LLM Group 1 Constitutional and Administrative Law Comparative Constitutional Law 2015 Question Paper with Solutions

For full marks, cover: what independence means and from whom; the constitutional guarantees, article by article; the appointment story, which is the heart of the subject; and then the critical part, because the question says critically and an answer that only lists the safeguards has answered half of it.

Judicial independence has two components and candidates usually give only the first. Decisional independence is the freedom of the individual judge to decide the case before them without fear or favour. Institutional independence is the freedom of the judiciary as a branch from control by the executive and the legislature in matters of appointment, tenure, conditions of service, budget and administration. The Indian Constitution provides generously for the first and, as originally drafted, left the second largely to the executive, which is why the whole constitutional history of this subject is a contest about appointments.

Security of tenure. A Supreme Court judge holds office until sixty five and a High Court judge until sixty two, and may be removed only by an order of the President passed after an address by each House supported by a majority of the total membership of that House and by not less than two thirds of the members present and voting, on the ground of proved misbehaviour or incapacity. The Judges (Inquiry) Act, 1968, supplies the machinery. No judge has ever been removed. The motion against V. Ramaswami J. in 1993 failed although the inquiry committee found misbehaviour proved, because the ruling party abstained, which shows that the safeguard is also a shield.

Financial independence. Article 125 with the Second Schedule fixes salaries, which may not be varied to a judge's disadvantage after appointment except during a financial emergency under Article 360. The salaries and the administrative expenses of the Supreme Court are charged on the Consolidated Fund of India under Article 146(3), and of a High Court on the Consolidated Fund of the State under Article 229(3), so they are not votable and cannot be used as leverage.

Appointments: the four judges cases and their aftermath

S.P. Gupta v Union of India, 1981 Supp SCC 87*, the First Judges case. Seven judges held that consultation in Articles 124 and 217 did not mean concurrence, that the Chief Justice's opinion had no primacy, and that the executive could decline to accept it for cogent reasons. The same judgment relaxed standing and founded public interest litigation, so the case that weakened institutional independence strengthened access. The decade that followed saw transfers and non appointments widely perceived as punitive.

Supreme Court Advocates-on-Record Association v Union of India, (1993) 4 SCC 441, the Second Judges case. Nine judges overruled S.P. Gupta by seven to two, holding that consultation means concurrence, that the Chief Justice of India has primacy exercised in consultation with his senior colleagues, and that no appointment can be made against the collegium's recommendation. The Court reasoned from Article 50 and from the basic feature of judicial independence rather than from the words of Article 124.

The critical assessment

The strongest criticism is that the collegium substituted one unaccountable process for another. There is no eligibility criterion published, no application, no record of deliberation and no reasoned order. Chelameswar J.'s dissent in 2015 called for transparency, and the Court itself in the Memorandum of Procedure proceedings accepted that reform was needed; the revised Memorandum has been under negotiation between the collegium and the Union since 2015 and has never been finalised, which leaves the process governed by a document neither side accepts.

The second criticism is that the executive retains a veto by inaction. The collegium recommends; the Union appoints. Where the Union simply does not act, the recommendation lapses in practice. Reiterated recommendations, which under the Second and Third Judges cases are binding, have remained pending for years, and the Supreme Court has repeatedly listed contempt proceedings against the Law Ministry over delays without pressing them to a conclusion. The result is that vacancies in the High Courts run at roughly a third of sanctioned strength, and delay in appointment is a more effective instrument of executive influence than refusal ever was.

The sixth criticism is that contempt jurisdiction under Article 129 sits awkwardly with independence. A power to punish criticism of the institution protects the institution from pressure and also insulates it from scrutiny, and the conviction of Prashant Bhushan for criminal contempt on 14 August 2020 for two tweets, followed by a fine of one rupee, illustrated both the reach of the power and the difficulty of using it.

The three appointments cases worked out

S.P. Gupta v Union of India, 1981 Supp SCC 87. In March 1981 the Union Law Minister circulated a letter to the Chief Ministers asking that additional judges be required to consent in advance to being appointed outside their home State, and that fresh appointees give the same undertaking. Lawyers across several High Courts challenged the circular, together with the non extension of two additional judges of the Delhi High Court. Seven judges held that consultation in Articles 124(2) and 217(1) requires a full and effective exchange of views but not concurrence, so where the constitutional functionaries differ the Union's view prevails, and that the circular was valid. The bearing on this question is direct: for twelve years the executive held the last word on who became a judge, and the transfers that followed are the reason the Court reversed itself in 1993.

Supreme Court Advocates-on-Record Association v Union of India, (2015) 5 SCC 1. The Ninety Ninth Amendment and the National Judicial Appointments Commission Act, 2014, replaced the collegium with a six member Commission: the Chief Justice, the two next senior judges, the Union Minister of Law and two eminent persons chosen by a panel of the Prime Minister, the Chief Justice and the Leader of the Opposition. Four judges to one struck both down. The operative defect was section 6(6) read with Article 124A: any two members could veto a recommendation, so the two eminent persons, or the Minister with one of them, could defeat the three judicial votes. Chelameswar J. dissented, holding that the collegium's own opacity was the greater danger. The case matters here because it shows the Court defending its independence successfully and, in the same judgment, declining to reform the process that independence rests on.

For full marks, cover: the historical origin, because American federalism was made by States that already existed; the textual machinery, article by article; the institutional expressions of federalism; the case law that built and limited federal power; and a closing comparison with India, since this is a comparative paper.

American federalism was made from the bottom up, and every feature follows from that. Thirteen colonies declared independence separately in 1776, fought the war as a league, and governed themselves under the Articles of Confederation of 1781, which gave the Congress no power to tax, no power to regulate commerce and no executive or judiciary. The Philadelphia Convention of 1787 was called to repair those defects, and the delegates were agents of States that were already sovereign. The Constitution they produced therefore grants powers to the centre and leaves the rest where it already was.

Supremacy and the oath. Article VI provides that the Constitution, the laws of the United States made in pursuance of it, and treaties, shall be the supreme law of the land, and that the judges in every State shall be bound thereby, anything in the constitution or laws of any State notwithstanding. The same Article binds State legislators and officers by oath to support the Constitution.

Limits on the States. Article I, section 10 forbids the States to enter into treaties, coin money, emit bills of credit, pass any bill of attainder, ex post facto law or law impairing the obligation of contracts, or to lay imposts or duties on imports or exports without the consent of Congress.

Guarantees to the States. Article IV, section 3 provides that no new State may be formed within the jurisdiction of another, or by the junction of two or more States, without the consent of the legislatures concerned as well as of Congress. Article IV, section 4 guarantees to every State a republican form of government and protection against invasion and domestic violence. Article V entrenches the equal suffrage of the States in the Senate, which cannot be taken from a State without its consent, and is the only permanently unamendable provision in the American Constitution. Article IV also contains the full faith and credit clause, the privileges and immunities clause and the extradition clause.

A federal umpire. Marbury v Madison, 5 U.S. (1 Cranch) 137 (1803), supplies the power and Martin v Hunter's Lessee, 14 U.S. 304 (1816), applied it to State court judgments, holding that the Supreme Court has appellate jurisdiction over the decisions of State courts on federal questions, which is the keystone of the whole structure.

A rigid amending procedure in which the States are indispensable. Article V requires ratification by three quarters of the States, so no amendment can be made against the will of thirteen of them.

The case law

McCulloch v Maryland, 17 U.S. (4 Wheat.) 316 (1819). Maryland taxed the notes issued by the Baltimore branch of the Second Bank of the United States, and the cashier McCulloch refused to pay. Marshall CJ held that Congress could incorporate a bank although the power is not enumerated, because let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate and plainly adapted to that end are constitutional; and that Maryland could not tax the bank, because the power to tax involves the power to destroy and the States have no power to impede the operations of the constitutional laws of Congress. The case supplied implied powers and intergovernmental immunity in a single judgment.

United States v Lopez, 514 U.S. 549 (1995), struck down the Gun Free School Zones Act of 1990 as beyond the commerce power, the first such invalidation in nearly sixty years, holding that possession of a gun near a school is not economic activity that substantially affects interstate commerce. Printz v United States, 521 U.S. 898 (1997), added the anti commandeering rule: Congress may not compel State officers to administer a federal regulatory scheme, in that case background checks under the Brady Act.

National Federation of Independent Business v Sebelius, 567 U.S. 519 (2012), held that the individual mandate could not be sustained under the commerce power because that power presupposes existing commercial activity and does not extend to compelling people to enter a market, though the mandate survived as an exercise of the taxing power; and held that the Medicaid expansion, by threatening the withdrawal of all existing Medicaid funds, was unconstitutional coercion of the States. It is the most important federalism decision of the modern era because it limited both the commerce power and the spending power in one judgment.

The features that are absent are as instructive as those present. The American Constitution has no emergency chapter, no provision for the dismissal of a State government, no All India Services officered from the centre and serving in the States, no single Election Commission conducting State elections, no Comptroller and Auditor General auditing both levels and no Governor appointed by the centre. Each of those exists in India and each is a departure from the American model, which is why K.C. Wheare described the Indian Constitution as quasi federal and Sir Ivor Jennings as federal with a strong centralising tendency.

Texas v White, 74 U.S. 700 (1869). During the Civil War the Confederate government of Texas sold United States bonds held in the State school fund to buy war supplies. After the war the reconstructed government sued the purchasers to recover them, which it could do only if Texas had remained a State of the Union throughout. Chase CJ held that it had: the Constitution in all its provisions looks to an indestructible Union composed of indestructible States, the ordinance of secession was absolutely null, and Texas had never left. The bearing on a comparison with India is exact and is usually missed. American States cannot be abolished, divided or renamed against their will, while Article 3 of the Indian Constitution allows Parliament to alter the name, area and boundaries of any State by ordinary law after merely referring the Bill to the State legislature for its views, which it need not accept.

For full marks, cover: the two words in the question separately. Nature means what kind of power the amending power is, constituent or legislative, and who holds it. Scope means how far it reaches and what, if anything, lies outside it. Then take the three constitutions under both heads, and close with an evaluation.

The nature of the amending power is a real question and not a preliminary. If amending is an ordinary legislative act, the body that amends is exercising a power conferred on it and is bound by every other provision of the constitution. If it is constituent power, the amending body stands in the place of the people who made the constitution and is limited only by what the amending clause itself says. Indian law has answered this twice, in opposite directions, and the answer determines whether the courts may review an amendment at all.

The American courts have declined to develop any implied limit. In National Prohibition Cases, 253 U.S. 350 (1920), it was argued that the Eighteenth Amendment was not a proper subject for a constitutional amendment at all, and the Court rejected the argument. In Coleman v Miller, 307 U.S. 433 (1939), questions about the effect of a prior rejection and about the reasonableness of the time taken to ratify were held to be political questions for Congress. There is therefore no American doctrine of unconstitutional constitutional amendment, and this is the sharpest single contrast with India.

Kesavananda Bharati v State of Kerala, (1973) 4 SCC 225, settled the nature and limited the scope in one holding. Thirteen judges sat for sixty eight days. By seven to six the Court upheld the Twenty Fourth Amendment and accepted that the power in Article 368 is constituent power and reaches every provision including Part III; and held, in the same breath, that a power to amend is not a power to abrogate, so that no amendment may damage or destroy the basic structure of the Constitution. Sikri CJ's illustrative list was the supremacy of the Constitution, the republican and democratic form of government, the secular character of the Constitution, the separation of powers between the legislature, the executive and the judiciary, and the federal character of the Constitution.

The three procedures under Article 368 and the provisions outside it. The ordinary route is a special majority in each House separately, with no joint sitting available, so the Council of States has an absolute veto. The entrenched route adds ratification by the legislatures of not less than half the States and applies to the matters listed in the proviso to Article 368(2): the manner of election of the President, the extent of the executive power of the Union and of the States, the union judiciary and the High Courts, the distribution of legislative powers, the representation of States in Parliament, and Article 368 itself. Outside Article 368 altogether, a simple majority suffices where the Constitution says so: Article 4 for changes consequential on the formation of new States under Articles 2 and 3, Article 169 for the abolition or creation of a Legislative Council, and paragraph 7 of the Fifth Schedule and paragraph 21 of the Sixth Schedule.

Scope. The only limits are formal and are in Article 139(3): unity of form, so an initiative must be either a general proposal or a draft and not both; unity of subject matter, so unrelated proposals may not be combined; and the mandatory provisions of international law, which the Federal Assembly interprets narrowly as the ius cogens core, meaning the prohibitions of genocide, slavery, torture and refoulement. Substantively, there is nothing the Swiss electorate may not put into the Constitution, and no court may afterwards remove it, because Article 190 makes federal enactments binding on the Federal Supreme Court.

The consequence is visible. The minaret ban accepted in 2009 and the deportation initiative accepted in 2010 both entered the Constitution despite serious tension with the European Convention on Human Rights, and the only remedy has been at Strasbourg. Verein KlimaSeniorinnen Schweiz v Switzerland, decided by the Grand Chamber on 9 April 2024, found a violation of Article 8 in Switzerland's inadequate climate framework, and the Swiss Parliament responded by declaring no further action necessary, which is a live illustration of the gap the Swiss design leaves.

Evaluation. The American amending power is wide in scope and almost impossible to exercise, so the Constitution is stable in text and unstable in meaning, since change is delivered instead by a bench of nine. The Swiss amending power is wide in scope and easy to exercise, so the Constitution is continually updated and carries the highest democratic authority of the three, at the cost that a majority may write into it whatever it pleases with no domestic remedy. The Indian amending power is the only one of the three that has been judicially narrowed in scope, and the reason is empirical: between 1971 and 1976 the amending power was used to place a Prime Minister's election beyond challenge, to subordinate fundamental rights to every directive principle and to declare amendments unchallengeable, and a constitution whose amending clause can be used in that way needs a limit that its own text does not supply.

I.C. Golaknath v State of Punjab, AIR 1967 SC 1643. The Golak Nath family held over five hundred acres in Jalandhar, most of which was declared surplus under the Punjab Security of Land Tenures Act, 1953, an Act placed in the Ninth Schedule by the Seventeenth Amendment. Eleven judges held by six to five that an amendment is law within Article 13(2), so Parliament had no power to take away or abridge any fundamental right at all. Subba Rao CJ applied prospective overruling so that the First, Fourth and Seventeenth Amendments survived but no future amendment could touch Part III. The position was too absolute to hold, because it left no lawful route to agrarian reform, and Parliament answered with the Twenty Fourth Amendment.

Conclusion. The nature of the amending power is constituent in all three systems, but it is vested in three different bodies: in America it is split between Congress and the States so that neither can act alone, in India it is vested in Parliament with a State role only for federal matters, and in Switzerland it is vested in the electorate itself. The scope is unlimited in America and Switzerland save for two textual entrenchments and three formal conditions respectively, and limited in India by the basic structure doctrine, which is the single most important Indian contribution to comparative constitutional law and has been followed in Bangladesh, in Pakistan in part and in Kenya, and expressly rejected in Singapore and Malaysia. The Indian position is best understood not as a peculiarity but as the answer of a constitution that had seen its own amending clause used to suspend constitutional government.

The source of the power

In the United States the power is nowhere in the text and was claimed by the Court in 1803. Article III vests the judicial power and extends it to all cases arising under the Constitution; Article VI declares the Constitution the supreme law of the land and binds State judges to it. From those two provisions Marshall CJ derived judicial review in Marbury v Madison, 5 U.S. (1 Cranch) 137 (1803): 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 shall please to alter it; if the former, a legislative act contrary to the Constitution is not law; and it is emphatically the province and duty of the judicial department to say what the law is. Martin v Hunter's Lessee, 14 U.S. 304 (1816), extended the power to the review of State court judgments on federal questions, without which the supremacy clause would have been unenforceable.

The scope

Both systems review legislation on competence and on rights. In India a statute is bad if the legislature lacked competence under the Seventh Schedule, if it violates Part III, or if it violates any other provision of the Constitution, and the doctrines of pith and substance, colourable legislation, severability, eclipse and waiver were developed to work that out. In America a federal statute is bad if it exceeds an enumerated power or violates a prohibition, and a State statute is bad if it conflicts with a valid federal law or with the Constitution.

Only India reviews constitutional amendments. After Kesavananda Bharati v State of Kerala, (1973) 4 SCC 225, an amendment may be struck down for destroying the basic structure, and amendments have been struck down five times, in Indira Nehru Gandhi, Minerva Mills, Kihoto Hollohan, I.R. Coelho and the NJAC case. America has no such doctrine; Coleman v Miller, 307 U.S. 433 (1939), treated challenges to the amending process as political questions.

The standards

American law applies tiers of scrutiny. Strict scrutiny, requiring a compelling governmental interest and narrow tailoring, applies to suspect classifications such as race and to fundamental rights, and was applied to end race conscious university admissions in Students for Fair Admissions v President and Fellows of Harvard College on 29 June 2023. Intermediate scrutiny, requiring an important interest and a substantial relationship, applies to sex, following Craig v Boren, 429 U.S. 190 (1976), and United States v Virginia, 518 U.S. 515 (1996). Rational basis review, requiring only a legitimate interest and a rational relation, applies to everything else and is almost always satisfied.

The limits

Both systems avoid deciding constitutional questions unnecessarily. The seven rules of avoidance stated by Brandeis J. in his concurrence in Ashwander v Tennessee Valley Authority, 297 U.S. 288 (1936), are the classic formulation, and were expressly adopted by the Indian Supreme Court. Both apply a presumption of constitutionality, both require a real dispute, and both apply severability.

The political question doctrine limits both, differently. Baker v Carr, 369 U.S. 186 (1962), gave the six American factors, the first being a textually demonstrable constitutional commitment of the issue to a coordinate political department, and Rucho v Common Cause, 588 U.S. 684 (2019), held partisan gerrymandering nonjusticiable on that basis. India has no general political question doctrine and has moved steadily against it: S.R. Bommai v Union of India, (1994) 3 SCC 1, held a Proclamation under Article 356 justiciable, and Kihoto Hollohan held the Speaker's decision under the Tenth Schedule subject to review on limited grounds. The Indian limit is instead the exclusion in Article 122 and Article 212 of review of parliamentary and legislative proceedings on the ground of irregularity of procedure, which Raja Ram Pal v Speaker, Lok Sabha, (2007) 3 SCC 184, held does not extend to illegality or unconstitutionality.

Criticism, which a full answer should include. The standing criticism of American judicial review is the countermajoritarian difficulty, stated by Alexander Bickel: why should five unelected and life tenured judges override the considered judgment of an elected legislature. The standing criticism of Indian judicial review is the opposite: not that it is countermajoritarian, but that it is unbounded, since the combination of Article 32, relaxed standing, continuing mandamus and Article 142 has drawn the Court into administration, and the basic structure doctrine gives it the last word even over the constituent power, while the judges who exercise all this are chosen by other judges.

A.K. Gopalan v State of Madras, AIR 1950 SC 27. A.K. Gopalan, a Communist leader, was detained under the Preventive Detention Act, 1950, and moved the Supreme Court under Article 32, arguing that the Act violated Articles 19 and 21. Six judges held that Articles 19, 21 and 22 occupy separate fields, that Article 21 requires only a procedure established by a validly enacted law and not a fair one, and that Article 22 is a complete code for preventive detention. Fazl Ali J. dissented. The case shows Indian judicial review at its narrowest, and it is the necessary background to Maneka Gandhi v Union of India, (1978) 1 SCC 248, which reversed the compartments approach and required the procedure itself to be right, just and fair.

Conclusion. Judicial review in the two systems is identical in function and different in almost every constitutional particular. America invented it in a case in which the Court declined jurisdiction, has no textual warrant for it, confines it to concrete disputes brought by injured parties, allows Congress to trim the appellate jurisdiction, and refuses to extend it to constitutional amendments. India received the idea, wrote it into the text in Article 13, guaranteed access to it in Article 32, opened that access to strangers acting in the public interest, refused to accept a political question doctrine, and extended review to the amending power itself. The American power is stronger in theory, since it rests on a claim about the nature of a written constitution, and the Indian power is wider in practice, and the difference is explained by what each constitution was written to prevent.

The precedent that stood in the way. Plessy v Ferguson, 163 U.S. 537 (1896), had upheld a Louisiana statute requiring equal but separate railway accommodation, reasoning that a legal distinction between the races did not destroy legal equality and that any badge of inferiority existed only because the coloured 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.

The two cases that prepared the ground. Sweatt v Painter, 339 U.S. 629 (1950), held that a black law school hurriedly created in Texas was not equal to the University of Texas law school, because equality includes intangibles such as the reputation of the faculty and the standing of the alumni. McLaurin v Oklahoma State Regents, 339 U.S. 637 (1950), held that a black graduate student admitted to a white university but required to sit at a designated desk in the classroom, library and cafeteria was denied equal treatment, because such restrictions impaired his ability to study and to exchange views with other students.

Consequence. Brown II, 349 U.S. 294 (1955), directed that desegregation proceed with all deliberate speed, a phrase that permitted years of delay, school closures and organised resistance. Cooper v Aaron, 358 U.S. 1 (1958), decided after Governor Faubus obstructed integration at Little Rock and signed individually by all nine Justices, held that the federal judiciary is supreme in the exposition of the law of the Constitution and that State officials are bound. Meaningful desegregation followed only after the Civil Rights Act of 1964 permitted the withholding of federal funds, and Green v County School Board, 391 U.S. 430 (1968), required plans that worked rather than plans that offered a choice.

The origin of the idea. It is usually traced to Professor Dietrich Conrad of Heidelberg, who lectured at Banaras Hindu University in February 1965 on implied limitations of the amending power, drawing on the German experience of 1933 and on Article 79(3) of the Basic Law of 1949, which makes amendments touching the federal division or the principles of Articles 1 and 20 inadmissible. The lecture was cited in argument and referred to by Mudholkar J. in Sajjan Singh v State of Rajasthan, AIR 1965 SC 845, where he asked whether the Constitution had certain basic features which the amending power could not reach.

The sequence. Shankari Prasad (1951) and Sajjan Singh (1965) held that Part III could be amended. I.C. Golaknath v State of Punjab, AIR 1967 SC 1643, held by six to five that it could not, treating an amendment as law within Article 13 and applying prospective overruling. Parliament replied with the Twenty Fourth, Twenty Fifth and Twenty Ninth Amendments. Kesavananda Bharati v State of Kerala, (1973) 4 SCC 225, thirteen judges sitting for sixty eight days, overruled Golaknath, upheld the Twenty Fourth Amendment and, by seven to six, held that the amending power does not extend to destroying the basic structure. Sikri CJ's illustrative features were the supremacy of the Constitution, the republican and democratic form of government, its secular character, the separation of powers and its federal character.

The five occasions on which an amendment has actually been struck down. Clause 4 of the Thirty Ninth Amendment, in Indira Gandhi (1975). Sections 4 and 55 of the Forty Second Amendment, in Minerva Mills (1980). Paragraph 7 of the Tenth Schedule, in Kihoto Hollohan v Zachillhu, 1992 Supp (2) SCC 651, for want of the State ratification required by the proviso to Article 368(2). The protection of post 1973 Ninth Schedule entries, opened to review in I.R. Coelho v State of Tamil Nadu, (2007) 2 SCC 1. The Ninety Ninth Amendment and the National Judicial Appointments Commission Act, in 2015. Waman Rao v Union of India, (1981) 2 SCC 362, fixed 24 April 1973 as the date from which the doctrine applies, so that everything done before it is safe.

Influence abroad. The doctrine has been adopted in Bangladesh in Anwar Hossain Chowdhury v Bangladesh (1989), applied in substance in Kenya's High Court and Court of Appeal in the Building Bridges Initiative litigation of 2021, though the Supreme Court of Kenya in 2022 declined to adopt it as such, and expressly rejected in Singapore in Teo Soh Lung v Minister for Home Affairs (1989) and in Malaysia for many years, although the Federal Court has moved towards it since Semenyih Jaya (2017) and Indira Gandhi a/p Mutho (2018). It has no American counterpart at all.

Sweatt v Painter, 339 U.S. 629 (1950). Heman Sweatt, a black postal worker, was refused admission to the University of Texas School of Law, and the State hastily created a separate law school for black students in a basement in Austin with four rooms, a part time faculty drawn from the white school and no accreditation. The Supreme Court held unanimously that the new school was not equal, because equality includes the intangibles that make a law school great, the reputation of the faculty, the experience of the administration, the standing of the alumni and the traditions and prestige of the institution, and because a lawyer trained apart from the group with which he must deal cannot be effectively educated. With McLaurin v Oklahoma State Regents, 339 U.S. 637 (1950), decided the same day, it shows that Brown was the end of a planned litigation campaign and not an isolated act of judicial will.

For full marks, cover: what civil liberties are and how each constitution states them; the enforcement machinery, which is where India and America differ most; the substantive comparison across the four great heads of speech, religion, equality and life and liberty; the emergency position; and a conclusion on which system protects more.

Definition and the difference in drafting technique. Civil liberties are the freedoms of the individual against the State, as distinct from political rights, which are freedoms to participate in government, and from social and economic claims, which require the State to act. The American Bill of Rights states them as prohibitions with no exceptions written in; the Indian Part III states them as guarantees with the permissible restrictions set out in the same Article. That single drafting difference explains most of what follows.

The Indian scheme. Part III contains Articles 12 to 35 and is far more detailed. Article 12 defines the State; Article 13 makes inconsistent laws void; Articles 14 to 18 contain the equality code, including the abolition of untouchability by Article 17 and of titles by Article 18; Articles 19 to 22 contain the freedoms, the protection in respect of conviction for offences, the protection of life and personal liberty and the protection against arbitrary arrest and detention; Articles 23 and 24 forbid trafficking, forced labour and the employment of children in hazardous work; Articles 25 to 28 protect religion; Articles 29 and 30 protect cultural and educational rights of minorities; and Article 32 provides the remedy. Part III binds the State as defined in Article 12, and Articles 15(2), 17, 23 and 24 operate against private persons as well.

The substantive comparison

Speech. The First Amendment says Congress shall make no law abridging the freedom of speech, and the exceptions are judicial: Brandenburg v Ohio, 395 U.S. 444 (1969), protects advocacy short of incitement to imminent lawless action likely to occur; New York Times Co v Sullivan, 376 U.S. 254 (1964), requires actual malice in defamation actions by public officials; Texas v Johnson, 491 U.S. 397 (1989), protects flag burning. Article 19(1)(a) is subject to Article 19(2), which permits reasonable restrictions on eight enumerated grounds; the word reasonable and the ground of public order were added by the First Amendment in 1951 after Romesh Thappar v State of Madras, AIR 1950 SC 124, struck down a ban on circulation of a journal. Indian law has nonetheless converged with American in method: Shreya Singhal v Union of India, (2015) 5 SCC 1, struck down section 66A of the Information Technology Act, 2000, for vagueness and overbreadth and expressly adopted the advocacy and incitement distinction, and Anuradha Bhasin v Union of India, (2020) 3 SCC 637, applied proportionality to internet shutdowns.

Equality. The Equal Protection Clause is a single sentence, and the tiers of scrutiny are judicial invention. India's equality code is elaborate: Article 14 general equality, Article 15 the prohibition of discrimination with the enabling clauses in 15(4), 15(5) and 15(6), Article 16 equality of opportunity in public employment with 16(4), 16(4A) and 16(6), Article 17 abolishing untouchability. The consequence is that affirmative action in India is constitutionally authorised and in America it is constitutionally suspect, which is why race conscious admissions ended there in Students for Fair Admissions v President and Fellows of Harvard College on 29 June 2023, while in India sub classification within the Scheduled Castes was permitted in State of Punjab v Davinder Singh on 1 August 2024.

Preventive detention is the one head on which India is markedly weaker. Article 22(3) to (7) authorises preventive detention in peacetime and regulates rather than forbids it: detention up to three months without reference to an Advisory Board, and longer on the Board's opinion. The United States has no comparable constitutional provision, and Hamdi v Rumsfeld, 542 U.S. 507 (2004), held that even a citizen designated an enemy combatant must receive notice and a fair opportunity to be heard before a neutral decision maker. India's National Security Act, 1980, and its predecessors have been sustained, though the Court has insisted on strict compliance with the procedural safeguards.

The American position is that emergency is not a separate constitutional category, and the record is nonetheless uneven. Korematsu v United States, 323 U.S. 214 (1944), upheld the internment of Japanese Americans, and the Court 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. Ex parte Milligan, 71 U.S. 2 (1866), had held much earlier that the Constitution is a law for rulers and people equally in war and in peace, and that martial law cannot arise from a threatened invasion where the courts are open.

Three civil liberties cases worked out

Romesh Thappar v State of Madras, AIR 1950 SC 124. Romesh Thappar published Cross Roads, a left wing weekly printed in Bombay, and the Government of Madras banned its entry and circulation in the State under section 9(1-A) of the Madras Maintenance of Public Order Act, 1949. Six judges to one struck the ban down: freedom of circulation is as much a part of Article 19(1)(a) as freedom of publication, and public order was not then among the grounds in Article 19(2), which spoke only of the security of the State and the overthrow of the State. Parliament's answer was the Constitution (First Amendment) Act, 1951, which inserted public order and the word reasonable into Article 19(2). The case is the clearest single illustration of the Indian technique, that limits are written into the text and are widened by amendment rather than by doctrine.

Korematsu v United States, 323 U.S. 214 (1944). Fred Korematsu, an American citizen of Japanese descent born in Oakland, remained in a designated military area in violation of Civilian Exclusion Order No 34 and was convicted. Six judges to three upheld the conviction, applying what it called the most rigid scrutiny to a racial classification and then deferring entirely to the military's assessment of necessity. Murphy J. dissented, calling it the legalisation of racism. 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. Set beside ADM Jabalpur it makes the point on which this comparison turns: both systems failed at the same moment and for the same reason, deference to an executive claim of necessity.

For full marks, cover: the word basis, which asks what criterion each classification uses, and then the kinds that follow from it; at least six classifications with real examples; the difficulties, because the categories overlap; and a conclusion on what classification is actually for.

State the organising point first. A classification is only as useful as the criterion on which it rests, and constitutions have been classified on at least six different criteria: the form in which the constitution exists, the method by which it is amended, the manner in which it came into being, the way power is distributed territorially, the relation between the executive and the legislature, and whether the constitution is in fact observed. Each criterion produces its own pair or set of kinds, and a single constitution will appear in a different place on each.

Basis two, the method of amendment: rigid and flexible. The distinction is Lord Bryce's. A rigid constitution can be amended only by a procedure different from and more difficult than the ordinary legislative process; a flexible constitution can be amended by ordinary legislation. The United States is the type of rigidity, requiring two thirds of both Houses and three quarters of the States. The United Kingdom is the type of flexibility, since the Human Rights Act 1998 could in law be repealed by a simple majority tomorrow. India is deliberately both: Article 368 requires a special majority in each House, and for the entrenched matters in the proviso to Article 368(2) ratification by half the States, while Articles 4 and 169 allow a simple majority to alter State boundaries and to abolish a Legislative Council.

Basis three, the manner of coming into being: evolved and enacted. An evolved or cumulative constitution is the product of slow historical growth without a single founding act, as in Britain. An enacted or conventional constitution is made at a moment by a constituent body, as the American Constitution was at Philadelphia in 1787 and the Indian by a Constituent Assembly between 1946 and 1949. The distinction matters because an enacted constitution has a text to be interpreted and a drafting history to be consulted, and an evolved one has neither.

India is the standing difficulty on this criterion and the answer must confront it. Article 1 calls India a Union of States, not a federation, and Dr Ambedkar explained that the word Union was chosen to indicate that the federation is not the result of an agreement and that the units have no right to secede. The unitary features are the strong centre with the residue under Article 248, the emergency provisions in Articles 352 to 360, the power of Parliament to reorganise States under Article 3, single citizenship, a single integrated judiciary, All India Services under Article 312, Governors appointed by the centre and a single Election Commission. The federal features are the written and supreme constitution, the division of powers in the Seventh Schedule, the bicameral legislature with a Council of States, and an independent judiciary as umpire. State of West Bengal v Union of India, AIR 1963 SC 1241, held that the Constitution is not federal in the classical sense; S.R. Bommai v Union of India, (1994) 3 SCC 1, held federalism to be a basic feature. The usual descriptions are Wheare's quasi federal, Granville Austin's cooperative federalism and the Supreme Court's own federal in structure with a unitary bias.

Two further classifications are sometimes given. Monarchical and republican, on the basis of the head of State, distinguishing the United Kingdom, Japan and Spain from India, the United States and France. And, following Karl Loewenstein, normative, nominal and semantic constitutions, which is a refinement of Sartori's scheme: a normative constitution is observed like a well fitting suit, a nominal one is a suit hung in the cupboard for a body that has yet to grow into it, and a semantic one is a disguise for the existing distribution of power.

Rigidity in the rule does not predict rigidity in practice. Switzerland has the most demanding amendment procedure of the major democracies, requiring a compulsory referendum with a double majority of people and cantons under Articles 140 and 142, and amends its constitution more often than any of them, because Article 139 lets a hundred thousand voters initiate the process directly. The United States has a procedure that is theoretically less demanding and has not been used since 1992.

The classifications say nothing about the substance. A written, rigid, federal, republican constitution with a bill of rights can house an unlimited government, and that is the whole point of Sartori's third category. Nothing in the traditional scheme captures the two features that most determine whether power is limited today, which are the independence of the appointing process for judges and electoral authorities, and whether the amending power is itself reviewable.

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 on the Governor's report that nineteen members had withdrawn support, without the Chief Minister being allowed to demonstrate his majority on the floor; the dismissals of three further governments after the demolition of the Babri Masjid in December 1992 were heard with it. Nine judges held that federalism and secularism are basic features, that a Proclamation under Article 356 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. The case decides where India sits on the unitary and federal criterion, and it does so against the text rather than with it.

Conclusion. Constitutions are classified on six main bases, and each basis yields its own kinds: written and unwritten by form, rigid and flexible by amendment, evolved and enacted by origin, unitary and federal and confederal by territorial distribution, parliamentary and presidential by the relation of executive to legislature, and real and nominal and facade by observance. The classification is worth making because it tells you where to look for the constitutional limit, how the constitution is likely to change and whom a reformer must persuade. It is worth treating with suspicion because the categories overlap, because India belongs to two of them at once on two different criteria, and because the only basis that measures whether a constitution actually restrains power is the one the textbooks list last.

The questions. Whether the power of Congress to regulate commerce with foreign nations and among the several States, in Article I, section 8, clause 3, extends to navigation; whether that power reaches navigation carried on within the territorial waters of a single State; and whether the New York monopoly could stand against a federal coasting licence.

Holding, per Marshall CJ. Commerce undoubtedly is traffic, but it is something more, it is intercourse, and it comprehends navigation. The power to regulate commerce among the several States cannot stop at the external boundary line of each State but may be introduced into the interior; the word among means intermingled with, and commerce which concerns more States than one is within the power. It does not, however, extend to that commerce which is completely internal to a State and does not affect other States. The power is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations other than are prescribed in the Constitution. The federal coasting licence granted to Gibbons was a valid exercise of that power, and the New York monopoly, being repugnant to it, had to yield under the Supremacy Clause in Article VI. The injunction was accordingly dissolved. Johnson J. concurred on the broader ground that the commerce power is exclusive.

The Indian comparison. India did not need to expand a commerce clause by construction, because Entry 42 of List I confers inter State trade and commerce expressly and Articles 301 to 307 form a separate Part guaranteeing freedom of trade, commerce and intercourse throughout the territory of India. The Indian case law has run in the opposite direction to the American: Atiabari Tea Co v State of Assam, AIR 1961 SC 232, and Automobile Transport (Rajasthan) Ltd v State of Rajasthan, AIR 1962 SC 1406, built a compensatory tax exception, and nine judges in Jindal Stainless Ltd v State of Haryana, (2017) 12 SCC 1, discarded it, holding that a non discriminatory tax does not offend Article 301 at all. America built its internal market by construing a grant of power widely; India wrote the internal market into the Constitution and has construed the guarantee narrowly.

Holding, per Taney CJ, seven to two. On the first question, the Court held that persons of African descent whose ancestors were imported as slaves were not, and were not intended to be, included under the word citizens in the Constitution; Taney CJ wrote that they had for more than a century been regarded as beings of an inferior order and so far inferior that they had no rights which the white man was bound to respect. The circuit court therefore had no jurisdiction. On the second question, although the first disposed of the case, the Court held that an Act of Congress which deprived a citizen of his property merely because he had brought it into a particular Territory could not be dignified with the name of due process of law, so the Missouri Compromise of 1820 was unconstitutional and void. On the third, Scott's status on his return was governed by the law of Missouri, which did not free him.

The dissents. McLean and Curtis JJ. dissented. Curtis J. demonstrated that at the time of the ratification of the Constitution free black men were citizens with the vote in at least five States, which destroyed the historical foundation of the majority's first holding; he resigned from the Court shortly afterwards.

Consequence. The decision destroyed the possibility of a legislative compromise on slavery in the Territories, split the Democratic Party between its northern and southern wings, transformed the new Republican Party's prospects, and contributed directly to Lincoln's election in 1860 and to the Civil War. It was reversed not by the Court but by amendment: the Thirteenth Amendment abolished slavery in 1865 and the first sentence of the Fourteenth Amendment in 1868 provided that all persons born or naturalised in the United States and subject to its jurisdiction are citizens of the United States and of the State wherein they reside, which overruled the citizenship holding in terms. Dred Scott is the leading member of the American anti canon, the small set of decisions cited only to be condemned, along with Plessy v Ferguson and Korematsu v United States.

The Indian counterpart is Part XIII, and its history is the reverse. Articles 301 to 307 write the internal market into the Constitution instead of leaving it to be inferred, and the Supreme Court then narrowed the guarantee rather than widening it. Atiabari Tea Co v State of Assam, AIR 1961 SC 232, held that a tax which directly and immediately restricts the movement of goods offends Article 301; Automobile Transport (Rajasthan) Ltd v State of Rajasthan, AIR 1962 SC 1406, created the compensatory tax exception; and nine judges in Jindal Stainless Ltd v State of Haryana, (2017) 12 SCC 1, discarded that exception entirely, holding that only a discriminatory tax offends Article 301. America built a common market by construction and India has been dismantling one by construction.

One further case behind these notes

Cooley v Board of Wardens, 53 U.S. 299 (1852). Pennsylvania required every vessel entering or leaving the port of Philadelphia either to engage a local pilot or to pay half the pilotage fee into a fund for retired pilots and their families; Aaron Cooley refused and was sued by the Board of Wardens. The question Gibbons had deliberately left open was whether the commerce power excludes the States altogether, Johnson J. having argued in concurrence that it does. Curtis J. held that it does not do so uniformly: subjects of commerce that are in their nature national, or admit of only one uniform system of regulation, belong exclusively to Congress, while those that are local and require diversity may be regulated by the States until Congress acts. Pilotage was local, so the fee stood. That doctrine of selective exclusiveness became the dormant commerce clause, whose modern form is stated in Pike v Bruce Church Inc, 397 U.S. 137 (1970): a non discriminatory State law with a legitimate local purpose survives unless the burden on interstate commerce is clearly excessive in relation to the local benefits.