LLM Group 1 Constitutional and Administrative Law Comparative Constitutional Law 2025-26 - Set 2 Question Paper with Solutions

For full marks, cover: the standard classifications with their bases, briefly, because they are only the first third of the question; then the argument the question actually asks for, which is how each classification bears on whether power is in fact limited; and a critical section that shows where the classifications break down, since the question says critically analyse.

Define the two terms before joining them. Classification of constitutions is the traditional taxonomy by which constitutions are sorted according to their form, their method of amendment, their distribution of power and their form of executive. Constitutionalism is the doctrine that governmental power must be limited by law and exercised through defined procedures, so that, in Charles Howard McIlwain's formulation, it is a legal limitation on government and the antithesis of arbitrary rule. The question asks whether the taxonomy tells us anything useful about the substance, and the honest answer is that it tells us something and much less than it appears to.

Rigid and flexible, on the basis of the amending procedure. Lord Bryce's distinction is between a constitution amendable only by a special procedure and one amendable by the ordinary legislative process. The United Kingdom is the type of the flexible constitution, since the Union with Scotland Act 1707 and the Human Rights Act 1998 may in law be repealed by a simple majority. The United States is the type of the rigid, with two thirds of both Houses and three quarters of the States. India is both at once, since Article 368 prescribes a special majority and State ratification for the entrenched list, while Articles 4 and 169 permit a simple majority to alter the boundaries of States and to abolish a Legislative Council.

Federal and unitary, on the basis of the distribution of power. In a federal constitution two levels of government derive their authority from the constitution itself and neither can abolish the other; in a unitary constitution all authority is central and any subordinate body exists at the centre's pleasure. India is the difficult case, described in State of West Bengal v Union of India, AIR 1963 SC 1241, as not federal in the classical sense, and yet held in S.R. Bommai v Union of India, (1994) 3 SCC 1, to have federalism as a basic feature. The usual description is quasi federal, following K.C. Wheare, or federal in structure with a unitary bias.

How the classification bears on constitutionalism

Writtenness supplies the standard against which power is measured, and that is its whole contribution. Constitutionalism requires an ascertainable limit; a written constitution states one and makes judicial review technically possible, which is precisely Marshall CJ's reasoning in Marbury v Madison, 5 U.S. (1 Cranch) 137 (1803): either the Constitution is superior and unchangeable by ordinary means, or it is on a level with ordinary legislation, and if the former, an Act repugnant to it is not law. Article 13(2) of the Indian Constitution writes that conclusion into the text.

Federalism supplies a vertical division that operates even when the horizontal one fails. Where a single party controls the centre, the courts and the legislature, a federal structure leaves States as independent centres of authority and litigants. Bommai is the illustration: the misuse of Article 356 to dismiss State governments was the principal Indian technique for hollowing out federalism, and the Court's answer was to make the Proclamation justiciable, to require a floor test rather than the Governor's satisfaction, and to forbid dissolution of the Assembly before both Houses of Parliament approve. Mineral Area Development Authority v Steel Authority of India, 25 July 2024, nine judges, eight to one, did the same work in the fiscal field, holding royalty not to be a tax and restoring to the States the power to tax mineral rights under Entries 49 and 50 of List II, overruling India Cement Ltd v State of Tamil Nadu, (1990) 1 SCC 12.

The second criticism is that the categories have collapsed into each other in practice. The written and unwritten distinction has been overtaken by the recognition of constitutional statutes, which Laws LJ identified in Thoburn v Sunderland City Council, [2002] EWHC 195 (Admin), as immune from implied repeal, so that Britain now has a hierarchy of statutes without a written constitution. The rigid and flexible distinction is undermined by the Indian experience of frequent amendment under a rigid procedure and by the Swiss experience of frequent amendment under a still more demanding one, since Article 140 requires a compulsory referendum with the double majority of Article 142 and yet Article 139 lets a hundred thousand voters initiate the change directly.

What survives the criticism is real and should be stated. Classification remains useful in three ways. It identifies where to look for the limit, in a document, in convention or in a referendum requirement. It predicts the mode of constitutional change, so that a rigid system will change through judicial reinterpretation, as the United States has since 1992, while a flexible one changes by statute. And it identifies who the constitutional actors are, which determines whom a reform proposal must persuade: three quarters of the American States, half the Indian States, a majority of Swiss cantons, or a simple majority in a single British chamber.

Thoburn v Sunderland City Council, [2002] EWHC 195 (Admin). Steven Thoburn, a greengrocer in Sunderland, sold produce by the pound on scales calibrated only in imperial units, contrary to regulations made to implement European measurement directives, and argued that the European Communities Act 1972 had been impliedly repealed by the later Weights and Measures Act 1985. Laws LJ held that it had not, because there exists a class of constitutional statutes, including Magna Carta, the Bill of Rights 1689, the Acts of Union, the Reform Acts, the Human Rights Act 1998 and the Scotland Act 1998, which are not subject to implied repeal and can be repealed only by express words. A prosecution about bananas therefore produced a hierarchy of statutes inside a constitution the traditional scheme classifies as unwritten and flexible, which is the clearest evidence that the categories have blurred.

Conclusion. Classification influences constitutionalism by determining the location of the limit, the difficulty of removing it and the identity of those who must consent to its removal, and to that extent the taxonomy is a working tool rather than an antiquarian exercise. It does not determine whether power is actually limited, because every category can house an unlimited government, and the categories themselves have blurred, with constitutional statutes in an unwritten system, simple majority amendments in a rigid one and an express legislative override in a written bill of rights. The critical conclusion is therefore that classification tells us the design of the restraint and nothing about its strength, and that the questions which now decide constitutionalism, the independence of appointments and the reviewability of the amending power, are questions the traditional classifications were never framed to ask.