LLM Group 1 Constitutional and Administrative Law Comparative Constitutional Law 2016 Question Paper with Solutions

Written and unwritten, by form

A written constitution is one enacted at an identifiable moment and contained in one or a few documents, as in the United States in 1787, Switzerland in 1999 and India in 1949. An unwritten constitution has no such document and is found in statutes, judicial decisions, conventions and works of authority, as in the United Kingdom, New Zealand and Israel.

The distinction is one of degree. The British constitution contains a great deal of written law, from Magna Carta 1215 and the Bill of Rights 1689 to the Act of Settlement 1701, the Parliament Acts 1911 and 1949, the Human Rights Act 1998, the Scotland Act 1998 and the Constitutional Reform Act 2005; and the Indian constitution contains a great deal that is unwritten, since the collegium, the doctrine of the basic structure and the conventions of Cabinet government are nowhere in the text. Uncodified is the more accurate word for Britain, and Thoburn v Sunderland City Council, [2002] EWHC 195 (Admin), took the point further by recognising a class of constitutional statutes not subject to implied repeal.

India is deliberately placed on both sides of the line. Article 368 requires a majority of the total membership of each House and two thirds of those present and voting; for the matters listed in the proviso to Article 368(2), including the election of the President, the union judiciary and the High Courts, the distribution of legislative powers and the representation of States in Parliament, ratification by not less than half the State legislatures is required in addition; and outside Article 368 altogether, Articles 4 and 169 permit a simple majority to alter State boundaries and to abolish or create a Legislative Council. Sir Ivor Jennings' criticism, that the Indian Constitution is too rigid, and Dr Ambedkar's answer, that the Assembly had refused both the American rigidity and the British flexibility, are both worth quoting.

Unitary, federal and confederal, by the distribution of power

In a unitary constitution all power is central, and local bodies exist by ordinary law, as in the United Kingdom, France, Japan and Ireland, whose Article 15.2.1 vests the sole and exclusive power of making laws in the Oireachtas. In a federal constitution two levels derive authority from the constitution itself, and neither can abolish the other, which is Wheare's test of coordinate and independent spheres; the United States, Switzerland, Canada, Australia and Germany are the examples. In a confederation the units retain sovereignty and the centre acts on the units and not on individuals, as under the American Articles of Confederation of 1781 and in Switzerland before 1848.

Parliamentary and presidential, by the executive

In a parliamentary constitution the executive is drawn from and answerable to the legislature, as in Britain, India and Canada; Article 75(3) makes the Council of Ministers collectively responsible to the House of the People. In a presidential constitution the executive is separately constituted for a fixed term and cannot be removed on a vote of no confidence, as in the United States. France is the standard hybrid. Switzerland is neither, having a collegial Federal Council of seven elected under Article 175 which parliament cannot dismiss and whose Presidency rotates annually.

Real, nominal and facade, by observance

Sartori's classification is the only one that measures constitutionalism directly. A real constitution states limits and enforces them; a nominal constitution accurately describes a system of concentrated power; a facade constitution states limits that are not observed, the standard example being the Soviet Constitution of 1936, adopted in the year of the great purge with a long list of guaranteed freedoms. Loewenstein's normative, nominal and semantic classification makes the same point through the image of a suit that fits, a suit kept in the cupboard, and a suit worn as a disguise.

What the classification cannot tell you

Every category in the scheme can house an unlimited government, and that is the criticism the examiner is waiting for. A written constitution can be a facade; a rigid one can be captured by whoever controls the amending majority; a federal one can be centralised through control of finance and appointments; a parliamentary one can become what Lord Hailsham called an elective dictatorship, in which a government with a secure majority faces no effective scrutiny at all.

The second is whether the amending power is itself reviewable. India answered yes in Kesavananda Bharati v State of Kerala, (1973) 4 SCC 225; Germany answered yes in the text of Article 79(3) of the Basic Law; America has answered no, in National Prohibition Cases, 253 U.S. 350 (1920), and Coleman v Miller, 307 U.S. 433 (1939); and Switzerland cannot answer at all, because Article 190 bars its Federal Supreme Court from reviewing federal enactments. Four constitutions that sit in the same box on every traditional criterion give four different answers to the question that matters most.

A third feature the scheme misses is the override. Section 33 of the Canadian Charter allows a legislature to declare that a statute shall operate notwithstanding certain Charter rights, for five renewable years, and Ford v Quebec (Attorney General), [1988] 2 SCR 712, upheld a pre emptive and formulaic use of it. Whether there are any limits to that power was argued before the Supreme Court of Canada in the challenge to Quebec's Bill 21 from 23 to 26 March 2026. A written, rigid, federal constitution with a bill of rights therefore contains, in its own text, a mechanism for suspending the rights it guarantees, and no classification in the traditional list would tell you so.

Thoburn v Sunderland City Council, [2002] EWHC 195 (Admin). Steven Thoburn, a Sunderland greengrocer, sold produce by the pound on scales calibrated only in imperial units, contrary to regulations made to give effect to European measurement directives, and argued that the European Communities Act 1972 had been impliedly repealed by the later Weights and Measures Act 1985. Laws LJ rejected the argument and held that there exists a class of constitutional statutes, among them Magna Carta, the Bill of Rights 1689, the Acts of Union, the Reform Acts, the Human Rights Act 1998 and the European Communities Act 1972, which are immune from implied repeal and can be repealed only by express words. A greengrocer's prosecution therefore produced a hierarchy of statutes inside a constitution the textbooks classify as unwritten and flexible, which is the strongest available demonstration that the categories describe form rather than substance.

Conclusion. Classification is a set of questions rather than a set of labels, and the answer for any constitution is a position on each of six criteria. Its value is practical: it tells a lawyer where the constitutional limit is to be found, how the constitution is likely to change and who must consent to that change. Its limit is that no classification measures whether power is in fact restrained, except Sartori's, and that the categories themselves blur, since Britain now has constitutional statutes without a written constitution, and India has simple majority amendment inside a rigid constitution. The detailed answer, therefore, ends by saying that the classification of the Indian Constitution is not a word but a paragraph.