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

The classifications, with their bases

Written and unwritten, on the basis of form. A written constitution is contained in one or a few documents deliberately enacted at a moment in time, as in India, the United States and Switzerland. An unwritten constitution has never been reduced to a single instrument and is found in statutes, decided cases, conventions and authoritative works, as in the United Kingdom and, until 1993, Israel. The distinction is one of degree: much of the British constitution is in writing, in Magna Carta 1215, the Bill of Rights 1689, the Parliament Acts 1911 and 1949, the Human Rights Act 1998 and the Constitutional Reform Act 2005, and much of the Indian constitution is unwritten, since the collegium, the office of the Leader of the Opposition in the appointment of the Central Vigilance Commissioner and the practice of the Speaker resigning from the party are nowhere in the text.

Parliamentary and presidential, on the basis of the executive. In the first the executive is drawn from and answerable to the legislature; in the second it is separately elected for a fixed term. Switzerland fits neither, since its Federal Council of seven is elected by the Federal Assembly under Article 175 but cannot be dismissed by it.

Two further classifications belong in a complete answer. Evolved and enacted, which distinguishes a constitution that grew, as the British did, from one made at a founding moment, as the American, Indian and Swiss were; and, following Sartori, real, nominal and facade, which classifies by whether the constitution is actually observed. The last of these is the only classification that is directly about constitutionalism, and it is the one traditional textbooks omit.

Rigidity determines whether the limit can be removed by the body it limits, and this is the sharpest link between classification and constitutionalism. A flexible constitution gives the legislature power to amend away any restraint on itself, which is why British constitutionalism has always depended on convention and political culture rather than on entrenchment. A rigid constitution protects the restraint, but only if rigidity is real: India's Constitution has been amended more than a hundred times, which is why the Supreme Court had to supply the missing entrenchment in Kesavananda Bharati v State of Kerala, (1973) 4 SCC 225, holding by seven to six that Article 368 confers no power to destroy the basic structure. The Indian experience is the strongest evidence available that a rigid classification does not by itself deliver constitutionalism.

The parliamentary and presidential classification determines the kind of accountability available, not the amount. The parliamentary executive is continuously answerable and instantly removable, but it controls the legislature's agenda and, where the majority is large, the legislature's scrutiny is nominal. The presidential executive cannot be removed but faces a legislature it does not control, which is why divided government produces stalemate rather than accountability. In neither system does the classification tell you whether power is in fact limited.

The critical analysis

The classifications are descriptive and constitutionalism is evaluative, and confusing the two is the standard error. Every classification in the list can be satisfied by a State in which power is unlimited. A written constitution can be a facade, as the Soviet Constitution of 1936 was while the purges proceeded. A rigid constitution can be rendered flexible by capturing the body that amends it. A federal constitution can be centralised in practice by the control of finance and of appointments. A parliamentary constitution can be turned into an elective dictatorship, which is Lord Hailsham's phrase from 1976 for a British government with a secure majority.

The third criticism is that the classifications say nothing about the two features that most determine whether power is limited today. The first is the independence of the appointing process for judges and for electoral authorities. The National Judicial Appointments Commission was struck down in Supreme Court Advocates-on-Record Association v Union of India, (2015) 5 SCC 1, by four to one because two non judicial members could veto any recommendation; Anoop Baranwal v Union of India, decided on 2 March 2023, directed that Election Commissioners be appointed by a committee of the Prime Minister, the Leader of the Opposition and the Chief Justice of India until Parliament legislated, and Parliament then legislated within nine months to replace the Chief Justice with a Union Cabinet Minister, a change whose constitutionality remains undecided. Neither event is visible on any traditional classification. The second is the override, of which section 33 of the Canadian Charter is the clearest instance: a formally rigid, written, federal, rights protecting constitution that permits a legislature to suspend the rights for five renewable years, and whose limits were argued before the Supreme Court of Canada in the challenge to Quebec's Bill 21 from 23 to 26 March 2026.

Three cases that test the classifications

Kesavananda Bharati v State of Kerala, (1973) 4 SCC 225. Swami Kesavananda Bharati, head of the Edneer Mutt in Kasaragod, challenged the Kerala Land Reforms (Amendment) Act, 1969, under Article 26, and the case grew to take in the Twenty Fourth, Twenty Fifth and Twenty Ninth Amendments. Thirteen judges sat for sixty eight days and held by seven to six that Article 368 reaches every provision including Part III, overruling I.C. Golaknath v State of Punjab, AIR 1967 SC 1643, but that a power to amend is not a power to abrogate, so no amendment may damage or destroy the basic structure. The case is the answer to this question in miniature: India is classified as rigid because of Article 368, and what actually restrains amendment is a doctrine Article 368 does not contain, so the classification describes the form of the restraint and not its strength.

S.R. Bommai v Union of India, (1994) 3 SCC 1. S.R. Bommai's government in Karnataka was dismissed under Article 356 in 1989 on the Governor's report that nineteen legislators had withdrawn support, without any floor test; the dismissals of three governments after the demolition of the Babri Masjid in 1992 were heard with the appeal. Nine judges held that federalism and secularism are basic features, that a Proclamation is justiciable and may be struck for mala fides or wholly extraneous grounds, that the only test of a majority is a floor test, and that the Assembly may not be dissolved before both Houses of Parliament approve. It shows a written, rigid, federal constitution whose federal character was being hollowed out by repeated use of a valid constitutional power, and restored not by the text but by a court, which is precisely the gap between classification and constitutionalism this question is about.

For full marks, cover: the definition and Dicey's distinction; the test for identifying a convention, which is Jennings'; what conventions actually do, with named examples from at least three systems; the case law on enforceability, which the question demands and which is mostly Canadian and Indian; and an evaluation of whether conventions can survive a government willing to break them.

Definition. A constitutional convention is a binding non legal rule of constitutional behaviour, observed by those in office as obligatory, but not enforceable in a court of law. Dicey drew the classic distinction in An Introduction to the Study of the Law of the Constitution: the law of the constitution consists of rules enforced by the courts, while the conventions of the constitution consist of understandings, habits or practices which regulate the conduct of the several members of the sovereign power and are not in reality laws at all since they are not enforced by the courts.

What conventions do, system by system

In the United Kingdom they supply the whole of responsible government. The Prime Minister is appointed by convention; the Cabinet exists by convention, not by statute; collective ministerial responsibility, individual ministerial responsibility and the confidence rule are conventions; the Salisbury convention, by which the House of Lords does not oppose at second reading a Bill implementing a manifesto commitment, regulates the relationship between the chambers; the Sewel convention, that Westminster will not normally legislate on devolved matters without the consent of the devolved legislature, regulates the union and was written into section 28(8) of the Scotland Act 1998 by the Scotland Act 2016.

The case law

Re Resolution to Amend the Constitution, [1981] 1 SCR 753, the Patriation Reference, is the leading authority anywhere. The federal government proposed to ask Westminster to patriate the Canadian constitution with a charter of rights, without the agreement of the provinces. The Supreme Court of Canada was asked two questions: whether the proposal was unconstitutional as a matter of law, and whether it was unconstitutional as a matter of convention. The Court held, seven to two, that as a matter of law the federal houses could proceed alone; and held, six to three, that a convention required a substantial degree of provincial consent, applying Jennings' three questions expressly. It then made the point that is quoted in every subsequent case: conventions are not enforceable by the courts because they are not laws, and the sanction for breach is political and not legal. The political effect was decisive: nine provinces then agreed, and the Constitution Act, 1982, followed.

Shamsher Singh v State of Punjab, (1974) 2 SCC 831, seven judges, is the Indian counterpart. The Court held that the President and the Governors exercise their formal constitutional powers only upon and in accordance with the advice of their Ministers, save in a few well known exceptional situations, and that the Indian constitutional system is the Cabinet system on the British model. The Court reached that result by reading the text in the light of the conventions of responsible government, which is judicial recognition of a convention rather than its enforcement. U.N.R. Rao v Indira Gandhi, (1971) 2 SCC 63, is the other classic instance: it held that the Council of Ministers does not cease to exist on the dissolution of the Lok Sabha, because a construction that left the country without a government could not be right.

The case against them is that they bind only those who accept them. The sanction for breach is political, and a government with a secure majority and a compliant press may find that there is no sanction at all. The supersession of judges in 1973 and 1977 in India, the prorogation of 2019 in the United Kingdom and the four term Presidency in the United States are the three standard examples, and in each the eventual correction came from a source other than the convention itself: from a later government's restraint, from a court's judgment on principle, and from a constitutional amendment.

The modern response has been codification, and it is a mixed success. The Cabinet Manual of 2011 in the United Kingdom, the Ministerial Code, and the statutory recognition of the Sewel convention in section 28(8) are attempts to write conventions down. Miller (No 1) shows the limit of that response: writing a convention into a statute in the words that it shall be recognised did not make it enforceable. India has gone further in a few places, by turning the convention of ministerial advice into the binding text of Article 74(1) and the floor test into the ratio of Bommai, and the lesson is that a convention becomes enforceable only when it is converted into law, at which point it stops being a convention.

R (Miller) v Secretary of State for Exiting the European Union, [2017] UKSC 5. After the referendum of 2016 the government proposed to notify withdrawal from the European Union under Article 50 by exercise of the prerogative. Gina Miller and Deir Dos Santos challenged it, and the Scottish, Welsh and Northern Irish governments intervened on the Sewel convention. Eleven Justices held by eight to three that 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 be used to nullify statutory rights. On the convention the Court was unanimous the other way: although the Sewel convention had been written into section 28(8) of the Scotland Act 1998 by the Scotland Act 2016, it remained non justiciable, because the courts are neither the parents nor the guardians of political conventions and policing their scope lies outside their remit. Writing a convention into a statute in terms of recognition does not convert it into law, and that is the single most important modern holding on this question.

For full marks, cover: the comparison organised around the questions every constitution has to answer, not around the five countries in turn; the fundamental features under each; a table; and a closing third on relevance, which is where the marks for the second half of the question sit.

Every constitution answers four questions, and the five in this paper answer them differently. Where does sovereignty lie? How is the text protected against the government of the day? Who guarantees rights, and with what power? How does the constitution change? Organising the answer by those four questions makes the comparison possible; organising it by country makes it a set of five descriptions.

The United States locates it in the people, expressed through a written Constitution that binds every organ. The Preamble begins We the People, Article VI makes the Constitution the supreme law of the land, and Marbury v Madison, 5 U.S. (1 Cranch) 137 (1803), draws the consequence that an Act repugnant to it is not law. Congress is a legislature of enumerated powers and can be told that it has exceeded them, which no British court may tell Parliament.

India locates it in the people too, and the Preamble says so, but with a difference no other constitution in this list contains. In Kesavananda Bharati v State of Kerala, (1973) 4 SCC 225, thirteen judges held by seven to six that even the constituent power under Article 368 is limited, so in India the people acting through Parliament cannot destroy the basic structure. Sovereignty is therefore divided between the original constituent power exercised in 1949 and the derivative amending power exercised since, and only the first was unlimited.

How the text is protected

Entrenchment is the second fundamental feature and the five differ radically. The United States entrenches by procedure alone, requiring two thirds of both Houses and three quarters of the States. Canada entrenches by the Part V formula, with a general rule of Parliament plus seven provinces having fifty per cent of the population, unanimity for the matters in section 41 including the composition of the Supreme Court, and bilateral or unilateral routes in sections 43 to 45. Switzerland entrenches by requiring a compulsory popular vote with the double majority of Article 142. India entrenches by special majority plus, for the federal matters in the proviso to Article 368(2), ratification by half the States, and then by the judicially declared basic structure. The United Kingdom does not entrench at all.

Who guarantees rights

The architecture of rights enforcement is the third fundamental feature. India has Part III with express limitation clauses and, in Article 32, a fundamental right to the remedy itself, which Dr Ambedkar called the very soul of the Constitution, together with the wider power of the High Courts under Article 226. The United States has the Bill of Rights of 1791, framed as absolute prohibitions and qualified only by judge made doctrine, applied against the States through the Fourteenth Amendment. The United Kingdom has the Human Rights Act 1998, whose section 3 requires compatible interpretation so far as possible and whose section 4 permits only a declaration of incompatibility that does not affect the validity of the statute. Switzerland has Articles 7 to 36, enforceable against cantonal but not federal legislation. Canada has the Charter, with a general limitation clause in section 1, read through the proportionality test of R v Oakes, [1986] 1 SCR 103, and the override in section 33.

How the constitution changes

The record answers the question better than the rules do. The United States has twenty seven amendments in two hundred and thirty seven years, the last ratified in 1992 after two hundred and two years pending, so American constitutional change now happens in the Supreme Court: Brown v Board of Education, 347 U.S. 483 (1954), Obergefell v Hodges, 576 U.S. 644 (2015), and Dobbs v Jackson Women's Health Organization, 597 U.S. 215 (2022), are amendments in substance made by a bare majority of nine. India has more than a hundred amendments in seventy six years. Switzerland votes on constitutional proposals several times a year. Canada has amended the 1982 text rarely and failed twice at large scale, at Meech Lake in 1990 and Charlottetown in 1992. The United Kingdom changes its constitution by ordinary statute and has done so continually, from the Human Rights Act 1998 and the Constitutional Reform Act 2005 to the Fixed-term Parliaments Act 2011 and its repeal by the Dissolution and Calling of Parliament Act 2022.

Relevance to contemporary constitutional governance

Each design is under pressure at the point where it is least defended, and that is the argument the last third of the answer should make. Britain's flexibility means a government with a majority can alter the constitution by statute, which is why the Dissolution and Calling of Parliament Act 2022 restored a prerogative the courts had been asked to police and attached an ouster clause. America's rigidity means the Supreme Court is now the only route of constitutional change, which is why its appointments have become the central prize of American politics and why Dobbs could reverse fifty years of settled expectation. India's frequent amendment means the basic structure doctrine is the only entrenchment that matters, and the doctrine is judge made and therefore reversible by a larger bench. Switzerland's direct democracy means there is no domestic check at all on an amendment that violates rights, which is why the effective forum moved to Strasbourg in Verein KlimaSeniorinnen Schweiz v Switzerland, 9 April 2024. Canada's override means the Charter's protection is conditional, and how conditional is now before the Supreme Court of Canada in the Bill 21 challenge argued from 23 to 26 March 2026.

Three cases that anchor the comparison

R v Oakes, [1986] 1 SCR 103. David Oakes was found with eight vials of hashish oil and money, and section 8 of the Narcotic Control Act required a person proved to be in possession to establish that he was not in possession for the purpose of trafficking, reversing the burden of proof. The Supreme Court of Canada held the reverse onus an unjustified limit on the presumption of innocence in section 11(d) of the Charter, and in doing so laid down the test under section 1 that governs every Charter case: the objective must be of sufficient importance to warrant overriding a protected right, and the means must be rationally connected to it, must impair the right as little as possible, and must be proportionate in their effects. That structure is the ancestor of the four part proportionality test the Indian Supreme Court adopted in Justice K.S. Puttaswamy v Union of India, (2017) 10 SCC 1, and it is why a comparison of these five constitutions can be conducted in a common vocabulary at all.

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, and the challenge widened to sections 4 and 55 of the Forty Second Amendment, which had subordinated Articles 14 and 19 to every directive principle and declared that there should be no limitation whatever on the constituent power. 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. The case supplies the Indian entry in every row of the comparison in this answer: it is simultaneously about entrenchment, about the relation between enforceable rights and directive obligations, and about who holds the last word.

For full marks, cover: the three things a federation has to distribute, legislative competence, executive or administrative authority, and revenue; each of the four systems under those heads; the case law the question expressly requires; and the honest treatment of Ireland, which is a unitary State.

Say at the outset that the four systems are not four variations on one design. The United States distributes by enumerating the centre's powers and leaving everything else. Germany distributes legislation and administration to different levels on purpose. India distributes by three exhaustive lists with the residue and the overriding power at the centre. Ireland distributes nothing, because it is unitary, and the question's premise is wrong about it.

India uses three exhaustive lists. 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, because the Forty Second Amendment of 1976 moved education, forests, weights and measures and the protection of wild animals and birds from the State List to the Concurrent List, which is itself one of the largest single centralising steps in Indian federalism. Article 246 gives Parliament overriding power in the concurrent field; Article 254(1) makes a repugnant State law void, with Article 254(2) preserving it if it has received the President's assent, subject to Parliament's power to legislate afresh; Article 248 with Entry 97 of List I gives the residue to Parliament. Parliament may also legislate on a State subject under Article 249 on a Council of States resolution, under Article 250 during an Emergency, under Article 252 at the request of two or more States and under Article 253 to implement an international agreement.

Distribution of executive and administrative power

Germany is the outlier and this is the head on which it must be examined. Article 83 provides that the Länder execute federal statutes as matters of their own concern; Article 84 governs execution as their own concern and Article 85 execution on federal commission. The Federation legislates and the Länder administer, which is why German federalism is called administrative or executive federalism. The Bundesrat, whose members are members of the Land governments and which holds sixty nine votes, must consent to legislation affecting the Länder, so the second chamber is a standing negotiation between the levels rather than a representative assembly. The Federalism Reform of 2006 reduced the proportion of consent requiring statutes precisely because that veto had produced deadlock under divided majorities.

Mineral Area Development Authority v Steel Authority of India, 25 July 2024, nine judges, eight to one, Nagarathna J. dissenting, held that royalty payable under the Mines and Minerals (Development and Regulation) Act, 1957, is a contractual consideration and not a tax, and that the States' power to tax mineral rights under Entry 50 and mineral bearing lands under Entry 49 of List II is not taken away by the central Act. It overruled India Cement Ltd v State of Tamil Nadu, (1990) 1 SCC 12, which had held the opposite for thirty four years, and the Court then permitted recovery for past periods in stages. It is the most consequential fiscal federalism decision in Indian constitutional law in a generation.

The case law

McCulloch v Maryland, 17 U.S. (4 Wheat.) 316 (1819). Maryland taxed the notes of the Baltimore branch of the Second Bank of the United States; the cashier, James McCulloch, refused to pay. Marshall CJ held that Congress had power to incorporate the bank because the necessary and proper clause permits any appropriate means plainly adapted to a legitimate end, and that Maryland could not tax it, because the power to tax involves the power to destroy and a State may not destroy what the whole people have created. The case gave America implied federal powers and intergovernmental tax immunity.

Gibbons v Ogden, 22 U.S. (9 Wheat.) 1 (1824). New York had granted a steam navigation monopoly to Livingston and Fulton; Ogden held a licence under it and obtained an injunction against Gibbons, who ran boats between New Jersey and New York under a federal coasting licence. Marshall CJ held that commerce includes navigation, that commerce among the several States penetrates the interior, and that the federal licence prevailed under the Supremacy Clause. Modern federal regulatory power in America rests on that definition, and United States v Lopez, 514 U.S. 549 (1995), marks its outer limit by striking down the Gun Free School Zones Act for want of any substantial effect on interstate commerce.

S.R. Bommai v Union of India, (1994) 3 SCC 1, nine judges, corrected the balance. Federalism is a basic feature; a Proclamation under Article 356 is justiciable and can be struck for mala fides or wholly irrelevant grounds; the only test of a government's majority is a floor test; and the Assembly may not be dissolved until both Houses of Parliament have approved the Proclamation. The number of Article 356 proclamations fell sharply after 1994, which is the practical proof of the decision's effect.

Government of NCT of Delhi v Union of India, 11 May 2023, held that the elected government of Delhi controls services other than police, public order and land, on the principle that an elected government must control the officers who execute its decisions; Parliament enacted the Government of National Capital Territory of Delhi (Amendment) Act, 2023, within weeks, and its validity is pending. The episode is the clearest recent illustration that in India the last word on the federal division is legislative and not judicial.

Two federalism cases worked out

McCulloch v Maryland, 17 U.S. (4 Wheat.) 316 (1819). Maryland levied a stamp tax on the notes of any bank not chartered by the State, which reached only the Baltimore branch of the Second Bank of the United States; James McCulloch, the cashier, issued notes without the stamps and was sued for the statutory penalty. Marshall CJ held that Congress could incorporate a bank although no such power is enumerated, because the necessary and proper clause permits any means appropriate and plainly adapted to a legitimate end within the scope of the Constitution, and that Maryland could not tax the branch, because the power to tax involves the power to destroy and the States have no power to retard, impede or control the operations of the constitutional laws of Congress. The case supplies both implied federal powers and intergovernmental immunity, and it is the necessary starting point for any comparison, because India wrote both results into the text instead, in Article 246 and in Articles 285 and 289.

Conclusion. The four models reflect four different answers to the question what should be distributed. The United States distributes only legislative competence, enumerating it for the centre and reserving the rest, and forbids the centre to commandeer State officers, so each level is complete in itself. Germany distributes legislation and administration separately, entrenches the federal principle beyond amendment in Article 79(3), and makes the Bundesrat the permanent forum in which the two levels bargain. India distributes everything by list, keeps the residue and the overriding power at the centre, and has relied on the Supreme Court to defend the balance, from Bommai in 1994 to the mineral royalty decision of 25 July 2024. Ireland distributes nothing at all, and its true contribution to comparative constitutional design is the Directive Principles model of Article 45, which India adopted in Part IV, and which distributes constitutional responsibility between courts and legislature rather than between a centre and its units.

Stage one: who may initiate

The United States confines initiation to political institutions. Under Article V an amendment may be proposed by two thirds of both Houses of Congress, or by a convention called by Congress on the application of the legislatures of two thirds of the States. All twenty seven amendments have come by the congressional route; the convention route has never been used, though applications have at various times approached the threshold.

India confines it more narrowly still. An amending Bill under Article 368 may be introduced in either House of Parliament by a Minister or a private member, and by no one else. The States cannot initiate; the electorate cannot initiate; and there is no referendum anywhere in Article 368.

In India both Houses must pass the Bill separately by the special majority, and there is no joint sitting. Article 368(2) requires a majority of the total membership of each House and not less than two thirds of the members present and voting. Article 108, which provides for a joint sitting to resolve a deadlock, does not apply to a constitutional amendment, so the Council of States has an absolute veto. That is the strongest federal safeguard in the Indian procedure and it is regularly overlooked.

In Switzerland the Federal Assembly deliberates but cannot block. It may recommend rejection, and it may put a counter proposal alongside the initiative, which is a device with no equivalent elsewhere and is the reason the acceptance rate for initiatives, roughly one in ten, understates their effect: an initiative that is defeated at the poll frequently produces a counter proposal or a statute that adopts much of its content. The Assembly may declare an initiative invalid only on the three grounds in Article 139(3), the unity of form, the unity of subject matter and the mandatory provisions of international law.

Switzerland requires the double majority in every case. Article 140 makes a referendum compulsory for every constitutional amendment; Article 142 requires a majority of those voting nationally and a majority of the cantons, the six half cantons counting half a vote each. That means a proposal supported by a national majority can fail on the cantonal count, which gives small rural cantons a weight out of proportion to their population, exactly as the American Senate does.

Stage four: what is beyond reach

The United States entrenches by text and only structurally. No State may be deprived of its equal suffrage in the Senate without its consent, and the two clauses protecting the slave trade and direct taxation until 1808 have spent themselves. There is no substantive limit and no American doctrine that a validly ratified amendment can be unconstitutional; the challenge in Coleman v Miller, 307 U.S. 433 (1939), was largely treated as a political question.

Switzerland entrenches almost nothing. The only limits are the three formal grounds in Article 139(3), and the mandatory rules of international law catch only the ius cogens core, such as the prohibitions of genocide, slavery, torture and refoulement. That is why initiatives such as the minaret ban accepted in 2009 and the deportation initiative accepted in 2010 entered the Constitution despite serious tension with the European Convention on Human Rights, and why, with Article 190 barring the Federal Supreme Court from reviewing federal enactments, the effective forum has become Strasbourg, as Verein KlimaSeniorinnen Schweiz v Switzerland, decided by the Grand Chamber on 9 April 2024, demonstrated.

Evaluation

The United States has achieved stability and lost the capacity for formal change. Seventeen amendments in the two hundred and thirty five years since the Bill of Rights, and none in thirty four years, means that American constitutional development now happens entirely through judicial reinterpretation. Brown v Board of Education, 347 U.S. 483 (1954), Obergefell v Hodges, 576 U.S. 644 (2015), and Dobbs v Jackson Women's Health Organization, 597 U.S. 215 (2022), each changed the constitution in substance without changing a word, and each was decided by a bare majority of nine appointed judges. A procedure so demanding that it is never used does not produce stability; it relocates instability to a smaller and less accountable body.

India has achieved change in abundance and secured stability only by judicial invention. More than a hundred amendments in seventy six years, including the Thirty Ninth and Forty Second during the Emergency, show that the special majority is not by itself a serious obstacle when one party commands both Houses. The honest conclusion, which the examiner is looking for, is that Article 368 does not ensure stability at all, and that the doctrine of 1973 is the whole of India's protection against constitutional destruction by amendment.

Three amendment cases worked out

Coleman v Miller, 307 U.S. 433 (1939). The Kansas legislature rejected the proposed Child Labor Amendment in 1925 and purported to ratify it in 1937, the Lieutenant Governor casting the deciding vote in a Senate tied at twenty all; twenty one legislators sued to have the ratification declared ineffective. The Supreme Court held that the effect of an earlier rejection, and whether an amendment proposed thirteen years before was still open, are political questions committed to Congress, and it divided evenly on the Lieutenant Governor's vote, leaving the State court's decision standing. The consequence is that the American amending process has no judicial umpire at all, which is why the status of the Equal Rights Amendment, proposed in 1972 and purportedly ratified by Nevada, Illinois and Virginia between 2017 and 2020, is genuinely unresolved to this day.

Kihoto Hollohan v Zachillhu, 1992 Supp (2) SCC 651. Legislators disqualified for defection under the Tenth Schedule, inserted by the Fifty Second Amendment in 1985, challenged it, and in particular paragraph 7, which provided that no court should have any jurisdiction in respect of any matter connected with disqualification. Five judges upheld the Schedule but struck paragraph 7 down on a purely procedural ground: by excluding the jurisdiction of the High Courts under Article 226 and of the Supreme Court under Articles 32 and 136 it altered Chapter IV of Part V and Chapter V of Part VI, and so required ratification by the legislatures of half the States under the proviso to Article 368(2), which had never been sought. It is the only amendment ever to fall for want of that federal ratification, and it is therefore the single case that shows the proviso doing real work.

For full marks, cover: the three heads the question names, in that order; appointment, tenure and hierarchy under organisation; jurisdiction and the power to invalidate under powers; and what each court has actually done with the power under functions, supported by a leading decision for each system.

The collegium is the Indian peculiarity and must be traced. S.P. Gupta v Union of India, 1981 Supp SCC 87, held that consultation in Article 124(2) did not mean concurrence, leaving primacy with the executive. The Second Judges case, Supreme Court Advocates-on-Record Association v Union of India, (1993) 4 SCC 441, nine judges, reversed it and read consultation as concurrence, giving the Chief Justice of India primacy exercised through a collegium. In re Special Reference No 1 of 1998, (1998) 7 SCC 739, fixed the collegium at the Chief Justice and the four senior most judges for Supreme Court appointments. The Ninety Ninth Amendment created a six member National Judicial Appointments Commission and was struck down in Supreme Court Advocates-on-Record Association v Union of India, (2015) 5 SCC 1, by four to one, the decisive objection being that any two members could veto a recommendation, which would let two non judicial votes defeat the primacy the Court had held to be a basic feature.

United Kingdom: a court separated from the legislature only in 2009. The Appellate Committee of the House of Lords was the final court of appeal until the Constitutional Reform Act 2005 created the Supreme Court of the United Kingdom, which began work on 1 October 2009. The same Act reformed the office of Lord Chancellor, removed the judicial and Speaker roles from it, placed the rule of law on a statutory footing in section 1, and created the Judicial Appointments Commission, moving selection from patronage to a statutory merit process. Judges retire at seventy five and may be removed only on an address from both Houses, a power never used against an English superior court judge.

Switzerland: an elected and politically balanced bench. The Federal Supreme Court at Lausanne sits above the cantonal judiciaries. Its judges are elected by the United Federal Assembly for renewable terms of six years, and the parties' shares of seats broadly reflect their strength in the Assembly, so party affiliation is an accepted part of selection. There is no life tenure and re election is not guaranteed, which is the sharpest possible contrast with Article III.

Powers

The single question that separates the four is whether the court may set aside a statute.

The United States has the power without the text. Marbury v Madison, 5 U.S. (1 Cranch) 137 (1803), derived judicial review from the supremacy of a written constitution and from the judicial duty to decide the case before it. Article III limits the jurisdiction to cases and controversies, which is why there are no advisory opinions, a rule settled when the Justices declined to answer President Washington's questions in 1793, and why standing, ripeness, mootness and the political question doctrine restrict access. Almost all review is now by certiorari, discretionary since the Judiciary Act of 1925 and almost entirely so since the Supreme Court Case Selections Act of 1988, granted on the rule of four; and Congress retains the exceptions power over appellate jurisdiction which Ex parte McCardle, 74 U.S. 506 (1869), upheld.

Functions, with the leading decisions

Kesavananda Bharati v State of Kerala, (1973) 4 SCC 225. Swami Kesavananda Bharati, head of the Edneer Mutt in Kerala, challenged the Kerala Land Reforms Act and the Twenty Fourth, Twenty Fifth and Twenty Ninth Amendments under Article 26. Thirteen judges sat for sixty eight days. By seven to six the Court held that Article 368 does not confer power to alter the basic structure of the Constitution, and by that holding the Indian judiciary took jurisdiction over the constituent power itself. Three judges in the majority, Shelat, Hegde and Grover JJ., were superseded two days later when A.N. Ray J. was appointed Chief Justice of India on 26 April 1973, and all three resigned, which is the clearest illustration in Indian history of the cost of judicial independence and of the value of the collegium that grew out of it.

The Swiss illustration is the operation of Article 190 itself. Because a federal Act cannot be tested at Lausanne, a rights challenge to Swiss federal law has to go to Strasbourg, and Verein KlimaSeniorinnen Schweiz v Switzerland, 9 April 2024, is the demonstration: the Grand Chamber of the European Court of Human Rights found a violation of Article 8 in Switzerland's inadequate climate framework, and the Swiss Parliament responded with a declaration that it considered no further action necessary. A domestic bar on constitutional review does not abolish the review; it exports it, and the export is politically far more contentious than the domestic version would have been.

Two cases on the judiciary worked out

L. Chandra Kumar v Union of India, (1997) 3 SCC 261. Clause 2(d) of Article 323A and clause 3(d) of Article 323B, inserted by the Forty Second Amendment, together with section 28 of the Administrative Tribunals Act, 1985, excluded the jurisdiction of the High Courts over service matters and sent appeals from tribunals directly to the Supreme Court, so that a litigant's only route from a tribunal ran to Delhi. Seven judges held those exclusions unconstitutional: the power of judicial review vested in the High Courts under Articles 226 and 227 and in the Supreme Court under Article 32 is part of the basic structure and cannot be excluded even by constitutional amendment, and decisions of tribunals must be subject to scrutiny before a Division Bench of the High Court within whose jurisdiction the tribunal sits. No other apex court in this comparison can hold that its own jurisdiction is beyond the reach of the constituent power, and that single holding is the sharpest measure of how strong the Indian judiciary is.

Conclusion. The four judiciaries are organised differently but the difference that matters is one of power. India has built the strongest court, combining a guaranteed remedy, an advisory jurisdiction, plenary discretion under Article 136, the complete justice power of Article 142 and review of constitutional amendments, and the price of that strength is a docket it cannot clear and an appointments process it controls itself. The United States has a court of comparable authority confined to concrete disputes, whose power is judicially claimed rather than textually granted and can be narrowed by its own later decisions. The United Kingdom has a court that may not touch a statute and has therefore refined the review of executive action to the point where a prorogation can be quashed. Switzerland has withheld the power altogether and discovered that the review reappears in an international court. The evaluation the question invites is that judicial power is not created or destroyed by constitutional design, only located, and each of these four systems shows where it goes when the usual door is closed.

(a) Marbury v Madison, 5 U.S. (1 Cranch) 137 (1803)

The political setting, which the facts cannot be understood without. The election of 1800 transferred power from the Federalists to Jefferson's Republicans. Between the result and the inauguration the outgoing Federalist Congress passed the Judiciary Act of 1801, creating new judgeships, and the Organic Act for the District of Columbia. President Adams made the appointments in his final hours; forty two commissions for justices of the peace were signed and sealed but seventeen were never delivered, William Marbury's among them. The Secretary of State responsible for delivery was John Marshall himself, who was by then already Chief Justice designate. Jefferson instructed his Secretary of State, James Madison, to withhold the undelivered commissions. Marbury applied to the Supreme Court in its original jurisdiction for mandamus under section 13 of the Judiciary Act of 1789.

The three questions. Marshall CJ framed them as: has the applicant a right to the commission he demands; if he has a right and that right has been violated, do the laws of his country afford him a remedy; and if they do, is that remedy a mandamus issuing from this Court.

The third answer, and the doctrine. Section 13 of the Judiciary Act of 1789 empowered the Supreme Court to issue writs of mandamus to persons holding office under the authority of the United States. Article III, section 2 confers original jurisdiction on the Supreme Court only in cases affecting ambassadors, other public ministers and consuls and those in which a State is a party, and appellate jurisdiction in all others. Marshall CJ read section 13 as enlarging the original jurisdiction and held that Congress cannot do so. The reasoning that follows is the passage every constitutional lawyer learns: the Constitution is either a superior paramount law unchangeable by ordinary means, or it is on a level with ordinary legislative acts and alterable when the legislature pleases; if the former, a legislative act contrary to the Constitution is not law. It is emphatically the province and duty of the judicial department to say what the law is. Section 13 was void and the petition was dismissed for want of jurisdiction.

(b) Gibbons v Ogden, 22 U.S. (9 Wheat.) 1 (1824)

Facts. The State of New York granted Robert Livingston and Robert Fulton an exclusive right to operate steamboats in the waters of the State, a monopoly of considerable commercial value in the first age of steam. Aaron Ogden held a licence under that monopoly to run a ferry between Elizabethtown in New Jersey and New York City. Thomas Gibbons ran competing boats on the same route under a licence issued under the federal Coasting Act of 1793. Ogden obtained an injunction in the New York courts restraining Gibbons; Gibbons appealed to the Supreme Court.

The question. Whether the power of Congress to regulate commerce among the several States, in Article I, section 8, clause 3, extended to navigation within the waters of a single State, and whether the federal coasting licence therefore prevailed over the State grant.

Consequence. The immediate effect was to destroy the steamboat monopolies and open coastal and river navigation to competition, which was popular and economically transformative. The lasting effect is that the commerce clause became the principal source of federal regulatory power in the United States. It sustained the Interstate Commerce Act of 1887 and the Sherman Act of 1890, the New Deal legislation after the confrontation of 1937, and the public accommodation provisions of the Civil Rights Act of 1964, upheld in Heart of Atlanta Motel v United States, 379 U.S. 241 (1964), on the ground that racial discrimination by a motel serving interstate travellers burdened interstate commerce. The outer limit was marked in United States v Lopez, 514 U.S. 549 (1995), which struck down the Gun Free School Zones Act because carrying a gun near a school is not economic activity substantially affecting interstate commerce, and in National Federation of Independent Business v Sebelius, 567 U.S. 519 (2012), which held that the commerce power does not extend to compelling a person to purchase a product.

(c) Brown v Board of Education of Topeka, 347 U.S. 483 (1954)

Facts. Five cases were brought together, from Kansas, South Carolina, Virginia, Delaware and the District of Columbia. Oliver Brown's daughter Linda, aged eight, was refused admission to the white elementary school a few blocks from her home in Topeka and had to travel to a segregated black school. The National Association for the Advancement of Colored People, through Thurgood Marshall, deliberately chose cases in which the physical facilities were substantially equal, so that the Court could not dispose of them by ordering equalisation.

The precedent. Plessy v Ferguson, 163 U.S. 537 (1896), had upheld a Louisiana statute requiring equal but separate accommodation on railways, holding that a legal distinction between the races did not imply inferiority. Harlan J. dissented alone: our Constitution is colour blind and neither knows nor tolerates classes among citizens. Two decisions had already undermined the doctrine in higher education: Sweatt v Painter, 339 U.S. 629 (1950), held that a hastily created black law school in Texas was not equal because it lacked the intangibles that make a school great, and McLaurin v Oklahoma State Regents, 339 U.S. 637 (1950), held that a black graduate student required to sit at a designated desk and table was denied equal treatment.

Consequence. Brown II, 349 U.S. 294 (1955), remitted the cases with the direction that desegregation proceed with all deliberate speed, a phrase that licensed a decade of delay, school closures and massive resistance. Cooper v Aaron, 358 U.S. 1 (1958), decided after the Little Rock crisis and signed individually by all nine Justices, held that the Court's interpretation of the Fourteenth Amendment is the supreme law of the land binding on State officials. Real desegregation followed only after the Civil Rights Act of 1964 permitted the withholding of federal funds. Green v County School Board, 391 U.S. 430 (1968), required results rather than freedom of choice plans.

The Indian comparison. India abolished untouchability outright by Article 17 in 1950 and forbade discrimination in access to shops, public restaurants, wells, roads and places of public resort by Article 15(2), so the constitutional text did in a stroke what American law took from 1896 to 1968 to achieve through litigation. The Supreme Court expressly drew on Brown in State of Karnataka v Appa Balu Ingale, 1995 Supp (4) SCC 469, when construing Article 17 and the Protection of Civil Rights Act, 1955. The contrast is a standing argument for writing rights into a constitution rather than leaving them to be extracted from a general clause.

Holding, per Taney CJ, seven to two. First, on jurisdiction, the Court held that a person of African descent whose ancestors were imported into the United States and sold as slaves could not be a citizen of a State within the meaning of Article III, and therefore could not sue in a federal court; Taney CJ wrote that such persons had for more than a century been regarded as beings of an inferior order with no rights which the white man was bound to respect. Second, and although the first holding disposed of the case, the Court went on to hold that Congress had no power to prohibit slavery in the Territories: the Missouri Compromise of 1820 deprived slave owners of their property without due process of law, contrary to the Fifth Amendment, and was therefore void. Third, Scott's residence in free territory had not made him free, because his status on return was governed by the law of Missouri. Curtis and McLean JJ. dissented; Curtis J. demonstrated that free black men had voted in five States at the time of ratification, which contradicted the majority's history, and resigned from the Court shortly afterwards.

Three further cases behind these notes

Plessy v Ferguson, 163 U.S. 537 (1896). Homer Plessy, seven eighths white by descent, boarded a whites only carriage of the East Louisiana Railway in a test case arranged with the railway's cooperation, announced his ancestry, 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, and that if 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 with the sentence that outlived the majority: our Constitution is colour blind and neither knows nor tolerates classes among citizens. Fifty eight years of American public life were governed by that decision, and a note on Brown that does not give it cannot explain what Brown overturned.

Cooley v Board of Wardens, 53 U.S. 299 (1852). Pennsylvania required vessels entering or leaving Philadelphia to engage a local pilot or pay half the pilotage fee into a fund for retired pilots; Aaron Cooley refused and was sued. Curtis J. held that the commerce power is not uniformly exclusive of the States: subjects national in character or admitting of only one uniform system belong exclusively to Congress, while local subjects requiring diversity may be regulated by the States until Congress acts, so the pilotage fee stood. That doctrine of selective exclusiveness is the second half of Gibbons and the origin of the dormant commerce clause, whose modern form is Pike v Bruce Church Inc, 397 U.S. 137 (1970). A note on Gibbons that stops at 1824 has given only the half of the doctrine that expands federal power.