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Comparative Constitutional Law
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LLM · Group 1 Constitutional and Administrative Law
2018 Examination
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First published on munotes.in on 12 August 2026.
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The University does not publish an official answer key for this paper. The answers in this volume are model answers, written to show how a full-mark answer is built. They are a study aid, not an authority on what an examiner marked.
The question paper reproduced here is the paper as set by the University of Mumbai at the 2018 examination.
The answers in this volume state the law as it stands today, not as it stood when the paper was set, and in a comparative subject that means four jurisdictions at once. Five changes alter answers here. Students for Fair Admissions v. Harvard, 29 June 2023, ended race conscious university admissions in the United States. State of Punjab v. Davinder Singh, 1 August 2024, permitted sub-classification within the Scheduled Castes. Mineral Area Development Authority v. Steel Authority of India, 25 July 2024, overruled India Cement on the States' power to tax mineral rights. The Constitution (One Hundred and Sixth Amendment) Act came into force on 16 April 2026 and is still not operative. And the advisory opinion of 20 November 2025 held that no timeline may be judicially prescribed for assent to a Bill. Where an answer relies on any of these it gives the date.
Contents
The questions below are the paper as the University of Mumbai set it at the 2018 examination, in the order it was set.
MarksPage
The Paper as Set
The questions in this volume are the questions asked at the 2018 examination, reproduced as the University of Mumbai set them, in the order it set them. Nothing has been reworded, added or left out. Only the answers are ours. See the original question paper.
Duration 3 hours · Total marks 100 · 14 questions answered
How to use this volume
Solve the paper first, under exam conditions and against the clock. Then read the answers here and mark your own. Reading a solution before attempting the question feels productive and teaches very little, because recognising an answer is not the same as being able to write one.
SECTION I
Q.P. Code 33712, attempt any four questions, all questions carry equal marks
any four of seven · 100 Marks
1.Explain different kinds of jurisdictions of USA and Indian Supreme Court.[25]
Answer
For full marks, cover: every head of jurisdiction with its constitutional provision, India first because it has more heads; the American position, which is short and must be made to carry the comparison; the four differences that decide the answer; and a closing observation on what the breadth of Indian jurisdiction has cost.
Open with the structural reason for the difference. The Indian Supreme Court sits at the apex of a single integrated judiciary that administers central and State law alike, so every dispute in the country can in principle reach it. The American Supreme Court sits at the apex of one of two parallel systems, and most American litigation begins and ends in a State court that it will never see. India therefore needed many heads of jurisdiction and America needed few.
The Supreme Court of India
Original and exclusive jurisdiction in federal disputes, Article 131. The Court alone may decide a dispute 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, or between two or more States, if and in so far as 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 any treaty, agreement, covenant, engagement, sanad or similar instrument entered into before the commencement of the Constitution. State of Bihar v Union of India, (1970) 1 SCC 67, held that a private party cannot be joined in such a suit; State of Karnataka v Union of India, (1977) 4 SCC 608, held that a State may challenge a commission of inquiry appointed by the Union into the conduct of its Chief Minister; and State of West Bengal v Union of India, decided on 10 July 2024, held maintainable a suit 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.
Writ jurisdiction, Article 32. The Court may issue directions, orders or writs, including the writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, for the enforcement of the fundamental rights, and the right to move the Court for that purpose is itself a fundamental right which cannot be suspended except as the Constitution provides. Dr Ambedkar called Article 32 the very soul of the Constitution and the very heart of it. Standing was relaxed in S.P. Gupta v Union of India, 1981 Supp SCC 87, so that a bona fide member of the public may sue for persons unable to approach the Court themselves, which is the foundation of public interest litigation.
Appellate jurisdiction on certificate, Articles 132, 133 and 134 with Article 134A. Article 132 gives an appeal from any judgment, decree or final order of a High Court in a civil, criminal or other proceeding where the High Court certifies 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 where the High Court certifies that a substantial question of law of general importance is involved and that in its opinion the question needs to be decided by the Supreme Court. Article 134 gives an appeal in a criminal proceeding as of right in three situations, where the High Court on appeal has reversed an acquittal and sentenced the accused to death, where it has withdrawn a case for trial before itself and convicted and sentenced to death, and where it certifies the case as fit for appeal; the Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act, 1970, extended the first two to sentences of imprisonment for life or ten years.
Special leave, Article 136. The Supreme Court may in its discretion grant special leave to appeal from any judgment, decree, determination, sentence or order in any cause or matter passed by any court or tribunal in the territory of India, except a court or tribunal constituted by or under any law relating to the armed forces. It is plenary, residuary and unconfined by subject matter. Pritam Singh v State, AIR 1950 SC 169, held it must be exercised sparingly and only in exceptional cases, and N. Suriyakala v A. Mohandoss, (2007) 9 SCC 196, and Mathai v George, (2016) 7 SCC 700, restated that Article 136 is not a regular forum of appeal.
Advisory jurisdiction, Article 143. The President may refer to the Court a question of law or fact of such a nature and public importance that it is expedient to obtain an opinion; the Court may, after such hearing as it thinks fit, report its opinion. On a reference under Article 143(2), concerning pre Constitution treaties and agreements, the Court must report. The opinion binds no one but carries great weight. The references 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, which settled the composition of the collegium, and the opinion of 20 November 2025 on Articles 200 and 201.
Review and the curative petition, Article 137. The Court may review any judgment pronounced 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, available after a review has been dismissed, on the ground of a violation of natural justice or an apprehension of bias, and requiring certification by a senior advocate.
The ancillary powers. Article 141 makes the law declared by the Supreme Court binding on all courts in India. Article 142 empowers it to pass any decree or order necessary for doing complete justice in any cause or matter pending before it, used in Union Carbide Corporation v Union of India, (1991) 4 SCC 584, and confined in Supreme Court Bar Association v Union of India, (1998) 4 SCC 409, which held that it cannot be used to supplant substantive statutory law. Article 129 makes the Court a court of record with power to punish for contempt of itself. Article 139A permits the transfer to itself of cases involving substantially the same questions of law pending before High Courts. Article 71 gives it exclusive jurisdiction over disputes as to the election of a President or Vice President. Article 145 confers the rule making power.
The Supreme Court of the United States
Original jurisdiction, Article III, section 2, clause 2. In all cases affecting ambassadors, other public ministers and consuls, and those in which a State shall be a party, the Supreme Court has original jurisdiction. Congress has by 28 U.S.C. section 1251 made that jurisdiction exclusive only in controversies between two or more States and concurrent in the rest. The docket is small and consists largely of interstate boundary and water apportionment disputes, in which the Court usually appoints a Special Master to take evidence. Marbury v Madison, 5 U.S. (1 Cranch) 137 (1803), holds that Congress cannot enlarge that jurisdiction beyond the constitutional list.
Appellate jurisdiction, and the exceptions clause. In all the other cases within the judicial power, the Court has appellate jurisdiction, both as to law and fact, with such exceptions and under such regulations as the Congress shall make. That last phrase is a real legislative power over the Court, and Ex parte McCardle, 74 U.S. 506 (1869), upheld its use to withdraw an appellate jurisdiction while an appeal was pending.
Certiorari, which is now almost the whole docket. The Judiciary Act of 1925, drafted by the Justices themselves and known as the Judges' Bill, converted most appeals of right into discretionary review, and the Supreme Court Case Selections Act of 1988 completed the change. Review is by writ of certiorari, granted on the rule of four, and Supreme Court Rule 10 states the considerations: a conflict among the courts of appeals, a conflict with a State court of last resort, a departure from the accepted and usual course of judicial proceedings, or an important question of federal law that has not been but should be settled. Roughly seven thousand petitions are filed each year and about sixty are heard. A narrow class of direct appeals survives under 28 U.S.C. section 1253 from three judge district courts, and certification by a court of appeals under section 1254(2) is now practically obsolete.
Review of State court judgments. Martin v Hunter's Lessee, 14 U.S. 304 (1816), and Cohens v Virginia, 19 U.S. 264 (1821), established that the Supreme Court may review the judgment of a State's highest court on a federal question, subject to the doctrine that it will not do so where the judgment rests on an adequate and independent State ground.
The limits that shape the jurisdiction. Article III confines the judicial power to cases and controversies, so the Court gives no advisory opinions, a rule settled when the Justices declined to answer President Washington's questions in 1793. Standing requires an injury in fact under Lujan v Defenders of Wildlife, 504 U.S. 555 (1992). 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. The Court has nine members by the Judiciary Act of 1869, a number Congress could change by ordinary statute.
| Head | India | United States |
|---|---|---|
| Federal disputes | Article 131, exclusive | Article III; exclusive only between two or more States |
| Rights enforcement | Article 32, itself a fundamental right | No writ jurisdiction; ordinary suit under section 1983 |
| Appeal as of right | Articles 132, 133 and 134, on certificate | Very limited, section 1253 |
| Discretionary appeal | Article 136, from any court or tribunal | Certiorari, on the rule of four |
| Advisory | Article 143 | None |
| Head | India | United States |
|---|---|---|
| Review of its own judgments | Article 137, and the curative petition | Rehearing, rarely granted |
| Complete justice | Article 142 | No equivalent |
| Legislative control | None over Article 32 | Exceptions clause, Ex parte McCardle |
The four differences that decide the comparison. America has no advisory jurisdiction and India has Article 143, which is a Canadian borrowing and gives the executive a way of settling a constitutional doubt without litigation. America has no guaranteed writ jurisdiction, and its law of standing excludes the generalised grievance that Indian public interest litigation is built on. Congress may trim the American appellate jurisdiction and Parliament may not touch Article 32. And no American provision resembles Article 142, under which the Indian Court has settled the Bhopal claims, transferred investigations and directed the demolition of unauthorised construction.
Two jurisdiction cases worked out
State of Karnataka v Union of India, (1977) 4 SCC 608. The Union government appointed a commission of inquiry under the Commissions of Inquiry Act, 1952, into allegations of corruption against Devaraj Urs, the Chief Minister of Karnataka, and against some of his ministers. The State sued the Union under Article 131, and the Union objected that the suit raised no legal right of the State and that a dispute about a commission of inquiry into individuals was not a federal dispute at all. Seven judges held the suit maintainable: a State has a legal right to insist that the Union confine itself to its own sphere, and a challenge to the Union's competence to inquire into the conduct of a State's ministers is a dispute involving the existence and extent of a legal right within the meaning of Article 131. The case is the working definition of what Article 131 covers, and it has no counterpart in the American original jurisdiction, which is confined to ambassadors and to suits in which a State is a party.
Rupa Ashok Hurra v Ashok Hurra, (2002) 4 SCC 388. After a matrimonial dispute had gone through the High Court, the Supreme Court and a dismissed review petition, the losing party alleged that the final judgment had been reached without her being heard and that the Court had proceeded on a mistaken factual premise. The question referred was whether any relief survives the dismissal of a review under Article 137. Five judges held that it does: to prevent abuse of process and to cure a gross miscarriage of justice the Court may reconsider its own final judgment on a curative petition, confined to a violation of the principles of natural justice or an apprehension of bias, and requiring certification by a senior advocate before it is circulated to the three senior most judges. The curative petition is therefore a jurisdiction the Constitution does not mention, created because Article 137 review was found insufficient, and neither the American nor the English apex court has anything like it.
One further jurisdiction case worked out
Ex parte McCardle, 74 U.S. 506 (1869). William McCardle, editor of a Vicksburg newspaper, was arrested and held for trial before a military commission for publishing articles attacking Reconstruction, and petitioned for habeas corpus relying on an Act of 1867 that expressly gave a right of appeal to the Supreme Court. The case was argued, and before judgment Congress repealed the appeal provision for the declared purpose of keeping the question away from the Court. Chase CJ held that the repeal was effective: the appellate jurisdiction of the Supreme Court is conferred with such exceptions and under such regulations as Congress shall make, and when the Act conferring it is repealed the jurisdiction falls with it, so the appeal must be dismissed without any opinion on the merits. Nothing of the kind is possible against Article 32 of the Indian Constitution, which is itself a fundamental right and cannot be taken away by Parliament, and that difference is the single most important point in this comparison.
Conclusion. The Indian Supreme Court has at least eight distinct heads of jurisdiction and the American Supreme Court two. The difference follows from structure rather than from ambition: a single integrated judiciary with one code of fundamental rights and one apex court requires remedial powers that a dual system does not. The cost is visible in the numbers, since the Indian Court disposes of tens of thousands of matters a year against the American Court's sixty, which is why Pritam Singh in 1950 and Mathai v George in 2016 have both had to say that Article 136 was never intended to make the Supreme Court a court of ordinary appeal.
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