LLM Group 1 Constitutional and Administrative Law Comparative Constitutional Law 2025-26 Question Paper with Solutions

For full marks, cover: the five constitutions on a common set of axes rather than one after another; a table that lets the examiner see the comparison at a glance; and a final third on relevance, which is where the second half of the question's marks sit. An answer that describes five constitutions in turn and stops has answered half the question.

The first axis is form. Four of the five are written and enacted; the United Kingdom's is unwritten in the technical sense that it has never been reduced to one instrument, though a great deal of it is in writing, from Magna Carta 1215 and the Bill of Rights 1689 to the Human Rights Act 1998 and the Constitutional Reform Act 2005. The Indian Constitution is the longest national constitution in the world, and the length is deliberate: it had to accommodate the integration of princely States, a plural society, a federal division and an entire chapter of emergency provisions in a country with no prior tradition of constitutional self government.

The third axis is the distribution of power, and the drafting histories run in opposite directions. The United States and Switzerland federated upwards, from thirteen colonies and from cantons that were sovereign before the confederation, and both therefore leave the residue with the units: the Tenth Amendment in America, Article 3 of the Swiss Constitution which declares the cantons sovereign in so far as their sovereignty is not limited by the Federal Constitution. Canada and India federated downwards, out of an existing colonial administration, and both give the residue to the centre: section 91 of the Constitution Act, 1867, with its opening peace, order and good government clause, and Article 248 read with Entry 97 of List I in India. The United Kingdom remains unitary; devolution to Scotland, Wales and Northern Ireland is statutory and, in strict law, revocable.

The fifth axis is rights and their enforcement. The American Bill of Rights of 1791 is a set of prohibitions on government, framed negatively, with no directive component. India's Part III is enforceable and Article 32 makes the remedy itself a fundamental right, but Part IV states an unenforceable social programme, so the Indian Constitution distributes constitutional obligation between the courts and the political branches instead of giving all of it to the courts. Canada's Charter has a limitation clause in section 1 and, uniquely, an override in section 33 by which a legislature may declare a statute to operate notwithstanding certain Charter rights for five renewable years. In the United Kingdom the Human Rights Act 1998 gives the courts a strong interpretive duty under section 3 and, where interpretation fails, only a declaration of incompatibility under section 4, which does not affect the validity of the statute.

What India actually took, and from where

The borrowings are examinable and are often asked as a sub question, so name them precisely. From the United Kingdom came parliamentary government, the single citizenship, the rule of law and the office of the Speaker. From the United States came the Fundamental Rights, judicial review, the independence of the judiciary and the impeachment of the President. From Canada came the federation with a strong centre, the very word Union, the vesting of residuary power in the centre, the appointment of Governors by the centre and the advisory jurisdiction of the Supreme Court. From Ireland came the Directive Principles, the nomination of members to the Rajya Sabha and the method of electing the President.

Relevance to contemporary constitutional governance

Rigidity and legitimacy are being tested in all five systems at once. The German experience, which is the cleanest illustration available, is that a rigid amending rule can still move quickly when there is consensus: the Basic Law was amended on 18 March 2025 by five hundred and twelve votes to two hundred and six, with the Bundesrat concurring on 21 March 2025, to exempt defence spending above one per cent of gross domestic product from the debt brake and to create a five hundred billion euro infrastructure fund. In the United States, by contrast, the last ratified amendment was in 1992, and constitutional change now happens almost entirely through judicial reinterpretation, which is a very different distribution of constituent power.

The Indian material for this part of the answer is the last two years. Mineral Area Development Authority v Steel Authority of India, decided on 25 July 2024 by nine judges, eight to one, held that royalty is not a tax and upheld the States' power to tax mineral rights and mineral bearing land under Entries 49 and 50 of List II, overruling India Cement Ltd v State of Tamil Nadu, (1990) 1 SCC 12. That is a fiscal federalism decision of the first order and it moves India's practice closer to the Canadian and Swiss position that the units must have an independent revenue base if the division of powers is to mean anything.

A fifth relevance point, and the one most often missed, is that a constitution's fundamental features determine who bears the cost of constitutional failure. In Switzerland the cost falls on the electorate, because there is no court to correct a federal statute. In the United Kingdom it falls on Parliament, because a declaration of incompatibility leaves the statute standing. In India it falls on the Supreme Court, because Article 32 makes it the guaranteed forum for every rights claim in a country of one point four billion people. The Indian design is the most generous in access and therefore the most exposed to delay, which is why the arrears of the Court are a constitutional and not merely an administrative problem.

R (Miller) v The Prime Minister, [2019] UKSC 41. In August 2019 the Prime Minister advised the Queen to prorogue Parliament for five weeks at a critical moment before the date set for withdrawal from the European Union. Eleven Justices held unanimously that the advice was justiciable and unlawful, because a prorogation is unlawful if it frustrates or prevents, without reasonable justification, the ability of Parliament to carry out its constitutional functions, and they declared the prorogation null and of no effect. The Court derived the limit from parliamentary sovereignty itself and from the accountability of the executive to Parliament. It is what a constitution without a written text and without a power to strike down statutes can nevertheless do, and it is the British entry in every row of this comparison.

Conclusion. The five constitutions answer the same four questions differently: how power is divided, how the executive is held to account, how rights are protected, and how the text may be changed. The United States chose rigidity and judicial supremacy, Switzerland chose direct democracy and no review of federal statutes, the United Kingdom chose parliamentary sovereignty softened by convention and by the interpretive technique of the Human Rights Act, Canada chose a strong centre with an express legislative override, and India chose a long written text with enforceable rights, a strong centre, and a judicially created limit on the amending power that none of the others possesses. Their relevance today is that each design is under pressure at precisely the point where it is least defended, which is why comparative constitutional law is a working discipline rather than a museum of documents.

Ireland is not a federal state, and saying so is the answer, not an evasion. Article 15.2.1 of the Constitution of Ireland, 1937, vests the sole and exclusive power of making laws for the State in the Oireachtas. Article 6 declares that all powers of government derive under God from the people. Local government has constitutional recognition only since the Twentieth Amendment of 1999, which inserted Article 28A, and it is a guarantee that local authorities shall exist and be elected, not a distribution of sovereign competence. Ireland's contribution to comparative constitutional design lies elsewhere and is directly relevant to India: Article 45 states Directive Principles of Social Policy and provides that they shall be for the general guidance of the Oireachtas and shall not be cognisable by any court, which is the model the Indian framers took for Part IV and for Article 37.

The United States: enumerated powers and the long expansion of commerce

The American method is enumeration of the federal power and a residue left with the States. Article I, section 8 lists the powers of Congress and ends with the necessary and proper clause; the Tenth Amendment reserves the rest to the States or to the people. There are no concurrent lists. The whole history of American federalism is therefore the history of what the enumerated powers, and particularly the commerce power, are held to include.

The modern American limit is that the commerce power is not unlimited. United States v Lopez, 514 U.S. 549 (1995), struck down the Gun Free School Zones Act because possessing a gun near a school is not economic activity substantially affecting interstate commerce, the first such invalidation in nearly sixty years, and National Federation of Independent Business v Sebelius, 567 U.S. 519 (2012), held that the commerce power does not extend to compelling individuals to buy health insurance, although the mandate survived as a tax.

Germany: administrative federalism and an eternity clause

The German Basic Law of 23 May 1949 distributes legislative competence in Articles 70 to 74 and execution in Articles 83 to 85. Article 73 lists exclusive federal subjects, Article 74 concurrent subjects, and Article 70 leaves the residue with the Länder. What makes Germany distinctive is that under Article 83 the Länder execute federal statutes as a matter of their own concern. The Federation legislates; the Länder administer. This is why German federalism is described as administrative or executive federalism rather than legislative federalism.

India: three lists, a strong centre, and the court as umpire

India's method is three exhaustive lists in the Seventh Schedule and a residue with the Union. As enacted in 1950 List I carried ninety seven entries, List II sixty six and List III forty seven; today the figures are about ninety eight, fifty nine and fifty two, the Forty Second Amendment of 1976 having moved education, forests, weights and measures and the protection of wild animals and birds from the State List to the Concurrent List. Article 246 gives Parliament overriding power in the concurrent field, Article 254 resolves repugnancy in favour of the Union subject to Presidential assent for a State law, and Article 248 with Entry 97 of List I gives the residue to Parliament, which is the Canadian and not the American choice.

State of West Bengal v Union of India, AIR 1963 SC 1241, is where the Court first said that the Indian Constitution is not federal in the classical sense. Parliament had enacted the Coal Bearing Areas (Acquisition and Development) Act, 1957, to acquire coal bearing land vested in a State; West Bengal sued under Article 131. The Court upheld the Act, holding that the States are not sovereign, that there is no dual citizenship or dual judiciary, and that the Constitution's federalism is a matter of degree.

Two further Indian decisions belong in a full answer. Government of NCT of Delhi v Union of India, decided on 11 May 2023 by a Constitution Bench, held that the elected government of Delhi has legislative and executive control over services other than police, public order and land, on the reasoning that an elected government must control the officers who implement its decisions; Parliament then enacted the Government of National Capital Territory of Delhi (Amendment) Act, 2023, which is under challenge. And State of Tamil Nadu v Governor of Tamil Nadu, 8 April 2025, was displaced by the advisory opinion on the Presidential Reference of 20 November 2025, in which the Supreme Court held that no timelines may be judicially prescribed for the Governor or the President under Articles 200 and 201 and that the concept of deemed assent is alien to the Constitution, while a Governor may not sit on a Bill indefinitely.

Two federalism cases worked out

S.R. Bommai v Union of India, (1994) 3 SCC 1. S.R. Bommai's Janata Dal government in Karnataka was dismissed under Article 356 in April 1989 after the Governor reported that nineteen legislators had withdrawn support, without allowing the Chief Minister to demonstrate his majority in the Assembly; the dismissals of three further governments after the demolition of the Babri Masjid in December 1992 were heard with the appeal. Nine judges held that federalism and secularism are basic features of the Constitution; that a Proclamation under Article 356 is justiciable and may be struck down if it rests on mala fides or wholly extraneous grounds; that the only permissible test of a government's majority is a floor test in the Assembly and not the Governor's subjective satisfaction; and that the Assembly may not be dissolved until both Houses of Parliament have approved the Proclamation. The number of Proclamations fell sharply after 1994, which is the practical measure of the decision and the strongest evidence that Indian federalism is judicially rather than textually protected.

Conclusion. The four systems distribute power by three different techniques and one absence. The United States enumerates the centre's powers and leaves the rest, so its constitutional history is a contest over the meaning of those enumerations, fought from Gibbons to Lopez. Germany divides legislation from execution and entrenches the federal principle beyond amendment in Article 79(3). India lists everything, gives the residue and the overriding power to the Union, and has relied on the Supreme Court to keep the balance, most recently in the mineral royalty decision of 25 July 2024. Ireland distributes nothing, and its place on this list is a reminder that the Directive Principles India took from it are themselves a distribution of constitutional responsibility, made between the courts and the legislature rather than between a centre and its units.

The United States: Article V

Article V provides two ways to propose and two ways to ratify. An amendment may be proposed by a two thirds vote of both Houses of Congress, or by a convention called by Congress on the application of the legislatures of two thirds of the States. It is ratified by the legislatures of three quarters of the States, thirty eight of the fifty, or by conventions in three quarters of them, whichever mode Congress prescribes. Every one of the twenty seven amendments has been proposed by Congress; the convention route has never been used. The convention method of ratification has been used once, for the Twenty First Amendment of 1933 repealing prohibition, because the framers of that amendment did not trust State legislatures on the question.

Article V contains two express entrenchments. No State may be deprived of its equal suffrage in the Senate without its own consent, which is permanent, and the clauses protecting the slave trade and direct taxation were unamendable until 1808, which has spent itself. The Senate entrenchment is the only genuinely unamendable provision of the American Constitution and it is structural rather than rights based, which is the opposite emphasis to India's basic structure doctrine.

The consequence is that American constitutional change happens through the courts. Because Article V is effectively closed, the Supreme Court's reinterpretations do the work an amendment would do elsewhere. Brown v Board of Education, 347 U.S. 483 (1954), changed the meaning of the Equal Protection Clause without a word of the text changing. Obergefell v Hodges, 576 U.S. 644 (2015), read the Fourteenth Amendment to require the recognition of same sex marriage. Dobbs v Jackson Women's Health Organization, 597 U.S. 215 (2022), overruled Roe v Wade and returned abortion to the States. Each of these is a constitutional amendment in substance carried out by five or six votes on a bench of nine, which is a much lower threshold than Article V.

No State ratification has ever failed, and no time limit is prescribed. The Constitution has been amended more than a hundred times since 1950, an average of more than one amendment a year, against the American rate of one every fourteen years. The reasons are structural: the ruling party at the centre has usually commanded the majority required, and Article 368 requires only half the States, not three quarters, and requires it only for the listed matters.

The judicial limit is what makes the Indian design distinctive. Shankari Prasad v Union of India, AIR 1951 SC 458, and Sajjan Singh v State of Rajasthan, AIR 1965 SC 845, held that Article 368 could reach the fundamental rights. I.C. Golaknath v State of Punjab, AIR 1967 SC 1643, reversed that by six to five and held that Parliament could not abridge Part III at all, which was too absolute to survive. Kesavananda Bharati v State of Kerala, (1973) 4 SCC 225, thirteen judges, seven to six, overruled Golaknath and put the doctrine in its lasting form: Article 368 confers a wide power to amend, but not a power to abrogate the basic structure. Sikri CJ's illustrative features were the supremacy of the Constitution, the republican and democratic form of government, the secular character of the Constitution, the separation of powers and the federal character of the Constitution.

Switzerland: rigid in form, fluid in practice

The Swiss procedure is set out in Articles 138 to 142 and Articles 192 to 195. A total revision may be demanded by a hundred thousand voters under Article 138, and if the people approve it both chambers of the Federal Assembly are re elected. A partial revision may be demanded by a hundred thousand voters within eighteen months under Article 139, either as a general proposal or as a specific draft; the Federal Assembly may declare an initiative invalid, in whole or in part, only for breach of the unity of form, the unity of subject matter, or the mandatory provisions of international law. Article 140 makes a referendum compulsory for every constitutional amendment, and Article 142 requires the double majority: a majority of those voting nationally and a majority of the cantons, with the six half cantons counting half a vote each.

Minerva Mills Ltd v Union of India, (1980) 3 SCC 625. Minerva Mills, a Bangalore textile undertaking, was nationalised under the Sick Textile Undertakings (Nationalisation) Act, 1974, which had been placed in the Ninth Schedule, and the challenge widened to sections 4 and 55 of the Forty Second Amendment. Section 55 declared that no amendment should be called in question in any court and that there should be no limitation whatever on the constituent power; section 4 gave every directive principle precedence over Articles 14 and 19. Five judges struck both down, holding that the limited nature of the amending power is itself a basic feature and that the harmony and balance between Parts III and IV is another. A clause abolishing all limits on the amending power was therefore itself beyond that power, which is the sharpest illustration available of how little a special majority guarantees.

Conclusion. Measured against the twin objects of stability and change, each design secures one and pays for it in the other. Article V gives the United States extreme stability of text and has driven all real constitutional change into the Supreme Court, where it is made by a bare majority of nine unelected judges and can be unmade the same way, as Dobbs showed in 2022. Article 368 gives India change in abundance and secured its stability only when the Court invented the basic structure limit in 1973, which is why the Indian answer to this question is that the amending procedure alone does not ensure stability and never did. The Swiss procedure is the only one of the three in which the people themselves both propose and ratify, so it delivers stability and change together, at the price that there is no court to stop a majority amending away a minority's rights, and no domestic remedy at all once the amendment is in the text.

Organisation

India has a single integrated judiciary, which no other system in this question has. One hierarchy runs from the district courts through the High Courts to the Supreme Court, and it administers central and State law alike. Article 124 constitutes the Supreme Court, Article 214 a High Court for each State, and Article 227 gives every High Court superintendence over all courts within its jurisdiction. Judges of the Supreme Court hold office until sixty five, High Court judges until sixty two, and removal is by the process in Article 124(4), an address by each House supported by a special majority on proved misbehaviour or incapacity, which has never been completed against any judge.

The United States has a dual court system, which is the structural opposite of India's. Federal courts, created under Article III, run from the district courts through the courts of appeals to the Supreme Court and hear federal questions and diversity cases; each State has its own complete hierarchy administering its own law. Article III judges hold office during good behaviour, which is life tenure, and their salaries may not be diminished. They are nominated by the President and confirmed by the Senate, a wholly political process. There have been nine Justices since the Judiciary Act of 1869, a number fixed by ordinary statute and not by the Constitution, which is why proposals to enlarge the Court recur.

The United Kingdom separated its highest court from the legislature only in 2009. The Appellate Committee of the House of Lords was the final court until the Constitutional Reform Act 2005 created the Supreme Court of the United Kingdom, which opened on 1 October 2009. The same Act reformed the office of Lord Chancellor, removing the judicial and Speaker functions, and created the Judicial Appointments Commission, so that appointment moved from patronage to a statutory selection process. The Act also placed the existing constitutional principle of the rule of law on a statutory footing in section 1.

In India the power is textual and wide. Article 13(2) makes a law void to the extent that it takes away or abridges the fundamental rights; Article 32 gives the Supreme Court original writ jurisdiction and is itself a fundamental right; Articles 132, 133 and 134 provide appeals; Article 136 gives an unlimited discretionary power to grant special leave from any court or tribunal except a court martial; Article 143 gives an advisory jurisdiction; Article 141 makes the law declared binding on all courts; and Article 142 permits any order necessary for complete justice. In addition, and uniquely, the Indian Supreme Court reviews constitutional amendments, which follows from Kesavananda Bharati v State of Kerala, (1973) 4 SCC 225.

In Switzerland the bar is express. Article 190 provides that federal Acts and international law are binding on the Federal Supreme Court and the other judicial authorities. Federal statutes are therefore applied even if unconstitutional, though the Court construes them compatibly where it can, and cantonal enactments remain fully reviewable. The justification is the optional referendum in Article 141: fifty thousand voters or eight cantons may demand a popular vote on any federal statute, so the electorate performs the review.

Functions, evaluated through leading decisions

Marbury v Madison (1803) for the United States. William Marbury was appointed a justice of the peace for the District of Columbia in the last hours of the Adams administration; his commission was signed and sealed but not delivered, and Madison, as Secretary of State, refused to deliver it. Marbury sought mandamus in the Supreme Court under section 13 of the Judiciary Act of 1789. Marshall CJ held that Marbury had a vested right and that mandamus was the correct remedy, but that section 13, in purporting to enlarge the Court's original jurisdiction beyond the list in Article III, was repugnant to the Constitution and void. The Court gained the power of judicial review by declining to exercise jurisdiction, which is why the decision has never been politically reversible.

The Swiss illustration is Article 190 operating in practice, and the honest evaluation is that its check is external. Because a federal Act cannot be tested at Lausanne, the effective forum for a rights challenge to Swiss federal law has become the European Court of Human Rights at Strasbourg, which is what KlimaSeniorinnen on 9 April 2024 demonstrated. A domestic bar on constitutional review does not remove the review; it relocates it.

Two cases on the judiciary worked out

R (Miller) v The Prime Minister, [2019] UKSC 41. In August 2019 the Prime Minister advised the Queen to prorogue Parliament for five weeks at a point when the date fixed for withdrawal from the European Union was five weeks away. Gina Miller challenged the advice in England and Joanna Cherry and others in Scotland. Eleven Justices held unanimously that the lawfulness of the advice was justiciable, since the courts have exercised supervisory jurisdiction over the lawfulness of prerogative acts for centuries; that the relevant limit was that a prorogation is unlawful if it has the effect of frustrating or preventing, without reasonable justification, the ability of Parliament to carry out its constitutional functions; and that this prorogation did so, was therefore unlawful, null and of no effect, and Parliament had never been prorogued. It is the strongest available demonstration of what a court that cannot invalidate a statute can nevertheless do about the executive.

Conclusion. The four judiciaries differ least in organisation and most in power. India has built the strongest court of the four, with writ jurisdiction as a fundamental right, an advisory jurisdiction, the plenary discretion of Article 136, the complete justice power of Article 142 and review of constitutional amendments; the United States has a court of comparable authority but confined to concrete cases and vulnerable to its own reversals; the United Kingdom has a court that cannot invalidate a statute and has therefore developed the review of executive action to a high degree; Switzerland has deliberately declined to give its court the power at all, and has found that the review it withheld is exercised in Strasbourg instead. The evaluation the question invites is that judicial power is not eliminated by constitutional design, only redistributed, and each of these four constitutions shows where it goes when it is denied its usual channel.

Why the United States chose prohibition

The American Bill of Rights is a reaction to a specific historical experience, and its drafting shows it. The original Constitution of 1787 contained no bill of rights, because the Federalists argued that a government of enumerated powers had no power to invade liberty. The first ten amendments were the price of ratification and were adopted on 15 December 1791. Their form is negative and absolute: Congress shall make no law respecting an establishment of religion, or abridging the freedom of speech; the right of the people to be secure in their persons, houses, papers and effects shall not be violated; no person shall be deprived of life, liberty or property without due process of law.

The Fourteenth Amendment of 1868 is what turned the Bill of Rights into a national code. As drafted, the first ten amendments bound only the federal government, as Barron v Baltimore, 32 U.S. 243 (1833), held. Incorporation through the Due Process Clause of the Fourteenth Amendment proceeded case by case over the twentieth century and is now nearly complete. The same clause carries the substantive due process line, which produced Griswold v Connecticut, 381 U.S. 479 (1965), Roe v Wade, 410 U.S. 113 (1973), and Obergefell v Hodges, 576 U.S. 644 (2015), and which Dobbs v Jackson Women's Health Organization, 597 U.S. 215 (2022), narrowed by holding that a right not deeply rooted in the nation's history and tradition is not protected.

The second Indian choice was to guarantee the remedy, not only the right. Article 32 makes the right to move the Supreme Court for enforcement of Part III itself a fundamental right, which Dr Ambedkar called the very soul of the Constitution. No other constitution in this question does that. Article 226 gives High Courts a still wider writ power extending to any other purpose. The practical result is public interest litigation: after S.P. Gupta v Union of India, 1981 Supp SCC 87, standing was relaxed so that a stranger acting bona fide could move the Court on behalf of those unable to come themselves.

Two decisions show the modern Indian standard at work. Shreya Singhal v Union of India, (2015) 5 SCC 1, struck down section 66A of the Information Technology Act, 2000, for vagueness and overbreadth, expressly adopting the American distinction between advocacy and incitement drawn in Brandenburg. Anuradha Bhasin v Union of India, (2020) 3 SCC 637, held that an indefinite suspension of internet services is impermissible, that every such order must be published and is subject to review, and that the freedom to carry on trade over the internet is protected by Article 19(1)(g).

Why the United Kingdom chose the ordinary law

The English tradition begins from the opposite end: liberty is what is left after the law has spoken. Dicey's account of the rule of law was that the general principles of the constitution are the result of judicial decisions determining the rights of private persons in particular cases, so that the right to personal liberty is the habeas corpus jurisdiction and not a declaration in a document. Entick v Carrington, (1765) 19 St Tr 1029, is the classic illustration: the King's messengers had ransacked Entick's house under a warrant from a Secretary of State, and Lord Camden CJ held the warrant unlawful because no statute or precedent authorised it, since if it is law it will be found in our books.

The three emergency positions are the cleanest test of the three designs. The United Kingdom answer, in Belmarsh, was that the court declares and Parliament decides, and Parliament in fact obeyed. The Indian answer, in ADM Jabalpur, was that the court could not act at all, which is precisely why Article 359 was amended by the Forty Fourth Amendment in 1978 so that Articles 20 and 21 can never be suspended, and why the ground of internal disturbance in Article 352 was replaced by armed rebellion. The American answer, in Korematsu v United States, 323 U.S. 214 (1944), was to uphold the internment of Japanese Americans, and the Court finally stated in Trump v Hawaii, 585 U.S. 667 (2018), that Korematsu was gravely wrong the day it was decided and has been overruled in the court of history.

Two civil liberties cases worked out

Entick v Carrington, (1765) 19 St Tr 1029. Nathan Carrington and three other King's messengers, acting under a warrant issued by Lord Halifax, a Secretary of State, broke into the house of John Entick, a writer suspected of seditious libel, and spent four hours searching and carrying away his papers. Entick sued in trespass. Lord Camden CJ held the warrant unlawful and gave judgment for Entick, on the ground that no statute and no precedent authorised it: by the laws of England every invasion of private property, be it ever so minute, is a trespass, and if it is law it will be found in our books; if it is not to be found there, it is not law. The case is the foundation of English civil liberty and of the principle that the executive may do only what law permits, and it is the necessary starting point for any comparison with a system that protects liberty by written guarantees instead.

One further civil liberties case worked out

Shreya Singhal v Union of India, (2015) 5 SCC 1. Two young women in Palghar were arrested under section 66A of the Information Technology Act, 2000, one for asking on Facebook why Mumbai had been shut down for Bal Thackeray's funeral and the other for liking the post. The section punished sending by computer any information that was grossly offensive or of menacing character, or false information sent persistently to cause annoyance, inconvenience, danger, obstruction, insult, injury, enmity, hatred or ill will. Two judges struck it down entirely: the expressions were undefined and open ended, so the section was void for vagueness and had a chilling effect; and it caught advocacy and discussion as well as incitement, the Court adopting the distinction drawn in Brandenburg v Ohio, 395 U.S. 444 (1969), and holding that only incitement may be restricted under Article 19(2). It is the clearest demonstration that the difference between the Indian and American approaches to speech is textual rather than methodological.

For full marks, cover: the textual difference, which is that India's affirmative action is written into the Constitution and America's is not; the beneficiary classes and how they are identified; the standard of review in each; the leading decisions in sequence; and the current position after Students for Fair Admissions in 2023 and Davinder Singh in 2024, because the law in both countries moved recently.

The American Constitution, by contrast, contains one relevant sentence. No State shall deny to any person within its jurisdiction the equal protection of the laws. Affirmative action in the United States was never a constitutional command; it grew out of executive orders, beginning with President Kennedy's Executive Order 10925 in 1961, which first used the phrase, and Executive Order 11246 in 1965, and out of Title VI and Title VII of the Civil Rights Act of 1964. It has therefore always been vulnerable to the argument that a race conscious remedy is itself a racial classification.

The second distinctive feature is the ground of classification. India classifies by caste, tribe and social and educational backwardness, and after 2019 by economic criteria; the classes are identified by Commissions under Article 340 and are notified by Presidential order under Articles 341 and 342. The United States classifies by race, and race is a suspect classification attracting strict scrutiny, which requires a compelling governmental interest and narrow tailoring. That is the crucial doctrinal difference: in India a special provision for a backward class is a facet of equality under Article 14 read with Articles 15 and 16, not an exception to it, as State of Kerala v N.M. Thomas, (1976) 2 SCC 310, held; in America it is a departure from equality that must be justified.

Indra Sawhney v Union of India, 1992 Supp (3) SCC 217, nine judges, is the central authority. The Court upheld the Mandal Commission's twenty seven per cent reservation for other backward classes in central services; held that the creamy layer among the backward classes must be excluded; confirmed the fifty per cent ceiling save in extraordinary situations; held that caste may be a starting point for identifying a backward class in Indian conditions; held that economic criteria alone cannot identify backwardness, which is why the separate ten per cent for economically weaker sections needed a constitutional amendment in 2019; and held that there could be no reservation in promotions, which Parliament reversed by inserting Article 16(4A) in 1995.

M. Nagaraj v Union of India, (2006) 8 SCC 212, upheld Articles 16(4A) and 16(4B) but subjected their exercise to three conditions: the State must collect quantifiable data showing the backwardness of the class, the inadequacy of its representation in the service, and the effect on the overall efficiency of administration. Jarnail Singh v Lachhmi Narain Gupta, (2018) 10 SCC 396, five judges, removed the requirement to prove the backwardness of the Scheduled Castes and Tribes, since their backwardness is presumed by their notification, but applied the creamy layer principle to them for the purposes of promotion.

The American sequence

Regents of the University of California v Bakke, 438 U.S. 265 (1978), is the beginning. Allan Bakke, a white applicant, was twice rejected by the medical school at Davis, which set aside sixteen of a hundred places for minority applicants. The Court fractured. Powell J.'s controlling opinion held the set aside unconstitutional because a rigid quota is not narrowly tailored, but held that the educational benefits of a diverse student body are a compelling interest and that race may be one factor among many. That single opinion governed American university admissions for forty five years.

Grutter v Bollinger, 539 U.S. 306 (2003), upheld the University of Michigan Law School's individualised, holistic use of race, while Gratz v Bollinger, 539 U.S. 244 (2003), decided the same day, struck down the undergraduate scheme that awarded twenty points of a hundred and fifty automatically for minority status. O'Connor J. wrote in Grutter that the Court expected such preferences would no longer be necessary in twenty five years, which is the sentence that framed everything after it.

Three affirmative action cases worked out

State of Madras v Champakam Dorairajan, AIR 1951 SC 226. A Communal Government Order in Madras distributed seats in the State's medical and engineering colleges among Brahmins, non Brahmin Hindus, Backward Hindus, Harijans, Anglo Indians and Indian Christians, and Muslims in fixed proportions. Champakam Dorairajan complained that as a Brahmin she would be refused a seat, and Srinivasan, who did apply, was refused although his marks exceeded those of successful candidates of other communities. Seven judges struck the order down: Article 29(2) forbids denial of admission to a State maintained institution on grounds only of religion, race, caste or language, and the directive principles, being expressly unenforceable under Article 37, cannot override a fundamental right. Parliament answered within months with the Constitution (First Amendment) Act, 1951, inserting Article 15(4). Indian affirmative action is constitutional text because a court first held that it was not.

Students for Fair Admissions v President and Fellows of Harvard College, decided 29 June 2023. Students for Fair Admissions sued Harvard under Title VI of the Civil Rights Act of 1964 and the University of North Carolina under the Equal Protection Clause, contending that both used race in admissions in a way that penalised Asian American applicants. The Court held both programmes unlawful on three grounds: the educational benefits of diversity are not sufficiently measurable to satisfy strict scrutiny; race was used as a negative and involved racial stereotyping; and the programmes had no logical end point, contrary to the expectation in Grutter v Bollinger, 539 U.S. 306 (2003), that they would become unnecessary within twenty five years. Set against State of Punjab v Davinder Singh, decided 1 August 2024, the two decisions answer the same complaint in opposite directions within thirteen months.

For full marks, cover: two of the four, at about twelve and a half marks each, which is between six and eight hundred words apiece and not a paragraph. A case note needs facts, the question the court had to decide, the holding, the reasoning and the consequence. All four are written out below so this volume is useful whichever two are chosen.

Holding on the first two. The appointment was complete when the commission was signed and sealed, delivery being a ministerial act, so Marbury had a vested legal right. The government of the United States has been emphatically termed a government of laws and not of men, and it will cease to deserve that description if the laws afford no remedy for the violation of a vested legal right. Mandamus was the appropriate remedy and Madison's refusal was unlawful.

Consequence and criticism. The decision established judicial review in the United States without conferring any benefit on the litigant and without ordering the Jefferson administration to do anything, which is why it could not be defied. The power was not used again to strike down a federal statute for fifty four years, and the next occasion was Dred Scott v Sandford in 1857. The standard criticism is that Marshall's reading of section 13 was strained and that he could have construed it compatibly with Article III and avoided the constitutional question, and that he sat in a case in which his own failure to deliver the commission was the cause of the dispute. The influence of the case is nevertheless global: the Indian Supreme Court relied on the same reasoning from a written and supreme constitution in A.K. Gopalan v State of Madras, AIR 1950 SC 27, and Article 13(2) of the Indian Constitution writes Marshall's conclusion into the text, which is the difference between the two systems.

The parliamentary model, in India and the United Kingdom. The head of State is nominal; Article 74(1) of the Indian Constitution provides that the President shall act in accordance with the advice of the Council of Ministers, and the Forty Second and Forty Fourth Amendments made that advice binding subject to one power of reconsideration. Shamsher Singh v State of Punjab, (1974) 2 SCC 831, seven judges, held that the President and the Governors exercise their formal constitutional powers only on and in accordance with such advice, and that the Indian system is the Cabinet system. The real executive is the Council of Ministers, which is collectively responsible to the House of the People under Article 75(3) and to the Legislative Assembly under Article 164(2). Ministers are ordinarily members of the legislature and must become members within six months under Article 75(5). The government's life is tied to the House: a defeated government must resign or seek a dissolution.

The comparison, on four heads. On stability, the presidential executive is more secure, because a fixed term cannot be cut short by a lost vote; the parliamentary executive is more responsive, because it must answer daily and can be removed at once. On accountability, the parliamentary system is continuous, through question hour, adjournment motions, the no confidence motion and the committee system, whereas the presidential system relies on periodic elections and congressional oversight. On deadlock, the presidential system is prone to divided government, in which the President and Congress belong to different parties and the machinery stalls, which cannot happen in a parliamentary system by definition. On the separation of powers, the presidential system separates personnel as well as functions, while the parliamentary system deliberately fuses them.

The precedent that had to be displaced. Plessy v Ferguson, 163 U.S. 537 (1896), had upheld a Louisiana law requiring separate railway carriages, holding that a legal distinction between the races did not destroy legal equality so long as the facilities were equal, and Harlan J. dissented with the words our Constitution is colour blind. Separate but equal governed American public life for fifty eight years. Two cases had already narrowed it in higher education: Sweatt v Painter, 339 U.S. 629 (1950), on a hastily created black law school in Texas, and McLaurin v Oklahoma State Regents, 339 U.S. 637 (1950), on a black graduate student made to sit apart within a white university.

Consequence. Brown II, 349 U.S. 294 (1955), remitted the cases to the district courts with the direction that desegregation proceed with all deliberate speed, a formula that permitted a decade of delay and massive resistance. Cooper v Aaron, 358 U.S. 1 (1958), signed personally by all nine Justices after the Little Rock crisis, held that the Court's interpretation of the Constitution is the supreme law of the land and binds State officials. The decision is the foundation of the Civil Rights Act of 1964 and the Voting Rights Act of 1965. Its Indian counterpart in social effect is the abolition of untouchability by Article 17, which the Constitution achieved by text in 1950 rather than by litigation, and State of Karnataka v Appa Balu Ingale, 1995 Supp (4) SCC 469, where the Supreme Court expressly drew on Brown in construing Article 17 and the Protection of Civil Rights Act, 1955.

The elements, as usually stated. A written or otherwise ascertainable constitution as the supreme law; the separation of powers, so that no organ combines the making, execution and adjudication of law; the rule of law, in Dicey's three senses of the absence of arbitrary power, equality before the law and a constitution that is the consequence of the rights of individuals; an independent judiciary with the power to enforce the limits; a bill of rights; free, fair and periodic elections; the accountability of government to the legislature and to the electorate; and, in a federation, the division of powers between two levels, each supreme in its own sphere.

Indian authority. The Supreme Court used the concept expressly in Rameshwar Prasad v Union of India, (2006) 2 SCC 1, on the dissolution of the Bihar Assembly, saying that the constitutionalism or constitutional system of government abhors absolutism, and that all the three organs derive their authority from the Constitution. I.R. Coelho v State of Tamil Nadu, (2007) 2 SCC 1, described the constitutional and legal limitations on power as the essence of constitutionalism, and said that the protection of fundamental rights is a limitation on the power of the State. The basic structure doctrine of Kesavananda Bharati v State of Kerala, (1973) 4 SCC 225, is the strongest expression of constitutionalism in Indian law, because it holds that even the constituent power is limited.

Two further cases behind these notes

Plessy v Ferguson, 163 U.S. 537 (1896). Homer Plessy, who was seven eighths white and one eighth black, boarded a whites only carriage on the East Louisiana Railway in a test case arranged with the railway's knowledge, refused to move, and was arrested under the Separate Car Act of 1890. Eight judges to one upheld the statute, holding that a legal distinction between the races does not destroy legal equality, that the Fourteenth Amendment could not have been intended to abolish distinctions based on colour, and that if the separation stamped the coloured race with a badge of inferiority it was because that race chose to put that construction upon it. Harlan J. dissented alone: our Constitution is colour blind and neither knows nor tolerates classes among citizens. Separate but equal governed American public life for fifty eight years, and Brown is unintelligible without it.

Conclusion. The four notes are connected, and saying so is worth a mark. Marbury created the instrument of constitutionalism in a system whose text did not provide one; Brown showed that the instrument can reverse the settled understanding of a whole society when it is used with unanimity and moral clarity; the choice between parliamentary and presidential democracy is a choice about which organ shall bear the burden of restraining the executive, the legislature continuously or the electorate periodically; and constitutionalism is the standard against which all three are measured, since a constitution that neither limits power nor supplies a means of enforcing the limit is a description of a government rather than a restraint upon it.