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

For full marks, cover: the criterion behind each classification and not merely the pairs; six classifications with real examples; India worked through every one of them, since this is where the detail marks are; and the limits of the exercise.

Open with the organising idea. Constitutions are classified on different criteria, and a constitution occupies a different position on each criterion, so the classification of a constitution is a set of answers and not a single label. The six criteria in general use are the form in which the constitution exists, the method by which it is amended, the manner of its origin, the territorial distribution of power, the relation between executive and legislature, and whether the constitution is actually observed.

Advantages and disadvantages, which the word detail in the question invites. A written constitution is certain, accessible, and capable of being enforced by a court, and it is the necessary foundation of judicial review, which is Marshall CJ's whole argument in Marbury v Madison, 5 U.S. (1 Cranch) 137 (1803). It is also rigid, tends to be lengthy, and freezes the assumptions of its own age. An unwritten constitution adapts continuously and without crisis, and it gives no secure protection to a minority against a determined majority, which is why the Human Rights Act 1998 could in law be repealed tomorrow by a simple majority.

Rigid and flexible, by amendment

Lord Bryce's criterion is whether the amending procedure differs from the ordinary legislative procedure. A rigid constitution requires a special procedure; a flexible constitution does not. The United States is the extreme of rigidity, with two thirds of both Houses of Congress and ratification by three quarters of the States, producing twenty seven amendments in two hundred and thirty seven years. Britain is the extreme of flexibility.

Evolved and enacted, by origin

An evolved constitution grows without a founding act, as the British did over eight centuries. An enacted constitution is made at a moment by a constituent body, as the American was at Philadelphia in 1787 and the Indian by the Constituent Assembly, which sat from 9 December 1946 to 26 November 1949 and took two years, eleven months and eighteen days. The distinction matters practically: an enacted constitution has a text to construe and a drafting record to consult, and the Indian Supreme Court has used the Constituent Assembly Debates as an aid to interpretation since In re Berubari Union, AIR 1960 SC 845.

India requires a paragraph of its own. Article 1 calls India a Union of States, and Dr Ambedkar explained that the word was chosen to show that the federation is not the result of an agreement and that no unit has a right to secede. The unitary features are the residue with the Union under Article 248, the emergency provisions in Articles 352 to 360, the power of Parliament under Article 3 to alter the boundaries of a State after merely seeking its views, 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 a written and supreme constitution, the three lists of the Seventh Schedule, a bicameral Parliament with a Council of States, and an independent judiciary as umpire. State of West Bengal v Union of India, AIR 1963 SC 1241, held the Constitution not federal in the classical sense; S.R. Bommai v Union of India, (1994) 3 SCC 1, held federalism a basic feature. Wheare called it quasi federal, Jennings federal with a strong centralising tendency, and Granville Austin cooperative federalism.

The two features that most decide whether power is limited today are invisible on every traditional criterion. The first is the independence of the process by which judges and electoral authorities are appointed. The National Judicial Appointments Commission was struck down in Supreme Court Advocates-on-Record Association v Union of India, (2015) 5 SCC 1, because any two of six members could veto a 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 legislated nine months later to replace the Chief Justice with a Union Cabinet Minister, a change whose validity is still undecided. Nothing in Bryce or Wheare captures either event.

Two cases that test the categories

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, as an interference with his right under Article 26 to administer property owned by a religious denomination, and the case grew to take in the Twenty Fourth, Twenty Fifth and Twenty Ninth Amendments. Thirteen judges sat for sixty eight days. By seven to six they upheld the Twenty Fourth Amendment, overruled I.C. Golaknath v State of Punjab, AIR 1967 SC 1643, and held that Article 368 confers no power to damage or destroy the basic structure. The bearing on classification is that India cannot be placed on the rigid or flexible criterion by reading Article 368 at all: the operative limit on amendment is a judicial doctrine that the amending clause does not contain and was drafted in 1971 to exclude.

One further case that tests the categories

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 legislators had withdrawn support, the Chief Minister being refused an opportunity to prove his majority on the floor; the dismissals of three further governments after the demolition of the Babri Masjid in December 1992 were heard with the appeal. Nine judges held that federalism and secularism are basic features, that a Proclamation under Article 356 is justiciable and may be struck down for mala fides or wholly extraneous grounds, that the sole test of a majority is a floor test in the Assembly, and that the Assembly may not be dissolved before both Houses of Parliament approve. The case is decisive for the classification of India on the federal criterion, and it is decisive against the text, since Articles 356 and 365 were drafted to permit exactly what the Court restrained.

For full marks, cover: what counts as a federal element, so that the answer has a test to apply; the three constitutions under those heads; the elements each lacks; and a conclusion ranking them by how federal they actually are.

State the test first. Wheare's federal principle is that the general and the regional governments are each within a sphere coordinate and independent. From it follow the elements the answer must look for: a written constitution as the source of both governments' authority, its supremacy, its rigidity so that neither level can change the bargain alone, a division of powers, a second chamber representing the units, an independent judiciary to umpire, and a guarantee of the units' territorial existence.

The amending procedure requires the cantons. Article 140 makes a referendum compulsory for every constitutional amendment and Article 142 requires the double majority, a majority of those voting and a majority of the cantons, half cantons counting half a vote. No amendment can be made against the cantons' collective will.

The federal element Switzerland lacks is judicial review of federal statutes. Article 190 makes federal Acts binding on the Federal Supreme Court, so cantonal law is reviewable and federal law is not. The umpire's role is performed instead by the electorate through the optional referendum in Article 141, on the demand of fifty thousand voters or eight cantons.

The United States

Origin. Thirteen sovereign States confederated in 1781 and federated in 1787, so the Constitution is a grant by pre existing States.

India

Origin. India federated downwards. The Government of India Act, 1935, had provided a federal scheme; the Constituent Assembly drew the provinces and the princely States into a single Union, and Article 1 describes India as a Union of States precisely to signal that no unit had a right to leave.

The unitary elements are equally real and must be stated. The residue is with the Union under Article 248 and Entry 97 of List I. Article 3 allows Parliament to form new States and to alter the boundaries of existing ones after merely obtaining the views of the legislature concerned, which it need not accept, so Indian States are not indestructible. Articles 352 to 360 permit an Emergency in which Parliament may legislate on State subjects, and Article 356 permits the assumption of a State's functions. Articles 249, 250, 252 and 253 permit Parliament to legislate on State subjects in defined circumstances. Article 256 requires a State to comply with laws of Parliament and Article 257 permits directions, with Article 365 as the sanction. There is single citizenship under Article 5, a single integrated judiciary, All India Services under Article 312, a single Election Commission under Article 324, a single Comptroller and Auditor General under Article 148, and Governors appointed and removable by the centre under Articles 155 and 156.

The machinery of cooperation, which the classical account leaves out

Wheare's test describes the division of power and says nothing about how two governments occupying the same territory actually work together, which is where modern federalism lives. All three constitutions in this question have built such machinery, and naming it converts a static comparison into a working one.

Switzerland writes cooperation into the constitution as a duty. Article 44 obliges the Confederation and the cantons to support one another and to cooperate, and to settle disputes by negotiation or mediation wherever possible. Article 45 gives the cantons a right to participate in federal decision making, and Article 46 requires the Confederation to leave the cantons as large a margin of discretion as possible when they implement federal law. Article 48 permits inter cantonal agreements and common organisations, and the fiscal equalisation reform of 2008 rebuilt the transfer system between richer and poorer cantons.

The United States has the least machinery and the most litigation. Article I, section 10, clause 3 permits interstate compacts with the consent of Congress, and there are more than two hundred in force, on water, transport, education and law enforcement, of which the Colorado River Compact of 1922 is the best known. Beyond compacts, coordination is achieved chiefly through conditional federal spending, and it is that instrument which National Federation of Independent Business v Sebelius, 567 U.S. 519 (2012), limited by holding that threatening a State with the loss of all existing Medicaid funds was unconstitutional coercion rather than persuasion.

Union of India v Mohit Minerals, decided 19 May 2022. Importers of goods on cost, insurance and freight terms were made liable to integrated goods and services tax on the ocean freight component on a reverse charge basis, although the freight was paid by the foreign exporter to a foreign shipping line. The Supreme Court struck the levy down and, in doing so, held that the recommendations of the Goods and Services Tax Council under Article 279A are persuasive and not binding, because Article 246A confers simultaneous legislative power on Parliament and on the State legislatures and a binding Council would collapse that simultaneity into central control. The decision is the leading Indian authority on cooperative federalism as a working arrangement rather than a slogan.

Conclusion. Measured by the number of federal elements present, Switzerland and the United States are federations in the full sense and India is not. Switzerland goes furthest in protecting the units, giving the cantons a veto on every constitutional amendment and an equal second chamber, and stops short only in denying its court the power to review federal statutes. The United States protects its States by an equal Senate, a residue, an indestructible territorial existence and two modern doctrines against commandeering and coercion. India has the form of a federation and a centre equipped with emergency powers, the residue, control of the Governors and the power to redraw the States, so the honest description remains quasi federal. What has changed since 1994 is that the Indian judiciary has treated federalism as a basic feature and has enforced it, in Bommai against the misuse of Article 356 and in the mineral royalty decision of 2024 in the fiscal field, so the federal element in India is increasingly judicial rather than textual.

Colonial practice supplied the mechanism. Colonial legislation could be disallowed by the Privy Council for repugnancy to the laws of England, so American lawyers were accustomed to the idea that a legislature could act beyond its authority and that a body outside it could say so. Alexander Hamilton put the argument in Federalist No 78: the interpretation of the laws is the proper and peculiar province of the courts; a constitution is a fundamental law; where the will of the legislature stands in opposition to that of the people declared in the Constitution, the judges ought to be governed by the latter.

The development in America. Martin v Hunter's Lessee, 14 U.S. 304 (1816), extended review to State court judgments on federal questions. Dred Scott v Sandford, 60 U.S. 393 (1857), was the second use against a federal statute and discredited the power for a generation. The Lochner era from 1905 to 1937 used substantive due process to strike down social legislation and ended after the confrontation with President Roosevelt over Court packing. Brown v Board of Education, 347 U.S. 483 (1954), and the Warren Court turned the power to the protection of civil rights. Baker v Carr, 369 U.S. 186 (1962), stated the political question doctrine as a limit. Loper Bright Enterprises v Raimondo, 28 June 2024, overruled Chevron and returned the interpretation of ambiguous statutes to the courts, which is an expansion of review over the executive after four decades of deference.

The first phase, 1950 to 1967, was formalist. A.K. Gopalan v State of Madras, AIR 1950 SC 27, read Articles 19, 21 and 22 as separate compartments and gave procedure established by law its narrow meaning. State of Madras v Champakam Dorairajan, AIR 1951 SC 226, struck down communal reservation of seats, and Parliament answered with the First Amendment. State of West Bengal v Anwar Ali Sarkar, AIR 1952 SC 75, built the classification test under Article 14, and State of Madras v V.G. Row, AIR 1952 SC 196, the reasonableness test under Article 19.

The second phase was the contest over the amending power. Shankari Prasad (1951) and Sajjan Singh (1965) held amendments outside Article 13; I.C. Golaknath v State of Punjab, AIR 1967 SC 1643, held by six to five that Part III could not be amended; Kesavananda Bharati v State of Kerala, (1973) 4 SCC 225, thirteen judges, seven to six, overruled Golaknath and held that the amending power cannot destroy the basic structure. That is the single greatest development in the history of the doctrine anywhere, because it extended review from ordinary legislation to the constituent power.

The fifth phase is the modern doctrinal one. L. Chandra Kumar v Union of India, (1997) 3 SCC 261, held that the power of judicial review vested in the High Courts under Article 226 and in the Supreme Court under Article 32 is part of the basic structure and cannot be excluded by creating tribunals. I.R. Coelho v State of Tamil Nadu, (2007) 2 SCC 1, opened post 1973 Ninth Schedule entries to review. Justice K.S. Puttaswamy v Union of India, (2017) 10 SCC 1, adopted structured proportionality and overruled ADM Jabalpur. Supreme Court Advocates-on-Record Association v Union of India, (2015) 5 SCC 1, struck down the Ninety Ninth Amendment. Madras Bar Association v Union of India, 19 November 2025, struck down the core of the Tribunals Reforms Act, 2021, and directed a National Tribunal Commission.

The first answer is representation reinforcing review. John Hart Ely argued in Democracy and Distrust (1980) that courts should intervene not to impose values but to keep the channels of political change open and to protect those systematically excluded from the political process, which is footnote four of United States v Carolene Products, 304 U.S. 144 (1938), turned into a theory. On that view Baker v Carr, 369 U.S. 186 (1962), on legislative apportionment, and Brown v Board of Education, 347 U.S. 483 (1954), are the model cases, and Lochner v New York, 198 U.S. 45 (1905), is the antithesis.

The second answer is that rights are a precondition of democracy and not a limit on it. Ronald Dworkin's position is that a majority decision is legitimate only if it treats every citizen with equal concern and respect, so a court enforcing that condition is not opposing democracy but constituting it. That is close to the reasoning of Minerva Mills v Union of India, (1980) 3 SCC 625, where the harmony between Parts III and IV was held to be a basic feature.

Three cases in the history of the doctrine

Dr Bonham's Case, (1610) 8 Co Rep 113b. Thomas Bonham, a Cambridge doctor of physic, practised in London without the licence of the Royal College of Physicians; the College fined and then imprisoned him under a statute which gave the College half of every fine it levied. Coke CJ held the imprisonment unlawful, in part because the College was judge in its own cause, and added the sentence that travelled: when an Act of Parliament is against common right and reason, or repugnant, or impossible to be performed, the common law will control it and adjudge such Act to be void. The dictum died in England after 1688, but it was read closely in the American colonies and is quoted in the pamphlets of the 1760s, which is why a history of judicial review that begins in 1803 begins too late.

Lochner v New York, 198 U.S. 45 (1905). Joseph Lochner, who kept a bakery in Utica, was fined for permitting an employee to work more than sixty hours in a week, contrary to the New York Bakeshop Act of 1895. Five judges to four struck the Act down as an interference with the liberty of contract protected by the Due Process Clause of the Fourteenth Amendment, holding that the hours limit was not a genuine health measure. Holmes J. dissented that the Fourteenth Amendment does not enact Mr Herbert Spencer's Social Statics. For three decades the Court used substantive due process to invalidate wage, hours and labour legislation, until the confrontation over the Court packing plan in 1937. The era is the standing warning in any history of the doctrine: the same power that produced Brown also produced Lochner.

For full marks, cover: both limbs at roughly twelve and a half marks each, since no choice is offered. Note that limb (a) asks only about the United States and Switzerland, not India, so the Indian material belongs in limb (b), where it is the whole subject.

(a) The amending procedure of the United States and of Switzerland

The United States: Article V. An amendment may be proposed in two ways and ratified in two ways. Proposal is by a two thirds vote of both Houses of Congress, or by a convention called by Congress on the application of the legislatures of two thirds of the States. Ratification is by the legislatures of three quarters of the States, or by conventions in three quarters, as Congress may direct. The President has no part: Hollingsworth v Virginia, 3 U.S. 378 (1798), held that the presentment clause does not apply, so there is no veto.

Switzerland: Articles 138 to 142 and 192 to 195. A total revision may be demanded by a hundred thousand voters under Article 138 or proposed by the Federal Assembly under Article 193; if the people approve a total revision demanded by initiative, both chambers are re elected. A partial revision may be demanded by a hundred thousand voters within eighteen months under Article 139, in general terms or as a fully drafted provision, or proposed by the Federal Assembly under Article 194. Article 140 makes a referendum compulsory for every constitutional amendment, and Article 142 requires the double majority, a majority of those voting nationally and a majority of the cantons, the six half cantons counting half a vote each.

Swiss entrenchment and the counter proposal. The only limits are in Article 139(3): unity of form, unity of subject matter, and the mandatory provisions of international law, which are read as the ius cogens core. The Federal Assembly cannot block an initiative but may recommend rejection and may put a counter proposal on the same ballot, a device without equivalent elsewhere, which is why the low acceptance rate of initiatives, roughly one in ten, understates their influence.

Origin. Professor Dietrich Conrad of Heidelberg 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 division into Länder or the principles of Articles 1 and 20 inadmissible. Mudholkar J. raised the question in Sajjan Singh v State of Rajasthan, AIR 1965 SC 845, asking whether the Constitution had basic features beyond the amending power.

The sequence. Shankari Prasad v Union of India, AIR 1951 SC 458, and Sajjan Singh 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, applying prospective overruling. Parliament replied with the Twenty Fourth Amendment, which inserted Article 368(1) declaring the power constituent and Articles 13(4) and 368(3) putting amendments outside Article 13, and with the Twenty Fifth and Twenty Ninth Amendments. Kesavananda Bharati v State of Kerala, (1973) 4 SCC 225, thirteen judges after sixty eight days of hearing, upheld the Twenty Fourth Amendment and overruled Golaknath, and held by seven to six that the amending power cannot destroy the basic structure.

Criticism. The textual objection is that Article 368(1) says Parliament may amend by way of addition, variation or repeal any provision of this Constitution, and the doctrine reads a limitation into words that exclude one. The certainty objection is that there is no closed list, so the content is fixed after the event. The democratic objection is that an amendment carries a special majority in both Houses and often the assent of half the States, and four judges of five can defeat it. The answers usually given are that the doctrine has been used five times in fifty three years, that its occasions were the Emergency amendments and an attempt to reconstitute the appointing body, and that a constitution which permits its own suspension by amendment is not a constitution.

Influence abroad. Adopted in Bangladesh in Anwar Hossain Chowdhury v Bangladesh (1989); applied in substance by the Kenyan High Court and Court of Appeal in the Building Bridges Initiative litigation of 2021, though the Supreme Court of Kenya declined to adopt it in 2022; rejected in Singapore in Teo Soh Lung v Minister for Home Affairs (1989); and approached in Malaysia since Semenyih Jaya (2017) and Indira Gandhi a/p Mutho (2018). Its nearest textual analogue is Article 79(3) of the German Basic Law, and there is nothing like it in American law.

The Swiss answer is to give the constituent power back to the electorate directly and to keep it there. A hundred thousand voters may propose under Article 139 and the whole electorate must approve under Articles 140 and 142, so the constituent power is never transferred to a constituted organ at all. That is also why Article 190 makes sense on its own terms: a court that could set aside what the electorate had enacted would be a constituted organ overruling the constituent one.

The Indian answer is that Parliament exercises the constituent power in a derivative capacity only. Article 368(1), as inserted by the Twenty Fourth Amendment in 1971, calls it constituent power, and Kesavananda Bharati v State of Kerala, (1973) 4 SCC 225, accepted the description and drew the opposite conclusion from it: a power to amend conferred by a constitution is by definition a constituted power, however it is labelled, and therefore cannot extend to abolishing the constitution that confers it. Professor Dietrich Conrad's Banaras lecture of February 1965 had put the point by asking whether Article 368 could be used to abolish Article 368, to abolish the fundamental rights, or to convert India into a monarchy, and observing that any answer other than no concedes that the amending power is unlimited.

Three amendment cases worked out

Hollingsworth v Virginia, 3 U.S. 378 (1798). Suits were pending against States by citizens of other States when the Eleventh Amendment was ratified, and it was argued that the amendment was ineffective because it had never been presented to the President for approval under Article I, section 7. The Supreme Court rejected the argument and held that the presentment clause has no application to the amending process, so the President has no part in it and no veto over it. The consequence for the comparison in this question is structural: Article V divides the amending power between Congress and the States and excludes the executive altogether, whereas Article 368 of the Indian Constitution requires the President's assent and, since the Twenty Fourth Amendment, makes it obligatory.

Coleman v Miller, 307 U.S. 433 (1939). Kansas had rejected the proposed Child Labor Amendment in 1925 and purported to ratify it in 1937, the Lieutenant Governor casting a deciding vote in a tied Senate. Twenty one members of the Kansas legislature sued. The Supreme Court held that the effect of a prior rejection, and whether the amendment was still open for ratification thirteen years after it was proposed, are political questions committed to Congress, and it declined to decide the effect of the Lieutenant Governor's vote. The case is why the fate of the Equal Rights Amendment, proposed in 1972 and purportedly ratified by three further States between 2017 and 2020, remains genuinely unresolved: the American amending process has no judicial umpire.

For full marks, cover: both notes, since no choice is offered, at about twelve and a half marks each: facts, question, holding, reasoning, consequence. Both are landmarks of the same Court in different centuries, and the closing sentence should say what each contributed.

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

Facts. The State of New York granted Robert Livingston and Robert Fulton the exclusive right to operate steam vessels in its waters. Aaron Ogden held a licence under that monopoly for a ferry between Elizabethtown in New Jersey and New York City. Thomas Gibbons ran rival steamboats on the same route under a licence issued under the federal Coasting Act of 1793. Ogden obtained an injunction in the New York Court of Chancery, affirmed by the Court of Errors, and Gibbons brought a writ of error to the Supreme Court, where Daniel Webster argued for him.

Consequence. The steamboat monopolies collapsed and coastal and river navigation was opened to competition. In constitutional terms the commerce clause became the engine of federal legislative power: it sustained the Interstate Commerce Act of 1887 and the Sherman Act of 1890, the New Deal legislation upheld in NLRB v Jones and Laughlin Steel, 301 U.S. 1 (1937), and Wickard v Filburn, 317 U.S. 111 (1942), and the public accommodation title of the Civil Rights Act of 1964, upheld in Heart of Atlanta Motel v United States, 379 U.S. 241 (1964). The modern limits are United States v Lopez, 514 U.S. 549 (1995), and National Federation of Independent Business v Sebelius, 567 U.S. 519 (2012).

Comparative note. India needed no judicial expansion of a commerce power, because Entry 42 of List I confers inter State trade and commerce expressly and Articles 301 to 307 constitute a separate Part on the freedom of trade, commerce and intercourse. The Indian case law has moved in the opposite direction: Atiabari Tea Co v State of Assam, AIR 1961 SC 232, and Automobile Transport (Rajasthan) Ltd v State of Rajasthan, AIR 1962 SC 1406, created a compensatory tax exception, and nine judges discarded it in Jindal Stainless Ltd v State of Haryana, (2017) 12 SCC 1, holding that a non discriminatory tax does not offend Article 301.

Holding. Warren CJ delivered a unanimous opinion, unanimity he worked to secure because he believed a divided Court would be defied. The history of the Fourteenth Amendment was inconclusive on public education, since public schooling was rudimentary in 1868. The Court therefore asked what education means in 1954, called it the very foundation of good citizenship and a principal instrument in awakening the child to cultural values, and held that to separate children solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone. In the field of public education the doctrine of separate but equal has no place; separate educational facilities are inherently unequal. Bolling v Sharpe, 347 U.S. 497 (1954), reached the same result for the District of Columbia under the Fifth Amendment.

What each decision built afterwards

Gibbons produced two doctrines and not one. The affirmative commerce power is the one usually given, and it carried the Interstate Commerce Act of 1887, the Sherman Act of 1890 and the New Deal. The second is the dormant commerce clause, the rule that the commerce power of its own force restricts State laws discriminating against or unduly burdening interstate commerce even where Congress has not legislated. Johnson J. argued for it in his concurrence; Cooley v Board of Wardens, 53 U.S. 299 (1852), settled the compromise that subjects requiring national uniformity belong exclusively to Congress while local subjects may be regulated by the States until Congress acts; and Pike v Bruce Church Inc, 397 U.S. 137 (1970), gives the modern test, that a non discriminatory State law with a legitimate local purpose stands unless the burden on interstate commerce is clearly excessive in relation to the local benefits.

Three things changed that. Cooper v Aaron, 358 U.S. 1 (1958), decided after the Little Rock crisis and signed individually by all nine Justices, held that the federal judiciary is supreme in the exposition of the Constitution and that State officials are bound. Title VI of the Civil Rights Act of 1964 allowed the withholding of federal funds from segregated districts, which turned compliance into a financial question. And Green v County School Board, 391 U.S. 430 (1968), required plans that actually worked rather than freedom of choice schemes that produced nothing. The lesson, which the Indian experience of enforcing Articles 17 and 15(2) repeats, is that a declaration of a right is the beginning of the work and not the end of it.

Conclusion. The two cases mark the two things American judicial review has been used for. Gibbons used it to build a single national market by reading a grant of power generously, and every modern federal regulatory statute rests on that reading. Brown used it to dismantle a system of racial subordination that the Court itself had blessed in 1896, and it did so by unanimity, by reasoning from present social fact rather than from framers' intentions, and at the cost of a decade of non compliance. For a comparative lawyer the pairing shows that the same instrument can create an economy and remake a society, and that in neither case did the text of the Constitution change.

The Supreme Court of India

Original jurisdiction, Article 131. The Supreme Court has exclusive original jurisdiction in disputes between the Government of India and one or more States, between the Government of India and any State on one side and one or more other States on the other, and between two or more States, provided the dispute involves a question of law or fact on which the existence or extent of a legal right depends. The proviso excludes disputes arising out of a treaty, agreement or covenant entered into before the commencement of the Constitution. State of Karnataka v Union of India, (1977) 4 SCC 608, held that the jurisdiction extends to a challenge by a State to a commission of inquiry appointed by the Union into its Chief Minister; State of Bihar v Union of India, (1970) 1 SCC 67, held that a private party cannot be joined; and State of West Bengal v Union of India, decided on 10 July 2024, held that a suit challenging the Central Bureau of Investigation's continued investigation despite the withdrawal of general consent is maintainable under Article 131.

Appellate jurisdiction, Articles 132 to 135. Article 132 gives an appeal from a High Court in a civil, criminal or other proceeding on a certificate under Article 134A that the case involves a substantial question of law as to the interpretation of the Constitution. Article 133 gives an appeal in a civil proceeding on a certificate that the case involves a substantial question of law of general importance which in the High Court's opinion needs to be decided by the Supreme Court. Article 134 gives an appeal in a criminal proceeding as of right where the High Court has on appeal reversed an acquittal and sentenced the accused to death, or has withdrawn a case for trial and convicted and sentenced to death, and otherwise on a certificate that the case is a fit one for appeal; the Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act, 1970, extended it to sentences of ten years or life in the same circumstances.

Advisory jurisdiction, Article 143. The President may refer to the Supreme Court a question of law or fact of public importance which has arisen or is likely to arise, and the Court may after hearing report its opinion; on a reference under Article 143(2), concerning pre Constitution treaties and agreements, the Court must report. The opinion is not binding and is not a judgment, but it is entitled to great weight. Instances include In re Kerala Education Bill, AIR 1958 SC 956, In re Berubari Union, AIR 1960 SC 845, In re Special Courts Bill, 1978, (1979) 1 SCC 380, In re Cauvery Water Disputes Tribunal, 1993 Supp (1) SCC 96, In re Special Reference No 1 of 1998, (1998) 7 SCC 739, and the advisory opinion of 20 November 2025 on Articles 200 and 201, which held that no timelines can be judicially prescribed for the Governor or the President and that deemed assent is alien to the Constitution.

Review, Article 137, and curative jurisdiction. The Court may review any judgment or order made by it, subject to any law made by Parliament and to rules under Article 145. Beyond review, Rupa Ashok Hurra v Ashok Hurra, (2002) 4 SCC 388, created the curative petition, to be heard after review is dismissed, on the ground of a violation of natural justice or apprehension of bias, and to be certified by a senior advocate.

The Supreme Court of the United States

Original jurisdiction, Article III, section 2. The Supreme Court has original jurisdiction in all cases affecting ambassadors, other public ministers and consuls, and in those in which a State shall be a party. Congress has by 28 U.S.C. section 1251 made that jurisdiction exclusive only for controversies between two or more States, and concurrent for the rest. It is a small docket, mostly interstate water and boundary disputes, and the Court often appoints a Special Master. Marbury v Madison, 5 U.S. (1 Cranch) 137 (1803), holds that Congress cannot enlarge the original jurisdiction beyond the constitutional list.

Appellate jurisdiction, and the exceptions clause. In all other cases the Court has appellate jurisdiction, both as to law and fact, with such exceptions and under such regulations as the Congress shall make. Ex parte McCardle, 74 U.S. 506 (1869), upheld the withdrawal of an appellate jurisdiction while an appeal was pending, which is a legislative power over the Court that has no Indian counterpart.

The limits. Article III confines the judicial power to cases and controversies, so there are no advisory opinions, a rule settled when the Justices declined President Washington's questions in 1793; standing requires an injury in fact under Lujan v Defenders of Wildlife, 504 U.S. 555 (1992); and the political question doctrine of Baker v Carr, 369 U.S. 186 (1962), applied in Rucho v Common Cause, 588 U.S. 684 (2019), keeps some questions out altogether. Nine Justices sit, a number fixed by the Judiciary Act of 1869 and alterable by ordinary statute.

In re Kerala Education Bill, 1957, AIR 1958 SC 956. The Governor of Kerala reserved the Kerala Education Bill for the President's consideration, and the President referred to the Supreme Court under Article 143(1) the question whether various clauses, chiefly those regulating aided schools and the appointment and conditions of teachers, offended Articles 14, 30(1) and 226. Seven judges reported that several clauses would violate the rights of minorities to establish and administer educational institutions under Article 30(1) and could not be applied to them. The reference is the first substantial use of the advisory jurisdiction and it shows exactly what that jurisdiction is for: a constitutional doubt about a Bill was resolved before enactment, before anyone was injured, and without any litigation at all, which is precisely what Article III of the American Constitution forbids.

Conclusion. The Indian Supreme Court has more heads of jurisdiction than any comparable court: exclusive federal original jurisdiction, a writ jurisdiction that is itself a fundamental right, three categories of certificate appeal, an unlimited discretionary appeal under Article 136, an advisory jurisdiction, a review and curative jurisdiction, and the power to do complete justice under Article 142. The American Supreme Court has two, a narrow original jurisdiction and an appellate jurisdiction that is now almost wholly discretionary and can be trimmed by Congress. The difference is not accidental: the American Court was designed as the apex of a dual system in which most litigation never reaches federal court at all, while the Indian Court sits at the head of a single integrated judiciary and was given the remedial powers that a country with one hierarchy and one code of fundamental rights requires. The cost, which the Court itself has acknowledged, is a docket that no apex court can carry.

The two schemes

America. The first ten amendments were ratified on 15 December 1791. The First protects religion, speech, press, assembly and petition; the Fourth searches and seizures; the Fifth self incrimination, double jeopardy, due process and just compensation; the Sixth and Seventh trial rights; the Eighth punishment. The Thirteenth abolished slavery in 1865; the Fourteenth in 1868 added due process and equal protection binding the States; the Fifteenth and Nineteenth extended the franchise. Barron v Baltimore, 32 U.S. 243 (1833), held the Bill of Rights binding only the federal government, and incorporation against the States proceeded selectively through the Fourteenth Amendment across the twentieth century.

Enforcement

Article 32 has no American equivalent and is the most important single difference. The right to move the Supreme Court for the enforcement of Part III is itself a fundamental right; Article 226 gives the High Courts a wider power extending to the enforcement of any other legal right. Public interest litigation, which followed the relaxation of standing in S.P. Gupta v Union of India, 1981 Supp SCC 87, allowed letters to be treated as petitions and permitted a stranger to sue for undertrial prisoners in Hussainara Khatoon v Home Secretary, State of Bihar, (1980) 1 SCC 81, and for bonded labourers in Bandhua Mukti Morcha v Union of India, (1984) 3 SCC 161. American constitutional claims are ordinary suits, usually under 42 U.S.C. section 1983, subject to the injury in fact requirement of Lujan v Defenders of Wildlife, 504 U.S. 555 (1992), and to qualified immunity.

Religion. The American establishment clause requires separation; the Indian scheme does not. Article 25(1) is subject to public order, morality and health and to the other provisions of Part III, and Article 25(2) expressly permits the State to regulate secular activity associated with religious practice and to throw open Hindu religious institutions of a public character to all classes of Hindus. Indian secularism therefore includes a power of reform which American law forbids, and the essential religious practices test from the Shirur Mutt case, AIR 1954 SC 282, is the instrument by which the courts decide how far the power runs.

Equality. One sentence in America; a code in India, in Articles 14 to 18, with express enabling provisions for affirmative action in Articles 15(4), 15(5), 15(6), 16(4) and 16(6). The consequence is opposite outcomes on the same question within thirteen months: Students for Fair Admissions v President and Fellows of Harvard College, 29 June 2023, ended race conscious university admissions in America, and State of Punjab v Davinder Singh, 1 August 2024, permitted sub classification within the Scheduled Castes in India.

Emergency. Articles 352 to 360 have no American counterpart. ADM Jabalpur v Shivkant Shukla, (1976) 2 SCC 521, held by four to one that no person could move for habeas corpus during the Emergency, H.R. Khanna J. dissenting and being superseded for it; the decision was expressly overruled in Puttaswamy, and the Forty Fourth Amendment of 1978 made Articles 20 and 21 unsuspendable and replaced internal disturbance with armed rebellion in Article 352. America's comparable failure was Korematsu v United States, 323 U.S. 214 (1944), upholding the internment of Japanese Americans, which Trump v Hawaii, 585 U.S. 667 (2018), said was gravely wrong the day it was decided.

The horizontal application of rights, where the two systems have converged from opposite directions. American doctrine begins from the State action requirement: the Civil Rights Cases, 109 U.S. 3 (1883), struck down the Civil Rights Act of 1875 by holding that the Fourteenth Amendment reaches only State action and not private discrimination, and that rule survives, softened by the public function and entanglement exceptions in Marsh v Alabama, 326 U.S. 501 (1946), and Shelley v Kraemer, 334 U.S. 1 (1948). Private discrimination in America is therefore reached by statute, chiefly the Civil Rights Act of 1964, and not by the Constitution.

Three civil liberties cases worked out

Shreya Singhal v Union of India, (2015) 5 SCC 1. Two young women in Palghar were arrested under section 66A of the Information Technology Act, 2000, one for a Facebook post questioning the shutdown of Mumbai after Bal Thackeray's funeral and the other for liking it. Section 66A punished sending by computer any information that was grossly offensive or had menacing character, or which the sender knew to be false and sent for the purpose of causing annoyance or inconvenience. Two judges struck it down in its entirety. The terms were open ended and undefined, so the section was void for vagueness; it reached advocacy as well as incitement, and the Court adopted the American distinction drawn in Brandenburg v Ohio, 395 U.S. 444 (1969), holding that only incitement, and not discussion or advocacy however unpopular, may be restricted under Article 19(2). It is the strongest example of Indian free speech doctrine converging with American method while keeping the Indian textual limits.

Hamdi v Rumsfeld, 542 U.S. 507 (2004). Yaser Esam Hamdi, an American citizen born in Louisiana, was captured in Afghanistan, designated an enemy combatant and held without charge in a naval brig in Virginia; the government maintained that the designation alone justified indefinite detention. The Court held that a citizen detainee must receive notice of the factual basis for his classification and a fair opportunity to rebut it before a neutral decision maker, O'Connor J. writing that a state of war is not a blank cheque for the President when it comes to the rights of the nation's citizens. There is no American constitutional provision authorising preventive detention at all, whereas Article 22(3) to (7) of the Indian Constitution authorises and regulates it in peacetime, permitting three months without reference to an Advisory Board. This is the head on which India is plainly weaker, and conceding it is what makes the comparison honest.

For full marks, cover: both notes at about twelve and a half marks each. They are the first and the second occasions on which the Supreme Court struck down an Act of Congress, fifty four years apart, and connecting them is worth a mark.

(a) Dred Scott v Sandford, 60 U.S. (19 How.) 393 (1857)

Facts. Dred Scott was an enslaved man owned by Dr John Emerson, an army surgeon who took him from Missouri to Illinois, a free State, and then to Fort Snelling in the Wisconsin Territory, where slavery was barred by the Missouri Compromise of 1820. Scott married Harriet at Fort Snelling and their daughter was born on a steamboat on the Mississippi north of the compromise line. The family returned to Missouri. After Emerson's death Scott sued for freedom in the Missouri courts, won at trial and lost in the Missouri Supreme Court in 1852, which departed from its own earlier decisions. He then sued in the federal circuit court on the ground of diversity of citizenship, the defendant John Sanford being a citizen of New York; the reporter misspelled the name as Sandford.

Significance and consequence. It was the second time the Court struck down a federal statute, fifty four years after Marbury, and the first time on substantive grounds; it is the origin of substantive due process, which later produced Lochner v New York, 198 U.S. 45 (1905), and in another direction Griswold and Roe. Politically it destroyed the possibility of a legislative settlement of slavery in the Territories, split the Democratic Party, contributed to Lincoln's election in 1860 and to the Civil War. It was reversed by the Thirteenth Amendment of 1865 and by the first sentence of the Fourteenth Amendment of 1868, which made all persons born or naturalised in the United States citizens of the United States and of the State in which they reside. It is the leading member of the American anti canon.

Holding. Marshall CJ answered three questions. Marbury had a vested right, because the appointment was complete on signature and sealing and delivery was ministerial. He had a remedy, because the government of the United States has been emphatically termed a government of laws and not of men, and it will cease to deserve that appellation if the laws furnish no remedy for the violation of a vested legal right. But the remedy could not issue from the Supreme Court, because section 13, in purporting to add mandamus against federal officers to the Court's original jurisdiction, went beyond the list in Article III. The Constitution is either a superior paramount law unchangeable by ordinary means, or it is on a level with ordinary legislative acts; if the former, an act repugnant to it 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.

Criticism. Section 13 was capable of being read as conferring mandamus only in aid of the appellate jurisdiction, in which case no constitutional question arose. Marshall should arguably have recused himself. And the opinion decided the merits before deciding that it had no jurisdiction, which is the wrong order.

What each decision cost and what it left behind

Dred Scott destroyed the Court's authority for a generation, and the sequence is worth setting out. The decision was announced two days after President Buchanan's inauguration, in the expectation that it would settle the territorial question and remove it from politics. It did the opposite. The Republican Party, founded in 1854 on the single proposition that slavery should not extend into the Territories, was told by the Court that its whole programme was unconstitutional, which made the decision the central issue of the Lincoln and Douglas debates of 1858 and of the election of 1860. Lincoln's answer in his first inaugural address of 4 March 1861 is the classic statement of the limits of judicial supremacy: he accepted that the decision bound the parties and deserved very high respect in parallel cases, and said that if the policy of the government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the people will have ceased to be their own rulers.

Both cases also settled a question of method that Indian courts inherited. Marbury holds that a court decides the constitutional question only when it must, and Dred Scott is the classic instance of a court deciding one it need not have reached, since the holding on citizenship disposed of the case and the holding on the Missouri Compromise was therefore unnecessary. That is precisely rule four of the seven Brandeis J. set out in Ashwander v Tennessee Valley Authority, 297 U.S. 288 (1936), which the Indian Supreme Court has adopted: the Court will not pass upon a constitutional question although properly presented if there is also some other ground upon which the case may be disposed of.

Two further cases that place these two decisions

Lochner v New York, 198 U.S. 45 (1905). Joseph Lochner, a Utica baker, was fined for allowing an employee to work more than sixty hours a week under the New York Bakeshop Act of 1895. Five judges to four struck the Act down as an interference with liberty of contract under the Due Process Clause, Holmes J. dissenting that the Fourteenth Amendment does not enact Mr Herbert Spencer's Social Statics. The case belongs beside Dred Scott because it is the second great flowering of the same doctrine: substantive due process, invented in 1857 to protect property in human beings, was used for three decades after 1905 to strike down wage and hours legislation. A candidate who can trace that line has explained why Dred Scott matters doctrinally and not only morally.

Conclusion. The two cases are the first and second exercises of the same power and they show its two faces. Marbury created judicial review in a judgment so carefully constructed that no one could resist it, and gave the American Constitution its guardian. Dred Scott used the same power to strike down a compromise that had held the Union together for thirty seven years, and to declare that a whole class of people could never be citizens, and it took two constitutional amendments and a civil war to undo. Together they establish the point that matters most for a comparative student: judicial review is a technique, not a guarantee, and its value depends entirely on the commitments of the constitution being enforced and the composition of the bench enforcing it.

This question is set twice in this volume. It is question 6 of Q.P. Code 11829, the first paper printed in this scan, and question 1 of Q.P. Code 60971, the second. The wording is identical. The full answer, with every head of jurisdiction, its constitutional provision and the authorities, is written out under question 6 of Q.P. Code 11829 earlier in this volume, and is not repeated here. What follows is the plan a candidate should follow in the examination hall, so that the shape of the answer is available at the point where the second paper sets it.

The marks plan, in the order to write it.

Open with the structural difference in one sentence, that the Indian Supreme Court sits at the apex of a single integrated judiciary administering central and State law alike, while the American Supreme Court sits at the apex of one of two parallel systems, so India needs more heads of jurisdiction and America fewer.

Then the four differences that carry the comparison. America has no advisory jurisdiction, because Article III confines the judicial power to cases and controversies, a rule settled when the Justices declined President Washington's questions in 1793. America has no writ jurisdiction guaranteed as a right, and standing under Lujan v Defenders of Wildlife, 504 U.S. 555 (1992), excludes generalised grievances, where S.P. Gupta v Union of India, 1981 Supp SCC 87, opened the Indian Court to a bona fide stranger. Congress may trim the American appellate jurisdiction, as Ex parte McCardle, 74 U.S. 506 (1869), shows, while Article 32 cannot be taken away. And India alone has Article 142.

Close on the cost. The breadth of Indian jurisdiction, and Article 136 in particular, is why the Court hears tens of thousands of matters a year against the American Court's sixty, and why Pritam Singh v State, AIR 1950 SC 169, and Mathai v George, (2016) 7 SCC 700, have repeatedly said that Article 136 is not a regular forum of appeal.

For full marks, cover: the three procedures accurately, provision by provision; the limits on each; the record, which is the evidence for any evaluation; and a conclusion on which design has served its constitution best. Note that question 4 of Q.P. Code 11829, earlier in this volume, covers the American and Swiss procedures and the basic structure doctrine; this question adds India's procedure itself and asks for the three together.

The United States, Article V

Proposal. By a two thirds vote of both Houses of Congress, or by a convention called by Congress on the application of the legislatures of two thirds of the States. Every one of the twenty seven amendments has come by the congressional route; the convention route has never been used.

India, Article 368

Three routes. The ordinary route requires a Bill in either House passed by a majority of the total membership of that House and by not less than two thirds of the members present and voting, in each House separately; there is no joint sitting, because Article 108 does not apply, 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 in the proviso to Article 368(2): the manner of election of the President in Articles 54 and 55, the extent of the executive power of the Union and of the States in Articles 73 and 162, the union judiciary in Chapter IV of Part V and the High Courts in Chapter V of Part VI and in Chapter I of Part XI, the distribution of legislative powers, any of the Lists in the Seventh Schedule, the representation of States in Parliament, and Article 368 itself. Outside Article 368 altogether, a simple majority suffices where the Constitution so provides: Article 4 for changes consequential on the creation or alteration of 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.

Record. More than a hundred amendments in seventy six years, an average of well over one a year. The First Amendment came in 1951, within eighteen months of commencement, and inserted Article 15(4), the word reasonable in Article 19(2), the ground of public order, and the Ninth Schedule.

Switzerland, Articles 138 to 142

Initiation belongs to the electorate. A hundred thousand voters may demand a total revision under Article 138, or a partial revision under Article 139 by collecting signatures within eighteen months, either as a general proposal or as a fully drafted provision. The Federal Assembly may also propose, under Articles 193 and 194.

Ratification is by the people and the cantons. Article 140 makes a referendum compulsory for every constitutional amendment; Article 142 requires a majority of those voting and a majority of the cantons, with the six half cantons counting half a vote each. If a total revision initiated by the people is approved, both chambers of the Federal Assembly are re elected under Article 193(3).

Evaluation. The American procedure is the hardest to operate and has driven constitutional change into the Supreme Court, where it is now made by a bare majority of nine. The Indian procedure is the easiest of the three for a government with a secure majority, which is why the Constitution has been amended more than a hundred times and why the courts had to supply a limit the text does not contain. The Swiss procedure is the only one in which the same body, the electorate, both proposes and ratifies, which gives every amendment direct democratic authority and leaves minorities without any domestic protection against the majority that amends.

Coleman v Miller, 307 U.S. 433 (1939), then closed the subject to judicial resolution. Kansas had rejected the proposed Child Labor Amendment in 1925 and purported to ratify it in 1937, and its Lieutenant Governor had cast a tie breaking vote. The Court held that the effect of a prior rejection and the question whether the amendment was still open after thirteen years were political questions for Congress, which left the whole field to congressional judgment. The consequence was seen with the Equal Rights Amendment, proposed in 1972 with a seven year deadline extended to 1982, which five States purported to rescind, and which Nevada, Illinois and Virginia purported to ratify in 2017, 2018 and 2020. Whether it is part of the Constitution is genuinely unsettled, and no court has resolved it.

Three amendment cases worked out

Sajjan Singh v State of Rajasthan, AIR 1965 SC 845. The Constitution (Seventeenth Amendment) Act, 1964, enlarged the definition of estate in Article 31A and added forty four State land reform statutes to the Ninth Schedule; landholders in Rajasthan challenged it as abridging their rights under Articles 14, 19 and 31 and as requiring ratification by the States under the proviso to Article 368. Five judges upheld it, following Shankari Prasad Singh Deo v Union of India, AIR 1951 SC 458, and holding that an amendment is not law within Article 13(2). The importance for this question lies in the doubts: Hidayatullah and Mudholkar JJ. questioned whether the fundamental rights were meant to be the plaything of a special majority, and Mudholkar J. asked whether the Constitution had basic features beyond the reach of amendment. The doctrine of 1973 begins as a question asked in a judgment upholding the amendment.

Waman Rao v Union of India, (1981) 2 SCC 362. Landholders challenged the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961, and with it Articles 31A and 31B and the Ninth Schedule entries protecting it. The Court upheld the Acts but drew the line that governs the whole subject: the basic structure doctrine operates prospectively from 24 April 1973, the date of Kesavananda Bharati v State of Kerala, (1973) 4 SCC 225, so amendments made before that date and laws placed in the Ninth Schedule before it are immune, while everything after it is open to challenge. Without that date the doctrine would have unsettled three decades of agrarian reform, and it is the reason the doctrine was politically survivable.

Conclusion. The three procedures differ most in who holds the initiative and least in the majorities they demand. America divides the power so finely between Congress and the States that it can rarely be used at all; India concentrates it in Parliament with only a partial role for the States and no popular vote; Switzerland places it in the electorate and requires their approval every time. The Indian design has the greatest capacity for change and the least built in protection against its abuse, and that gap is precisely what Kesavananda Bharati filled in 1973, which is why the amending process in India cannot be described without describing a doctrine that appears nowhere in Article 368.

Then the six bases, each with its criterion and its kinds. Form, giving written and unwritten, and the point that Britain is better described as uncodified, with Thoburn v Sunderland City Council, [2002] EWHC 195 (Admin), on constitutional statutes. Method of amendment, giving Bryce's rigid and flexible, with America and Britain as the two extremes and India on both sides of the line at once. Origin, giving evolved and enacted. Territorial distribution, giving unitary, federal and confederal, with Wheare's test of coordinate and independent spheres. The relation of executive to legislature, giving parliamentary, presidential, hybrid and the Swiss collegial form under Article 175. And observance, giving Sartori's real, nominal and facade, or Loewenstein's normative, nominal and semantic.

Then India on each criterion, which is where the detail marks lie: written and the longest in the world; rigid under Article 368 and flexible under Articles 4 and 169; enacted by a Constituent Assembly that sat from 9 December 1946 to 26 November 1949; federal in structure with a unitary bias, on the authority of State of West Bengal v Union of India, AIR 1963 SC 1241, and S.R. Bommai v Union of India, (1994) 3 SCC 1; parliamentary under Article 75(3); republican; and real rather than facade, with the basic structure doctrine as the guarantor.

This question is set twice in this volume, as question 2 of Q.P. Code 11829 and as question 4 of Q.P. Code 60971, in identical words. The full answer, with Wheare's test, the three constitutions worked through element by element, the elements each lacks and a ranking, is written out under question 2 of Q.P. Code 11829 earlier in this volume and is not repeated here.

The marks plan, in the order to write it.

State the test first, Wheare's federal principle that the general and the regional governments are each within a sphere coordinate and independent, and derive from it the elements to look for: a written and supreme constitution as the source of both governments' authority, rigidity so neither level can change the bargain alone, a division of powers, a second chamber for the units, an independent umpire, and a guarantee of the units' existence.

India, in two columns. The federal elements: a written and supreme constitution, the three lists of the Seventh Schedule, ratification by half the States for the matters in the proviso to Article 368(2), a Council of States, and Article 131. The unitary elements: the residue with the Union under Article 248, Article 3 permitting Parliament to redraw a State after merely seeking its views, Articles 352 to 360, Articles 249, 250, 252, 253, 256, 257 and 365, single citizenship, a single integrated judiciary, All India Services under Article 312, and centrally appointed Governors. Then the judicial correction, S.R. Bommai v Union of India, (1994) 3 SCC 1, making federalism a basic feature, and Mineral Area Development Authority v Steel Authority of India, 25 July 2024, restoring the States' power to tax mineral rights under Entries 49 and 50 of List II and overruling India Cement Ltd v State of Tamil Nadu, (1990) 1 SCC 12.

Conclusion. Switzerland and the United States are federations in the full sense and India is not, because India's units are neither indestructible nor able to block an amendment nor equally represented in the second chamber. What India has instead is a judiciary that has treated federalism as a basic feature and enforced it. The full treatment is at question 2 of Q.P. Code 11829 above.

Phase one, abolition and Reconstruction, 1830 to 1877

The first American rights movement was abolition, organised through the American Anti-Slavery Society founded in 1833, the writings of Frederick Douglass and William Lloyd Garrison, and the underground railroad. Its constitutional defeat was Dred Scott v Sandford, 60 U.S. 393 (1857), which held that a person of African descent could not be a citizen and that Congress could not bar slavery from the Territories.

Reconstruction gave the movement its constitutional instruments. The Thirteenth Amendment abolished slavery in 1865; the Fourteenth in 1868 conferred citizenship by birth and imposed due process and equal protection on the States; the Fifteenth in 1870 forbade denial of the vote on grounds of race. The Civil Rights Act of 1875 forbade discrimination in public accommodation.

They were then dismantled by the Court. The Slaughter-House Cases, 83 U.S. 36 (1873), read the privileges or immunities clause almost out of existence. The Civil Rights Cases, 109 U.S. 3 (1883), struck down the Act of 1875 by holding that the Fourteenth Amendment reaches only State action and not private discrimination, which is the origin of the State action doctrine. Plessy v Ferguson, 163 U.S. 537 (1896), upheld separate but equal, Harlan J. dissenting alone.

Incorporation began in the same period. Gitlow v New York, 268 U.S. 652 (1925), assumed that freedom of speech is among the liberties protected against the States by the Fourteenth Amendment, and the footnote of Stone J. in United States v Carolene Products, 304 U.S. 144 (1938), supplied the theory of heightened scrutiny for legislation restricting political processes or directed at discrete and insular minorities. West Virginia State Board of Education v Barnette, 319 U.S. 624 (1943), held that schoolchildren could not be compelled to salute the flag, Jackson J. writing that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion or other matters of opinion.

The movement's greatest failure in this phase was Korematsu v United States, 323 U.S. 214 (1944), upholding the internment of one hundred and twenty thousand Japanese Americans, most of them citizens. The Court said 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.

The legislative harvest. The Civil Rights Act of 1964 forbade discrimination in public accommodation, in federally funded programmes by Title VI and in employment by Title VII; it was upheld under the commerce power in Heart of Atlanta Motel v United States, 379 U.S. 241 (1964). The Voting Rights Act of 1965 suspended literacy tests and imposed federal preclearance of voting changes in covered jurisdictions, and was upheld in South Carolina v Katzenbach, 383 U.S. 301 (1966). The Fair Housing Act of 1968 followed King's assassination.

The Warren Court's parallel expansion of criminal procedure is part of the same movement: Mapp v Ohio, 367 U.S. 643 (1961), applied the exclusionary rule to the States; Gideon v Wainwright, 372 U.S. 335 (1963), required counsel for indigent defendants; Miranda v Arizona, 384 U.S. 436 (1966), required warnings before custodial interrogation; and Loving v Virginia, 388 U.S. 1 (1967), struck down bans on interracial marriage.

What has been undone, which is the discussion the question asks for

Voting. Shelby County v Holder, 570 U.S. 529 (2013), struck down the coverage formula of the Voting Rights Act, so preclearance no longer operates, and Brnovich v Democratic National Committee, 594 U.S. 647 (2021), narrowed section 2. Rucho v Common Cause, 588 U.S. 684 (2019), held partisan gerrymandering nonjusticiable in federal courts.

Affirmative action. Regents of the University of California v Bakke, 438 U.S. 265 (1978), and Grutter v Bollinger, 539 U.S. 306 (2003), permitted the individualised use of race in university admissions; Students for Fair Admissions v President and Fellows of Harvard College, 29 June 2023, held that the Harvard and North Carolina programmes violate the Equal Protection Clause and Title VI, because diversity is not a sufficiently measurable interest to survive strict scrutiny, race was used as a negative, and the programmes had no logical end point.

Reproductive rights. Roe v Wade, 410 U.S. 113 (1973), and Planned Parenthood v Casey, 505 U.S. 833 (1992), were overruled in Dobbs v Jackson Women's Health Organization, 597 U.S. 215 (2022), which held that the Constitution confers no right to abortion because the right is not deeply rooted in the nation's history and tradition.

Three cases in the movement's history

Schenck v United States, 249 U.S. 47 (1919). Charles Schenck, general secretary of the Socialist Party, printed and posted some fifteen thousand leaflets to men who had passed their draft boards, comparing conscription to involuntary servitude and urging them to assert their rights, and was convicted of conspiring to obstruct recruitment under the Espionage Act of 1917. The Court affirmed unanimously, Holmes J. formulating the test that the question in every case is whether the words are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils Congress has a right to prevent. The prosecutions of 1917 to 1920 are what created the modern civil liberties movement: the National Civil Liberties Bureau, formed to defend conscientious objectors, became the American Civil Liberties Union in 1920.

Students for Fair Admissions v President and Fellows of Harvard College, decided 29 June 2023. Students for Fair Admissions sued Harvard, a private university, under Title VI of the Civil Rights Act of 1964, and the University of North Carolina, a State institution, under the Equal Protection Clause, alleging that both used race in admissions in a way that penalised Asian American applicants. The Court held both programmes unlawful on three grounds: the interest in the educational benefits of diversity is not sufficiently measurable to satisfy strict scrutiny; race was used as a negative and involved racial stereotyping; and the programmes had no logical end point, contrary to the expectation expressed in Grutter v Bollinger, 539 U.S. 306 (2003), that they would be unnecessary within twenty five years. The decision closes the phase of the movement that began with Regents of the University of California v Bakke, 438 U.S. 265 (1978).

For full marks, cover: the decisions in groups rather than chronologically, because grouping shows the reader what each line of authority settled; at least ten decisions with facts and holdings; the recent material, since this subject moved in 2023, 2024 and 2025; and a conclusion on the direction of travel.

Frame the answer. The Indian Constitution is federal in structure with a strong centre, and every one of the leading decisions answers one of four questions: how federal is India in principle; who decides a dispute over legislative competence; what limits the centre's power to displace a State government; and how is fiscal power divided. Grouping the cases that way makes the discussion possible.

S.R. Bommai v Union of India, (1994) 3 SCC 1, nine judges, is the leading case on the subject. It arose from the dismissal of the Karnataka government and of three governments after the demolition of the Babri Masjid. The Court held that federalism is a basic feature of the Constitution; that a Proclamation under Article 356 is justiciable and may be struck down if it is mala fide or based on wholly irrelevant grounds; that the only legitimate test of a government's majority is a floor test in the Assembly and not the Governor's subjective satisfaction; that the Assembly may be dissolved only after both Houses of Parliament have approved the Proclamation; and that the Court may restore a dismissed government. Secularism was also held to be a basic feature. The number of Article 356 proclamations fell sharply after 1994, which is the practical measure of the decision.

Rameshwar Prasad v Union of India, (2006) 2 SCC 1, applied Bommai to the dissolution of the Bihar Assembly on the Governor's report that horse trading was in prospect, and held the dissolution unconstitutional, though it declined to revive the Assembly given that elections had been notified. The Court observed that constitutionalism abhors absolutism.

Fiscal federalism

Union of India v Mohit Minerals, decided 19 May 2022, held that the recommendations of the Goods and Services Tax Council under Article 279A are persuasive and not binding, because Article 246A confers simultaneous legislative power on Parliament and the State legislatures, and that a contrary reading would disturb fiscal federalism. It is the most important decision on the Goods and Services Tax structure.

Mineral Area Development Authority v Steel Authority of India, decided 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 for the enjoyment of mineral rights and not a tax, so the States' power to tax mineral rights under Entry 50 and mineral bearing land under Entry 49 of List II is not exhausted 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 allowed recovery for past periods in instalments. It is the largest transfer of fiscal power to the States by judicial decision in the Constitution's history.

State of Tamil Nadu v Governor of Tamil Nadu, decided 8 April 2025, held that a Governor could not withhold assent indefinitely and purported to prescribe timelines, deeming ten Bills to have been assented to. The advisory opinion on the Presidential Reference, delivered 20 November 2025, displaced that approach, holding that no timelines may be judicially prescribed under Articles 200 and 201, that the concept of deemed assent is alien to the Constitution, and that the decisions of the Governor and the President are not ordinarily justiciable, while a Governor may not sit on a Bill indefinitely. Both must be stated, because the second is now the law and the first is the decision it displaced.

State of West Bengal v Union of India, decided 10 July 2024, held maintainable a suit under Article 131 complaining that the Central Bureau of Investigation continued to register cases in the State after the general consent under section 6 of the Delhi Special Police Establishment Act, 1946, had been withdrawn, rejecting the Union's objection that the Bureau is not the Union government.

Three further lines of authority

Article 3 and the alterability of the States. Babulal Parate v State of Bombay, AIR 1960 SC 51, upheld the States Reorganisation Act, 1956, and held that the President is not bound to accept the views of a State legislature obtained under the proviso to Article 3, nor to make a fresh reference when the Bill is modified in Parliament. In re Berubari Union, AIR 1960 SC 845, held that the cession of Indian territory to a foreign State cannot be done under Article 3 and requires a constitutional amendment, which was then made by the Ninth Amendment. Together they establish that Indian States exist at the pleasure of Parliament in a way American States, protected by Article IV, section 3 and by Texas v White, 74 U.S. 700 (1869), do not.

The Governor as the centre's officer. Rameshwar Prasad v Union of India, (2006) 2 SCC 1, held the dissolution of the Bihar Assembly on the Governor's report unconstitutional, observing that constitutionalism abhors absolutism and that a Governor's report based on the mere apprehension of horse trading is not material on which a Proclamation can rest. Nabam Rebia v Deputy Speaker, (2016) 8 SCC 1, five judges, held that the Governor's discretion under Article 163 is limited to what the Constitution expressly confers and that he cannot advance an Assembly session or decide the order of legislative business against ministerial advice; the Arunachal Pradesh Assembly's proceedings were set aside and the earlier government restored. And the advisory opinion of 20 November 2025 on Articles 200 and 201 held that no timelines may be judicially prescribed for the Governor or the President, and that deemed assent is alien to the Constitution, displacing State of Tamil Nadu v Governor of Tamil Nadu, 8 April 2025.

Conclusion. The leading decisions divide into four lines. On character, West Bengal in 1963 said India was not truly federal and Bommai in 1994 said federalism is a basic feature, and the second is the law. On competence, pith and substance and the repugnancy tests have settled the routine work, and Jindal Stainless cleared away sixty years of accumulated doctrine on Article 301. On the dismissal of State governments, Bommai converted a political judgment into a justiciable one and made the floor test compulsory. On finance, Mohit Minerals in 2022 and the mineral royalty decision of 25 July 2024 have moved substantial power to the States. Taken together they show a Court that has become the principal defender of Indian federalism, and a Union that has repeatedly answered its decisions with legislation, which is why federalism in India is best described as a continuing negotiation with the Supreme Court as its umpire.

Source

In the United States the power is not conferred by any provision. It was derived in Marbury v Madison, 5 U.S. (1 Cranch) 137 (1803), from Article III's grant of the judicial power in cases arising under the Constitution and from Article VI's supremacy clause. Marshall CJ's reasoning is that the Constitution is either a superior paramount law unchangeable by ordinary means, or it is on a level with ordinary legislative acts; if the former, an act repugnant to it 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 State court judgments on federal questions.

India alone reviews constitutional amendments. Kesavananda Bharati v State of Kerala, (1973) 4 SCC 225, and its progeny, five amendments struck down in fifty three years. America has no such doctrine: National Prohibition Cases, 253 U.S. 350 (1920), rejected the argument that prohibition was an unfit subject for an amendment, and Coleman v Miller, 307 U.S. 433 (1939), treated challenges to the amending process as political questions.

India reviews administrative action far more accessibly. Article 32 with relaxed standing after S.P. Gupta v Union of India, 1981 Supp SCC 87, produced public interest litigation, in which a postcard may be treated as a petition, a commission may be appointed to find facts and continuing mandamus may be used to supervise compliance over years. American standing under Lujan v Defenders of Wildlife, 504 U.S. 555 (1992), requires an injury in fact that is concrete, particularised and actual or imminent, and excludes generalised grievances.

Limits

Both systems avoid unnecessary constitutional decisions, on the rules Brandeis J. set out in Ashwander v Tennessee Valley Authority, 297 U.S. 288 (1936), which the Indian Supreme Court has adopted, and both apply a presumption of constitutionality.

The political question doctrine limits America and has been rejected in India. Baker v Carr, 369 U.S. 186 (1962), gave the six factors and Rucho v Common Cause, 588 U.S. 684 (2019), applied them to partisan gerrymandering. India has moved the other way: Bommai made Article 356 justiciable and Kihoto Hollohan v Zachillhu, 1992 Supp (2) SCC 651, made the Speaker's decision under the Tenth Schedule reviewable. The Indian limits are narrower and textual: Articles 122 and 212 exclude review of parliamentary proceedings on the ground of irregularity of procedure, and Raja Ram Pal v Speaker, Lok Sabha, (2007) 3 SCC 184, held that the exclusion does not extend to illegality.

Criticism. The American objection is Bickel's countermajoritarian difficulty: why should nine unelected judges with life tenure override an elected legislature. The Indian objection is different and sharper: not that the power is countermajoritarian but that it is unbounded, because Article 32, relaxed standing, continuing mandamus and Article 142 have drawn the Court into administration, and the basic structure doctrine gives it the last word over the constituent power, while the judges who exercise all of it are selected by other judges.

The remedies each system gives, and the difference they make

A comparison of judicial review that stops at the power to declare a law void has left out the part a litigant cares about, which is what the court can order once it has decided. On that measure the two systems diverge more sharply than on any point of doctrine.

American remedies are narrower and are hedged by immunities. The injunction and the declaratory judgment are available, and damages against a State officer lie under 42 U.S.C. section 1983, but qualified immunity under Harlow v Fitzgerald, 457 U.S. 800 (1982), defeats the claim unless the right violated was clearly established at the time, and Monell v Department of Social Services, 436 U.S. 658 (1978), requires a municipal policy or custom before the municipality itself is liable. Sovereign immunity under the Eleventh Amendment bars most damages claims against a State in federal court, and the structural injunction, of the kind used in the school desegregation and prison cases, has been steadily narrowed since the 1990s.

The consequence for the comparison is direct. India's wider remedies are what make Article 32 worth having to a litigant with no money, and they are also the source of the strongest criticism of Indian judicial review, that continuing mandamus and Article 142 have drawn the Court into the administration of matters no court is equipped to run. America's narrower remedies keep the courts out of administration and leave many recognised rights without an effective remedy, which is the classic objection to qualified immunity. Neither system has found the balance, and saying so is the honest end to the comparison.

E.P. Royappa v State of Tamil Nadu, (1974) 4 SCC 3. E.P. Royappa, a senior member of the Indian Administrative Service, was moved from the post of Chief Secretary to two posts he alleged were inferior, and complained that the transfers were mala fide and violated Articles 14 and 16. The Court dismissed his petition on the facts, but Bhagwati J. reframed the equality guarantee for Indian law: equality is a dynamic concept with many aspects and cannot be cribbed, cabined and confined within traditional and doctrinaire limits, and where an act is arbitrary it is implicit in it that it is unequal both according to political logic and constitutional law and therefore violative of Article 14. Arbitrariness became an independent ground of review, which is a standard of judicial review no American court applies and which explains much of the reach of Article 14 in practice.

Conclusion. The concept is the same in both systems and the constitutional architecture around it is different at almost every point. America claimed the power in 1803 from the nature of a written constitution, confined it to concrete disputes brought by injured parties, left Congress a power to trim the appellate jurisdiction, and has never extended it to constitutional amendments. India was given the power in the text in 1950, made the remedy a fundamental right, opened it to strangers acting in the public interest, refused a political question doctrine and extended review to the amending power itself. The American power is more securely founded in theory and narrower in practice; the Indian is wider in practice and rests, at its outer edge, on a doctrine the text does not contain.

(a) Brown v Board of Education of Topeka, 347 U.S. 483 (1954), in the order to write it. Linda Brown refused admission to the white elementary school near her home in Topeka, and five consolidated cases from Kansas, South Carolina, Virginia, Delaware and the District of Columbia. The precedent to be displaced, Plessy v Ferguson, 163 U.S. 537 (1896), and Harlan J.'s solitary dissent. The two cases that prepared the ground, Sweatt v Painter and McLaurin v Oklahoma State Regents, both 1950. The unanimous holding of Warren CJ, that the history of the Fourteenth Amendment was inconclusive on public education, that education is the very foundation of good citizenship, that separation solely by race generates a feeling of inferiority unlikely ever to be undone, and that separate educational facilities are inherently unequal. Bolling v Sharpe on the same day for the District of Columbia under the Fifth Amendment. The consequence: Brown II and all deliberate speed, massive resistance, Cooper v Aaron in 1958, and the Civil Rights Act of 1964. And the comparative point, that Articles 15(2), 17 and 29(2) of the Indian Constitution did by text in 1950 what Brown achieved by litigation.

Conclusion. Both notes must be written, since the paper offers no choice, and each is worth twelve and a half marks, which is a full short essay. The strongest closing sentence links them: Marbury created the power and Brown showed what it is worth when a court is prepared to use it against the settled understanding of its own society. The full treatment of both is at questions 5 and 8 of Q.P. Code 11829 above.