislature and a weak press, the cost of breaking a convention may be nil.

The judicial mechanism has limits. Miller No 2 produced section 3 of the Dissolution and Calling of Parliament Act 2022, an ouster clause enacted to prevent the same reasoning being used again.

Codification changes the question. Once a convention is enacted, the question ceases to be why it is obeyed and becomes what the statute means: article 74(1) after 1976, and article 75(5).

Quick revision

1. Three classical answers: Dicey's legal sanction, Jennings's acceptance and political cost, and institutional dependence.
2. A convention usually sits on a legal power, and that power is the enforcement mechanism: articles 75(2) and 164(1).
3. Canada 1981: convention broken, declared broken, complied with within two months, no legal sanction at any stage.
4. United Kingdom 2019: a court derived a legal limit from the values behind the convention; Parliament answered with section 3 of the 2022 Act.
5. India 2025: no timelines, no deemed assent, not justiciable on merits, limited mandamus for indefinite inaction.
6. S.R. Bommai v. Union of India, (1994) 3 SCC 1: the floor of the House is the forum, and the proclamation is justiciable.
7. R (Miller) v. The Prime Minister, [2019] UKSC 41: prorogation null and of no effect.

Test yourself

1. Why are conventions obeyed? Give three answers and say which fits which conventions. Dicey's answer, that breach leads to breach of law, fits the conventions of summoning Parliament and voting supply, because the annual Acts lapse. Jennings's answer, acceptance plus political cost, fits most conventions most of the time. The institutional answer, that the legal power the convention constrains will simply be exercised, fits the conventions of confidence and dismissal, where articles 75(2) and 164(1) supply the mechanism.

2. Show, from a real example, that a convention can be effective after being broken. In 1981 the federal government of Canada proceeded with patriation without substantial provincial consent. The Supreme Court held the course lawful but unconstitutional by convention. No legal consequence followed, but the declaration changed the political position and within two months an agreement was reached with nine provinces, which became the Constitution Act 1982.

3. What did the United Kingdom Parliament do about Miller No 2, and what does it show? It enacted the Dissolution and Calling of Parliament Act 2022, section 2 of which revives the prerogative powers of dissolution as if the Fixed-term Parliaments Act 2011 had never been passed, and section 3 of which provides that a court may not question the exercise or purported exercise of those powers, any decision relating to them, or their limits or extent. It shows that where the judicial mechanism is used, a sovereign legislature can close it.

4. Explain why a convention "sits on top of" a legal power, using the Indian provisions. Article 75(2) and article 164(1) provide that ministers hold office during the pleasure of the President or Governor, and article 75(3) and article 164(2) make the Council collectively responsible to the House. The convention is that the pleasure is exercised in accordance with the House's confidence. If the convention fails, the legal power remains and is exercised directly, which is what dismissal of a defeated ministry is.

If the rule is legal, a court can determine the content, fix the time and order compliance.

If the rule is conventional, a court cannot, and the Indian Supreme Court said so in In re Assent, Withholding or Reservation of Bills by the Governor and the President, decided on 20 November 2025: no timelines may be judicially prescribed under articles 200 and 201, no deemed assent may be granted under article 142, and the article 200 function is not justiciable on its merits. What survives is a limited mandamus against prolonged, unexplained and indefinite inaction, which is a legal remedy for a legal wrong, the failure to exercise a power at all, and not enforcement of the convention.

That case is the best modern statement of exactly where the line runs.

The cases

Facts. R (Miller) v. Secretary of State for Exiting the European Union, [2017] UKSC 5, concerned whether the United Kingdom government could trigger article 50 by prerogative, and separately whether the Sewel convention required the consent of the devolved legislatures.

Held. By eight to three, an Act of Parliament was required, because withdrawal would remove rights the European Communities Act 1972 had made part of domestic law and the prerogative cannot alter domestic law. On the Sewel question, unanimously, the convention was a political convention which the courts would not enforce, though recorded in section 28(8) of the Scotland Act 1998.

Why it matters here. It is the clearest authority that recording a convention in a statute does not convert it into law, and it is the case to cite for the second column of the table below.

Facts. In re Assent, Withholding or Reservation of Bills by the Governor and the President was a Presidential Reference under article 143, arising from Governors declining to act on Bills passed by State legislatures.

Held, decided on 20 November 2025. No judicially prescribed timelines under articles 200 and 201; no deemed assent under article 142; the article 200 function is not justiciable on the merits; a limited mandamus lies against prolonged, unexplained and indefinite inaction.

Why it matters here. It draws the line in Indian law: the manner of exercising the power is conventional and outside the courts, the total failure to exercise it is a legal wrong with a limited remedy.

Distinctions

What beginners get wrong

"If it is in a statute it is law." Section 28(8) of the Scotland Act 1998 is in a statute and is not enforceable.

"A court can never mention a convention." Courts mention them constantly. What they do not do is grant a remedy for breach of one.

"A convention is a weaker kind of law." It is a different kind of rule, with a different source and a different sanction. Calling it weak law suggests a court might enforce it if it felt strongly enough, and no court has.

Limits and criticism

The line is a matter of degree in practice. Miller No 2 took a legal principle from constitutional values that are otherwise protected by convention, and reasonable lawyers disagreed about whether that crossed the line.

Conventions can be legislated into rigidity and back. The Fixed-term Parliaments Act 2011 converted the dissolution convention into statute; the Dissolution and Calling of Parliament Act 2022 repealed it and revived the prerogative, adding an ouster clause in section 3.

The distinction assumes an independent judiciary willing to police the legal side. Where that is absent, both categories fail together.

Quick revision

1. Four differences: source, enforcement, certainty, mode of change.
2. Recording a convention in a statute does not make it law: section 28(8) of the Scotland Act 1998 and Miller No 1.
3. Enacting it as an obligation does: article 74(1) as amended in 1976, article 75(5).
4. A court may recognise a convention without enforcing it: the Patriation Reference.
5. A court may derive a legal principle from the values a convention protects: Miller No 2.
6. In re Assent, Withholding or Reservation of Bills, 20 November 2025: manner of exercise conventional, total inaction reviewable.
7. The test is intention to create a legal obligation, not the location of the words.

Test yourself

1. State four differences between law and convention. Source: enactment, constitution or precedent, against accepted practice. Enforcement: a court with a remedy, against political consequences only. Certainty: content determined by a court, against content that may be contested and left undetermined, as the Supreme Court of Canada left it in 1981. Change: by the prescribed procedure, against acceptance of a new practice.

2. Does putting a convention into an Act of Parliament make it enforceable? Not necessarily. Section 28(8) of the Scotland Act 1998 records the Sewel convention and the Supreme Court held in R (Miller) v. Secretary of State for Exiting the European Union, [2017] UKSC 5, that it remained a political convention. The question is whether Parliament intended a legal obligation; words that recognise an existing practice do not.

3. Where exactly does Indian law draw the line on a Governor's inaction over a Bill? In re Assent, Withholding or Reservation of Bills by the Governor and the President, decided on 20 November 2025, holds that the manner and timing of the exercise of the article 200 power are not for the courts, that no deemed assent may be given under article 142, and that the function is not justiciable on its merits, but that a limited mandamus lies where the inaction is prolonged, unexplained and indefinite.

4. Give one example of a convention that has become law and one of a law that has become a convention again. The rule that the President of India acts on ministerial advice became law in article 74(1) as amended by the Forty Second and Forty Fourth Amendments. The rule about dissolution in the United Kingdom became law in the Fixed-term Parliaments Act 2011 and reverted to prerogative and convention when section 2 of the Dissolution and Calling of Parliament Act 2022 revived the prerogative as if the 2011 Act had never been enacted.

The conventions of the Union

The Sewel convention. Westminster will not normally legislate on devolved matters without the consent of the devolved legislature. Recorded in section 28(8) of the Scotland Act 1998 and held non-justiciable in R (Miller) v. Secretary of State for Exiting the European Union, [2017] UKSC 5.

What happens when they are tested

Prorogation, 2019. The convention that the prerogative of prorogation is used for the ordinary purpose of ending a session was tested by a five-week prorogation. In R (Miller) v. The Prime Minister, [2019] UKSC 41, the Supreme Court held the advice unlawful and the prorogation null and of no effect, reasoning from parliamentary sovereignty and the accountability of the executive to Parliament.

Dissolution, 2011 to 2022. The convention that a Prime Minister may request a dissolution was replaced by statute in the Fixed-term Parliaments Act 2011 and then restored: section 2 of the Dissolution and Calling of Parliament Act 2022 revives the prerogative powers as if the 2011 Act had never been enacted, and section 3 provides that a court may not question their exercise, any decision relating to them, or their limits or extent.

Human rights, 2024. The Human Rights Act 1998 is a statute and not a convention, but the way it works depends on a convention: that a government which receives a declaration of incompatibility will act on it. The database records sections 2, 3 and 6 to 9 of that Act as excluded, for one subject matter, by the Safety of Rwanda (Asylum and Immigration) Act 2024, which shows how far a sovereign Parliament may go when it chooses.

A worked example

A government loses a vote of confidence and the Prime Minister neither resigns nor advises a dissolution.

Which rules are engaged. The convention that a government which has lost the confidence of the Commons must resign or seek a dissolution; and, since 2022, the statutory position on dissolution.

Is there a legal remedy. No. No court will order a Prime Minister to resign, and the Dissolution and Calling of Parliament Act 2022 restored the prerogative and, by section 3, purported to exclude the courts from reviewing its exercise.

What actually enforces it. Supply and legislation stop; the Speaker's handling of business changes; the party removes its leader; and the electorate is told. The sanction is political and it operates quickly.

And the comparative point. In India the same ground is occupied by article 75(3), which makes the Council of Ministers collectively responsible to the House of the People, so the rule is justiciable in the sense that the constitutional text can be pointed to, even though the remedy remains political.

The cases

Facts. R (Miller) v. The Prime Minister, [2019] UKSC 41, [2020] AC 373, concerned advice to the monarch to prorogue Parliament for five weeks between 9 September and 14 October 2019, at a time when Parliament was considering the terms of the United Kingdom's departure from the European Union.

Held, by a unanimous court of eleven. A decision to prorogue is unlawful if the prorogation has the effect of frustrating or preventing, without reasonable justification, the ability of Parliament to carry out its constitutional functions. The advice was unlawful, and the prorogation was null and of no effect. The Court derived the limit from parliamentary sovereignty and from the accountability of the executive to Parliament.

Why it matters here. The convention was not enforced; a legal limit was constructed from the same values, which is the modern British technique and the reason the boundary between law and convention there is unstable.

Facts. Jackson v. Attorney General, [2005] UKHL 56, [2006] 1 AC 262, was a challenge to the Hunting Act 2004, passed under the Parliament Act 1949 procedure without the Lords' consent, on the ground that the 1949 Act was itself invalid because made under the 1911 Act without the Lords' consent.

Held, by a House of nine. The 1949 Act and the Hunting Act were valid; the 1911 Act permitted an Act of that kind. Several of their Lordships added, obiter, that parliamentary sovereignty might not be absolute in every conceivable case.

Why it matters here. It shows the conversion of a convention into a statutory procedure and the litigation that followed, and it is the nearest thing the United Kingdom has to a case about amending its own constitution.

Distinctions

What beginners get wrong

"The Parliament Acts are conventions." They are statutes, and they exist because a convention broke down in 1909.

"The monarch has no powers." The monarch has extensive legal powers and exercises none of them independently. That is a statement about convention, not about law.

"Conventions in the United Kingdom cannot be litigated." They cannot be enforced. They can be described by a court, and the values behind them can generate legal limits, as Miller No 2 shows.

Limits and criticism

They are unwritten and therefore contestable. In 2019 the government and the claimants disagreed about the very existence of a limit on prorogation.

They depend on self-restraint. A government willing to accept the political cost can break them, and section 3 of the 2022 Act shows a Parliament closing off the judicial answer.

Codification has been proposed and refused. The Cabinet Manual of 2011 records conventions without enacting them, which was a deliberate choice.

Quick revision

1. Crown: assent given, Prime Minister appointed on confidence, monarch acts on advice and is neutral.
2. Ministers: collective responsibility, individual responsibility, membership of a House.
3. Houses: Salisbury convention, and the money convention that became section 1 of the Parliament Act 1911.
4. Section 2(1) of the 1911 Act as amended in 1949: two successive sessions; a Bill extending Parliament beyond five years is excluded.
5. Union: the Sewel convention, section 28(8) of the Scotland Act 1998, non-justiciable per Miller No 1.
6. R (Miller) v. The Prime Minister, [2019] UKSC 41: prorogation null and of no effect.
7. Dissolution: statute in 2011, prerogative restored in 2022 with an ouster clause in section 3.

Test yourself

1. Name four British conventions of the Crown and say what each does. Assent is given to a Bill passed by both Houses, which subordinates the monarch to the elected House. The Prime Minister appointed is the person who can command the confidence of the Commons, which makes elections decisive. The monarch acts on ministerial advice, which converts the prerogative into an executive power exercised by an accountable government. The monarch remains politically neutral, which is what allows the office to survive elections.

2. Which British convention was converted into statute, and why? The convention that the Lords do not reject financial legislation. The Lords rejected the 1909 budget, and the Parliament Act 1911 followed, section 1(1) providing that a Money Bill not passed unamended within a month shall be presented for assent notwithstanding. The 1911 Act also created the general procedure in section 2, amended by the 1949 Act to two successive sessions.

3. What did Miller No 2 decide, and what did Parliament do about it? It held that the advice to prorogue Parliament for five weeks was unlawful and the prorogation null and of no effect, because a prorogation that frustrates Parliament's constitutional functions without reasonable justification is outside the power. Parliament answered with the Dissolution and Calling of Parliament Act 2022: section 2 revives the dissolution prerogative and section 3 provides that a court may not question its exercise or its limits.

4. Is the Sewel convention law? No. It is recorded in section 28(8) of the Scotland Act 1998 in words that recognise a practice rather than impose an obligation, and in R (Miller) v. Secretary of State for Exiting the European Union, [2017] UKSC 5, the Supreme Court held unanimously that it remained a political convention which the courts would not enforce.

The Governor acts on advice except where the Constitution requires discretion. The exceptions are narrow: reserving a Bill for the President under article 200, reporting under article 356, and functions under the Sixth Schedule and certain State-specific provisions.

The Governor exercises the article 200 power within a reasonable time and on advice. This convention was broken in several States, and in In re Assent, Withholding or Reservation of Bills by the Governor and the President, decided on 20 November 2025, the Supreme Court held that no timelines may be judicially prescribed under articles 200 and 201, that no deemed assent may be granted under article 142, and that the article 200 function is not justiciable on its merits, though a limited mandamus lies against prolonged, unexplained and indefinite inaction. That decision displaces the earlier holding in State of Tamil Nadu v. Governor of Tamil Nadu, decided on 8 April 2025, so far as that decision had prescribed timelines and treated assent as deemed.

The Governor invites the leader who can command a majority and does not decide the question himself. Nabam Rebia v. Deputy Speaker, Arunachal Pradesh Legislative Assembly, (2016) 8 SCC 1, holds that the Governor cannot act on his own in summoning or advancing a session to bring about a change of government.

The conventions of Parliament

The Speaker acts impartially. Not in the text, and central to the working of articles 93 to 96 and of the Tenth Schedule.

A money Bill originates in the Lok Sabha and the Rajya Sabha's role is recommendatory. This half is law, in articles 109 and 110.

The Prime Minister keeps the President informed. Article 78 makes this a duty of the Prime Minister in terms, so again a convention has been enacted.

The Leader of the Opposition is consulted on certain appointments. This is statutory for some bodies and conventional for others.

The conventions of the federation

The Union consults a State before altering its boundaries. Article 3 requires the President to refer the Bill to the State legislature for its views within a specified period, and the views are not binding, so the legal requirement is consultation and the convention is that it is taken seriously.

Members of the Rajya Sabha represent States. Article 80 provides for representation of the States, and the practice of nominating candidates without a real connection to the State led to litigation on the residence requirement.

A worked example

A State's Council of Ministers advises the Governor to summon the Assembly. He does not.

The text. Article 174(1) provides that the Governor shall from time to time summon the House, and article 163(1) provides that he acts on advice except where required to exercise discretion. Summoning is not a discretionary function.

The convention. He summons on advice.

When it is broken. Nabam Rebia holds that the Governor's power under article 174 is to be exercised on the aid and advice of the Council of Ministers, and not at his own discretion, and the decisions taken in the session so summoned were set aside.

So the convention here has become law, by judicial decision rather than amendment, which is a third route to the traffic described in [Conventions That Have Hardened Into Law].

The cases

Facts. Nabam Rebia v. Deputy Speaker, Arunachal Pradesh Legislative Assembly, (2016) 8 SCC 1, arose when the Governor of Arunachal Pradesh advanced the session of the Legislative Assembly and fixed its agenda, including the removal of the Speaker, on his own initiative and against the advice of the Council of Ministers, in the course of a political crisis.

Held, by a Constitution Bench of five. The Governor's power to summon, prorogue and dissolve under article 174 must be exercised on the aid and advice of the Council of Ministers and not at his own discretion; the discretion under article 163(1) is confined to the functions the Constitution expressly requires him to exercise in his discretion. The Governor's actions and everything that followed were set aside and the status quo ante restored.

Why it matters here. It is the leading Indian authority on the limits of a Governor's discretion and the strongest example of a convention being made enforceable through the judicial review of a legal power.

Facts. S.R. Bommai v. Union of India, (1994) 3 SCC 1, arose from proclamations under article 356 dismissing State governments, in several cases without any test of majority support on the floor.

Held, by nine judges. A proclamation under article 356 is justiciable; the satisfaction must rest on relevant material; the floor of the House is the appropriate forum for testing majority support; and the Assembly should not be dissolved before both Houses of Parliament have approved the proclamation.

Why it matters here. It converts the convention about how a majority is tested into a legal standard against which the exercise of a constitutional power is reviewed.

Distinctions

What beginners get wrong

"A written constitution has no conventions." India is the counter-example, and the syllabus asks about it for that reason.

"Article 74(1) always said the advice was binding." It did not. The words requiring the President to act in accordance with the advice were inserted by the Forty Second Amendment in 1976, and the reconsideration proviso by the Forty Fourth in 1978.

"The Governor has wide discretion." Article 163(1) confines discretion to the functions the Constitution expressly requires to be exercised in discretion, and Nabam Rebia enforces that reading.

Limits and criticism

Conventions here are contested along political lines. The Governor's office is the standing example, and each side's account of the convention tracks whether it holds power at the centre.

Judicialisation has limits. The 2025 Reference makes clear that the courts will not prescribe timelines or deem assent, so the convention remains a convention with only a narrow legal backstop.

Enactment can freeze a convention badly. Article 74(1) as it stands makes advice binding with only one reconsideration, which removes any residual discretion in an extreme case.

Quick revision

1. India has conventions because the text confers powers wider than anyone intends to use: articles 53(1), 111 and 75(1).
2. President on advice: convention until 1976, then article 74(1); reconsideration proviso 1978.
3. Article 78: the Prime Minister's duty to inform the President, enacted from the start.
4. Governor: article 163(1) confines discretion; Nabam Rebia holds article 174 is exercised on advice.
5. Majority tested on the floor: S.R. Bommai v. Union of India, (1994) 3 SCC 1.
6. Article 200: In re Assent, Withholding or Reservation of Bills, 20 November 2025, no timelines, no deemed assent, not justiciable on merits, limited mandamus for indefinite inaction.
7. The Speaker's impartiality remains purely conventional.

Test yourself

1. How can a constitution of 395 articles depend on conventions? Because the text confers legal powers in wide terms and leaves their exercise to practice. Article 53(1) vests the executive power in the President, article 111 lets him withhold assent, and article 75(1) lets him appoint the Prime Minister. What confines all three is convention, reinforced in one case by the amendment of article 74(1) in 1976 and 1978.

2. Trace the rule that the President acts on advice from convention to law. From 1950 it was a convention modelled on British practice. The Forty Second Amendment of 1976 inserted into article 74(1) the words requiring the President to act in accordance with the advice of the Council of Ministers. The Forty Fourth Amendment of 1978 added the proviso allowing him to require reconsideration once, after which he must act on the advice tendered.

3. What is the current position where a Governor does not act on a Bill? In re Assent, Withholding or Reservation of Bills by the Governor and the President, decided on 20 November 2025, holds that no timelines may be judicially prescribed under articles 200 and 201, no deemed assent may be granted under article 142, and the article 200 function is not justiciable on its merits, but that a limited mandamus lies where the inaction is prolonged, unexplained and indefinite.

4. Which Indian conventions have become legally enforceable, and by what route? Three routes. By amendment: the President acting on advice, article 74(1). By original enactment: articles 75(5) and 78. By judicial review of the legal power the convention constrained: the testing of majority support on the floor after S.R. Bommai, and the summoning of an Assembly on advice after Nabam Rebia.

Presidential disability. Before the Twenty Fifth Amendment of 1967, what happened when a President was incapacitated was a matter of practice. The amendment now provides for the Vice President to act, and for the mechanism by which the President resumes.

Concession and transfer of power. That a defeated candidate concedes and that power is transferred peaceably is a convention, and it is the one whose fragility has been most discussed since 2020.

A worked example

A President is elected and immediately announces that the cabinet will be abolished and that he will govern through personal advisers who are not confirmed by the Senate.

The text. Article II section 2 requires the advice and consent of the Senate for ambassadors, judges and all other officers of the United States whose appointments are not otherwise provided for, and permits Congress to vest the appointment of inferior officers in the President alone, the courts, or heads of departments. It does not require a cabinet.

The convention. The heads of the executive departments meet as a cabinet.

What follows. Nothing legal, if the statutory departments continue to exist with confirmed heads. What follows is political: the Senate's leverage over appointments, congressional oversight, and the appropriations power.

That is the American pattern. The conventions are not enforced, and Congress's legal powers over money, appointment and investigation supply the pressure.

The cases

Facts. Immigration and Naturalization Service v. Chadha, 462 U.S. 919 (1983), concerned a statutory device by which one House of Congress could veto an executive decision, a practice that had grown up over fifty years and appeared in some two hundred statutes.

Held, by Burger CJ for the Court. The one-House veto was unconstitutional. The purposes underlying the Presentment Clauses of Article I section 7 and the bicameral requirement of Article I sections 1 and 7 governed: legislative action must pass both Houses and be presented to the President.

Why it matters here. It shows the American approach to entrenched practice: where the practice conflicts with the text, the text wins, however long the practice has run. That is the opposite of the British instinct, and it is the reason American conventions occupy only the space the text leaves empty.

Facts. United States v. Nixon, 418 U.S. 683 (1974), arose when a special prosecutor subpoenaed tape recordings of Presidential conversations. The President resisted on the ground of an absolute executive privilege, a claim resting largely on practice.

Held, by a unanimous Court. Neither the doctrine of separation of powers nor the need for confidentiality of high-level communications, without more, can sustain an absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances. A qualified privilege exists, and it yielded to the demonstrated need for evidence in a criminal trial.

Why it matters here. A long-standing executive practice was tested against the constitutional structure and cut down, again showing the text prevailing over practice.

Distinctions

What beginners get wrong

"The American constitution has no conventions because it is written." It has many, and the two-term convention governed the Presidency for longer than the Twenty Second Amendment has.

"The Electoral College is a convention." It is in Article II section 1 and the Twelfth Amendment. What is conventional is that electors vote as pledged.

"The filibuster is constitutional law." It is a Senate rule under Article I section 5 and has been changed by simple majority twice in the last fifteen years.

Limits and criticism

American conventions are weaker than British ones, because the political system is not organised around a single point of accountability. A President who breaks one is answerable to Congress, and Congress may be of his own party.

Codification has been partial and reactive. The Twenty Second and Twenty Fifth Amendments each followed a crisis rather than anticipating one.

Judicial hostility to practice cuts both ways. Chadha struck down a device that made the executive more accountable, and Trump v. United States, 603 U.S. 593 (2024), read immunity into a text that mentions none.

Quick revision

1. The text is silent about parties, the cabinet, elector conduct, and, until 1951, presidential tenure.
2. Two-term convention: Washington 1796, broken by Roosevelt 1940 and 1944, enacted as the Twenty Second Amendment in 1951.
3. Senatorial courtesy, the filibuster, nomination hearings, and concession are conventions.
4. Presidential disability was conventional until the Twenty Fifth Amendment of 1967.
5. INS v. Chadha, 462 U.S. 919 (1983): fifty years of practice yielded to bicameralism and presentment.
6. United States v. Nixon, 418 U.S. 683 (1974): no absolute privilege of immunity from judicial process.
7. The American pattern: conventions fill gaps and lose to the text where they conflict with it.

Test yourself

1. Give the best American example of a convention and trace its life. The two-term convention. Washington declined a third term in 1796; every President followed for a hundred and forty four years, and Grant and Theodore Roosevelt were refused third terms by their parties on the ground of the rule. Franklin Roosevelt broke it in 1940 and 1944, and the Twenty Second Amendment, ratified in 1951, made the limit law.

2. Contrast the treatment of long-standing practice in the United States and the United Kingdom. In the United Kingdom a long practice accepted as obligatory is a convention and shapes how legal powers are used, and the courts do not test it against a superior text because there is none. In the United States a practice that conflicts with the text is struck down however long it has run: INS v. Chadha invalidated a legislative veto that appeared in some two hundred statutes.

3. Name three American conventions that are still conventions. Senatorial courtesy on appointments within a State; the practice that presidential electors vote for the candidate to whom they are pledged; and the concession of a defeated candidate followed by a peaceable transfer of power. The filibuster is a Senate rule rather than a convention strictly, resting on Article I section 5.

4. Why are American conventions weaker than British ones? Because the enforcement mechanism is different. In a Westminster system a broken convention is met by the withdrawal of confidence, which ends a government. In a presidential system the President holds a fixed term and cannot be removed except by impeachment, so the cost of breaking a convention is diffuse, and may be zero where Congress is controlled by the President's own party.

On remedy: none. The Court granted nothing. The declaration was the whole of the relief.

What happened next

Within two months, in November 1981, the federal government and nine of the ten provinces reached agreement. Quebec did not. The result was the Constitution Act 1982, containing the Charter of Rights and Freedoms, the aboriginal rights provision in section 35, the amending procedures in Part V, and the supremacy clause in section 52.

So the convention, unenforceable, produced compliance. That is the central fact about the case and the reason it is worth a whole chapter.

The sequel

Quebec then referred the question whether its consent had been required, and the Supreme Court held in 1982 that no convention gave Quebec a veto. Two references, two years, and the conventional question answered twice.

And in Reference re Secession of Quebec, [1998] 2 SCR 217, decided on 20 August 1998, the Court went further, reasoning from four unwritten principles, federalism, democracy, constitutionalism and the rule of law, and respect for minorities. It held that Quebec has no right to secede unilaterally, but that a clear expression of a clear majority would place the rest of Canada under a constitutional duty to negotiate, and that it is for the political actors to determine what constitutes a clear majority on a clear question.

That is the same technique as in 1981: a court identifying an obligation that binds the political branches and leaving its content to them.

A worked example

Suppose the Union government of India proposed to amend the Seventh Schedule to move a subject from the State List to the Union List, with the agreement of no State.

The law. Article 368(2) proviso (d) requires ratification by the legislatures of not less than one half of the States for an amendment to the Seventh Schedule, so unlike Canada in 1981 India has a legal requirement and no conventional question arises.

The comparison. That is the point. Canada's problem in 1981 existed because the amending procedure was in the hands of a foreign parliament and nothing in law required provincial consent. India's Constitution wrote the requirement in from the start, and Part V of the Constitution Act 1982 wrote it into Canadian law afterwards.

The cases

Facts. Reference re Resolution to Amend the Constitution, [1981] 1 SCR 753, decided on 28 September 1981, arose from the federal government's proposed address to the United Kingdom Parliament seeking patriation, an amending formula and a Charter of Rights, supported by only two provinces. Manitoba, Newfoundland and Quebec referred questions of law and of convention.

Held. By seven to two, the proposed resolution was lawful; no rule of law required provincial consent. By six to three, it was unconstitutional in the conventional sense: a convention required a substantial degree of provincial consent, established by precedents, by the actors' sense of obligation, and by the federal principle. The Court declined to devise in the abstract a formula stating in positive terms what measure of provincial agreement is required, and granted no relief beyond the declaration.

Why it matters here. It is the definitive judicial treatment of conventions. It establishes that a court may find a convention, that it may declare a course unconstitutional in the conventional sense without holding it unlawful, and that it will not supply a remedy.

Facts. Reference re Secession of Quebec, [1998] 2 SCR 217, decided on 20 August 1998, asked whether Quebec could secede unilaterally under Canadian or international law.

Held, unanimously, per curiam. It could not; but a clear expression by a clear majority in Quebec of a will to secede would give rise to a constitutional duty on the other participants in Confederation to negotiate, and it would be for the political actors to determine what constitutes a clear majority on a clear question. The Court reasoned from federalism, democracy, constitutionalism and the rule of law, and respect for minorities.

Why it matters here. It shows the same method seventeen years on: a court identifying a constitutional obligation that no court will enforce and leaving its content to the political branches.

Distinctions

What beginners get wrong

"The Court stopped patriation." It did not. It held the course lawful. What it did was change the political price, and the price was paid in a negotiation two months later.

"A declaration of unconstitutionality in the conventional sense is a legal ruling." It is a statement about a non-legal rule, made by a court because the reference procedure allowed the question to be asked.

"The convention was worthless because unenforceable." Nine provinces agreed within two months. Judge a convention by what happens, not by what a court orders.

Limits and criticism

The Court's refusal to quantify left the rule indeterminate. Nine of ten was enough in the event; nobody knows whether seven would have been.

The reference procedure is unusual. No such question could be litigated in the United States, and in India it would require a Presidential reference under article 143, which the Court may decline to answer.

The technique risks the courts entering politics. A court that declares political conduct unconstitutional without granting relief invites the criticism that it has taken a side without taking responsibility.

Quick revision

1. Canada's reference procedure allowed a court to be asked whether a convention existed.
2. Reference re Resolution to Amend the Constitution, [1981] 1 SCR 753: lawful by seven to two, unconstitutional by convention by six to three.
3. The convention required "a substantial degree of provincial consent"; the Court would not devise a formula in the abstract.
4. No remedy was granted; nine provinces agreed within two months, and the Constitution Act 1982 followed.
5. Quebec's own reference in 1982: no provincial veto.
6. Reference re Secession of Quebec, [1998] 2 SCR 217: no unilateral right to secede, a duty to negotiate on a clear majority on a clear question, content left to the political actors.
7. India avoids the 1981 problem because proviso (d) to article 368(2) requires ratification by half the States for a Seventh Schedule amendment.

Test yourself

1. Set out the two questions in the Patriation Reference and the two answers. Whether provincial consent was required as a matter of law, answered no by seven to two, and whether it was required as a matter of convention, answered yes by six to three, the convention requiring a substantial degree of provincial consent. The Court refused to say what degree was substantial and granted no relief.

2. Why is the case the leading authority on conventions? Because it is the only occasion on which a final court has been asked in terms whether a convention exists and has answered, applying Jennings's three questions, finding the convention, declaring it broken, and declining to enforce it. It therefore settles both the existence question and the enforceability question in a single judgment.

3. Did the unenforceable convention have any effect? Yes, and that is the lesson. Within two months of the declaration the federal government and nine of the ten provinces reached agreement, and the Constitution Act 1982 followed, containing the Charter, section 35, the amending procedures of Part V and the supremacy clause in section 52.

4. How does the Secession Reference use the same method? It identified a constitutional obligation, the duty of the other participants in Confederation to negotiate following a clear expression of a clear majority in Quebec, derived it from four unwritten principles rather than from a text, and left its content, what counts as a clear majority on a clear question, to the political actors. It is the 1981 technique applied to a different question.

Judicialisation. Writing a rule down invites a court to interpret it. That may be desirable, and it transfers a political judgment to judges.

Loss of the residual power. Conventions keep a legal power in reserve for the exceptional case. Article 74(1) as it now stands leaves the President with a single reconsideration and no more, which means that in an extreme case there is no constitutional actor with any margin at all.

The drafting problem. The Supreme Court of Canada refused to say what degree of provincial consent was substantial, and a drafter would have to.

A worked example

Should the convention that a defeated government resigns be enacted?

As a record, it already is, in the Cabinet Manual.

As a statutory recognition, it would look like section 28(8) and would change nothing.

As an obligation, it would need answers to questions the convention leaves open: how soon must the government resign, what counts as a defeat, does a defeat on a major Bill count, and who decides. Every one of those has been contested somewhere.

That difficulty is the strongest argument against codification and the reason the British answer has been to record rather than enact.

The Indian experience

India is the natural test case, because it has enacted several conventions.

What worked. Article 75(5), requiring a non-member minister to acquire a seat within six months, has removed a whole class of dispute. Article 78 has settled the Prime Minister's duty to inform.

What is contested. Article 74(1) settled that the advice binds, and left the question of what the President may do about advice he believes unconstitutional. The proviso permits one reconsideration and no more.

What was left alone, and suffered. Article 200 was left in the alternative form the 1935 Act used, and the convention that the Governor acts on advice within a reasonable time broke down, producing State of Tamil Nadu v. Governor of Tamil Nadu, decided on 8 April 2025, and then the Presidential Reference decided on 20 November 2025, in which the Court held that no timelines may be judicially prescribed and no assent deemed under article 142.

The Indian record therefore supports a narrow conclusion: enacting a convention works where the rule is a simple, testable condition, and works badly where the rule is a standard of behaviour.

The cases

Facts. R (Miller) v. Secretary of State for Exiting the European Union, [2017] UKSC 5, considered the Sewel convention as recorded in section 28(8) of the Scotland Act 1998.

Held, unanimously on that issue. The words recognised a political convention. The United Kingdom Parliament had not sought to convert it into a legal rule justiciable in the courts, and the courts would not enforce it.

Why it matters here. It is the authority that separates recognition from enactment, and it is the case to cite for the second of the three ways.

Facts. In re Assent, Withholding or Reservation of Bills by the Governor and the President was a Presidential Reference under article 143 on the exercise of the assent powers under articles 200 and 201.

Held, decided on 20 November 2025. No timelines may be judicially prescribed; no deemed assent may be granted under article 142; the article 200 function is not justiciable on the merits; a limited mandamus lies against prolonged, unexplained and indefinite inaction.

Why it matters here. It shows what happens where a convention governing an enacted power is not itself enacted: the courts will not write the rule into the provision, and the remedy is confined to total inaction.

Distinctions

What beginners get wrong

"Codification means writing the whole constitution." It usually means enacting particular rules, and every system on this syllabus has done that piecemeal.

"If a convention is written in a statute a court will enforce it." Section 28(8) of the Scotland Act 1998 is the counter-example.

"Codification always increases certainty." The Fixed-term Parliaments Act 2011 was certain and unworkable, and was repealed eleven years later.

Limits and criticism

Enactment moves power to the courts. That is sometimes the intention and is always the consequence.

Enactment freezes a rule at a moment. Conventions evolve; statutes do not, and the amending procedure decides how easily the rule can be updated.

Not everything can be drafted. Standards of behaviour, impartiality, restraint, good faith, resist enactment, which is why the Speaker's impartiality has been enacted nowhere on this syllabus.

Quick revision

1. Three ways: a record, a statutory recognition, and an enactment imposing an obligation. Only the third makes law.
2. Record: the Cabinet Manual 2011 and the Ministerial Code.
3. Recognition: section 28(8) of the Scotland Act 1998, held non-justiciable in Miller No 1.
4. Enactment: the Twenty Second Amendment; articles 74(1), 75(5) and 78 of the Indian Constitution.
5. For codification: certainty, accessibility, discipline, equality of arms.
6. Against: rigidity, judicialisation, loss of a residual power, and the drafting problem.
7. India's record: enactment works for testable conditions and badly for standards of behaviour.

Test yourself

1. Distinguish the three ways of writing a convention down, with an example of each. A record, such as the Cabinet Manual, which states that it is not a source of authority and changes nothing legally. A statutory recognition, such as section 28(8) of the Scotland Act 1998, which records a practice and does not create an obligation. An enactment, such as the Twenty Second Amendment or article 75(5) of the Indian Constitution, which imposes a legal obligation a court applies.

2. Give two arguments for and two against codifying a convention. For: certainty, since in 2019 the parties disagreed about whether any limit on prorogation existed; and accessibility, since a citizen cannot find an unwritten rule. Against: rigidity, since the Fixed-term Parliaments Act 2011 was repealed within eleven years; and the drafting problem, since the Supreme Court of Canada refused to state what degree of provincial consent was substantial and a drafter would have to.

3. What does the Indian experience suggest about which conventions should be enacted? That enactment works where the rule is a simple, testable condition, as with article 75(5)'s six months and article 78's duty to inform, and works badly where the rule is a standard of behaviour, as with the exercise of the article 200 assent power, which was left in the alternative form and produced the litigation resolved on 20 November 2025.

4. Does article 74(1) show codification succeeding or failing? Both, and an answer should say so. It succeeded in removing all doubt that ministerial advice binds the President, which had been a matter of practice until 1976. It failed to provide for the extreme case, because the proviso permits only one reconsideration, after which the President must act on the advice tendered however he views it.

That decision displaces so much of State of Tamil Nadu v. Governor of Tamil Nadu, decided on 8 April 2025, as had prescribed timelines and treated assent as deemed. An answer written from the earlier case alone is now wrong, and the date is the thing to get right.

A worked example

The head of State refuses assent to every Bill a government presents.

Convention: assent is given on advice.

Direct enforcement: none. No court will order the head of State to sign.

Review of the power: available in India, and narrow. A limited mandamus lies against prolonged, unexplained and indefinite inaction, on the 2025 Reference.

Derived principle: possible. A British court, faced with a systematic refusal, would have the reasoning of Miller No 2 available, and section 3 of the Dissolution and Calling of Parliament Act 2022 shows what Parliament may do about that.

Political consequence: the government cannot legislate, the legislature cannot function, and the office of the head of State becomes the issue at the next election.

The cases

Facts. Nabam Rebia v. Deputy Speaker, Arunachal Pradesh Legislative Assembly, (2016) 8 SCC 1, arose when the Governor of Arunachal Pradesh, during a political crisis, advanced the session of the Assembly on his own initiative and fixed its agenda, including a motion for the removal of the Speaker, against the advice of the Council of Ministers.

Held, by a Constitution Bench of five. The Governor's powers under article 174 to summon, prorogue and dissolve are to be exercised on the aid and advice of the Council of Ministers; the discretion preserved by article 163(1) is confined to the functions the Constitution expressly requires him to exercise in his discretion. The Governor's actions and all that followed were set aside and the position restored.

Why it matters here. It is the leading illustration of qualification two. The Court did not say that the Governor had broken a convention; it said that he had exercised a legal power outside its limits.

Facts. R (Miller) v. The Prime Minister, [2019] UKSC 41, [2020] AC 373, concerned advice to prorogue Parliament for five weeks.

Held, unanimously by eleven Justices. A decision to prorogue is unlawful if the prorogation frustrates or prevents, without reasonable justification, the ability of Parliament to carry out its constitutional functions. The advice was unlawful; the prorogation was null and of no effect.

Why it matters here. It is qualification three, and the answer Parliament gave, section 3 of the 2022 Act, is the limit of qualification three.

Distinctions

What beginners get wrong

"Conventions are enforced by the courts in India." They are not. What is reviewed is the exercise of the constitutional power, and the 2025 Reference marks the outer limit of that review.

"Miller No 2 enforced a convention." It did not. It derived a legal limit from constitutional principles and said so.

"An unenforceable rule is not a rule." Canada in 1981 disposes of that.

Limits and criticism

Qualification three is contested. Deriving legal limits from constitutional values is the technique most criticised as judicial overreach, and the 2022 Act was Parliament's answer.

Qualification two depends on there being a reviewable power. Where the convention governs the internal conduct of a legislature, articles 122 and 212 exclude the courts.

Qualification four depends on functioning politics. Where the legislature, the press and the electorate are weak, breach carries no cost.

Quick revision

1. The rule: no court orders compliance with a convention as such.
2. Declaration: the Patriation Reference, [1981] 1 SCR 753.
3. Review of the underlying power: Nabam Rebia, (2016) 8 SCC 1; S.R. Bommai, (1994) 3 SCC 1.
4. Derived principle: R (Miller) v. The Prime Minister, [2019] UKSC 41, answered by section 3 of the 2022 Act.
5. Requiring a decision at all: In re Assent, 20 November 2025, limited mandamus for prolonged, unexplained and indefinite inaction.
6. No timelines, no deemed assent under article 142, no review on the merits of article 200.
7. The 2025 Reference displaces the timelines and deemed assent in the 8 April 2025 decision.

Test yourself

1. Can a convention be enforced? Answer with the four qualifications. Not directly. But a court may declare a course unconstitutional in the conventional sense where the procedure permits the question, as in the Patriation Reference; it may review the exercise of the legal power the convention constrained, as in Nabam Rebia; it may derive a legal principle from the values the convention protects, as in Miller No 2; and the political system may impose the cost of breach.

2. State the exact boundary drawn by the Indian Supreme Court in November 2025. No timelines may be judicially prescribed for the exercise of the functions under articles 200 and 201; no deemed assent may be granted under article 142; the article 200 function is not justiciable on its merits; and a limited mandamus lies where the inaction is prolonged, unexplained and indefinite.

3. Why is review of the underlying power not the same as enforcing the convention? Because the ground of review is a limit on the legal power, not the convention. In Nabam Rebia the Court held that article 174 must be exercised on advice because article 163(1) confines the Governor's discretion to expressly conferred discretionary functions. Had the Constitution given the Governor a discretionary power to summon, the convention would have been the same and the review unavailable.

4. What is the limit of the technique used in Miller No 2? A sovereign legislature can close it. Section 2 of the Dissolution and Calling of Parliament Act 2022 revived the dissolution prerogative as if the Fixed-term Parliaments Act 2011 had never been enacted, and section 3 provides that a court may not question the exercise or purported exercise of those powers, any decision relating to them, or the limits or extent of them.

Prorogation, United Kingdom. R (Miller) v. The Prime Minister, [2019] UKSC 41, produced a legal limit where there had been only practice, and Parliament reversed the route by enacting section 3 of the 2022 Act.

Why the traffic runs mostly one way

Three reasons.

Crisis. A convention is enacted after it has been broken. 1909 produced the Parliament Act 1911; 1940 and 1944 produced the Twenty Second Amendment; the events of 1975 to 1977 produced much of the Forty Fourth Amendment.

Certainty is preferred once a rule is contested. As soon as anyone denies the rule, a written version becomes attractive.

Institutions prefer written powers. A court asked to decide a dispute will reach for a text, and where one exists the convention becomes an interpretive aid rather than the rule.

The reverse traffic

Law reverting to convention. The Fixed-term Parliaments Act 2011 was repealed by section 1 of the Dissolution and Calling of Parliament Act 2022, and section 2 revived the prerogative powers of dissolution as if the 2011 Act had never been enacted. The rule about dissolution is therefore once again a matter of prerogative and convention, and section 3 protects it from the courts.

That is the only clean modern example on this syllabus, and it is worth having, because it shows that codification is not a one-way ratchet.

A worked example

Ask what should happen to the convention that the Speaker of the Lok Sabha acts impartially.

As a convention it is uncertain at the margins: how far may a Speaker campaign, may he attend party meetings, how quickly must he decide a disqualification petition under the Tenth Schedule.

Enacted as a duty it becomes justiciable, and a court would then decide whether a particular ruling was impartial, which would put the courts inside the working of the House and collide with article 122.

Enacted as a testable condition, for instance a time limit for deciding a disqualification petition, it would work, because a time limit is a fact a court can find without evaluating the Speaker's mind.

That distinction, between enacting a standard and enacting a condition, is the practical lesson of the whole topic.

The cases

Facts. Jackson v. Attorney General, [2005] UKHL 56, [2006] 1 AC 262, tested the validity of the Hunting Act 2004, passed under the Parliament Act 1949 procedure, on the ground that the 1949 Act was itself invalid because made under the 1911 Act without the consent of the Lords.

Held, by a House of nine. The 1949 Act and the Hunting Act were valid. Several of their Lordships added, obiter, that the sovereignty of Parliament might not be absolute in every conceivable case.

Why it matters here. It is the litigation that follows enactment. Once a convention becomes a statutory procedure, its meaning becomes a question for the courts, which is precisely what does not happen to a convention.

Facts. S.R. Bommai v. Union of India, (1994) 3 SCC 1, concerned proclamations under article 356 dismissing State governments without a floor test.

Held, by nine judges. The proclamation is justiciable; the satisfaction must rest on relevant material; the floor of the House is the appropriate forum for testing majority support; the Assembly should not be dissolved before both Houses approve.

Why it matters here. It is route three in its clearest Indian form: a convention about how a political fact is ascertained became a legal standard applied on judicial review.

Distinctions

What beginners get wrong

"Once a convention is enacted it stops mattering." Its content becomes a question of construction, and Jackson is the proof.

"Judicial conversion is enforcement of the convention." It is not, and the courts are careful to say so. What is enforced is a limit on the legal power.

"Codification is irreversible." The 2022 Act reverses it.

Limits and criticism

Enactment after a crisis produces rules shaped by the crisis. Article 74(1) as amended leaves the President with almost no margin because the amendment was made in and after a period when the President had used none.

Judicial conversion depends on there being a reviewable power, and on the courts being willing.

The reverse traffic can be used to escape accountability. Section 3 of the 2022 Act restored a prerogative and then insulated it from review, which is a use of the reverse route that goes further than restoring the previous position.

Quick revision

1. Three routes into law: constitutional amendment, ordinary statute, and judicial decision reading a limit into the power.
2. Amendment: Twenty Second (1951) and Twenty Fifth (1967) Amendments; article 74(1) in 1976 and 1978.
3. Statute: Parliament Act 1911 section 1; Statute of Westminster 1931 section 4; Fixed-term Parliaments Act 2011.
4. Judicial: S.R. Bommai on the floor test; Nabam Rebia on article 174; Miller No 2 on prorogation.
5. Reverse: sections 1, 2 and 3 of the Dissolution and Calling of Parliament Act 2022.
6. Conventions are usually enacted after they are broken.
7. Enact a testable condition, not a standard of behaviour.

Test yourself

1. Give the three routes by which a convention becomes law, with an example of each. Constitutional amendment: the Twenty Second Amendment made the two-term convention law in 1951. Ordinary statute: section 1 of the Parliament Act 1911 enacted the convention that the Lords do not reject Money Bills. Judicial decision: S.R. Bommai v. Union of India, (1994) 3 SCC 1, made the floor test a legal standard for reviewing a proclamation under article 356.

2. Show that the traffic can run the other way. The Fixed-term Parliaments Act 2011 converted the dissolution convention into statute. Section 1 of the Dissolution and Calling of Parliament Act 2022 repealed it, section 2 revived the prerogative powers as if the 2011 Act had never been enacted, and section 3 provided that a court may not question their exercise, so the rule returned to prerogative and convention with the courts excluded.

3. What changes when a convention becomes a statute? Its content becomes a question of construction for the courts, and Jackson v. Attorney General, [2005] UKHL 56, is the illustration: once the money convention became the Parliament Act procedure, the House of Lords had to decide whether that procedure could be used to amend itself. A convention, by contrast, is interpreted by the actors bound by it.

4. What is the practical lesson of the topic about what should be enacted? Enact conditions, not standards. Article 75(5)'s six months and article 78's duty to inform work because a court can find the facts without evaluating anyone's judgment. A duty of impartiality or of reasonable expedition resists enactment, which is why the Speaker's impartiality has been enacted nowhere and why the Supreme Court refused in November 2025 to prescribe timelines under article 200.

What the head of State is for

Students ask what the point of a nominal head of State is, and there are three answers.

Continuity. Somebody must hold the office between governments. The Indian President appoints the successor when a government falls.

A reserve of legal power. Article 75(2) provides that ministers hold office during the pleasure of the President. That power is exercised on advice, and it exists so that it can be used when advice is not available, for instance when a government has been defeated and will not resign.

A referee for the hard cases. In a hung legislature somebody must decide whom to invite. S.R. Bommai v. Union of India, (1994) 3 SCC 1, confines that discretion by holding that the floor of the House is the appropriate forum, but the invitation is still the head of State's.

A worked example

A general election produces no majority. Party A has 200 seats, Party B 180, and eight smaller parties hold the rest.

Step one. The incumbent government remains in office until a successor is appointed. It has no mandate but it has legal authority, because ministers hold office during pleasure and pleasure has not been withdrawn.

Step two. The head of State invites the person who appears most likely to command a majority. Convention supplies the order: the leader of the largest single party or pre-election alliance, then the leader of a post-election combination with a demonstrable majority.

Step three. The floor test. S.R. Bommai makes this the constitutional method, and it converts a political judgment into a fact ascertainable in the House.

Step four. If no combination can command confidence, dissolution and a fresh election, or, in a State, a proclamation under article 356.

The cases

Facts. Rai Sahib Ram Jawaya Kapur v. State of Punjab, AIR 1955 SC 549, was a petition by publishers challenging the Punjab government's scheme for nationalising school textbooks, which had been carried on by executive action without any statute.

Held, by Mukherjea CJ for the Court. The President has been made a formal or constitutional head of the executive and the real executive power is vested in the Council of Ministers, which is responsible to the legislature. The executive may carry on a trade without a statute so long as no citizen's rights are affected and any expenditure has legislative sanction. The Court added that the Constitution does not recognise the separation of powers in absolute rigidity, but that one organ may not assume functions essentially belonging to another.

Why it matters here. It is the leading Indian statement of the nominal and real executive, and it also fixes the scope of executive power without legislation, which is the practical difference a parliamentary executive makes.

Facts. S.R. Bommai v. Union of India, (1994) 3 SCC 1, arose from proclamations under article 356 dismissing State governments, in several instances without any test of majority support in the Assembly.

Held, by a Bench of nine. The proclamation is justiciable; the satisfaction must rest on relevant material; the floor of the House is the appropriate forum for testing whether a ministry retains majority support; the Assembly should not be dissolved before both Houses of Parliament approve the proclamation; and federalism and secularism are basic features.

Why it matters here. It is the case that makes confidence a justiciable fact rather than a matter of the head of State's opinion, and it is the answer to the abuse a parliamentary system is most exposed to.

Distinctions

What beginners get wrong

"The President of India has no powers." He has extensive legal powers and exercises them on advice. The distinction is between holding a power and deciding how to use it.

"Parliamentary means the legislature is supreme over the executive." In practice a disciplined majority reverses that: the executive controls the legislature's time and outcome. The Indian and British literature on executive dominance is about exactly this.

"Ministers must be elected." They must be members of a House. In India a member of the Rajya Sabha, who is elected by an Assembly and not by the people, may be Prime Minister, and one has been.

Limits and criticism

Executive dominance. With a majority, the government decides what the legislature does. Committees, question hour and the second chamber are the answers, and their strength varies.

Instability without a majority. A parliamentary system with fragmented parties produces short governments, which is why India adopted the Tenth Schedule.

Accountability is collective and therefore diffuse. Everybody is responsible, so it can be hard to say who is.

Quick revision

1. Five features: a nominal and a real executive; ministers in the legislature; collective responsibility; tenure on confidence; dissolution.
2. India: article 53(1) vests, article 74(1) binds, article 75(3) makes responsible, article 75(5) requires membership within six months.
3. Ireland: Article 28.4.1 responsibility to the Dail; Article 28.7 membership requirements.
4. Rai Sahib Ram Jawaya Kapur v. State of Punjab, AIR 1955 SC 549: formal head, real power in the Council of Ministers.
5. S.R. Bommai v. Union of India, (1994) 3 SCC 1: the floor of the House is the forum for testing confidence.
6. The head of State exists for continuity, for a reserve of legal power, and for the hard cases.
7. The price of fusion is executive dominance where party discipline is strong.

Test yourself

1. State the five features of a parliamentary executive, with an Indian provision for each. A nominal and a real executive: articles 53(1) and 74(1). Ministers drawn from the legislature: article 75(5). Collective responsibility: article 75(3). Tenure on confidence: article 75(2) read with 75(3). Dissolution: article 85(2)(b), by which the President may dissolve the House of the People.

2. What is the point of a nominal head of State? Continuity between governments; a reserve of legal power that can be used when advice is not available, such as the pleasure under article 75(2) when a defeated government will not resign; and a referee for the hard cases, such as deciding whom to invite in a hung legislature, a discretion confined by S.R. Bommai to inviting and then requiring a floor test.

3. Why is executive dominance a feature of the parliamentary system rather than a defect of any particular country? Because the same persons control both organs. A government exists only while it commands a majority, so by definition a government in office commands the legislature, and with party discipline it therefore controls the legislature's agenda, time and votes. The remedies are institutional rather than structural: committees, a second chamber with an independent composition, and a strong opposition.

4. Must a minister be elected by the people in India? No. Article 75(5) requires only that a minister be a member of either House within six months of appointment, and a member of the Rajya Sabha is elected by the elected members of a State Legislative Assembly under article 80(4), not by the people directly.

That third limb of article 78 is the collective responsibility rule expressed as a duty: a minister's individual decision can be pulled back into the Council.

A worked example

A minister's department is found to have spent public money on a scheme the Cabinet never approved, and the minister tells the House that the Cabinet did approve it.

The misleading statement. This is the clearest modern ground for resignation everywhere, because the House cannot hold the executive to account if it is not told the truth.

The unapproved decision. Under article 78(c) the President may require the Prime Minister to submit the matter to the Council. Collective responsibility then either adopts the decision or repudiates it.

Confidentiality. Article 74(2) prevents a court being asked what advice was given. It does not prevent Parliament asking, and it does not prevent the Comptroller and Auditor-General reporting on the expenditure.

The vote. If the House is dissatisfied with the government's answer, the remedy is a motion of no confidence against the government, not against the minister, which is what collective responsibility means.

The cases

Facts. S.R. Bommai v. Union of India, (1994) 3 SCC 1, required the Supreme Court to consider both the responsibility of a State ministry to its Assembly and the extent to which the material before the President under article 356 could be examined, notwithstanding article 74(2).

Held, by nine judges. The proclamation is justiciable and the material on which the satisfaction is based can be called for and examined; article 74(2) bars inquiry into the advice tendered, not into the material on which the advice was founded. Majority support is to be tested on the floor of the House.

Why it matters here. It draws the boundary of Cabinet confidentiality: the advice is protected, the material is not, and the distinction is what makes collective responsibility compatible with judicial review.

Facts. Rai Sahib Ram Jawaya Kapur v. State of Punjab, AIR 1955 SC 549, concerned executive action taken without legislation, and required the Court to describe how responsibility operates.

Held, by Mukherjea CJ. The real executive power is in the Council of Ministers, which is responsible to the legislature; the head of State is a formal or constitutional head.

Why it matters here. It is the authority that responsibility runs to the legislature and not to the head of State, which is the difference between a parliamentary and a presidential executive.

Distinctions

What beginners get wrong

"Article 75(3) makes individual ministers responsible." It makes the Council collectively responsible. Individual responsibility is convention.

"Collective responsibility means ministers must agree." It means they must not disagree in public. Disagreement in Cabinet is the point of Cabinet.

"A minister must resign whenever the department fails." The classical rule; the modern practice is narrower, and an answer should say so and give the reason, which is that departments are too large for a minister to know what every official does.

Limits and criticism

Collective responsibility protects as much as it constrains. A government with a majority cannot be dismissed by the legislature, so the sanction is theoretical for most of a term.

Confidentiality can conceal. Article 74(2) has been read narrowly in S.R. Bommai for that reason.

Individual responsibility has weakened everywhere. The modern substitutes are parliamentary committees, audit bodies, ombudsmen and freedom of information legislation, none of which is in the Constitution.

Quick revision

1. Collective responsibility has three limbs: confidence, unanimity in public, and confidentiality.
2. India: articles 75(3) and 164(2); confidentiality supported by article 74(2).
3. Ireland: Article 28.4.1, the Government responsible to Dail Eireann.
4. The unanimity limb is conventional and has been suspended, in the United Kingdom in 1975 and 2016.
5. Individual responsibility requires answering, correcting and, in the classical account, resigning; modern practice confines resignation largely to personal fault and misleading the House.
6. Article 77 allocates business; article 78 gives the Prime Minister duties including submitting an individual minister's decision to the Council.
7. S.R. Bommai: article 74(2) protects the advice, not the material.

Test yourself

1. State the three limbs of collective responsibility with the Indian provisions. Confidence: article 75(3) at the Union and article 164(2) in a State make the Council of Ministers collectively responsible to the popular chamber. Unanimity in public: convention, with no textual basis. Confidentiality: supported by article 74(2), which bars any court from inquiring what advice was tendered.

2. Is individual ministerial responsibility part of Indian constitutional law? Not as a rule of law. The Constitution states only collective responsibility. What it provides is the machinery: article 77 permits rules allocating business among ministers, which identifies who answers, and article 78 obliges the Prime Minister to communicate decisions and, if the President requires, to submit an individual minister's decision to the Council.

3. What exactly does article 74(2) protect, and what does it not? It bars any court from inquiring whether, and if so what, advice was tendered by ministers to the President. S.R. Bommai v. Union of India, (1994) 3 SCC 1, holds that it does not bar the court from calling for and examining the material on which the satisfaction was based, so the reasons are protected and the record is not.

4. Why has individual responsibility weakened, and what has replaced it? Because departments are now too large for a minister to be personally aware of the acts of officials, so a rule requiring resignation for any departmental failure would be either ignored or destructive. The replacements are institutional: departmentally related standing committees, the Comptroller and Auditor-General, ombudsmen, and freedom of information legislation, none of which appears in the Constitution.

Fixed term. Four years, and since the Twenty Second Amendment no more than two elected terms. The term ends on 20 January under the Twentieth Amendment.

No seat in the legislature. Article I section 6 provides that no person holding any office under the United States shall be a member of either House during his continuance in office. That single clause is what makes the American system structurally different from every parliamentary one.

The Indian comparison, clause by clause

The table is the answer to a question asking you to compare the two Presidents, and the single sentence that makes sense of it is this: the two texts confer nearly the same powers, and article 74(1) transfers the exercise of the Indian ones to the Council of Ministers.

A worked example

The President wishes to make a treaty and to appoint an ambassador to carry it out.

United States. The treaty requires the advice and consent of the Senate with two thirds of senators present concurring; the ambassador requires a majority of the Senate. Both are separate votes of a body the President does not control, and both have failed in practice, most famously the Treaty of Versailles in 1920.

India. The treaty is made by the executive, in the President's name, on the advice of the Council of Ministers. Parliament's role is confined to legislation to implement it where domestic law must change, under article 253. The ambassador is appointed by the President on advice. No legislative vote is required for either.

That difference, that the Indian executive can bind the State internationally without a legislative vote and the American cannot, is one of the sharpest practical consequences of the two designs.

The cases

Facts. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952), arose when President Truman, faced with a threatened steel strike during the Korean War, directed the Secretary of Commerce to seize and operate the mills. No statute authorised the seizure.

Held, by Black J for the Court. The seizure was unlawful. The President's power, if any, to issue the order must stem either from an act of Congress or from the Constitution itself, and there was neither. Jackson J's concurrence set out the three categories now used in every American executive-power case: the President acting with the express or implied authorisation of Congress, acting in the absence of a congressional grant or denial, and acting incompatibly with the expressed or implied will of Congress, where his power is at its lowest ebb.

Why it matters here. It is the limit of the vesting clause. Vesting the executive power in one officer does not confer a general power to act.

Facts. Trump v. United States, 603 U.S. 593 (2024), concerned a federal indictment of a former President over conduct connected with the 2020 election, and a motion to dismiss on the ground of Presidential immunity.

Held, by Roberts CJ for a Court of six to three. A former President has absolute immunity from criminal prosecution for the exercise of his core constitutional powers, and is at least presumptively immune from prosecution for other official acts, the presumption being rebuttable; there is no immunity for unofficial acts.

Why it matters here. It is the modern American position on the accountability of a single-person executive, and it must be read with United States v. Nixon, 418 U.S. 683 (1974), which held that no absolute privilege of immunity from judicial process could be sustained.

Distinctions

What beginners get wrong

"The American President is more powerful than the Indian Prime Minister." He is more independent and often less able to legislate. A Prime Minister with a majority can pass a statute in a week; a President facing a hostile Congress can pass nothing.

"The Cabinet is part of the American constitution." It appears only as the opinion in writing of the principal officer in each department.

"The President is elected directly." He is elected by electors appointed as each State's legislature directs, under Article II section 1 as modified by the Twelfth Amendment. The popular vote binds the electors by convention and, in most States, by law.

Limits and criticism

Deadlock. With Congress controlled by the other party the system produces stalemate, including repeated failures to pass appropriations.

No mid-term removal for incompetence. Impeachment requires a high crime or misdemeanour and a two thirds Senate vote, so a President who has lost all public support serves out the term.

Personalisation. Vesting everything in one person makes the office the object of politics, which is why the American literature on the imperial Presidency has no Indian counterpart.

Quick revision

1. Article II section 1 vests the executive power in a President; section 2 gives command, pardons, treaties with two thirds of the Senate, and appointments with its consent; section 3 the state of the union and the take care duty; section 4 impeachment.
2. Article I section 6 bars officers of the United States from Congress: the structural separation.
3. Fixed four-year term; two elected terms since the Twenty Second Amendment; term begins 20 January under the Twentieth.
4. India confers nearly the same powers and transfers their exercise by article 74(1).
5. Treaties: two thirds of the Senate in the United States; executive action with article 253 legislation in India.
6. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952): the power must come from a statute or the Constitution; Jackson J's three categories.
7. Trump v. United States, 603 U.S. 593 (2024): absolute immunity for core powers, presumptive for other official acts, none for unofficial acts.

Test yourself

1. Set out the powers Article II confers and name the Indian equivalent of each. Executive power (article 53(1)); Commander in Chief (article 53(2)); pardons (article 72); appointments (articles 75(1), 124(2), 155, but without legislative confirmation); treaties (executive action with article 253 for implementation); information to the legislature and the recommendation of measures (articles 86(2) and 87); the take care duty (no equivalent; articles 256 and 355 do related work); impeachment (article 61, on the ground of violation of the Constitution).

2. What single clause makes the American system structurally different from a parliamentary one? Article I section 6, which provides that no person holding any office under the United States shall be a member of either House during his continuance in office. That prevents the executive from sitting in the legislature and so removes the possibility of a government drawn from and answerable to it.

3. Why can a Prime Minister with a majority legislate more easily than a President? Because the Prime Minister commands the legislature by definition: he holds office only while a majority supports him. The President is elected separately and may face a legislature controlled by the other party, and Article I section 7 requires every Bill to pass both Houses and be presented to him, so nothing passes without a majority he does not control.

4. What did Youngstown decide and why is Jackson J's concurrence cited more than the majority? It held the seizure of the steel mills unlawful, because the President's power must stem from an Act of Congress or from the Constitution and there was neither. Jackson J's concurrence is cited more because it supplied the workable framework: the President's authority is at its maximum when acting with congressional authorisation, uncertain in a zone of twilight where Congress is silent, and at its lowest ebb when acting against the expressed or implied will of Congress.

Removal of a judge, articles 124(4) and 217. The ground is proved misbehaviour or incapacity, on an address of each House supported by a majority of the total membership and by not less than two thirds of the members present and voting. The word impeachment is not used in the Constitution for this, and the Judges (Inquiry) Act 1968 supplies the machinery.

A vote of no confidence in the government. Not in the Constitution at all. It rests on articles 75(2) and 75(3) and on the rules of procedure of the House, and it requires only a simple majority.

That third one is the point. The Indian executive is removable by a simple majority at any time. The American executive is removable only on two thirds of the Senate for a high crime.

The separation of personnel, compared

United States. Article I section 6 clause 2: no person holding any office under the United States shall be a member of either House during his continuance in office. Absolute.

India. The opposite. Article 75(5) requires a minister to be a member of a House within six months, so the executive must be in the legislature. Articles 102(1)(a) and 191(1)(a) disqualify a person for holding an office of profit under the government, but expressly save an office declared by Parliament or the State legislature not to disqualify, and the office of minister is not an office of profit for this purpose.

Switzerland. Article 144 of the Federal Constitution provides that members of the Federal Assembly, of the Federal Council and judges of the Federal Supreme Court may not at the same time be members of another of those authorities. That is a stricter separation of personnel than India has, in a system where the legislature elects the executive.

A worked example

An executive head is credibly accused of corruption in office.

United States. The House impeaches by simple majority; the Senate tries; conviction needs two thirds of those present; and whether or not he is convicted, he may afterwards be indicted and tried in the ordinary courts, because Article I section 3 says so expressly. Since 2024 the criminal route is complicated by Trump v. United States, 603 U.S. 593 (2024), which recognised absolute immunity for core constitutional powers and presumptive immunity for other official acts.

India. If the accused is the President, article 61 applies and the ground is violation of the Constitution, which corruption in office would satisfy. If the accused is the Prime Minister, there is no impeachment at all: the remedy is a no confidence motion requiring a simple majority, and prosecution in the ordinary courts, article 361 immunity applying only to the President and Governors.

That asymmetry is worth stating. India's most powerful officer is the one with no special removal procedure and no immunity, and its most protected officer is the one with almost no power.

The cases

Facts. K. Veeraswami v. Union of India, (1991) 3 SCR 189, concerned whether a judge of a High Court or the Supreme Court could be prosecuted under the Prevention of Corruption Act, or whether the removal procedure in article 124(4) was the only route.

Held, by a Constitution Bench. A judge is a public servant and can be prosecuted, but no criminal case shall be registered against a judge of the High Court or the Supreme Court without prior consultation with the Chief Justice of India, and if the Chief Justice is himself the person concerned the President should consult other judges.

Why it matters here. It settles that the constitutional removal procedure is not exclusive of the ordinary criminal law, which is the same principle Article I section 3 of the American Constitution states in terms.

Facts. Trump v. United States, 603 U.S. 593 (2024), concerned an indictment of a former President and a claim of immunity from criminal prosecution for acts within the outer perimeter of official responsibility.

Held, by six to three. Absolute immunity for the exercise of core constitutional powers; at least presumptive immunity for other official acts, rebuttable; no immunity for unofficial acts.

Why it matters here. It qualifies the American assumption that impeachment and the criminal law are two independent routes, and it should be cited whenever the accountability of a presidential executive is discussed.

Distinctions

What beginners get wrong

"The Indian Prime Minister can be impeached." He cannot. Article 61 applies to the President. The Prime Minister faces a no confidence motion.

"Impeachment removes and punishes." In the United States it removes and disqualifies, and Article I section 3 expressly preserves the ordinary criminal liability.

"Judges in India are impeached." The Constitution uses removal on an address, not impeachment, in articles 124(4) and 217, and the machinery is in the Judges (Inquiry) Act 1968.

Limits and criticism

Impeachment is a political process with a judicial form. Two thirds of a chamber is a political number, and no American President has ever been convicted.

Article 61 has never been used. In seventy five years no Indian President has been impeached, which makes the procedure untested.

Removal of judges is nearly impossible. No Indian judge has been removed under article 124(4), and one motion in 1993 failed at the voting stage although the inquiry committee had found the charges proved.

Quick revision

1. Fixed term, impeachment and separation of personnel hang together: each requires the others.
2. United States: ground in Article II section 4; House charges by simple majority under Article I section 2; Senate tries under Article I section 3, two thirds of members present, Chief Justice presiding for a President.
3. Judgment is confined to removal and disqualification; ordinary criminal liability is preserved.
4. India: article 61 for the President, ground of violation of the Constitution, two thirds of the total membership of each House.
5. Judges: removal on an address under articles 124(4) and 217, machinery in the Judges (Inquiry) Act 1968.
6. The Prime Minister faces only a no confidence motion, requiring a simple majority.
7. Separation of personnel: Article I section 6 in the United States; article 144 in Switzerland; the opposite in India by article 75(5).

Test yourself

1. Why does a presidential system need impeachment and a parliamentary system not? Because the presidential executive holds a fixed term and cannot be removed by a vote of confidence, so without impeachment there would be no way to remove an executive who committed serious misconduct before the term expired. A parliamentary executive holds office only while it commands a majority, so a simple majority can remove it at any time and no special procedure is needed.

2. Set out the American impeachment procedure with the provisions. The ground is treason, bribery, or other high crimes and misdemeanours, under Article II section 4. The House of Representatives has the sole power of impeachment, Article I section 2, by simple majority. The Senate has the sole power to try, Article I section 3, with the Chief Justice presiding when the President is tried, and conviction requires two thirds of the members present. Judgment extends only to removal and disqualification, and the party convicted remains liable to indictment and trial according to law.

3. Distinguish the three Indian removal procedures. Article 61 impeaches the President for violation of the Constitution, requiring two thirds of the total membership of each House. Articles 124(4) and 217 remove a judge for proved misbehaviour or incapacity on an address of each House supported by a majority of the total membership and two thirds of those present and voting. A no confidence motion removes the government by a simple majority and appears nowhere in the Constitution, resting on articles 75(2) and 75(3) and the rules of the House.

4. What does the separation of personnel contribute to impeachment? It makes the trial credible. Where the executive sits in the legislature, the chamber charging and the chamber trying would be judging their own leaders, which is why impeachment fell into disuse in the United Kingdom. Article I section 6 keeps American officers out of Congress, so the legislature is trying somebody it does not contain.

Parliamentary sovereignty. All three recipients have a supreme constitution and judicial review of legislation, which is precisely what the British system does not have. That is the largest single divergence.

The unwritten constitution. All three codified.

A worked example

A government wishes to pass a Bill that the upper house opposes.

United Kingdom. After the delay in section 2(1) of the Parliament Act 1911 as amended by the 1949 Act, two successive sessions, the Bill may be presented for assent without the Lords, unless it is a Bill extending the maximum duration of Parliament.

India. Article 108 provides for a joint sitting of both Houses summoned by the President where a Bill has been rejected, or the Houses have disagreed, or more than six months have elapsed. The Bill is then decided by a majority of the total number of members of both Houses present and voting, which the Lok Sabha's greater size makes decisive. Article 109 excludes Money Bills, on which the Rajya Sabha has only fourteen days and a power of recommendation.

Ireland. Article 23 gives the Seanad only a ninety-day delay, after which the Dail may resolve that the Bill is deemed to have been passed. Article 21 confines the Seanad to twenty one days on a Money Bill.

Canada. The Senate has, in law, a full veto on ordinary legislation, and by convention does not use it against the elected chamber's clear will.

Four descendants, four different deadlock devices, and the same underlying principle: the elected chamber prevails.

The cases

Facts. Rai Sahib Ram Jawaya Kapur v. State of Punjab, AIR 1955 SC 549, required the Supreme Court to describe the Indian executive and its relationship to the legislature in the context of executive action without a statute.

Held, by Mukherjea CJ. The President is a formal or constitutional head; the real executive power vests in the Council of Ministers, responsible to the legislature; the executive may act without a statute where no citizen's rights are affected and expenditure has legislative sanction.

Why it matters here. It confirms that India took responsible government whole, and it defines the scope of executive action, which is where the Westminster model's practical flexibility lies.

Facts. Reference re Resolution to Amend the Constitution, [1981] 1 SCR 753, decided on 28 September 1981, arose from Canada's attempt to patriate its constitution without substantial provincial consent.

Held. Lawful by seven to two; unconstitutional in the conventional sense by six to three; no remedy.

Why it matters here. It shows the Westminster inheritance under strain in a federal recipient: Canada had British conventions and a written federal division, and the two had to be reconciled by a court.

Distinctions

What beginners get wrong

"The Westminster model means the British system." It means the exportable features of it. Every recipient rejected parliamentary sovereignty, which is the most distinctive British feature of all.

"Ireland is a Westminster system." It is a Westminster executive on a proportional electoral system with a rigid constitution and strong judicial review, and the electoral system alone changes the politics completely, because it makes single-party majorities rare.

"India copied the British constitution." India copied responsible government and took federalism, the lists, the office of Governor and the emergency provisions from the Government of India Act 1935, judicial review and fundamental rights from the American model, and the directive principles from Ireland.

Limits and criticism

The model assumes a two-party system. With many parties it produces coalitions, which Ireland has had almost continuously and India has had frequently.

It concentrates power. A single-party majority with strong discipline gives a Prime Minister control of both organs, and the recipients added judicial review partly for that reason.

Exported conventions do not always survive the journey. The office of Governor in India works very differently from the office of Lieutenant Governor in Canada, although the drafting is similar.

Quick revision

1. What travelled: nominal head of State on advice, cabinet, responsible government, a weakened upper house, a permanent civil service, an official opposition, first past the post.
2. Canada added federalism and a written division of powers; the Senate is appointed under section 24 of the 1867 Act.
3. India added a republic, Part III with article 32, three legislative Lists, emergency provisions, and later the Tenth Schedule.
4. Ireland added the single transferable vote under Article 16.2.5, a referendum for every amendment, and the Article 26 reference.
5. Nobody took parliamentary sovereignty, a hereditary chamber, or an uncodified constitution.
6. Deadlock: Parliament Acts; article 108 joint sitting; Article 23 ninety-day delay; convention in Canada.
7. Ram Jawaya Kapur, AIR 1955 SC 549, on the Indian executive; the Patriation Reference on Canadian conventions in a federation.

Test yourself

1. What are the features of the Westminster model, and which of them did every recipient reject? A nominal head of State acting on advice, a cabinet drawn from and collectively responsible to an elected lower house, a weakened upper house, a permanent neutral civil service, an official opposition, and single-member plurality elections. Every recipient rejected parliamentary sovereignty: India, Canada and Ireland all have a supreme constitution and judicial review of legislation.

2. What did Ireland change, and what difference does it make? It replaced first past the post with the single transferable vote in multi-member constituencies, required by Article 16.2.5, and made the constitution rigid, requiring a referendum for every amendment under Articles 46 and 47. The electoral change makes single-party majorities rare, so coalition government is the norm, and the rigidity means constitutional change is decided by the people rather than by the Oireachtas.

3. Compare the four deadlock devices. The United Kingdom uses delay: section 2(1) of the Parliament Act 1911, as amended in 1949, allows a Bill passed by the Commons in two successive sessions to go for assent without the Lords. India uses a joint sitting under article 108, decided by a majority of both Houses present and voting, which the Lok Sabha's size makes decisive. Ireland uses a ninety-day delay under Article 23, after which the Dail may deem the Bill passed. Canada relies on convention, the Senate having a legal veto it does not use.

4. Is it accurate to say India copied the British constitution? No. India took responsible government and the cabinet system from Britain; federalism, the legislative lists, the office of Governor and the emergency provisions from the Government of India Act 1935; fundamental rights and judicial review from the American model; the directive principles and the method of electing the President from Ireland; and the federation with a strong centre and residuary power from Canada.

Emergency powers. He may invoke a statute conferring emergency authority, and whether the statute reaches the case is a question for the courts.

The check that operates. In practice the answer is Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952): the power must stem from an Act of Congress or from the Constitution itself. If Congress has considered and refused, the President is at what Jackson J called the lowest ebb of his authority.

The Indian comparison. Articles 266 and 114 produce the same rule, that money is drawn only under an appropriation made by law. The difference is that the Indian executive commands the majority that passes the appropriation, so the check is nearly never a real constraint.

The cases

Facts. Immigration and Naturalization Service v. Chadha, 462 U.S. 919 (1983), concerned a statutory legislative veto by which one House of Congress could overturn an executive decision to suspend a deportation.

Held, by Burger CJ for the Court. Unconstitutional. The purposes underlying the Presentment Clauses of Article I section 7 and the bicameral requirement of Article I sections 1 and 7 governed: action that is legislative in character must pass both Houses and be presented to the President.

Why it matters here. It shows the limits of the checks. Congress may check the executive only in ways the Constitution permits, and inventing a new check is itself unconstitutional.

Facts. United States v. Nixon, 418 U.S. 683 (1974), arose when a special prosecutor subpoenaed tapes of Presidential conversations and the President asserted an absolute executive privilege.

Held, unanimously. Neither the separation of powers nor the need for confidentiality can sustain an absolute, unqualified Presidential privilege of immunity from judicial process in all circumstances; a qualified privilege yielded to the demonstrated need for evidence in a criminal trial.

Why it matters here. It is the judicial check at its strongest, and the reason it is now cited with Trump v. United States, 603 U.S. 593 (2024), which recognised absolute immunity for core constitutional powers and presumptive immunity for other official acts.

Distinctions

What beginners get wrong

"Checks and balances is the same as separation of powers." Separation divides the functions; checks and balances give each branch a hold on the others. The second qualifies the first.

"The American system is more democratic because of the checks." It is more veto-laden. Whether that is more democratic depends on whether you think a majority should be able to govern.

"India has checks and balances too." India has some of the same devices, and the crucial one is missing: the legislature does not confirm appointments or consent to treaties, and the executive commands the legislature, so the appropriation check is formal.

Limits and criticism

Deadlock. Divided government produces stalemate, including repeated failures to fund the government.

Party over institution. Where the same party holds the Presidency and both Houses, the checks weaken, which is not what the framers assumed.

Escalation. Because each branch's weapons are limited, the branches reach for the ones they have: the filibuster, the refusal to hold confirmation hearings, executive orders, and emergency declarations.

Quick revision

1. The executive checks the legislature by veto (Article I section 7) and by convening it.
2. The legislature checks the executive by appropriation (Article I section 9), confirmation and treaty consent (Article II section 2), investigation, impeachment, and the veto override.
3. The judiciary checks both by judicial review, established in Marbury v. Madison, 5 U.S. 137 (1803).
4. The others check the judiciary by appointment, by control of the courts' number and appellate jurisdiction under Article III section 2, by impeachment, and by amendment under Article V.
5. The design assumes institutional self-interest, and party loyalty can defeat it.
6. INS v. Chadha, 462 U.S. 919 (1983): a check must itself be constitutional.
7. United States v. Nixon, 418 U.S. 683 (1974): no absolute privilege; read with Trump v. United States, 603 U.S. 593 (2024).

Test yourself

1. List the checks each branch holds over the others. Executive over legislature: the veto under Article I section 7, the pocket veto, the power to convene, and the recommendation of measures. Legislature over executive: appropriation under Article I section 9, confirmation of appointments and consent to treaties under Article II section 2, the creation and abolition of offices, investigation, impeachment, and the override. Judiciary over both: judicial review of legislation and of executive action. Others over the judiciary: appointment, control of the number of judges and of the appellate jurisdiction under Article III section 2, impeachment, and amendment.

2. Why is the appropriation check weaker in India than in the United States? Because the Indian executive commands the majority that votes the appropriation. Articles 114 and 266 impose the same legal rule, that money is drawn only under an appropriation made by law, but a government that could not pass an appropriation would already have lost the confidence of the House and would cease to be the government.

3. What is the design assumption behind checks and balances, and when does it fail? The assumption is that officeholders will defend the institutional interest of their branch, so that ambition counteracts ambition. It fails where party loyalty overrides institutional loyalty, which happens when the same party controls the Presidency and both Houses, and the checks then operate only through the courts.

4. Can Congress invent a new check on the executive? No. In INS v. Chadha, 462 U.S. 919 (1983), the legislative veto had operated for fifty years and appeared in some two hundred statutes, and it was struck down because action legislative in character must satisfy bicameralism and presentment under Article I section 7. Congress may check the executive only by the means the Constitution provides.

The magic formula

The composition of the Federal Council is not prescribed by the Constitution and has been governed since 1959 by a political understanding known as the magic formula, allocating the seven seats among the largest parties. It has been adjusted, most notably in 2003 and 2008, and it is a convention in exactly the sense of Module I topic 2: a practice accepted as obligatory, with a reason, and unenforceable.

The reason is the point. Switzerland has four language communities, twenty six cantons and a system in which fifty thousand voters can force a referendum on any federal Act. A government excluding a major party would lose referendums continuously. The magic formula converts opposition into participation.

A worked example

The Assembly disagrees strongly with the Federal Council's policy on a Bill.

In a parliamentary system the Assembly could remove the government, or the government could make the Bill a question of confidence.

In a presidential system the legislature could refuse to pass it and the executive could veto its alternative.

In Switzerland the Assembly simply legislates as it wishes. The Federal Council has no veto. It then implements the Act, because article 174 makes it the executive authority and article 177 obliges it to act as a body. And if fifty thousand voters object, article 141 sends the Act to a referendum and the people decide.

Nothing in that sequence involves confidence, dismissal or veto. That is why Switzerland is a third type.

The cases

There is no Swiss case in this book, and the reason should be stated rather than concealed. The Federal Supreme Court publishes its decisions in German, French and Italian and not in English, so no Swiss judgment has been read in the original for this book, and none is cited as authority anywhere in it. Every Swiss proposition here rests on the Federal Constitution's own text in the Confederation's official English version.

Two decisions of other courts illuminate the Swiss design by contrast.

Facts. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952), concerned a President seizing steel mills without statutory authority during the Korean War.

Held. The seizure was unlawful; the power must stem from an Act of Congress or from the Constitution.

Why it matters here. The question could not arise in Switzerland in that form, because the Federal Council has no independent constitutional mandate to defend against the legislature: article 174 makes it the executive authority and article 182 requires it to implement legislation.

Facts. Rai Sahib Ram Jawaya Kapur v. State of Punjab, AIR 1955 SC 549, described the Indian executive as a Council of Ministers responsible to the legislature, with a formal head of State.

Held. The real executive power is in the Council of Ministers, which is responsible to the legislature.

Why it matters here. The word doing the work is "responsible". Strike it out and the Indian executive would look Swiss: a council, collegially deciding, with a formal head. Responsibility by confidence is the whole difference.

Distinctions

What beginners get wrong

"Switzerland is a parliamentary system because parliament elects the executive." Election is not confidence. A parliamentary executive can be dismissed; the Federal Council cannot.

"The Swiss President is like the Indian President." The Indian President is head of State for five years and does not run a department. The Swiss President chairs the Council for a year, cannot be re-elected for the following year, and continues to head a department.

"Switzerland has no head of State." It has a collective one, the Federal Council. There is no individual head of State.

Limits and criticism

Accountability is diffuse. Nobody can be dismissed, so the electorate's control is exercised through referendums and initiatives rather than through the government's tenure.

It is slow. Collegial decision-making among seven members of four parties is not designed for speed.

It depends on a political culture. The magic formula is a convention, and a party willing to abandon consensus can strain it, as the events of 2003 and 2008 showed.

Quick revision

1. Article 174: the Federal Council is the supreme governing and executive authority.
2. Article 175: seven members, elected by the Federal Assembly after each general election of the National Council, for four years, with regard to regions and language communities.
3. Article 176: the Presidency rotates annually and re-election for the following year is not permitted.
4. Article 177: decisions are taken as a collegial body; business is allocated by department.
5. Article 168: the Assembly elects the Council, the Chancellor, the judges of the Federal Supreme Court and the General.
6. Article 144: no dual membership of the Assembly, the Council and the federal courts.
7. No vote of no confidence, no veto; the magic formula is a convention allocating the seven seats.

Test yourself

1. Why is the Swiss executive neither parliamentary nor presidential? Because it is elected by the legislature, which is not presidential, and cannot be dismissed by it, which is not parliamentary. Article 175 provides for election by the Federal Assembly for a fixed four-year term, there is no vote of no confidence, and article 144 separates the personnel of the Assembly, the Council and the courts absolutely.

2. Describe the Swiss Presidency. Under article 176 the President of the Confederation chairs the Federal Council, is elected by the Federal Assembly from among the Council's seven members for one year, and may not be re-elected for the following year. The office is a chairmanship; the incumbent continues to head a federal department and has no powers over the other members.

3. What is the magic formula, and what kind of rule is it? It is the understanding, in place since 1959 and adjusted in 2003 and 2008, allocating the seven seats on the Federal Council among the largest parties. It is a convention: a practice accepted as obligatory, supported by a reason, and unenforceable. Its reason is that a party excluded from government could defeat the government's legislation by referendum under article 141, so inclusion is cheaper than exclusion.

4. Why does this book cite no Swiss judgment? Because the Federal Supreme Court publishes in German, French and Italian and not in English, so no Swiss judgment has been read in the original for this book. Every Swiss proposition here rests on the Federal Constitution's own text in the Confederation's official English version, which is a translation with no legal force but with the same article numbering as the German.

Article 81: legislative emergency. Where a confidence motion has failed and the Bundestag has not been dissolved, the President may on the proposal of the Government and with the consent of the Bundesrat declare a state of legislative emergency for a Bill, which may then be enacted without the Bundestag for a limited period. It has never been used.

How the pair works

Article 67 makes the Chancellor almost impossible to remove against his will. Article 68 gives him a route to an election when he wants one, and that route has been used in a way worth knowing: a Chancellor who wants a dissolution arranges to lose a confidence vote, because article 68 gives no other route to an early election. The German President and the Federal Constitutional Court have both had to consider whether such an engineered defeat is legitimate.

The result is a system in which the executive is stable and the legislature's power to remove it is conditioned on a positive alternative. Constructive votes have been attempted twice and succeeded once, in 1982.

A worked example

A coalition breaks up and the Chancellor loses his majority. Four parties are in the Bundestag and no two of them can agree on a successor.

In India the government would fall on a no confidence motion carried by a simple majority, and the President would look for an alternative or dissolve.

In the United Kingdom the same, subject now to the Dissolution and Calling of Parliament Act 2022.

In Germany nothing happens. The motion under article 67 cannot succeed without a majority for a named successor, and there is none. The Chancellor continues in office as a minority government. If he wants an election he must lose a confidence vote deliberately under article 68 and ask the President to dissolve.

That is the design working exactly as intended, and it is also the standing criticism of it: a Chancellor whom a majority opposes remains in office.

The cases

Facts. The Lisbon judgment, 2 BvE 2/08 and others, decided on 30 June 2009, concerned the Act approving the Treaty of Lisbon and the accompanying domestic legislation, challenged as incompatible with the Basic Law and in particular with the democratic principle and the powers of the Bundestag.

Held, by the Second Senate. The Treaty was compatible, but the accompanying domestic legislation was insufficient in so far as it did not give the Bundestag and the Bundesrat adequate rights of participation. The Court reserved to itself an identity review: under article 23(1) third sentence read with article 79(3) it reviews whether the Basic Law's constitutional identity, its inviolable core, is respected, exercising that jurisdiction in accordance with the Basic Law's openness to European integration.

Why it matters here. It shows the Basic Law's central preoccupation, that the elected chamber must retain the substance of decision, applied to a modern problem, and it links the executive chapters to article 79(3).

Facts. Rai Sahib Ram Jawaya Kapur v. State of Punjab, AIR 1955 SC 549, described the Indian Council of Ministers as responsible to the legislature with a formal head of State.

Held. The real executive power is in the Council of Ministers, responsible to the legislature.

Why it matters here. The Indian rule is unqualified responsibility by simple majority. Article 67 qualifies it, and the comparison is the answer to a question asking how a parliamentary system can be stabilised.

Distinctions

What beginners get wrong

"Germany has no vote of no confidence." It has one, in article 67, and the vote must simultaneously elect a successor.

"The German President is powerful." He is not. Articles 54 to 61 give him a five-year term, election by a Federal Convention, and largely formal functions; his one moment of real discretion is under articles 63 and 68.

"Article 65 makes the Chancellor a president." It gives him the general guidelines of policy, and each minister runs the department independently within them. It is a stronger position than a Prime Minister's in theory and constrained in practice by coalition agreements.

Limits and criticism

Stability at the cost of responsiveness. A Chancellor opposed by a majority stays in office, which is a defect if you think a legislature should be able to end a government.

Article 68 is used artificially. The only route to an early election is a deliberately lost confidence vote, which requires the Chancellor to ask his own supporters to abstain.

Coalition agreements do the real work. The Kanzlerprinzip in article 65 is qualified in practice by written coalition agreements that allocate policy areas among parties, and those agreements are not law at all.

Quick revision

1. Article 63: the Chancellor is elected by the Bundestag on the President's proposal, with a three-stage procedure.
2. Article 64: ministers appointed and dismissed by the President on the Chancellor's proposal.
3. Article 65: Kanzlerprinzip, Ressortprinzip, Kollegialprinzip.
4. Article 67: lack of confidence only by electing a successor by a majority of the members, with forty eight hours' interval.
5. Article 68: a lost confidence motion permits dissolution within twenty one days, and the right lapses if the Bundestag elects another Chancellor.
6. Article 81: legislative emergency, never used.
7. The design answers Weimar, where a negative majority could dismiss a Chancellor without agreeing on a successor.

Test yourself

1. State article 67 and explain the problem it solves. The Bundestag may express its lack of confidence in the Chancellor only by electing a successor by a majority of its members and requesting the President to dismiss him, and the President must comply. It answers the Weimar experience, in which a Reichstag majority existed that was against every possible government and for none, so that governments could be destroyed and none could be formed.

2. How does a German Chancellor obtain an early election? Under article 68. He moves a vote of confidence and it is not supported by a majority of the members; the President may then, on his proposal, dissolve the Bundestag within twenty one days. The right of dissolution lapses if the Bundestag elects another Chancellor by a majority of its members. Because there is no other route, a Chancellor seeking an election must arrange to lose the vote.

3. What are the three principles in article 65? The Chancellor determines and is responsible for the general guidelines of policy; within those guidelines each minister conducts the affairs of his department independently and on his own responsibility; and the Federal Government decides differences of opinion between ministers.

4. Should India adopt the constructive vote of no confidence? The argument for it is stability: India has had governments fall without any alternative being available, and article 67 would prevent that. The argument against is that it entrenches a government a majority opposes, and that India's own answer to instability was different, the Tenth Schedule, which disciplines defection rather than the confidence vote. An answer should give both and note that the German rule would require amending article 75(3), which makes the Council responsible to the House without qualification.

India has an indirectly elected President who acts on binding advice under article 74(1). Not semi-presidential on either limb.

Switzerland has no individual head of State at all.

A worked example

Suppose India were to make the President directly elected while leaving article 74(1) unchanged.

What would change. The President's democratic legitimacy, which would be greater than the Prime Minister's, since the Prime Minister is elected by one constituency and chosen by his party.

What would not change. The legal position. Article 74(1) requires him to act in accordance with the advice of the Council of Ministers, subject to one reconsideration.

The predictable consequence. Pressure on article 74(1). A President with a national mandate and no power is an unstable arrangement, which is exactly why the Constituent Assembly chose indirect election: to keep the office's legitimacy below the Prime Minister's.

That is worth knowing, because a question asking whether India should have a directly elected President is really a question about article 74(1).

The cases

Facts. Crotty v. An Taoiseach, [1987] IESC 4, decided on 9 April 1987, concerned Ireland's proposed ratification of the Single European Act, Title III of which committed the State to co-operation in foreign policy. The Third Amendment of 1972 had authorised the State to join the three Communities identified by their founding Treaties, and provided that no provision of the Constitution invalidates laws or acts necessitated by the obligations of membership.

Held, by the Supreme Court of Ireland. The Third Amendment authorised joining the three Communities as identified by their Treaties; ratification of the Single European Act would not be an act necessitated by the obligations of membership; ratification therefore required an amendment of the Constitution, which under Article 46 means a referendum.

Why it matters here. It shows where real power lies in the Irish system. Not with the directly elected President, and not with the Government, but with the people through the amending procedure, and with a court willing to say so.

Facts. Rai Sahib Ram Jawaya Kapur v. State of Punjab, AIR 1955 SC 549, described the Indian President as a formal or constitutional head with the real executive power in the Council of Ministers.

Held. The real executive power is in the Council of Ministers, responsible to the legislature.

Why it matters here. It is the statement a comparative answer contrasts with a semi-presidential design, where the head of State holds real power in his own right.

Distinctions

What beginners get wrong

"Ireland is semi-presidential because the President is directly elected." Direct election is necessary and not sufficient. Article 13.9 confines the Irish President to acting on the advice of the Government except in the enumerated discretionary cases.

"Semi-presidential means the President is stronger." It means the strength of each half varies with the composition of the legislature, which is the definition of cohabitation.

"India is semi-presidential because the President has emergency powers." The emergency powers under articles 352 to 360 are exercised on the advice of the Council of Ministers, and since 1978 article 352 requires a written recommendation of the Cabinet.

Limits and criticism

Two heads of the executive produce conflict. The design's advantage, that the President provides continuity across parliamentary crises, is bought with the possibility of open dispute at the top.

The type is unstable as a category. Constitutions described as semi-presidential range from those where the President dominates to those where he is nearly ceremonial, and the difference is often practice rather than text.

Importing it requires importing the whole system. A directly elected head of State inside a Westminster cabinet system creates two competing mandates, which is why every Westminster derivative that adopted a republic chose either indirect election, as India did, or direct election with the powers stripped, as Ireland did.

Quick revision

1. Semi-presidential: a directly elected President with real powers plus a Prime Minister answerable to the legislature.
2. France since 1958 is the standard example; the presidential term was aligned with the Assembly's in 2000.
3. Cohabitation: President and Assembly majority of different parties, three times between 1986 and 2002.
4. None of MU's seven is semi-presidential.
5. Ireland: Article 12 direct election, Article 13.9 acting on advice except in the enumerated discretions, Article 26 reference, Article 27 refusal of a dissolution.
6. India: article 54 indirect election, article 74(1) binding advice.
7. Crotty v. An Taoiseach, decided 9 April 1987: ratification of the Single European Act required a referendum.

Test yourself

1. Define a semi-presidential system and give its distinguishing feature. A system in which a directly elected head of State with a fixed term holds substantial executive powers alongside a head of government answerable to the legislature. Its distinguishing feature is that the balance between the two halves changes with the composition of the legislature, producing cohabitation when the President and the majority are of different parties.

2. Why is Ireland not semi-presidential? Because Article 13.9 provides that the President's powers and functions are exercisable only on the advice of the Government, except where the Constitution provides for absolute discretion or consultation with the Council of State. The discretionary powers are narrow: chiefly the Article 26 reference of a Bill to the Supreme Court and the Article 27 refusal of a dissolution to a Taoiseach who has lost majority support.

3. What would a directly elected Indian President change? Legally, nothing, because article 74(1) would still require him to act in accordance with ministerial advice subject to one reconsideration. Politically, a great deal, because the office would carry a national mandate greater than the Prime Minister's, which is why the Constituent Assembly chose indirect election under article 54.

4. What does Crotty v. An Taoiseach show about where power lies in Ireland? That it lies with the people through the amending procedure. The Government's proposed ratification of the Single European Act was held not to be necessitated by the obligations of membership under the Third Amendment, so it required a constitutional amendment, which under Article 46 means a referendum. Neither the directly elected President nor the Government could decide the question.

The pattern

Notice what the comparison shows.

Where dissolution is easy, confidence is easy too, and the government's life is short and the electorate decides often. India, the United Kingdom and Ireland.

Where dissolution is hard, confidence is hard too. Germany makes both difficult: article 67 requires a positive alternative, and article 68 requires a lost confidence vote.

Where there is no confidence, there is no dissolution. The United States and Switzerland both have fixed terms for both organs.

That correlation is not accidental. A system that lets a legislature dismiss a government easily must give the government a way to appeal over its head, or the legislature would be sovereign over the executive without limit.

A worked example

A government with a narrow majority loses a vote on its budget.

India. Loss of a money vote is treated as loss of confidence. The Prime Minister resigns or advises a dissolution under article 85(2)(b). If he resigns, the President invites the person most likely to command a majority and requires a floor test on the S.R. Bommai principle.

Germany. Losing a budget vote does not remove the Chancellor. Article 67 requires the election of a successor. If none is available, the Chancellor may move a confidence vote under article 68, lose it deliberately, and seek a dissolution, or may govern without a budget under the transitional rules in article 111 of the Basic Law.

United Kingdom. By convention, loss of supply is loss of confidence, and the Prime Minister resigns or seeks a dissolution under the revived prerogative.

United States. A failure to appropriate closes parts of the federal government and does not affect the President's tenure at all. The shutdown is the American substitute for a confidence crisis, and it resolves nothing about who governs.

The cases

Facts. S.R. Bommai v. Union of India, (1994) 3 SCC 1, arose from Presidential proclamations under article 356 dismissing State ministries, in several instances on the Governor's report and without a vote in the Assembly.

Held, by nine judges. The proclamation is justiciable; the satisfaction must rest on relevant material; the floor of the House is the appropriate forum for testing whether a ministry retains majority support; and the Assembly should not be dissolved before both Houses of Parliament approve the proclamation.

Why it matters here. It converts confidence into a fact ascertainable in the House rather than an opinion formed by the Governor, and the requirement that dissolution await parliamentary approval protects the legislature against the executive's half of the mechanism.

Facts. R (Miller) v. The Prime Minister, [2019] UKSC 41, [2020] AC 373, concerned the prorogation of Parliament for five weeks, which is not dissolution but has a similar effect of removing the legislature from the field.

Held, unanimously by eleven Justices. The advice was unlawful and the prorogation null and of no effect, because a prorogation that frustrates or prevents, without reasonable justification, Parliament's ability to carry out its constitutional functions is outside the power.

Why it matters here. It is the only modern judicial control anywhere of the executive's power to send the legislature away, and section 3 of the 2022 Act is Parliament's answer to it for dissolution.

Distinctions

What beginners get wrong

"The Constitution provides for a no confidence motion in India." It does not. Article 75(3) states the responsibility; the motion is a matter of the Rules of Procedure of the House.

"Prorogation and dissolution are the same." Prorogation ends a session; dissolution ends the Parliament and requires an election. Article 85(2)(a) provides for prorogation and article 85(2)(b) for dissolution.

"An American government shutdown is like losing confidence." It is not. The President's term is unaffected, and the shutdown ends when Congress appropriates.

Limits and criticism

Dissolution favours the incumbent. A Prime Minister who chooses the election date chooses the most favourable one, which is why the Fixed-term Parliaments Act 2011 was enacted, and its repeal in 2022 restored the advantage.

Confidence is weak against a disciplined majority. A no confidence motion cannot succeed while the majority holds, so the real check is the party, not the House.

Judicial control of the executive's half is contested. Miller No 2 was answered by an ouster clause within three years.

Quick revision

1. Confidence and dissolution are two halves of one mechanism.
2. India: article 75(3) responsibility, simple majority, motion under the Rules; article 85(2)(b) dissolution on advice; article 83(2) five-year term.
3. Germany: article 67 constructive vote; article 68 dissolution only after a lost confidence vote; article 39 four-year term.
4. Ireland: Article 28.10 resignation on loss of majority; Article 13.2.2 discretion to refuse a dissolution.
5. United Kingdom: sections 2, 3 and 4 of the Dissolution and Calling of Parliament Act 2022.
6. United States and Switzerland: neither confidence nor dissolution; fixed terms for both organs.
7. S.R. Bommai: the floor of the House; no dissolution before both Houses approve a proclamation.

Test yourself

1. Why do confidence and dissolution go together? Because each is the counterweight to the other. If a legislature could dismiss a government at will and the government could not appeal to the electorate, the legislature would control the executive without limit; if a government could dissolve at will and could not be dismissed, the executive would control the legislature. The systems that make one hard make the other hard too, which is why Germany requires a successor under article 67 and a lost confidence vote under article 68.

2. Where in the Indian Constitution is the no confidence motion? Nowhere. Article 75(3) provides that the Council of Ministers shall be collectively responsible to the House of the People, and article 75(2) that ministers hold office during the pleasure of the President. The motion itself is regulated by the Rules of Procedure and Conduct of Business in the Lok Sabha and requires a simple majority of those present and voting.

3. What is the Irish President's power under Article 13.2.2, and why is it unusual? He may in his absolute discretion refuse to dissolve Dail Eireann on the advice of a Taoiseach who has ceased to retain the support of a majority in the Dail. It is unusual because it gives a head of State a real, exercisable discretion at precisely the moment a government is most likely to want an election, and because it is one of the few Irish presidential powers not subject to Article 13.9's requirement of acting on advice.

4. Compare an American shutdown with an Indian defeat on a money Bill. In India a defeat on a money vote is treated as loss of confidence: the government resigns or advises a dissolution, and the question of who governs is reopened. In the United States a failure to appropriate closes parts of the federal government under Article I section 9, and the President's four-year term is unaffected; nothing about who governs is decided, and the crisis ends when Congress passes an appropriation.

Switzerland, articles 159 to 165

Passage. Article 156 requires both Councils, the National Council and the Council of States, to deliberate separately, and article 156(2) requires the agreement of both for a decision of the Federal Assembly.

Majorities. Article 159(2) requires the majority of those voting; article 159(3) requires a majority of the members of each Council for urgent federal acts, provisions on subsidies and certain credit decisions.

Form. Article 163 requires provisions establishing binding legal rules of general application to be issued in the form of a federal act or an ordinance.

Urgent acts. Article 165 allows a federal act whose entry into force cannot be delayed to be declared urgent and brought into force immediately, with a time limit; if it has a constitutional basis it must be put to the vote of the people within a year if a referendum is requested, and if it has none it ceases to apply one year after adoption unless approved by the people and the cantons.

No assent, no veto. The Federal Council has no part in the enactment. What it has instead is the referendum: article 141 allows fifty thousand voters or eight cantons to demand a popular vote on a federal act within a hundred days of its publication.

Ireland, articles 20 to 26

Passage. Both Houses, with the Seanad limited by Article 23 to a ninety-day delay on ordinary Bills, after which the Dail may resolve that the Bill is deemed passed.

Money Bills. Article 21 confines the Seanad to twenty one days for recommendations.

Assent. Article 25: the President signs the Bill and promulgates it as a law.

The reference. Article 26 permits the President, after consultation with the Council of State, to refer any Bill other than a Money Bill or a Bill to amend the Constitution to the Supreme Court for a decision on its constitutionality, and if the Court upholds it, no court may afterwards question the validity of that provision.

A worked example

The same Bill, on the regulation of a national industry, moves through each system.

India. Introduced in the Lok Sabha by the minister; the government's majority carries it; the Rajya Sabha may delay but a joint sitting under article 108 resolves any disagreement in the Lok Sabha's favour; the President assents on advice. Elapsed time, weeks.

United States. Introduced by a member; must pass committee in both Houses, both floors, and a conference; may face a Senate filibuster requiring sixty votes for cloture; then presentment, and a veto requiring two thirds in each House to override. Elapsed time, often years, and most Bills die.

Switzerland. Both Councils must agree. Then a hundred days pass in which fifty thousand voters may demand a referendum, and if they do, the electorate decides.

Ireland. Both Houses, with the Seanad able to delay ninety days; then the President may refer it to the Supreme Court under Article 26 before signing.

Four systems, and the number of points at which the Bill can be stopped is one, several, one plus the electorate, and one plus a court.

The cases

Facts. Immigration and Naturalization Service v. Chadha, 462 U.S. 919 (1983), concerned a device by which one House could veto an executive decision without the concurrence of the other House or presentment to the President.

Held, by Burger CJ. Unconstitutional. The purposes underlying the Presentment Clauses of Article I section 7 and the bicameral requirement of Article I sections 1 and 7 govern: action legislative in character must pass both Houses and be presented.

Why it matters here. It is the authority that the American legislative process is a constitutional requirement and not merely a procedure, and that Congress cannot legislate its way round it.

Facts. In re Assent, Withholding or Reservation of Bills by the Governor and the President was a Presidential Reference under article 143 arising from Governors declining to act on Bills passed by State legislatures under article 200.

Held, decided on 20 November 2025. No timelines may be judicially prescribed under articles 200 and 201; no deemed assent may be granted under article 142; the article 200 function is not justiciable on its merits; a limited mandamus lies against prolonged, unexplained and indefinite inaction.

Why it matters here. Assent is the last stage of the Indian process and the one on which the text is least prescriptive, and this is the current law on what happens when it stalls.

Distinctions

What beginners get wrong

"The Rajya Sabha can block a Money Bill." It can delay it fourteen days and recommend. Article 109(5) deems it passed if not returned.

"The Indian President has a veto." Article 111 permits him to withhold assent, and requires him to assent to a Bill passed again after reconsideration, and article 74(1) requires him to act on advice throughout.

"Article 123 is an emergency power." It is not tied to any emergency. It requires only that both Houses are not in session and that the President is satisfied that circumstances render immediate action necessary, and the ordinance lapses six weeks after reassembly.

Limits and criticism

The Indian process gives the executive almost total control. With a majority in the Lok Sabha, a government can pass anything, and the Speaker's Money Bill certificate under article 110(3) has been used to bypass the Rajya Sabha on Bills of doubtful character.

The American process gives minorities a veto. The filibuster means most legislation needs sixty Senate votes, which is a supermajority nowhere required by the Constitution.

The Swiss process is slow and legitimate. Every federal act is provisionally law and finally law only when the hundred days pass without a referendum demand.

Quick revision

1. India: articles 107 to 111; article 108 joint sitting; article 109 Money Bills, fourteen days; article 110(3) Speaker's certificate final; article 111 assent; article 123 ordinances.
2. United States: Article I section 7, bicameralism and presentment, veto, two thirds override, ten days and the pocket veto.
3. Switzerland: articles 156 and 159 for passage, article 163 for form, article 165 for urgent acts, article 141 for the referendum.
4. Ireland: Article 21 Money Bills, Article 23 ninety-day delay, Article 25 signature, Article 26 reference to the Supreme Court.
5. Only India has an ordinance power; only Switzerland has a popular veto; only Ireland has a pre-enactment judicial reference.
6. INS v. Chadha, 462 U.S. 919 (1983): the process is a constitutional requirement.
7. In re Assent, 20 November 2025: the outer limit of judicial control over assent in India.

Test yourself

1. Trace a Money Bill through the Indian Parliament. It is introduced only in the Lok Sabha, on the President's recommendation under article 117, and only if it falls within article 110, the Speaker's certificate on which is final under article 110(3). After passage it goes to the Rajya Sabha, which under article 109 must return it with recommendations within fourteen days; the Lok Sabha may accept or reject them, and if it is not returned in time it is deemed passed by both Houses. The President then assents under article 111 and cannot return a Money Bill.

2. What are the two constitutional requirements for an American Bill, and what follows from them? Bicameralism, that it pass both Houses, and presentment, that it be presented to the President. It follows, as INS v. Chadha held, that Congress cannot create devices by which one House alone alters legal rights, and that the President's veto can be overcome only by two thirds of each House.

3. Why does Switzerland need no presidential veto? Because the check on legislation is popular rather than executive. Article 141 allows fifty thousand voters, or eight cantons, to demand a referendum on a federal act within a hundred days of publication, and article 190 prevents the Federal Supreme Court from setting a federal act aside. The electorate performs the function a veto or judicial review performs elsewhere.

4. What is unusual about Article 26 of the Irish Constitution? It allows constitutional review before a Bill becomes law. The President, after consulting the Council of State, may refer any Bill other than a Money Bill or a Bill to amend the Constitution to the Supreme Court, which decides whether it is repugnant to the Constitution; if the Court upholds the provision, its validity can never afterwards be questioned in any court.

Why the American system has no device

Because it was not designed to produce legislation quickly. The framers wanted a government that could act when there was broad agreement and could not act when there was not, and the absence of a deadlock device is that design rather than an oversight.

The consequences are visible. Appropriations lapse and parts of the government close; major legislation passes only in the first two years of a Presidency when the same party usually holds Congress; and the executive turns to instruments that do not require legislation, executive orders, agency rules and emergency declarations. That last shift is why Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024), matters constitutionally and not merely administratively: as legislation becomes harder, the interpretation of old statutes by agencies becomes the main route of policy, and the Court moved that interpretive power to itself.

A worked example

The upper house rejects a Bill the government regards as essential.

India. Six months pass, or the House finally disagrees; the President summons a joint sitting under article 108; the Bill is decided by a majority of both Houses present and voting, which the Lok Sabha's size determines.

United Kingdom. The Bill is reintroduced in the next session; if the Lords reject it again, it goes for assent under section 2(1) of the Parliament Act 1911 as amended.

Ireland. Ninety days pass under Article 23; the Dail resolves the Bill deemed passed.

Switzerland. Conciliation between the Councils; if it fails the Bill lapses; if it succeeds and the act is unpopular, fifty thousand voters may still demand a referendum.

United States. A conference committee tries to reconcile; if it fails the Bill dies and nothing further can be done in that Congress.

The cases

Facts. Jackson v. Attorney General, [2005] UKHL 56, [2006] 1 AC 262, tested the Hunting Act 2004, passed under the Parliament Act 1949 procedure without the Lords' consent. The claimants said the 1949 Act was itself invalid because it had been made under the 1911 Act without the Lords' consent, so that the deadlock device had been used to enlarge itself.

Held, by nine Lords. The 1949 Act was valid, and so was the Hunting Act; on the true construction of the 1911 Act an Act of that kind could be passed by that procedure. Several of their Lordships added, obiter, that parliamentary sovereignty might not be absolute in every conceivable case.

Why it matters here. It is the only judicial examination anywhere of a deadlock device being used on itself, and the reasoning is directly relevant to the Indian question whether a joint sitting could amend article 108.

Facts. Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024), concerned a rule requiring fishing vessels to pay for at-sea monitors, and the doctrine that courts defer to an agency's reasonable interpretation of an ambiguous statute.

Held, by six to three. Courts must exercise independent judgment in determining the meaning of statutory provisions and may not defer to an agency's interpretation simply because a statute is ambiguous. Chevron is overruled.

Why it matters here. It is the consequence of deadlock. Where Congress cannot legislate, policy is made by agencies interpreting old statutes, and this decision moved the last word on those interpretations from the executive to the courts.

Distinctions

What beginners get wrong

"A joint sitting is like a conference committee." A conference committee negotiates a text and both Houses must then pass it. A joint sitting votes, and the numbers decide.

"Article 108 has never been used." It has been used three times, in 1961, 1978 and 2002.

"The American system has deadlock because of the filibuster." The filibuster makes it worse and is not the cause. Bicameralism plus presentment plus a veto requiring two thirds to override is the structural cause, and all three are in Article I section 7.

Limits and criticism

A joint sitting makes the upper house nearly redundant on contested Bills, which is the standing criticism of article 108 from a federal point of view: the Rajya Sabha represents the States and can be outvoted by the Lok Sabha's size.

Delay devices reward persistence rather than agreement. The Parliament Acts do not require the Lords to be persuaded, only outlasted.

No device at all produces government by other means. The American answer to deadlock has been the growth of executive and agency power, which is now being cut back by the courts rather than by Congress.

Quick revision

1. Five devices: joint sitting, delay, conciliation, popular vote, and none.
2. India: article 108, joint sitting, decided by a majority of both Houses present and voting; used in 1961, 1978 and 2002.
3. United Kingdom: section 2(1) of the Parliament Act 1911 as amended in 1949; two successive sessions; the duration of Parliament is excluded.
4. Ireland: Article 23, ninety days, then the Dail may deem the Bill passed; Article 27, a petition to put a Bill to the people.
5. Switzerland: conciliation under article 156; the referendum under article 141 and the urgent act procedure in article 165.
6. United States: no device; bicameralism and presentment under Article I section 7; a two thirds override.
7. Jackson v. Attorney General, [2005] UKHL 56: a deadlock device used on itself was valid.

Test yourself

1. Describe the Indian joint sitting and explain why it favours the Lok Sabha. Under article 108, where a Bill has been rejected by the other House, the Houses have finally disagreed on amendments, or more than six months have elapsed, the President may summon both Houses to a joint sitting, and the Bill is passed by a majority of the total number of members of both Houses present and voting. The Lok Sabha's 543 seats against the Rajya Sabha's 245 mean that a government with a Lok Sabha majority will normally carry the joint sitting.

2. Why is there no deadlock device in the United States? Because the design intends action only on broad agreement. Article I section 7 requires passage by both Houses and presentment to the President, with a two thirds override of a veto, and the framers provided no tie-breaker, so a Bill that cannot command the required majorities simply fails.

3. What are the consequences of the American answer, and which case illustrates them? Policy migrates to instruments that need no legislation: executive orders, agency rulemaking and emergency declarations. Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024), is the illustration: it overruled Chevron and held that courts must exercise independent judgment on the meaning of statutes rather than deferring to agencies, moving the last word on policy made through interpretation from the executive to the judiciary.

4. Compare a joint sitting with a delay procedure as devices. A joint sitting resolves the disagreement immediately by a single vote in which the chambers' relative sizes decide, so the outcome is known in advance where one chamber is much larger. A delay procedure resolves it by time: the lower house must pass the Bill again in a later session, which gives an opportunity for opinion to change and for an election to intervene, but produces the same result if the lower house persists.

Federal accommodation. A parliamentary system lets regional parties enter government through coalition. A single national election for a single office does not, and in a country where several States have their own party systems that is a serious objection.

Personalisation. The Emergency of 1975 to 1977 was carried out through a parliamentary system with a dominant Prime Minister. A system that concentrates the executive in one person elected nationally increases rather than reduces that risk.

Stability was answered differently. India's response to the instability of the 1990s was the Tenth Schedule and, after 2003, the Ninety First Amendment limiting the size of councils of ministers and tightening the defection rules. The problem was addressed without changing the system.

The constitutional obstacle

Any change of this kind would require amendments to articles 53, 74 and 75 at least, and probably to articles 79 to 88 and to the whole scheme of Part V.

That raises the basic structure doctrine. In Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225, the Supreme Court held that article 368 confers no power to alter the basic structure. In Indira Nehru Gandhi v. Raj Narain, AIR 1975 SC 2299, and in S.R. Bommai v. Union of India, (1994) 3 SCC 1, democracy and the republican and democratic form of government were treated as basic features.

Whether a shift from a parliamentary to a presidential executive would destroy a basic feature is genuinely arguable. Both are democratic forms, so the change is not obviously the abolition of democracy. But the Assembly's own choice was between responsibility and stability, and an argument that responsible government is part of the basic structure is available and has never been tested.

A complete answer says that the question is undecided and identifies why: no such amendment has been attempted, so there is no case on it.

A worked example

Suppose the change were made. Trace one consequence.

Before. A minister answers a question in the Lok Sabha on Tuesday, faces a calling attention motion on Wednesday, and if the House is dissatisfied enough the government faces a motion of no confidence that requires a simple majority.

After. The minister is not a member of the House and does not attend. The legislature's tools are the appropriation, the confirmation of appointments if the new constitution provided for one, investigation by committees, and impeachment on a specified ground. None of them operates weekly.

That is the trade Ambedkar described, stated in the concrete: daily answering is exchanged for a fixed term.

The cases

Facts. Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225, was heard by thirteen judges over sixty eight days and concerned the extent of the amending power under article 368, in the context of the Twenty Fourth, Twenty Fifth and Twenty Ninth Amendments.

Held, by seven to six. Article 368 does not confer power to alter the basic structure or framework of the Constitution. Parliament may amend any provision, including Part III, but not so as to destroy the essential features.

Why it matters here. It is the reason the question "should India adopt a presidential system?" is not purely a question of policy. Some answers to it are outside the amending power.

Facts. Rai Sahib Ram Jawaya Kapur v. State of Punjab, AIR 1955 SC 549, described the Indian executive in terms that a change to a presidential system would falsify.

Held, by Mukherjea CJ. The President is a formal or constitutional head of the executive, and the real executive power vests in the Council of Ministers responsible to the legislature.

Why it matters here. It states what would have to be removed, and it is the passage to quote when identifying which features are at stake.

Distinctions

What beginners get wrong

"India already has a President, so the change is small." The change is not the office but article 74(1). Removing binding advice would transform the whole of Part V.

"A presidential system means direct election." It means a separately elected executive holding a fixed term and not sitting in the legislature. Direct election is the usual method and not the definition.

"The Constituent Assembly did not consider it." It did, and rejected it for stated reasons that remain the best summary of the argument.

Limits and criticism

The debate is often conducted without the text. Any serious proposal must say what happens to articles 53, 74, 75, 79 to 88, 108 and 356.

Comparative evidence is mixed. Presidential systems are stable in some countries and produce deadlock or personal rule in others, and the difference tracks the party system rather than the constitution.

The problem it is offered to solve has changed. The instability of the 1990s prompted the argument; single-party majorities since 2014 have made stability less pressing and accountability more so.

Quick revision

1. The Constituent Assembly chose responsibility over stability; Ambedkar stated the choice in those terms.
2. For: stability, expertise outside politics, decisiveness, and merging the two offices.
3. Against: deadlock without any override device, loss of daily accountability, loss of coalition entry for regional parties, and personalisation.
4. India answered the instability of the 1990s with the Tenth Schedule and the Ninety First Amendment, not with a change of system.
5. The change would need amendments to articles 53, 74 and 75 and much of Part V.
6. Kesavananda Bharati, (1973) 4 SCC 225: no power to destroy the basic structure; democracy is a basic feature.
7. The question whether responsible government is itself a basic feature has never been decided.

Test yourself

1. What reasons did the Constituent Assembly give for choosing a parliamentary executive? That the choice was between more stability and more responsibility, and that a new democracy in a diverse country needed responsibility more. A parliamentary executive answers daily, by questions, motions and debates, and can be removed at any time by a simple majority; a presidential executive is assured of its term and answerable only periodically.

2. Give three arguments for and three against a presidential system for India. For: stability, since India had six governments between 1989 and 1999; the ability to appoint ministers who are not politicians, which article 75(5) prevents; and decisiveness free of coalition management. Against: deadlock, since India has no override procedure comparable to the American two thirds vote; the loss of daily accountability; and the loss of the route by which regional parties enter national government through coalition.

3. What is the constitutional obstacle to the change? The basic structure doctrine. Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225, holds that article 368 confers no power to destroy the basic structure, and democracy and the republican and democratic form of government have been treated as basic features. Whether responsible government is itself a basic feature is arguable and undecided, because no such amendment has been attempted.

4. Why is the argument less pressing now than in the 1990s? Because the problem it was offered to solve has receded. The case rested on instability, and India answered that with the Tenth Schedule and the Ninety First Amendment rather than with a change of system; single-party majorities since 2014 have made stability the less urgent concern, and accountability the more urgent one, which is the side of the trade the parliamentary system is better at.

The connected limit. Articles 75(1A) and 164(1A), inserted in 2003, cap the Council of Ministers at fifteen per cent of the strength of the House, with a minimum of twelve in a State, which removes the incentive to buy support with offices.

A worked example

A government has 268 seats in a House of 543 and needs 272. Ten members of an opposition party offer support in exchange for two ministries.

If they resign and are re-elected, no disqualification arises, because they have left by resigning their seats.

If they vote with the government against a party whip, paragraph 2(1)(b) disqualifies them unless the party condones it within fifteen days.

If they announce that they have left their party, paragraph 2(1)(a) disqualifies them for voluntarily giving up membership, and Ravi S. Naik holds that conduct can amount to voluntarily giving up membership without a formal resignation.

If seven of the ten, being two thirds of their legislature party, merge with the government's party, paragraph 4 protects them.

If they are made ministers, article 75(1A) caps the Council at fifteen per cent of 543, which is eighty one, so the offices available are limited.

The cases

Facts. Kihoto Hollohan v. Zachillhu, (1992) 1 SCR 686, was a challenge to the Tenth Schedule itself. The petitioners argued that it violated freedom of speech and the rights of members, that it required ratification by the States under the proviso to article 368(2) because it affected the jurisdiction of the courts, and that paragraph 7 ousted judicial review.

Held, by a Constitution Bench of five. The Tenth Schedule was upheld in substance: it does not violate freedom of speech or the democratic rights of members, because it operates only on defection and not on dissent within the party. Paragraph 7, which excluded the jurisdiction of all courts, was held invalid for want of ratification by the States under the proviso to article 368(2), since it affected articles 136, 226 and 227; the rest of the Schedule was severable and survived. The Speaker or Chairman deciding under paragraph 6 acts as a tribunal, so the decision is subject to judicial review on the grounds of jurisdictional error, mala fides, violation of natural justice and perversity, though not at an interlocutory stage.

Why it matters here. It is the leading authority on the Schedule and it fixes two things a student must state: the Schedule is valid, and the Speaker's decision is reviewable.

Facts. Nabam Rebia v. Deputy Speaker, Arunachal Pradesh Legislative Assembly, (2016) 8 SCC 1, concerned a Governor who advanced an Assembly session on his own initiative during a crisis about defections and a motion to remove the Speaker.

Held, by five judges. The Governor's powers under article 174 must be exercised on the aid and advice of the Council of Ministers; the discretion under article 163(1) is confined to functions the Constitution expressly requires to be exercised in discretion. The Governor's actions and all that followed were set aside.

Why it matters here. Defection crises implicate the head of State, and this is the case that confines what a Governor may do while one is running.

Distinctions

What beginners get wrong

"The Tenth Schedule bans dissent." Kihoto Hollohan holds the opposite: it operates on defection, not on disagreement inside a party, which is why it survived the freedom of speech challenge.

"A split by one third still protects a defector." Paragraph 3 was omitted by the Ninety First Amendment in 2003. Only merger by two thirds under paragraph 4 protects.

"The Speaker's decision is final." Paragraph 6 says so and Kihoto Hollohan makes it reviewable for jurisdictional error, mala fides, breach of natural justice and perversity.

Limits and criticism

Delay by the Speaker. The Schedule fixes no time limit, and petitions have remained undecided for the life of a House, which defeats the purpose. The Supreme Court has repeatedly urged decision within a reasonable period.

The Speaker is a party member. Deciding disqualifications of one's own party's opponents is a structural difficulty, and reform proposals have suggested transferring the function to the Election Commission or a tribunal.

It strengthens the party over the member. A member who votes according to conscience against a whip is disqualified, which reduces the legislature's independence from the executive, since the executive controls the party.

Quick revision

1. Coalition, minority and caretaker governments are the three situations without a single-party majority.
2. Tenth Schedule, inserted by the Fifty Second Amendment 1985: paragraph 2 grounds, paragraph 4 merger by two thirds, paragraph 6 decision by the Speaker or Chairman.
3. Paragraph 3, the split exception, was omitted by the Ninety First Amendment 2003.
4. Articles 75(1A) and 164(1A) cap the Council of Ministers at fifteen per cent, minimum twelve in a State.
5. Kihoto Hollohan v. Zachillhu, (1992) 1 SCR 686: the Schedule is valid; paragraph 7 invalid for want of State ratification; the Speaker acts as a tribunal and is reviewable.
6. Nabam Rebia, (2016) 8 SCC 1: article 174 exercised on advice.
7. No other system on this syllabus has an anti-defection law.

Test yourself

1. State the grounds of disqualification under the Tenth Schedule. A member of a House belonging to a political party is disqualified if he voluntarily gives up his membership of that party, or if he votes or abstains contrary to a direction of the party without prior permission and the party does not condone it within fifteen days. An independent who joins a party after election is disqualified, and a nominated member who joins one after six months.

2. What did Kihoto Hollohan decide? That the Tenth Schedule is valid and does not violate the freedom of speech or the democratic rights of members, because it operates on defection and not on dissent within a party; that paragraph 7, which excluded the jurisdiction of all courts, was invalid for want of ratification by the States under the proviso to article 368(2), since it affected articles 136, 226 and 227; and that the Speaker or Chairman deciding under paragraph 6 acts as a tribunal, so the decision is reviewable for jurisdictional error, mala fides, breach of natural justice and perversity.

3. What is left of the exceptions after 2003? Only merger. Paragraph 4 protects a member where his original political party merges with another and not less than two thirds of the members of the legislature party agree to the merger. The split exception in paragraph 3, which required only one third, was omitted by the Ninety First Amendment.

4. Give the strongest criticism of the Tenth Schedule. That it transfers power from the member to the party and therefore to the executive that controls the party, so a legislator who votes on conscience against a whip loses his seat. Combined with the absence of any time limit on the Speaker's decision, and the fact that the Speaker belongs to a party, it can operate to entrench a government rather than to protect the electorate's choice.

Canada again, 1982. The Constitution Act 1982, patriating the constitution and adding the Charter of Rights and Freedoms, section 35 on aboriginal rights, the amending procedures of Part V and the supremacy clause in section 52. The problem was that Canada's constitution could be amended only by a foreign parliament. The answer, negotiated after Reference re Resolution to Amend the Constitution, [1981] 1 SCR 753, decided on 28 September 1981, included the section 33 override as the price of provincial agreement.

Switzerland, 1999. The Federal Constitution of 18 April 1999, in force from 1 January 2000, the third after those of 1848 and 1874. The problem was that a century and a half of amendments had left the text incoherent. The answer was a total revision that restated rather than reformed, keeping the direct democracy, the collegial executive and the cantonal sovereignty that had been there since 1848.

The United Kingdom, no date. Nothing was adopted. Magna Carta 1215, the Bill of Rights 1689, the Act of Settlement 1700, the Acts of Union, the Parliament Acts 1911 and 1949, the Human Rights Act 1998, the Constitutional Reform Act 2005, the devolution statutes and the European Union (Withdrawal) Act 2018 are a sequence, not a founding.

What the dates explain

Length tracks the problem. The American text is about seven thousand six hundred words because it had one job, to construct a federal government. The Indian text is the longest in the world because it had six.

Rights provisions track the fear. The American Bill of Rights of 1791 is a set of prohibitions on government, because government was the danger. The German basic rights of 1949 begin with dignity and bind all state authority, because the danger had been the destruction of the person. India's Part III forbids untouchability in article 17 and forced labour in article 23, because the danger was private as well as public.

Amending procedures track the trust. The American procedure is the hardest in operation because the framers distrusted majorities. The Swiss procedure gives every amendment to the people because the Swiss trust them most. India's three routes reflect a framer's judgment that different parts of a constitution deserve different protection.

Judicial power tracks the experience. Germany created the strongest constitutional court in Europe in 1951 because it had learned what a compliant judiciary permits. Switzerland forbids review of federal statutes in article 190 because it trusts the referendum instead.

A worked example

Two constitutions written in the same year, 1949, and no two on this list are more different.

Germany. 146 articles. Human dignity first. Militant democracy: article 21(2) allows a party seeking to undermine the free democratic basic order to be declared unconstitutional. Article 79(3) makes some amendments inadmissible. A constructive vote of no confidence. A federal system in which the Lander administer federal law.

India. 395 articles. Sovereignty, justice, liberty, equality and fraternity in the Preamble. Fundamental rights with a guaranteed remedy in article 32. Directive principles that are expressly not enforceable. Emergency provisions occupying nine articles. A federation whose units Parliament can redraw by ordinary law.

Both were written by people who had just seen a State fail. The Germans concluded that the danger was a majority destroying a democracy from inside, and built against it. The Indians concluded that the danger was a State too weak to hold together and too indifferent to transform society, and built for that.

The cases

Facts. Reference re Resolution to Amend the Constitution, [1981] 1 SCR 753, decided on 28 September 1981, arose from the federal government's proposal to seek patriation, an amending formula and a Charter of Rights from the United Kingdom Parliament with the support of two provinces.

Held. Lawful by seven to two; unconstitutional in the conventional sense by six to three, a convention requiring a substantial degree of provincial consent, the Court declining to state a formula.

Why it matters here. It is the reason the Constitution Act 1982 has the shape it has, including the section 33 override, which was the price of provincial agreement in November 1981.

Facts. Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225, was heard by thirteen judges and concerned the extent of the amending power under article 368.

Held, by seven to six. Article 368 confers no power to alter the basic structure or framework of the Constitution.

Why it matters here. It shows a constitution acquiring, twenty three years after adoption, a limit its framers did not write, which is the strongest evidence that a constitution's fundamentals are not exhausted by its founding text.

Distinctions

What beginners get wrong

"The oldest constitution is the best." Age is evidence of durability and of nothing else. The American text is old partly because Article V makes change so hard.

"India copied everything." India borrowed and adapted, and the borrowings are specific: parliamentary government from Britain, fundamental rights and judicial review from America, directive principles from Ireland, a strong centre from Canada, and the federal machinery, the lists and the emergency provisions from the Government of India Act 1935. Worked in [What India Borrowed, and From Where].

"The Swiss Constitution of 1999 is new." It is a total revision that restated the constitutional order of 1848 and 1874. The substance is the oldest continuous democratic tradition on this list after the American.

Limits and criticism

Dates explain design and not performance. Two constitutions written for the same problem in the same year can work very differently.

Founding moments are not the whole story. The American Constitution of 1787 protected slavery; what it means now was decided in 1865, 1868, 1954 and since.

A total revision can conceal continuity. Switzerland's 1999 text looks modern and is mostly the 1874 text rearranged.

Quick revision

1. 1787 United States; 1867 and 1982 Canada; 1937 Ireland; 1949 Germany and India; 1999 Switzerland; no date for the United Kingdom.
2. Each answers its own problem: American distrust of central power; Canadian fear of the units after the civil war; Irish national identity; German fear of democracy destroying itself; Indian integration and transformation; Swiss consolidation.
3. Length tracks the number of problems; the Indian text is the longest national constitution in the world.
4. Rights provisions track the fear: prohibitions in 1791 America, dignity in 1949 Germany, untouchability and forced labour in 1949 India.
5. Amending procedures track the trust: hardest in America, popular in Switzerland, graded in India.
6. Reference re Resolution to Amend the Constitution, [1981] 1 SCR 753: the reason the 1982 Act contains section 33.
7. Kesavananda Bharati, (1973) 4 SCC 225: a constitution can acquire a fundamental its framers did not write.

Test yourself

1. Give the date of each of the seven and the problem it answered. United States 1787, limiting a new central government created by formerly sovereign States. Canada 1867, uniting plural provinces with a strong centre after the American civil war, and 1982, patriation with a Charter. Ireland 1937, replacing a treaty-derived constitution with a popularly adopted one. Germany 1949, preventing a democracy from being destroyed by its own procedures. India 1949, integration, rights, social transformation and emergency. Switzerland 1999, a total revision restating direct democracy and cantonal sovereignty. The United Kingdom, no adoption at all.

2. Why is the Indian Constitution the longest in the world? Because it had more jobs to do than any other on this list: integrating princely States, guaranteeing rights in a society divided by caste, religion and language, distributing power across a subcontinent, providing for social transformation through the directive principles and articles 15 to 17 and 23, and preparing for emergencies, all without a prior tradition of constitutional self-government to leave anything to.

3. Two of the seven were adopted in the same year. Compare them. The German Basic Law and the Indian Constitution, both 1949. Germany answered the destruction of a democracy from within with dignity in article 1, militant democracy in article 21(2), the constructive vote in article 67 and the eternity clause in article 79(3). India answered a different danger with an enforceable Part III and article 32, unenforceable directive principles, nine articles of emergency provisions, and a federation whose units Parliament can redraw by ordinary law.

4. What do the dates not explain? Performance. A constitution's design follows its founding problem, but how it works depends on the political system it sits in, on the courts, and on what happens afterwards. The 1787 American text protected slavery, and what it means today was settled by the Thirteenth and Fourteenth Amendments and by Brown v. Board of Education of Topeka, 347 U.S. 483 (1954), none of which is explained by 1787.

Part V, articles 52 to 151: the Union. Chapter I the executive, articles 52 to 78; Chapter II Parliament, 79 to 122; Chapter III the President's legislative powers, article 123; Chapter IV the Union judiciary, 124 to 147; Chapter V the Comptroller and Auditor-General, articles 148 to 151.

Articles 148 to 151 deserve a sentence, because no chapter of this book teaches them elsewhere. Article 148 creates the office, appointed by the President by warrant under his hand and seal, removable only in the manner provided for a Supreme Court judge, and provides that his salary and conditions shall not be varied to his disadvantage after appointment. Article 149 gives him the duties Parliament prescribes. Article 150 provides for the form of the accounts. Article 151 requires his reports on the Union to be laid before each House of Parliament and on a State before the State legislature. That office is the constitutional auditor and is the mechanism by which the appropriation control in article 114 is made real.

Part VI, articles 152 to 237: the States. The Governor and the State executive, 152 to 167; the State legislature, 168 to 212; the Governor's ordinance power, article 213; the High Courts, 214 to 232; and the subordinate courts, 233 to 237.

Within that Part, articles 178 to 187 provide for the officers of a State legislature: the Speaker and Deputy Speaker of the Assembly and their vacation, resignation and removal, the Chairman and Deputy Chairman of a Council, the power of the Deputy to act, salaries, and the Secretariat of the legislature. Articles 188 to 195 provide for the oath, the penalty for sitting when not qualified, voting and quorum, disqualifications, the decision of questions of disqualification by the Governor on the Election Commission's opinion, vacation of seats, and the powers, privileges and immunities of a House and its members. Article 213 gives the Governor the power to promulgate ordinances when the legislature is not in session, on the same pattern as article 123 and with additional restrictions where the corresponding Bill would have needed the President's previous sanction.

Part VII was omitted by the Seventh Amendment in 1956, which abolished the classification of States into Parts A, B, C and D.

Part VIII, articles 239 to 242: the Union territories.

Part IX, articles 243 to 243-O: the panchayats. Inserted by the Seventy Third Amendment in 1992.

Part IXA, articles 243P to 243ZG: the municipalities. Inserted by the Seventy Fourth Amendment in 1992.

Part IXB, articles 243ZH to 243ZT: co-operative societies. Inserted by the Ninety Seventh Amendment in 2011.

Part X, articles 244 and 244A: the scheduled and tribal areas, with the Fifth and Sixth Schedules.

Part XI, articles 245 to 263: the Union and the States. Legislative relations, 245 to 255; administrative relations, 256 to 263.

Part XII, articles 264 to 300A: finance, property, contracts and suits.

Part XIII, articles 301 to 307: trade, commerce and intercourse.

Part XIV, articles 308 to 323: services under the Union and the States. Article 309 lets the appropriate legislature regulate recruitment and conditions of service, with rules by the President or Governor until it does. Article 310 makes service at pleasure. Article 311 gives the two safeguards: no dismissal or removal by an authority subordinate to that which appointed, and no dismissal, removal or reduction in rank except after an inquiry in which the person has been informed of the charges and given a reasonable opportunity of being heard, subject to the three exceptions in the second proviso. Articles 312 to 312A provide for the All-India Services. Articles 315 to 323 create the Public Service Commissions, fix the tenure and removal of their members, define their functions, and require their annual reports to be laid before the legislature.

Part XIVA, articles 323A and 323B: tribunals. Inserted by the Forty Second Amendment.

Part XV, articles 324 to 329A: elections. Article 324 vests the superintendence, direction and control of elections in the Election Commission. Article 325 forbids a separate electoral roll on grounds of religion, race, caste or sex. Article 326 provides for adult suffrage. Articles 327 and 328 allocate the power to make electoral law. Article 329 bars the courts from questioning any law relating to the delimitation of constituencies and provides that an election may be questioned only by an election petition. Article 329A, which had protected the election of the Prime Minister and the Speaker, was inserted by the Thirty Ninth Amendment and omitted by the Forty Fourth.

Part XVI, articles 330 to 342A: special provisions for certain classes.

Part XVII, articles 343 to 351: official language.

Part XVIII, articles 352 to 360: emergency provisions.

Part XIX, articles 361 to 367: miscellaneous. Article 361 gives the President and the Governors immunity from court process for the exercise of their powers and from criminal proceedings during their term. Article 361A protects the publication of substantially true reports of the proceedings of a legislature. Article 361B disqualifies a defector from a remunerative political post. Article 362 was omitted by the Twenty Sixth Amendment, which abolished privy purses. Article 363 bars the courts from disputes arising out of pre-Constitution treaties with rulers, and article 363A abolishes the recognition of rulers. Article 364 provides for major ports and aerodromes. Article 365 provides that where a State fails to comply with a direction of the Union, the President may hold that a situation has arisen in which the government of the State cannot be carried on in accordance with the Constitution. Articles 366 and 367 are the definition and interpretation articles.

Part XX, article 368: amendment.

Part XXI, articles 369 to 392: temporary, transitional and special provisions, including articles 370 and 371 to 371J.

Within that Part, articles 372 to 378A carry the old legal order into the new one. Article 372 continues in force the laws in force immediately before the commencement, subject to the Constitution, and gave the President power for three years to adapt them. Article 373 dealt with preventive detention pending Parliament's law. Article 374 provided for the judges of the Federal Court and pending proceedings. Articles 375 to 378 continued courts, authorities and officers, and provided for existing legislatures, the Auditor-General and the Public Service Commissions. That group is why Indian law did not begin again in 1950.

Part XXII, articles 393 to 395: short title, commencement, authoritative text in Hindi and repeals. Article 392 gives the President power to remove difficulties. Article 393 gives the short title. Article 394 brought into force at once the articles necessary to constitute the new order and the rest on 26 January 1950. Article 394A, inserted in 1987, provides for the authoritative Hindi text. Article 395 repeals the Indian Independence Act 1947 and the Government of India Act 1935.

The twelve Schedules

First, the States and Union territories. Second, salaries. Third, forms of oath. Fourth, allocation of Rajya Sabha seats. Fifth and Sixth, scheduled and tribal areas. Seventh, the three legislative Lists. Eighth, the languages. Ninth, laws saved from challenge, subject now to I.R. Coelho v. State of Tamil Nadu, (2007) 2 SCC 1. Tenth, anti-defection. Eleventh and Twelfth, the subjects of panchayats and municipalities.

A worked example

A student is asked where in the Constitution to find the answer to four questions.

May a State levy a tax on the entry of goods into a local area? Part XII on finance, and the Seventh Schedule's State List, read with Part XIII on trade and commerce.

Who appoints a High Court judge? Part VI Chapter V, article 217.

May Parliament alter the boundary of a State? Part I, article 3, and note that this is not an amendment under article 368 at all.

What happens to a fundamental right during an emergency? Part XVIII, articles 358 and 359, and not Part III, which says nothing about it.

The habit worth forming is to ask which Part answers a question before asking which article does, because the Parts are arranged by subject and the article numbers are not mnemonic.

The cases

Facts. Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225, was heard by thirteen judges over sixty eight days and concerned the extent of the amending power under article 368 in the context of the Twenty Fourth, Twenty Fifth and Twenty Ninth Amendments.

Held, by seven to six. Article 368 confers no power to alter the basic structure or framework of the Constitution; the Preamble is part of the Constitution and may aid construction.

Why it matters here. The outline above describes a text; this case is why the text is not the whole of the Constitution.

Facts. I.R. Coelho v. State of Tamil Nadu, (2007) 2 SCC 1, concerned laws placed in the Ninth Schedule after 24 April 1973, the date of Kesavananda, and whether article 31B protected them absolutely.

Held, by nine judges. Laws placed in the Ninth Schedule after that date are open to challenge on the ground that they damage or destroy the basic structure, the test being the effect of the law on the rights in Part III read with the basic structure doctrine.

Why it matters here. It fixes the current status of the Ninth Schedule, which the outline would otherwise leave misleading.

Distinctions

What beginners get wrong

"There are 395 articles." There were 395 as originally numbered; amendments have inserted many lettered articles and omitted others, so the count of live articles is different and the numbering runs to 395.

"The Ninth Schedule is a complete shield." Not since Coelho for laws inserted after 24 April 1973.

"Fundamental duties are enforceable." Article 51A creates duties addressed to citizens, and no court enforces them directly, though they inform the construction of statutes and the reasonableness of restrictions.

Limits and criticism

Length invites amendment. A constitution containing detail that elsewhere sits in ordinary law must be amended when the detail changes, which partly explains the amendment count.

Parts VII, and articles 329A and 362, are omitted, so the text carries gaps that confuse a first reader; the omissions are printed in square brackets in the official text.

The outline cannot convey weight. Part IV is fifteen articles and has shaped more Indian public law than Part XIV's sixteen.

Quick revision

1. Preamble; twenty five Parts; twelve Schedules; articles numbered to 395.
2. Articles 1 to 4: Union and territory, and Parliament may redraw a State by ordinary law.
3. Article 51A: eleven fundamental duties, not enforceable.
4. Articles 148 to 151: the Comptroller and Auditor-General.
5. Articles 178 to 195: officers, oath, disqualification and privileges in a State legislature; article 213: the Governor's ordinance power.
6. Articles 308 to 323: services, article 311's two safeguards, and the Public Service Commissions. Articles 324 to 329: elections.
7. Articles 361 to 367: immunities and interpretation. Articles 372 to 378: continuance of the old legal order. Articles 392 to 395: commencement and repeals.

Test yourself

1. Name the Parts of the Constitution dealing with the Union and with the States, and their article ranges. Part V, articles 52 to 151, covers the Union: the executive 52 to 78, Parliament 79 to 122, the ordinance power 123, the Union judiciary 124 to 147 and the Comptroller and Auditor-General 148 to 151. Part VI, articles 152 to 237, covers the States: the executive 152 to 167, the legislature 168 to 212, the ordinance power 213, the High Courts 214 to 232 and the subordinate courts 233 to 237.

2. What do articles 372 to 378 do, and why do they matter? They carry the pre-existing legal order into the new constitutional order: article 372 continues in force the laws in force immediately before the commencement subject to the Constitution, and articles 373 to 378 continue courts, authorities, officers, legislatures, the Auditor-General and the Public Service Commissions. Without them Indian law would have had to begin again on 26 January 1950.

3. State the two safeguards in article 311 and their exceptions. No person in a civil service of the Union or a State may be dismissed or removed by an authority subordinate to that by which he was appointed; and no such person may be dismissed, removed or reduced in rank except after an inquiry in which he has been informed of the charges and given a reasonable opportunity of being heard. The second proviso excepts dismissal on conviction for a criminal charge, cases where the authority records in writing that it is not reasonably practicable to hold an inquiry, and cases where the President or Governor is satisfied that in the interest of the security of the State it is not expedient to hold one.

4. What is the present status of the Ninth Schedule? Article 31B protects the laws placed in it from challenge on the ground of inconsistency with Part III. Since I.R. Coelho v. State of Tamil Nadu, (2007) 2 SCC 1, a law placed in the Schedule after 24 April 1973, the date of Kesavananda Bharati, may still be challenged on the ground that it damages or destroys the basic structure, the test being the effect of the law on Part III rights read with that doctrine.

Section 9: prohibitions on the United States. The migration clause, the suspension of habeas corpus only in cases of rebellion or invasion, no bill of attainder or ex post facto law, no capitation or direct tax except in proportion to the census, no tax on exports, no preference to the ports of one State, no money drawn from the Treasury but in consequence of appropriations made by law, and no title of nobility.

Section 10: prohibitions on the States. No treaty, coinage, bill of attainder, ex post facto law, or law impairing the obligation of contracts, and no imposts or duties on imports or exports without the consent of Congress.

Article II: the executive

Section 1 vests the executive power in a President, provides for the four-year term, the electors, the qualifications, the succession and the oath. Section 2 gives the command of the forces, the opinion in writing of the principal officer in each department, the pardon power, the treaty power with two thirds of the senators present concurring, and the appointment power with the advice and consent of the Senate. Section 3 requires information to Congress and the recommendation of measures, permits the convening of the Houses, requires the receipt of ambassadors and imposes the duty to take care that the laws be faithfully executed. Section 4 provides for removal on impeachment for treason, bribery, or other high crimes and misdemeanours.

Article III: the judiciary

Section 1 vests the judicial power in one Supreme Court and such inferior courts as Congress may establish, and provides that the judges shall hold their offices during good behaviour and shall receive compensation which shall not be diminished during their continuance in office. Section 2 defines the judicial power as extending to cases and controversies of nine described kinds, fixes the original jurisdiction of the Supreme Court and makes the rest appellate with such exceptions and under such regulations as Congress shall make, and requires trial by jury for crimes. Section 3 defines treason narrowly, requiring the testimony of two witnesses to the same overt act or confession in open court.

Article IV: the States among themselves

Full faith and credit to the public acts, records and judicial proceedings of every other State; the privileges and immunities of citizens in the several States; extradition; the admission of new States and the power of Congress over territory; and the guarantee to every State of a republican form of government and protection against invasion and domestic violence.

Articles V, VI and VII

Article V: amendment. Proposal by two thirds of both Houses or by a convention called on the application of two thirds of the State legislatures, and ratification by three quarters of the States by legislature or by convention, with two entrenchments, one now spent concerning the slave trade before 1808, and one still operative, that no State shall be deprived of its equal suffrage in the Senate without its consent.

Article VI: supremacy. Debts contracted before adoption remain valid; this Constitution and the laws made in pursuance thereof and treaties made under the authority of the United States shall be the supreme law of the land and the judges in every State shall be bound thereby; and all officers shall be bound by oath, but no religious test shall ever be required.

Article VII: ratification. The ratification of the conventions of nine States shall be sufficient for the establishment of this Constitution between the States so ratifying.

The Amendments, grouped

One to ten, 1791, the Bill of Rights. Speech, religion, assembly and petition; arms; quartering; searches and seizures; grand jury, double jeopardy, self-incrimination, due process and just compensation; speedy and public trial by jury, confrontation and counsel; civil jury; excessive bail and cruel and unusual punishment; unenumerated rights retained by the people; and powers reserved to the States or the people.

Eleven and twelve. Suits against a State; separate ballots for President and Vice President.

Thirteen to fifteen, 1865 to 1870, Reconstruction. Abolition of slavery; citizenship, privileges or immunities, due process and equal protection; and the vote regardless of race.

The opening words of the Fourteenth Amendment, that all persons born or naturalised in the United States and subject to its jurisdiction are citizens of the United States and of the State wherein they reside, were written to reverse a decision of this Court. Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1857), had held that a person of African descent whose ancestors were brought into the country and sold as slaves was not a citizen within the meaning of the Constitution, so that the privileges and immunities it secures to citizens did not apply to him and a federal court had no jurisdiction of his suit. An amendment is the only route by which a constitutional holding can be reversed in the United States, and this is the clearest instance of that route being taken.

Sixteen to nineteen. Income tax; direct election of senators; prohibition; women's suffrage.

Twenty to twenty seven. Terms of office; repeal of prohibition; two-term limit; District of Columbia electors; abolition of the poll tax; presidential succession and disability; the vote at eighteen; and congressional pay, proposed in 1789 and ratified in 1992.

A worked example

Four questions, and where the text answers each.

May Congress create a federal criminal offence? Article I section 8, and if the offence is not within an enumerated head, the necessary and proper clause, subject to the Tenth Amendment.

Who may remove a President? Article I sections 2 and 3, impeachment by the House and trial by the Senate, with the Chief Justice presiding on the trial of a President.

May a State refuse to recognise a judgment of another State's court? Article IV section 1, full faith and credit.

How is a constitutional decision of the Supreme Court reversed? Article V, and nothing else, which is why so much turns on whether the Court will reconsider its own decisions.

Notice how little of this is in the amendments: the structure is all in the seven articles, and the amendments are almost entirely about rights and about the mechanics of office.

The cases

Facts. McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819), concerned Maryland's tax on the notes of the Baltimore branch of the Second Bank of the United States, and required the Court to decide whether Congress could incorporate a bank at all and whether a State could tax it.

Held, by Marshall CJ for a unanimous Court. Congress has power to incorporate a bank: if the end be legitimate and within the scope of the constitution, all means which are appropriate, plainly adapted to that end and not prohibited may constitutionally be employed. And the Maryland Act was contrary to the Constitution of the United States and void, the judgment of the Court of Appeals of Maryland being reversed and annulled.

Why it matters here. It construes the necessary and proper clause at the end of Article I section 8 and establishes implied powers, which is what makes a short constitution governable.

Facts. Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1857), was an action in a federal Circuit Court by a man held as a slave in Missouri, who asserted his freedom on the ground that his owner had taken him to a free State and to territory north of the line in which the Missouri Compromise of 1820 prohibited slavery. The defendant pleaded to the jurisdiction that Scott was not a citizen of Missouri, being of African descent and the son of ancestors brought into the country and sold as slaves.

Held, by Taney CJ for the Court, McLean and Curtis JJ dissenting. A person of that description was not a citizen within the meaning of the Constitution, so the privileges and immunities secured to citizens did not apply and the Circuit Court had no jurisdiction. The Court went further and held that the Act of Congress which prohibited a citizen from holding property of that kind in the territory north of the line was not warranted by the Constitution and was therefore void, so neither Scott nor his family had been made free by being carried there; six judges declared the eighth section of the Act of 1820 unconstitutional.

Why it matters here. It is the second occasion on which the Court held an Act of Congress unconstitutional, after Marbury, and it is the decision the Thirteenth and Fourteenth Amendments were written to reverse, which is why it belongs with the amendments rather than with the articles.

Facts. Texas v. White, 74 U.S. (7 Wall.) 700 (1869), was a suit by Texas to recover United States bonds sold by its Confederate-era government, maintainable only if Texas had remained a State throughout the rebellion.

Held, by Chase CJ for the Court. Texas had never left the Union. The Constitution, in all its provisions, looks to an indestructible Union composed of indestructible States, and admission was not a compact but the incorporation of a new member into the political body, and it was final.

Why it matters here. It answers, for the United States, the question the Supreme Court of Canada answered differently in Reference re Secession of Quebec, [1998] 2 SCR 217, decided on 20 August 1998.

Distinctions

What beginners get wrong

"Article V and the Fifth Amendment are related." They are two separate numbering series. Article V is amendment; the Fifth Amendment is due process, self-incrimination and just compensation.

"The Bill of Rights binds the States." Not originally. It bound only the federal government, and it reached the States through the Fourteenth Amendment's due process clause by the process called incorporation, of which Mapp v. Ohio, 367 U.S. 643 (1961), and Gideon v. Wainwright, 372 U.S. 335 (1963), are examples.

"The Constitution says the Supreme Court may strike down statutes." It does not. The power was inferred in Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803), from Article VI and from the nature of a written constitution.

Limits and criticism

Brevity leaves everything to interpretation. What the commerce clause reaches has changed several times, and each change was a change in the government's power without a change in the text.

Article V has made the document nearly unamendable. Twenty seven amendments in two hundred and thirty seven years, and none since 1992.

The original document accommodated slavery, in the three fifths clause, the migration clause of Article I section 9 and the fugitive clause of Article IV, and its removal took a war and the Thirteenth Amendment.

Quick revision

1. Preamble and seven Articles; about 7,600 words; twenty seven Amendments.
2. Article I: composition, section 7 bicameralism and presentment, section 8 the eighteen powers, sections 9 and 10 the prohibitions.
3. Article II: the executive, four sections, ending with impeachment.
4. Article III: one Supreme Court, tenure during good behaviour, cases and controversies, treason defined.
5. Article IV: full faith and credit, privileges and immunities, extradition, new States, the guarantee clause.
6. Articles V, VI and VII: amendment, supremacy and no religious test, ratification by nine States.
7. McCulloch v. Maryland, 17 U.S. 316 (1819): implied powers. Texas v. White, 74 U.S. 700 (1869): an indestructible Union of indestructible States.

Test yourself

1. Set out the structure of Article I. Sections 1 to 6 constitute Congress: the vesting clause, the House, the Senate, elections and meetings, the rules of each House, and compensation with the speech or debate privilege and the incompatibility rule. Section 7 provides how a Bill becomes law. Section 8 enumerates eighteen powers ending with the necessary and proper clause. Section 9 prohibits certain acts to the United States, and section 10 prohibits certain acts to the States.

2. Which two entrenchments does Article V contain? That no amendment made before 1808 should affect the first and fourth clauses of Article I section 9, which concerned the migration or importation of persons and direct taxes, a limit now spent; and that no State shall, without its consent, be deprived of its equal suffrage in the Senate, which is still operative and is the only permanently entrenched provision in the American Constitution.

3. What did McCulloch v. Maryland decide about the necessary and proper clause? That Congress is not confined to the means expressly listed. If the end is legitimate and within the scope of the constitution, all means which are appropriate, which are plainly adapted to that end and which are not prohibited may constitutionally be employed. The Court accordingly upheld the incorporation of the bank and held Maryland's tax on it contrary to the Constitution and void.

4. Compare the Preamble of the American Constitution with the Indian Preamble in legal effect. The American Preamble states purposes and confers no power, and the Supreme Court has treated it as a statement of aims. The Indian Preamble was held in Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225, to be part of the Constitution and available in construing it, and its objects have been treated as evidence of the basic structure.

Human Rights Act 1998. Section 1 defines the Convention rights. Section 2 requires a court to take into account the jurisprudence of the European Court of Human Rights. Section 3 requires legislation to be read and given effect compatibly with the Convention rights so far as it is possible to do so. Section 4 permits a declaration of incompatibility, which by section 4(6) does not affect the validity, continuing operation or enforcement of the provision and is not binding on the parties. Section 6 makes it unlawful for a public authority to act incompatibly with a Convention right, excluding either House of Parliament. Sections 7 and 8 provide the proceedings and remedies. Section 10 permits a remedial order. Section 19 requires a minister in charge of a Bill to make a statement of compatibility, or a statement that although he is unable to do so the government nevertheless wishes the House to proceed.

Constitutional Reform Act 2005. Section 1 provides that the Act does not adversely affect the existing constitutional principle of the rule of law or the Lord Chancellor's role in relation to it. Section 3(1) requires the Lord Chancellor, other ministers and all with responsibility for the judiciary or the administration of justice to uphold the continued independence of the judiciary. Section 23 creates the Supreme Court of the United Kingdom, with a maximum full-time equivalent number of judges of twelve. Section 33 provides that a judge of the Supreme Court holds office during good behaviour but may be removed on the address of both Houses. Section 40 makes the Court a superior court of record with an appeal from the Court of Appeal in civil proceedings. Section 61 creates the Judicial Appointments Commission.

European Union (Withdrawal) Act 2018, section 1. The European Communities Act 1972 is repealed on exit day. It came into force on 17 August 2019 by S.I. 2019/1198.

Dissolution and Calling of Parliament Act 2022. Section 1 repeals the Fixed-term Parliaments Act 2011. Section 2 revives the prerogative powers relating to dissolution and the calling of a new Parliament as if the 2011 Act had never been enacted. Section 3 provides that a court or tribunal may not question the exercise or purported exercise of those powers, any decision or purported decision relating to them, or the limits or extent of those powers. Section 4 provides for automatic dissolution five years after the first meeting of Parliament.

The other sources

The prerogative. The residue of discretionary authority left in the Crown, exercised on ministerial advice: foreign affairs, treaties, the deployment of the armed forces, pardons, honours, and since 2022 dissolution.

The common law. Entick v. Carrington, (1765) 19 St Tr 1029, on the requirement of legal authority for executive action, is constitutional law made by a court and by nothing else.

Conventions. Treated in [The Conventions of the United Kingdom].

Works of authority. Erskine May on parliamentary practice, Dicey, Bagehot. Evidence of practice, not law.

What is current and often misstated

The Human Rights Act is switched off for one subject matter. The statute database records sections 2, 3 and 6 to 9 as excluded, from 25 April 2024, by the Safety of Rwanda (Asylum and Immigration) Act 2024, sections 2(5)(b), 3 and 10(1). That is the sharpest available demonstration of what parliamentary sovereignty still means, and it is more recent than most textbooks.

Constitutional statutes resist implied repeal. Thoburn v. Sunderland City Council, [2002] EWHC 195 (Admin), and the doctrine has not been disturbed.

Prorogation is reviewable and dissolution is not. R (Miller) v. The Prime Minister, [2019] UKSC 41, for the first; section 3 of the 2022 Act for the second.

A worked example

A student is asked to produce "the constitution of the United Kingdom" for four propositions.

That Parliament may legislate on anything. No document says so. The proposition comes from Dicey's account and from decisions of the courts accepting it.

That the courts may review the exercise of the prerogative. Case law, and the Constitutional Reform Act 2005 for the courts' own position.

That the Scottish Parliament may not legislate outside its competence. A statute, the Scotland Act 1998, whose sections say it in terms.

That a government defeated on confidence must resign or seek a dissolution. A convention, written down only in a Cabinet manual which is not law.

The exercise is the chapter: four propositions of the same constitution, three different kinds of source and one with no source at all.

The cases

Facts. Thoburn v. Sunderland City Council, [2002] EWHC 195 (Admin), [2003] QB 151, was a prosecution of market traders for selling in imperial units, in which it was argued that the Weights and Measures Act 1985, being later, had impliedly repealed the European Communities Act 1972 to the extent of any inconsistency.

Held, by Laws LJ and Crane J. The common law had created exceptions to the doctrine of implied repeal, which was always the common law's own creature; there are classes of legislative provision which cannot be repealed by mere implication, and the European Communities Act is a constitutional statute of that class; which statutes are constitutional is for the courts, to which the scope and nature of parliamentary sovereignty are ultimately confided.

Why it matters here. It supplies the hierarchy of laws an uncodified constitution otherwise lacks.

Facts. A v. Secretary of State for the Home Department, [2004] UKHL 56, concerned section 23 of the Anti-terrorism, Crime and Security Act 2001, permitting the indefinite detention without trial of foreign nationals suspected of international terrorism, under a derogation from article 5 of the Convention.

Held, by a House of nine, Lord Walker dissenting. The derogation order was quashed and a declaration made under section 4 of the Human Rights Act 1998 that section 23 was incompatible with articles 5 and 14 of the Convention, in so far as it was disproportionate and permitted detention in a way that discriminated on the ground of nationality or immigration status. Lord Nicholls: indefinite imprisonment without charge or trial is anathema in any country which observes the rule of law.

Why it matters here. It is the working of the Human Rights Act in a single case, and it shows what a declaration of incompatibility does and does not do.

Distinctions

What beginners get wrong

"There is no constitutional law in the United Kingdom." There is a great deal, and the four leading modern cases, Thoburn, Jackson, Miller No 1 and Miller No 2, span fifteen years.

"The Human Rights Act gives British courts power to strike down statutes." It does not. Section 3 requires compatible reading where possible; section 4 permits a declaration which by section 4(6) leaves the provision fully effective.

"The Act of Settlement still governs judicial tenure." For the senior judiciary of England and Wales the live provision is section 11(3) of the Senior Courts Act 1981, and for the Supreme Court section 33 of the Constitutional Reform Act 2005.

Limits and criticism

Nothing is entrenched. Any Act can change any rule, subject only to the Thoburn doctrine about implied repeal, which does not prevent express repeal.

The prerogative can be revived. Section 2 of the 2022 Act shows that placing a power on a statutory footing does not settle the matter.

Rights protection depends on Parliament's forbearance. The Safety of Rwanda Act 2024 is the current evidence.

Quick revision

1. Sources: statutes, prerogative, common law, conventions, works of authority.
2. Magna Carta 1297 c.XXIX; Bill of Rights 1689 art.9; Act of Settlement 1700, superseded for tenure by Senior Courts Act 1981 s.11(3).
3. Parliament Act 1911 ss.1 and 2, as amended in 1949; the duration of Parliament is excluded from s.2.
4. Human Rights Act 1998: ss.1, 2, 3, 4 and 4(6), 6, 7, 8, 10 and 19.
5. Constitutional Reform Act 2005: ss.1, 3, 23, 33, 40 and 61.
6. European Union (Withdrawal) Act 2018 s.1; Dissolution and Calling of Parliament Act 2022 ss.1 to 4.
7. Thoburn, [2002] EWHC 195 (Admin), on constitutional statutes; A v. Secretary of State, [2004] UKHL 56, on the declaration of incompatibility.

Test yourself

1. Name six statutes of the British constitution and say what each contributes. Magna Carta 1297 c.XXIX, the guarantee of judgment by peers or the law of the land. Bill of Rights 1689 art.9, freedom of speech in Parliament. Parliament Acts 1911 and 1949, the primacy of the Commons and the deadlock procedure. Human Rights Act 1998, the Convention rights with an interpretive duty and a declaration of incompatibility. Constitutional Reform Act 2005, judicial independence, the Supreme Court and the Judicial Appointments Commission. Dissolution and Calling of Parliament Act 2022, the revived prerogative of dissolution with an ouster clause.

2. What can a British court do when a statute breaches a Convention right? Three things. Read it compatibly under section 3 of the Human Rights Act 1998, so far as it is possible to do so. If that is impossible, declare the incompatibility under section 4, which by section 4(6) does not affect the validity, continuing operation or enforcement of the provision and does not bind the parties. And where the complaint is of an act of a public authority rather than of the statute, grant a remedy under sections 7 and 8.

3. What is the current position of the Human Rights Act, and why does it matter? Sections 2, 3 and 6 to 9 are excluded, from 25 April 2024, for the subject matter of the Safety of Rwanda (Asylum and Immigration) Act 2024 by its sections 2(5)(b), 3 and 10(1). It matters because it is the plainest modern demonstration that in the United Kingdom rights protection is statutory and can be withdrawn by an ordinary Act, which is what distinguishes it from every other system on this syllabus.

4. Why is the doctrine in Thoburn important for classifying the British constitution? Because it gives an uncodified constitution the one thing a codified one has by definition: a hierarchy of laws. Constitutional statutes are immune from implied repeal, so an ordinary later Act does not displace them unless it says so expressly, and the courts decide which statutes are constitutional.

Article 36 is the limitation clause and is the Swiss counterpart of section 1 of the Canadian Charter and of article 19(2) to (6) of the Indian Constitution: restrictions on fundamental rights must have a legal basis, significant restrictions must be provided for by federal act; restrictions must be justified in the public interest or for the protection of the fundamental rights of others; they must be proportionate; and the essence of fundamental rights is inviolable.

Articles 37 to 40: citizenship. Article 37 gives every person who is a citizen of a commune and of the canton to which that commune belongs Swiss citizenship, so citizenship is communal, cantonal and federal at once, and provides that no person may be privileged or disadvantaged because of their citizenship of a commune or canton. Article 38 gives the Confederation power over the acquisition and loss of citizenship by descent, marriage and adoption and over naturalisation. Article 39 governs the exercise of political rights at federal, cantonal and communal level and provides that political rights are exercised at the place of domicile. Article 40 covers the Swiss abroad.

Article 41: social goals. The Confederation and the cantons shall endeavour to ensure that every person has access to social security, health care, work on fair conditions, suitable accommodation, education and provision for old age, and that children and young people are encouraged to develop into independent and socially responsible persons. Article 41(4) then provides that no direct right to state benefits may be established on the basis of these social goals.

That last sentence is the point, and it is the Swiss version of article 37 of the Indian Constitution. Switzerland states social objectives and denies them justiciability in the same article.

Title 3, articles 42 to 135: Confederation, cantons and communes

Articles 42 to 53 govern the relationship: the tasks of the Confederation, subsidiarity in article 43a, mutual co-operation and support in article 44, the participation of the cantons in federal decision-making, the implementation of federal law by the cantons in article 46, the autonomy of the cantons in article 47, intercantonal agreements in article 48, the primacy of federal law in article 49, the guarantee of communal autonomy in article 50, and the guarantee of cantonal constitutions and of cantonal order in articles 51 to 53. Articles 54 to 56 give the Confederation foreign relations and give the cantons a part in them.

Articles 57 to 135 are the substantive competences, from security, education and culture through the environment, public works, energy, economy, housing, employment, social security and health, residence, private law and criminal law, to the financial regime in articles 126 to 135, which includes federal taxation and the equalisation of financial resources and burdens.

Title 4, articles 136 to 142: the people and the cantons

Article 136 gives political rights to all Swiss citizens over eighteen. Article 138 provides for a popular initiative for the total revision of the Constitution, and article 139 for a popular initiative for a partial revision, requiring a hundred thousand signatures within eighteen months. Article 140 makes a referendum mandatory for amendments to the Constitution, for accession to organisations for collective security or supranational communities, and for urgent federal acts without a constitutional basis. Article 141 provides the optional referendum: fifty thousand persons eligible to vote or eight cantons may request that a federal act, or certain other measures, be put to a vote within a hundred days of publication. Article 142 provides the majorities required, including the double majority of the people and the cantons.

Title 5, articles 143 to 191c: the federal authorities

The Federal Assembly, articles 148 to 173; the Federal Council and the Federal Administration, articles 174 to 187; and the Federal Supreme Court and other judicial authorities, articles 188 to 191c, including article 190, which provides that federal acts and international law are binding on the Federal Supreme Court and the other authorities applying the law.

Title 6, articles 192 to 197: revision and transitional provisions

Article 192 permits total or partial revision at any time. Article 193 governs total revision, article 194 partial revision, and article 195 provides that the revised Constitution or its revised parts come into force when approved by the people and the cantons. Articles 196 and 197 carry the transitional provisions, which is where amendments approved by referendum are placed.

A worked example

Four questions, answered from the Swiss text.

May the Federal Supreme Court set aside a federal Act for unconstitutionality? No. Article 190 requires it to apply federal acts and international law.

Who decides whether the Confederation may act at all? Article 3, the cantons being sovereign in so far as their sovereignty is not limited by the Federal Constitution, and article 42, the Confederation fulfilling the duties assigned to it by the Constitution.

How is the Constitution amended? By a popular initiative or a parliamentary proposal, and a double majority of the people and the cantons.

Who is head of State? Nobody in particular. The Federal Council is a collegial body of seven, and the President of the Confederation presides for a year.

The habit worth forming here is the opposite of the Indian one: in Switzerland, ask what the people may do before asking what a court may do.

The cases

There is no Swiss case in this book. The Federal Supreme Court publishes its decisions in German, French and Italian and not in English, so no Swiss judgment has been read in the original for this book and none is cited as authority anywhere in it. Every Swiss proposition here rests on the Federal Constitution in the Confederation's own English version, which is a translation with no legal force and with the same article numbering as the German text.

Two decisions of other courts illuminate the Swiss design by contrast.

Facts. Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803), concerned an undelivered commission and a statute purporting to enlarge the Supreme Court's original jurisdiction.

Held, by Marshall CJ. A legislative act contrary to the constitution is void, and it is emphatically the province and duty of the judicial department to say what the law is.

Why it matters here. Article 190 of the Swiss Constitution is the deliberate rejection of that conclusion for federal acts, and the Swiss substitute is the referendum in article 141.

Facts. Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225, concerned the limits of the amending power.

Held, by seven to six. No power to alter the basic structure.

Why it matters here. Switzerland has no such doctrine. Article 139(3) provides only that where a popular initiative fails to respect the requirements of consistency of form and of subject matter, or infringes mandatory provisions of international law, the Federal Assembly shall declare it invalid in whole or in part. That is the whole of the Swiss limit on constitutional amendment.

Distinctions

What beginners get wrong

"The Swiss Constitution has no bill of rights." Articles 7 to 36 are a full modern bill of rights with a limitation clause.

"Swiss courts cannot review anything." Article 190 bars review of federal acts. Cantonal law is reviewable, and so is federal executive action.

"Article 3 makes Switzerland a confederation." The name is historical. Article 3 leaves residual sovereignty with the cantons, which makes it a federation of the coming-together kind, like the United States.

Limits and criticism

Direct democracy can produce provisions inconsistent with international obligations, and article 139(3) is the only filter.

Article 190 means an unconstitutional federal act stays law unless the electorate rejects it or the Assembly repeals it.

The text is long for what it does, because the competences in articles 57 to 135 are set out in detail, and each amendment by initiative adds to them.

Quick revision

1. 197 articles in six Titles; adopted 18 April 1999, in force 1 January 2000.
2. Title 1, articles 1 to 6: article 3 cantonal sovereignty, article 4 four national languages, article 5 rule of law, article 5a subsidiarity.
3. Title 2: articles 7 to 36 fundamental rights with the limitation clause in article 36; articles 37 to 40 citizenship, communal, cantonal and federal; article 41 social goals with no direct right under article 41(4).
4. Title 3: articles 42 to 56 the federal relationship; articles 57 to 135 the competences and the financial regime.
5. Title 4: articles 136 to 142, initiative, mandatory and optional referendum, and the double majority.
6. Title 5: the Assembly, the Council and the courts, including article 190.
7. Title 6: articles 192 to 197, total and partial revision.

Test yourself

1. State article 3 and explain its significance. The cantons are sovereign except to the extent that their sovereignty is limited by the Federal Constitution, and they exercise all rights that are not vested in the Confederation. It is the residuary clause of a coming-together federation: the units keep everything not given away, which is the opposite of article 248 of the Indian Constitution and of the peace, order and good government words in section 91 of the Constitution Act 1867.

2. What does article 36 require of a restriction on a fundamental right? A legal basis, with significant restrictions provided for by federal act; justification in the public interest or for the protection of the fundamental rights of others; proportionality; and respect for the essence of the right, which is declared inviolable.

3. Compare article 41 of the Swiss Constitution with article 37 of the Indian. Both state social objectives and deny them justiciability. Article 41 requires the Confederation and the cantons to endeavour to ensure access to social security, health care, work, accommodation, education and provision for old age, and article 41(4) provides that no direct right to state benefits may be established on its basis. Article 37 of the Indian Constitution declares the directive principles not enforceable by any court while making them fundamental in the governance of the country.

4. Why does this book cite no Swiss judgment? Because the Federal Supreme Court publishes in German, French and Italian only, and no Swiss judgment has been read in the original for this book. Every Swiss proposition rests instead on the Federal Constitution's own text in the Confederation's official English version, which the Chancellery publishes for information and which carries the same article numbers as the German.

Articles 15 to 27: the National Parliament

Article 15.2.1 is the provision that decides Ireland's classification: the sole and exclusive power of making laws for the State is hereby vested in the Oireachtas, and no other legislative authority has power to make laws for the State.

Article 16 provides for Dail Eireann, elected on the system of proportional representation by means of the single transferable vote in constituencies of not fewer than three members, with Article 16.5 fixing the maximum life of a Dail at seven years, in practice five by statute. Article 18 constitutes Seanad Eireann of sixty members: eleven nominated by the Taoiseach, six elected by the universities and forty three from vocational panels. Article 21 confines the Seanad on Money Bills to twenty one days for recommendations. Article 23 gives it ninety days on other Bills, after which the Dail may within a hundred and eighty days resolve that the Bill is deemed to have been passed. Article 25 provides for signature and promulgation. Article 26 permits the President, after consulting the Council of State, to refer a Bill other than a Money Bill or an amendment Bill to the Supreme Court, and if upheld its validity can never afterwards be questioned. Article 27 permits a majority of the Seanad and a third of the Dail to petition the President to decline to sign a Bill of national importance until the people have decided.

Articles 28 to 33: the Government and the offices of State

Article 28 constitutes the Government of not fewer than seven and not more than fifteen members; Article 28.4.1 makes it responsible to Dail Eireann; Article 28.4.2 makes it meet and act as a collective authority and be collectively responsible; Article 28.7 requires the Taoiseach, the Tanaiste and the Minister for Finance to be members of the Dail and the others to be members of either House; Article 28.10 requires the Taoiseach to resign on ceasing to retain the support of a majority in the Dail unless on his advice the President dissolves. Article 28.3.3 is the emergency provision, that nothing in the Constitution shall invalidate any law enacted in time of war or armed rebellion.

Article 28A, inserted by the Twentieth Amendment in 1999, recognises the role of local government in providing a forum for the democratic representation of local communities and requires local elections at least every five years.

Article 29 governs international relations and contains, in Article 29.4, the provisions on the European Union added by successive amendments. Article 30 provides for the Attorney General. Articles 31 and 32 constitute the Council of State. Article 33 provides for the Comptroller and Auditor General, appointed by the President on the nomination of the Dail and removable only for stated misbehaviour or incapacity on resolutions of both Houses.

Articles 34 to 39: the courts and the trial of offences

Article 34 provides that justice shall be administered in courts established by law by judges appointed in the manner provided, and in public save in special and limited cases prescribed by law. Article 34.3.2 gives the High Court jurisdiction to question the validity of a law having regard to the Constitution. Article 35 protects judicial independence and provides for removal only for stated misbehaviour or incapacity on resolutions of both Houses. Articles 38 and 39 govern the trial of offences and define treason.

Articles 40 to 44: fundamental rights

Article 40.1 equality before the law; Article 40.3 the personal rights, including the State's undertaking to defend and vindicate the life, person, good name and property rights of every citizen; Article 40.4 personal liberty and habeas corpus; Article 40.6 freedom of expression, assembly and association. Article 41 the family; Article 42 education, with Article 42A on children inserted in 2012; Article 43 private property; Article 44 religion, Article 44.2.1 guaranteeing freedom of conscience and the free profession and practice of religion.

Article 45: the directive principles of social policy

The Article opens by declaring that the principles of social policy set forth in this Article are intended for the general guidance of the Oireachtas, that their application in the making of laws shall be the care of the Oireachtas exclusively, and that they shall not be cognisable by any Court under any of the provisions of this Constitution.

This is the article India adapted into Part IV, and the comparison is worked in [Directive Principles: Ireland and India].

Articles 46 to 50: amendment and transition

Article 46 provides that any provision may be amended by a Bill passed by both Houses and submitted by referendum to the decision of the people, and that no other proposal shall be contained in such a Bill. Article 47 provides that a proposal is approved if a majority of the votes cast is in favour. Article 48 repeals the Constitution of Saorstat Eireann. Article 49 vests in the State the powers exercisable by the authorities of the former government. Article 50 continues in force the laws in force immediately before the coming into operation of the Constitution, to the extent that they are not inconsistent with it, until repealed or amended.

A worked example

Four questions, answered from the Irish text.

May the President refuse to sign a Bill? Not at will. Under Article 26 he may refer it to the Supreme Court after consulting the Council of State, and must decline to sign if the Court finds it repugnant.

May a court enforce the directive principles? No. Article 45 states that they are for the general guidance of the Oireachtas only and shall not be cognisable by any court.

May the State be sued? The question is not answered on the face of the text, and Irish law worked it out judicially.

How is the Constitution amended? Article 46, by a Bill passed by both Houses and approved at a referendum, with no parliamentary special majority and no ratifying units, because Ireland is unitary.

The Irish contribution to this paper is Article 45, whose language was carried into Part IV of the Indian Constitution, and Article 26, which is the only binding pre-enactment reference on the syllabus.

The cases

Facts. Crotty v. An Taoiseach, [1987] IESC 4, decided on 9 April 1987, concerned Ireland's proposed ratification of the Single European Act, Title III of which committed the State to European co-operation in foreign policy. The Third Amendment of 1972 had authorised the State to join the three Communities identified by their founding Treaties and provided that no provision of the Constitution invalidates laws or acts necessitated by the obligations of membership.

Held, by the Supreme Court of Ireland. The Third Amendment authorised joining the three Communities as identified; ratification of the Single European Act would not be an act necessitated by the obligations of membership; ratification therefore required an amendment of the Constitution, which under Article 46 means a referendum.

Why it matters here. It is why Ireland has held a referendum on every European treaty since, and it is the strongest illustration in this syllabus of a rigid amending procedure controlling foreign policy.

Facts. Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225, concerned the limits of the amending power under article 368.

Held, by seven to six. No power to alter the basic structure.

Why it matters here. Ireland has the opposite rule. Article 46 makes every amendment a matter for the people, and the Irish Supreme Court has held that a duly enacted amendment cannot be reviewed for consistency with the rest of the Constitution, because the people are the source of the Constitution's authority under Article 6.

Distinctions

What beginners get wrong

"Ireland is federal." Article 15.2.1 vests the sole and exclusive legislative power in the Oireachtas. Article 28A guarantees local government and does not create a second legislature.

"The Irish President is powerful because he is directly elected." Article 13.9 confines him to acting on the advice of the Government except in the enumerated discretionary cases.

"Article 45 is the same as Part IV of the Indian Constitution." It is the model for it and is narrower: Article 45 covers social policy alone, while Part IV runs from village panchayats and the uniform civil code to international peace.

Limits and criticism

A referendum for every amendment is slow. Ireland has held about forty amendment referendums, and several have failed.

Article 28.3.3 is a wide emergency saving. It provides that nothing in the Constitution shall invalidate a law expressed to be for securing public safety and preservation of the State in time of war or armed rebellion.

The Seanad is weak and has survived attempts at abolition, most recently by referendum in 2013.

Quick revision

1. Fifty Articles, adopted by referendum 1 July 1937, in force 29 December 1937.
2. Articles 1 to 3: the Nation, with Articles 2 and 3 replaced in 1998.
3. Articles 4 to 11: the State, languages, citizenship, natural resources and the one fund.
4. Articles 12 to 14: the President; Article 13.9 acting on advice; Article 13.2.2 refusal of a dissolution.
5. Article 15.2.1: sole and exclusive legislative power in the Oireachtas. Articles 21, 23, 26 and 27 on Bills.
6. Articles 28 to 33: the Government, Article 28A local government, Article 29 international relations, Articles 30 to 33 the offices of State.
7. Articles 40 to 44 rights; Article 45 directive principles; Articles 46 and 47 amendment; Articles 48 to 50 repeal, powers and continuance of laws.

Test yourself

1. What does Article 15.2.1 provide, and what follows for classification? That the sole and exclusive power of making laws for the State is vested in the Oireachtas and that no other legislative authority has power to make laws for the State. It follows that Ireland is a unitary State: there is no second order of legislature holding power under the Constitution, and Article 28A's guarantee of local government does not create one.

2. Set out the Irish amending procedure. Article 46 requires a proposal for amendment to be initiated in Dail Eireann as a Bill, to be passed or deemed passed by both Houses, and then to be submitted by referendum to the decision of the people, and no other proposal may be contained in such a Bill. Article 47 provides that the proposal is approved if a majority of the votes cast at the referendum is in favour.

3. What are the President's discretionary powers? Under Article 13.9 he acts on the advice of the Government except where the Constitution provides otherwise. The exceptions include Article 13.2.2, refusing a dissolution to a Taoiseach who has ceased to retain the support of a majority in the Dail; Article 26, referring a Bill to the Supreme Court after consulting the Council of State; and Article 27, declining to sign a Bill of national importance until the people have decided, on a petition by a majority of the Seanad and a third of the Dail.

4. Why does Crotty v. An Taoiseach matter to a comparative answer? Because it shows a rigid amending procedure controlling the executive's foreign policy. The Court held that ratifying the Single European Act was not an act necessitated by the obligations of membership within the Third Amendment, so ratification required a constitutional amendment and therefore a referendum under Article 46. Neither India nor the United Kingdom has any comparable constraint on treaty-making.

Article 21 provides for political parties and, in article 21(2), that parties which by reason of their aims or the behaviour of their adherents seek to undermine or abolish the free democratic basic order or to endanger the existence of the Federal Republic shall be unconstitutional, the Federal Constitutional Court ruling on the question. That is militant democracy.

Articles 22 to 37. Article 23, European integration, with the identity review the Federal Constitutional Court exercises under article 23(1) read with article 79(3). Article 24, transfer of sovereign powers. Article 25, the general rules of international law as part of federal law taking precedence over statutes. Article 28, the constitutional order in the Lander, with article 28(2) guaranteeing municipalities the right to regulate all local affairs on their own responsibility. Article 30, the general rule that the exercise of state powers and the discharge of state functions is a matter for the Lander. Article 31, federal law shall take precedence over Land law. Article 32, foreign relations. Article 33, equal citizenship rights and access to public office. Article 35, mutual legal and administrative assistance. Article 37, federal coercion, permitting the Federal Government with the consent of the Bundesrat to take necessary measures to compel a Land to comply with its federal obligations.

Chapters III to VI, articles 38 to 69: the organs

The Bundestag, articles 38 to 49. The Bundesrat, articles 50 to 53, composed of members of the Land governments who appoint and recall them, with votes weighted by population and cast as a block. Article 53a, the Joint Committee. The Federal President, articles 54 to 61. The Federal Government, articles 62 to 69, including article 63 on the election of the Chancellor, article 65 on the three principles, article 67 on the constructive vote of no confidence and article 68 on the confidence question.

Chapters VII to X, articles 70 to 115: legislation, execution and finance

Articles 70 to 82 govern federal legislation: article 70 gives the Lander the right to legislate in so far as the Basic Law does not confer legislative power on the Federation; articles 71 and 73 exclusive federal legislation; articles 72 and 74 concurrent legislation, with article 72(2) permitting federal legislation where necessary to establish equivalent living conditions or to maintain legal or economic unity; article 76 the introduction of Bills; article 77 the Mediation Committee; article 79 amendment.

Articles 83 to 91 govern the execution of federal laws by the Lander, which is what executive federalism means. Articles 92 to 104 govern the judiciary, including article 93 on the jurisdiction of the Federal Constitutional Court and article 100 on concrete review. Articles 104a to 115 govern finance.

Chapters Xa and XI, articles 115a to 146

Articles 115a to 115l provide for a state of defence. Articles 116 to 146 are the transitional and concluding provisions.

Articles 144 to 146 close the text. Article 144 required acceptance by the representative assemblies of two thirds of the Lander. Article 145 provided for the Parliamentary Council's confirmation and promulgation. Article 146 provides that the Basic Law shall cease to apply on the day on which a constitution freely adopted by the German people takes effect.