Comparative Constitution Notes | LL.B. (Three Years) Semester 2 | SPPU | munotes

Contents

Module 01 Scope and Significance of Comparative Study of Constitutional Law

1. What a Constitution Is, and What It Is For 1
2. The Comparative Study of Constitutions: Its Scope, and Its Use in Making and Interpreting a Constitution 6
3. The Westminster Model 9
4. The Presidential Executive 13
5. The Two Systems Compared 18
6. Republican and Monarchical, Evolved and Enacted 24
7. Written and Unwritten, Codified and Uncodified 29
8. Rigid and Flexible Constitutions 34
9. Federal and Unitary Constitutions 39
10. What India Borrowed, and From Where 44
11. The Constitution of the United Kingdom in Outline 49
12. Dicey: the Law and the Conventions of the Constitution 54
13. The Constitution of the United States in Outline 58
14. The American Story 64
15. The Common Law Heritage, and the Indian Position 69
16. The Constitution of India in Outline 72

Module 02 History of Constitution Making and its Development in India

1. The Constituent Assembly: How It Was Composed 79
2. Foreign Precedents in Interpreting the Constitution of India: Where the Court Followed Them, and Where It Departed 84
3. Bills of Rights Compared 88
4. Life and Liberty: Due Process and Procedure Established by Law 92
5. Strict Scrutiny and Compelling Interest 97
6. The Parliamentary Executive 102
7. Collective and Individual Responsibility 106

Module 03 Federalism- Comparative Study

1. What Federalism Is 110
2. Coming Together and Holding Together 114
3. The Federal Features of the Indian Constitution 119
4. Co-operative Federalism and Federal Comity 124
5. Executive Federalism 128
6. The Distribution of Legislative Power 133
7. Residuary Power 137
8. Fiscal Federalism and Equalisation 141
9. India and the United States Compared 146
10. Quasi-Federal: the Argument About India 150
11. Separation of Powers 154
12. The American Model: Checks and Balances 158
13. Article 368 and Its Three Routes 162
14. Article V of the United States Constitution 166
15. The Amending Power in India, the United States and Australia Compared 170

Module 04 Judicial Review

1. Judicial Review of Legislation, and Where It Came From 174
2. What Judicial Review Is 178
3. Entrenchment, Supremacy and Judicial Review 182
4. Judiciaries and Judicial Review Compared 187
5. Article 13: Laws Inconsistent With Fundamental Rights 191
6. The Basic Structure Doctrine 196
7. Constitutional Jurisprudence Built through Judicial Activism 201

Module 05 Justification and Limitation of Written Constitution

1. The Written Constitution as a Legal Instrument, and Its Justiciability 205
2. A Constitution Without Constitutionalism 208
3. Written Constitutions That the Ordinary Courts Do Not Enforce: France, the U.S.S.R. and China 213
4. Directive Principles: Ireland and India 218
5. Negative and Positive Rights 223

Module 06 Interpretation of Constitution

1. Definitions and Interpretation 228
2. The Constitution as a Living Document 235
3. The Limits of Judicial Creativity 239
4. The Preamble as a Tool to Interpret the Constitution 244
5. Constitutional Morality 249
6. The Tools and Techniques of Judicial Creativity 254
7. Pith and Substance 259

Module 07 Constitution as Higher Law

1. Constitutional Supremacy and Parliamentary Sovereignty 263
2. The Rule of Law 267
3. The Rule of Law Inside Our Own Constitution 272
4. Parliamentary Sovereignty in India and Its Limitations 277
5. Written and Unwritten, Rigid and Flexible 282

Module 08 Role of Judiciary and Doctrine of State Action

1. Why the Definition of State Decides Everything 287
2. Other Authorities, and the Tests the Courts Built 291
3. Is the Judiciary State? 298
4. Horizontal Effect 302
5. The Role of the Courts in Constitutional Adjudication 308
6. Judicial Review: Where It Comes From and How Far It Goes 312
7. The Exceptions to Judicial Review 318
8. Umpiring the Federation 322
9. Disputes Between the Union and a State: Article 131 327
10. Constitutional Law as a Branch of Public Law 332