LLM Group 1 Constitutional and Administrative Law Comparative Constitutional Law 2018 Question Paper with Solutions

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in the State after the general consent under section 6 of the Delhi Special Police Establishment Act, 1946, had been withdrawn.

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situations, where the High Court on appeal has reversed an acquittal and sentenced the accused to death, where it has withdrawn a case for trial before itself and convicted and sentenced to death, and where it certifies the case as fit for appeal; the Supreme Court (Enlargement of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.

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 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.

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.

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.

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.

For full marks, cover: the drafting technique in each system, which explains the rest; the enforcement machinery, which is the largest difference; the substantive comparison on speech, religion, equality and personal liberty; preventive detention and emergency, where India is weaker; and a conclusion that decides the comparison on a stated measure.

The drafting difference is the key. The American Bill of Rights states prohibitions without exceptions and leaves the exceptions to be built by courts; Part III of the Indian Constitution states guarantees with the permissible restrictions written into the same Article. Compare the First Amendment, Congress shall make no law abridging the freedom of speech, with Article 19(1)(a) read with Article 19(2), which permits reasonable restrictions in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence.

India. Part III runs from Article 12 to Article 35: the equality code in Articles 14 to 18, including the abolition of untouchability by Article 17 and of titles by Article 18; the freedoms in Article 19; protection in respect of conviction for offences in Article 20; life and personal liberty in Article 21, with free and compulsory education added as Article 21A by the Eighty Sixth Amendment; protection against arrest and detention in Article 22; the prohibition of trafficking, begar and other forms of forced labour in Article 23 and of the employment of children in hazardous work in Article 24; freedom of religion in Articles 25 to 28; the cultural and educational rights of minorities in Articles 29 and 30; and the remedy in Article 32.

The substantive comparison

Speech. American law is the most protective in the world. Brandenburg v Ohio, 395 U.S. 444 (1969), protects advocacy short of incitement to imminent lawless action which is likely to occur; New York Times Co v Sullivan, 376 U.S. 254 (1964), requires actual malice in defamation actions by public officials; Texas v Johnson, 491 U.S. 397 (1989), protects flag burning; Near v Minnesota, 283 U.S. 697 (1931), and New York Times Co v United States, 403 U.S. 713 (1971), the Pentagon Papers case, forbid prior restraint. Indian law permits more restriction on its face and has converged in method: Shreya Singhal v Union of India, (2015) 5 SCC 1, struck down section 66A of the Information Technology Act, 2000, for vagueness and overbreadth and expressly adopted the Brandenburg distinction between advocacy and incitement, and Anuradha Bhasin v Union of India, (2020) 3 SCC 637, subjected internet shutdown orders to publication, review and proportionality.

Equality. One clause in America against a code in India, in Articles 14 to 18, with express enabling provisions for affirmative action. The result is opposite answers to the same question within thirteen months: Students for Fair Admissions v President and Fellows of Harvard College, decided on 29 June 2023, ended race conscious university admissions in America because diversity is not a sufficiently measurable interest to survive strict scrutiny, while State of Punjab v Davinder Singh, decided on 1 August 2024 by seven judges, six to one, permitted States to sub classify within the Scheduled Castes, overruling E.V. Chinnaiah v State of Andhra Pradesh, (2005) 1 SCC 394.

Preventive detention, where India is markedly weaker. Article 22(3) to (7) permits preventive detention in peacetime, allowing detention for three months without reference to an Advisory Board and longer on its opinion, and requires only that the grounds be communicated and a representation permitted, with Article 22(6) allowing facts against the public interest to be withheld. There is no comparable American provision, and Hamdi v Rumsfeld, 542 U.S. 507 (2004), held that even a citizen designated an enemy combatant is entitled to notice and a fair opportunity to be heard before a neutral decision maker.

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 had locus standi to move for habeas corpus while the enforcement of Article 21 stood suspended, H.R. Khanna J. dissenting alone and losing the Chief Justiceship for it. The Forty Fourth Amendment of 1978 replaced internal disturbance with armed rebellion in Article 352 and provided that the enforcement of Articles 20 and 21 can never be suspended. The American parallel failure is Korematsu v United States, 323 U.S. 214 (1944), which Trump v Hawaii, 585 U.S. 667 (2018), said was gravely wrong the day it was decided.

Two civil liberties cases worked out

Anuradha Bhasin v Union of India, (2020) 3 SCC 637. On 4 August 2019, the day before Article 370 was read down, mobile and internet services were suspended across Jammu and Kashmir and movement was restricted under section 144 of the Criminal Procedure Code. Anuradha Bhasin, executive editor of the Kashmir Times, petitioned that she could not publish. Three judges held that the freedom of speech and the freedom to carry on a trade over the internet are protected by Articles 19(1)(a) and 19(1)(g); that an indefinite suspension is impermissible and every order must be published, reasoned, temporary and subject to periodic review; and that an order under section 144 cannot be used to suppress legitimate expression or opinion. The case is the modern Indian statement of proportionality applied to an executive restriction on speech, and it is the answer to anyone who says Article 19(2) makes Indian free speech doctrine merely permissive.

One further civil liberties case 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 why Mumbai had been shut down for 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 persistently for the purpose of causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred or ill will. Two judges struck the section down in its entirety. The expressions were open ended and undefined, so it was void for vagueness; it swept in advocacy and discussion as well as incitement, and the Court expressly adopted the distinction drawn in Brandenburg v Ohio, 395 U.S. 444 (1969), holding that only incitement, and not advocacy however unpopular, may be restricted under Article 19(2). It is the strongest evidence that Indian free speech doctrine has converged with American method while keeping the Indian textual limits.

For full marks, cover: the word trace, which requires chronology and dates; the pre American origins, which most candidates omit; Marbury and the American development; the Indian reception before 1950, which is the part that shows the doctrine was inherited and not imported; the five phases of Indian development; and the two models by which the doctrine spread after 1945.

Before 1803

Dr Bonham's Case, (1610) 8 Co Rep 113b. The College of Physicians fined and imprisoned Thomas Bonham for practising without its licence, under a statute that gave the College half of every fine. Coke CJ held that the College could not be judge in its own cause, and said that 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 never took root in England, where parliamentary sovereignty prevailed after the Revolution of 1688, but it was widely read in the American colonies.

The subsequent American story in six dates. Martin v Hunter's Lessee, 14 U.S. 304 (1816), extended the power 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 Lochner v New York, 198 U.S. 45 (1905), used substantive due process to strike down social and labour legislation and ended in 1937 after the confrontation over Court packing. Brown v Board of Education, 347 U.S. 483 (1954), turned the power to civil rights. Baker v Carr, 369 U.S. 186 (1962), stated the political question doctrine as a limit on it. Loper Bright Enterprises v Raimondo, decided on 28 June 2024, overruled Chevron and returned the interpretation of ambiguous statutes to the courts, expanding review of the administrative state after forty years of deference.

Phase two, the contest over the amending power. Shankari Prasad v Union of India, AIR 1951 SC 458, and Sajjan Singh v State of Rajasthan, AIR 1965 SC 845, 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; 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 judicial review anywhere, because it extended review from ordinary law to the constituent power.

Phase three, the Emergency and the recovery. ADM Jabalpur v Shivkant Shukla, (1976) 2 SCC 521, held that habeas corpus was unavailable while Article 21's enforcement stood suspended. Indira Nehru Gandhi v Raj Narain, 1975 Supp SCC 1, and Minerva Mills v Union of India, (1980) 3 SCC 625, struck down amendments passed in that period. Maneka Gandhi v Union of India, (1978) 1 SCC 248, made procedure under Article 21 subject to fairness, and the Forty Fourth Amendment made Articles 20 and 21 unsuspendable.

How the doctrine spread

Two models emerged after 1945. The diffuse or American model allows every court to decide a constitutional question in the course of an ordinary case, subject to appeal, and India follows it. The concentrated or European model, designed by Hans Kelsen for Austria in 1920 and adopted by Germany in 1949, Italy in 1948 and Spain in 1978, gives a single specialised constitutional court exclusive jurisdiction, often on abstract reference before a statute is applied to anyone. France created a Conseil constitutionnel in 1958 for a priori review and added the question prioritaire de constitutionnalité in 2008 for concrete review. Switzerland refuses both models for federal statutes, since Article 190 makes them binding on the Federal Supreme Court, and leaves the check to the optional referendum in Article 141.

The difference is not merely institutional. A concentrated court can be asked to rule on a statute in the abstract, at the instance of a specified fraction of the legislature, which is how the German opposition regularly tests legislation it has just lost a vote on; a diffuse court can act only when a real litigant with a real injury brings a case, which is why American standing doctrine matters so much and why Lujan v Defenders of Wildlife, 504 U.S. 555 (1992), is a constitutional decision rather than a procedural one.

Switzerland refuses both models for federal law and is the standing counter example. Article 190 makes federal Acts binding on the Federal Supreme Court, so a federal statute cannot be set aside for unconstitutionality at all, and the check is the optional referendum in Article 141, available on the demand of fifty thousand voters or eight cantons. That arrangement produced the position tested in Verein KlimaSeniorinnen Schweiz v Switzerland, decided by the Grand Chamber of the European Court of Human Rights on 9 April 2024, in which the only available review of Swiss federal legislative inaction was an external one.

Three cases in the history of the doctrine

Dr Bonham's Case, (1610) 8 Co Rep 113b. Thomas Bonham, who held a Cambridge doctorate in physic, practised in London without the licence of the Royal College of Physicians, and the College fined and then committed him under a statute that gave the College half of every fine it imposed. Coke CJ held the committal unlawful, partly because the College was judge in its own cause, and added the passage that carried: 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 proposition did not survive the Revolution of 1688 in England, but it was quoted in the American colonies against the Stamp Act and by James Otis against the writs of assistance, and it is the reason a history of judicial review cannot begin in 1803.

Baker v Carr, 369 U.S. 186 (1962). Tennessee had not reapportioned its legislature since 1901 although population had shifted heavily to the cities, so a rural vote counted for many times an urban one. Charles Baker, a Shelby County voter, sued the Secretary of State. The Court held by six to two that the claim was justiciable under the Equal Protection Clause and was not a political question, and Brennan J. set out the six factors that identify a political question, the first being a textually demonstrable constitutional commitment of the issue to a coordinate political department. The case both created the modern limit on judicial review and opened the reapportionment revolution, and it is the doctrine India has consistently declined to adopt, from S.R. Bommai v Union of India, (1994) 3 SCC 1, onwards.

For full marks, cover: the three procedures accurately, provision by provision; the express and implied limits on each; the record, which is the evidence for any evaluation; and a conclusion that says which design has served its constitution best and why.

The United States, Article V

Proposal and ratification. An amendment may be proposed by a two thirds vote of both Houses of Congress or by a convention called by Congress on the application of two thirds of the State legislatures, and is ratified by the legislatures of three quarters of the States or by conventions in three quarters, as Congress directs. All twenty seven amendments were proposed by Congress; the convention route has never been used. The convention mode of ratification has been used once, for the Twenty First Amendment of 1933 repealing prohibition. The President has no role, since Hollingsworth v Virginia, 3 U.S. 378 (1798), held that the presentment clause does not apply.

State ratification, for the entrenched matters only. The proviso to Article 368(2) requires ratification by the legislatures of not less than half the States for amendments seeking to change the manner of election of the President under Articles 54 and 55, the extent of the executive power of the Union and of the States under Articles 73 and 162, the union judiciary and the High Courts, the distribution of legislative powers, any of the Lists in the Seventh Schedule, the representation of States in Parliament, or Article 368 itself. No ratification has ever failed, and no time limit is prescribed.

Simple majority amendments, outside Article 368. Article 4 permits changes consequential on the admission or establishment of new States under Article 2 and the alteration of areas, boundaries or names under Article 3; Article 169 permits the abolition or creation of a Legislative Council; paragraph 7 of the Fifth Schedule and paragraph 21 of the Sixth Schedule permit amendment of those Schedules. Such changes are expressly not amendments for the purposes of Article 368.

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, collecting signatures within eighteen months, either as a general proposal or as a fully drafted provision. The Federal Assembly may propose a partial revision under Article 194 or a total revision under Article 193; if a total revision demanded by the people is approved, both chambers are re elected under Article 193(3).

Ratification. Article 140 makes a referendum compulsory for every constitutional amendment, and Article 142 requires a double majority, a majority of those voting nationally and a majority of the cantons, the six half cantons counting half a vote each. A proposal with a clear national majority can therefore fail on the cantonal count.

Limits, 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, 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 for initiatives, of the order of one in ten, understates their influence.

Evaluation. The American procedure achieves stability of text and has closed the route of formal change so completely that all real constitutional development now occurs in the Supreme Court, by a bare majority of nine, as Brown in 1954, Obergefell in 2015 and Dobbs in 2022 each show. The Indian procedure achieves change in abundance and secures nothing, since a government commanding two thirds of both Houses can amend at will, and did between 1971 and 1976; its stability rests entirely on the doctrine of 1973. The Swiss procedure achieves both, because the electorate proposes and the electorate ratifies, and its cost is that no institution can protect a minority against an amending majority.

Switzerland keeps it with the electorate and never transfers it. A hundred thousand voters propose under Article 139 and the whole electorate approves under Articles 140 and 142. On that premise Article 190 is coherent rather than eccentric, because a court empowered to set aside what the electorate had enacted would be reviewing the constituent power itself.

India calls the power constituent and treats it as constituted. Article 368(1), inserted by the Twenty Fourth Amendment in 1971, says Parliament may in exercise of its constituent power amend by way of addition, variation or repeal any provision of this Constitution. Kesavananda Bharati v State of Kerala, (1973) 4 SCC 225, accepted the label and drew the opposite conclusion: a power conferred by a constitution is by definition limited by it, whatever it is called, so it cannot extend to abolishing the constitution that confers it. Professor Dietrich Conrad had framed the question at Banaras in February 1965 by asking whether Article 368 could be used to abolish Article 368 itself, to repeal the fundamental rights, or to convert India into a monarchy; any answer but no concedes that the power is unlimited.

Three amendment cases worked out

Kihoto Hollohan v Zachillhu, 1992 Supp (2) SCC 651. Members disqualified for defection under the Tenth Schedule, inserted by the Fifty Second Amendment in 1985, challenged the Schedule, and in particular paragraph 7, which provided that no court should have any jurisdiction in respect of any matter connected with disqualification. Five judges upheld the Schedule but struck paragraph 7 down, and on a ground of pure procedure: by excluding the jurisdiction of the High Courts under Article 226 and of the Supreme Court under Articles 32 and 136, it changed Chapter IV of Part V and Chapter V of Part VI, and therefore required ratification by half the States under the proviso to Article 368(2), which had never been obtained. The majority also held the Speaker's decision reviewable on limited grounds. It is the only occasion on which an amendment has fallen for want of the federal ratification the proviso demands, which is why it belongs in an answer on the amending procedure rather than only in one on the basic structure.

Indira Nehru Gandhi v Raj Narain, 1975 Supp SCC 1. Raj Narain, defeated by Indira Gandhi at Rae Bareli in 1971, succeeded in the Allahabad High Court in having her election set aside for corrupt practices. While her appeal was pending, Parliament enacted the Constitution (Thirty Ninth Amendment) Act, 1975, whose clause 4 provided that the election of a person holding the office of Prime Minister should not be called in question in any court and that any pending proceeding should abate. Five judges struck clause 4 down: free and fair elections, judicial review, the rule of law and equality are basic features, and Parliament had exercised judicial power in deciding a pending dispute in favour of one party. It is the first application of Kesavananda and the clearest demonstration of why an amending procedure alone does not protect a constitution.

For full marks, cover: both notes, since the paper offers no choice, at about twelve and a half marks each: facts, question, holding with reasoning, criticism where there is any, and consequence. Both are Marshall Court decisions twenty one years apart, and the closing sentence should say what each contributed.

The first two answers. The appointment was complete when the President signed and the seal was affixed; delivery is a ministerial act and does not create the right. Marbury therefore had a vested legal right. 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. Mandamus lies against a Secretary of State in respect of a duty owed to an individual, though not in respect of matters left to political discretion.

Consequence. By declining jurisdiction the Court claimed the power of judicial review while handing the executive the outcome it wanted, so there was no order to defy and the claim went unchallenged. The power was not used against a federal statute again until Dred Scott v Sandford in 1857. Article 13(2) of the Indian Constitution enacts Marshall's conclusion in terms, which is why Indian judicial review has never had to defend its own existence, only its extent, and why Kesavananda Bharati v State of Kerala, (1973) 4 SCC 225, could extend it to constitutional amendments without any argument about whether the power existed at all.

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

Facts. In 1808 the State of New York granted Robert Livingston and Robert Fulton the exclusive right to navigate its waters by steam. Aaron Ogden held a licence under that monopoly and ran a ferry between Elizabethtown Point in New Jersey and New York City. Thomas Gibbons ran competing 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, which the Court of Errors affirmed, and Gibbons brought a writ of error to the Supreme Court, where Daniel Webster appeared for him.

Consequence. The steamboat monopolies ended and coastal and inland navigation was opened to competition, which contemporaries treated as an economic liberation. In constitutional terms the commerce clause became the principal source of federal legislative power: the Interstate Commerce Act of 1887, the Sherman Act of 1890, the New Deal statutes sustained 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), all rest on Marshall CJ's definition. The modern outer limits are United States v Lopez, 514 U.S. 549 (1995), on the Gun Free School Zones Act, and National Federation of Independent Business v Sebelius, 567 U.S. 519 (2012), which held that the power presupposes existing activity and cannot compel a person to enter a market.

The doctrines the two cases founded

Marbury founded a technique as well as a power, and the technique is why the power survived. Marshall CJ decided the merits against the administration and the jurisdiction against the applicant, so the Court told Jefferson that he had acted unlawfully in a judgment that ordered him to do nothing. Compare Cooper v Aaron, 358 U.S. 1 (1958), in which the Court had to assert its supremacy in terms, and was obeyed only because federal troops were already at Little Rock. The Indian analogue of the Marbury technique is the declaration binding under Article 141 without any coercive direction, of which Vishaka v State of Rajasthan, (1997) 6 SCC 241, is the clearest example: guidelines addressed to every employer in the country, with no respondent ordered to do anything, which stood for sixteen years until Parliament legislated.

Marbury also settled a rule of method that Indian courts inherited. A court decides a constitutional question only when it must. That is rule four of the seven Brandeis J. set out in his concurrence in Ashwander v Tennessee Valley Authority, 297 U.S. 288 (1936), which the Indian Supreme Court has adopted, and it is the rule Dred Scott v Sandford, 60 U.S. 393 (1857), broke, since the holding on citizenship disposed of the case and the holding on the Missouri Compromise was therefore unnecessary.

India wrote the same principle into Part XIII and then narrowed it, which is the reverse of the American story. Articles 301 to 307 guarantee freedom of trade, commerce and intercourse throughout the territory of India. Atiabari Tea Co v State of Assam, AIR 1961 SC 232, held that a tax directly and immediately restricting the movement of goods offends Article 301; Automobile Transport (Rajasthan) Ltd v State of Rajasthan, AIR 1962 SC 1406, created the compensatory tax exception to it; and nine judges in Jindal Stainless Ltd v State of Haryana, (2017) 12 SCC 1, discarded that exception altogether, holding that only a discriminatory tax offends the Article. America made a common market by construing a grant of power generously; India was given one by its Constitution and has construed the guarantee down.

United States v Lopez, 514 U.S. 549 (1995). Alfonso Lopez Jr, a twelfth grade student, carried a concealed .38 calibre revolver and five cartridges into Edison High School in San Antonio and was charged under the Gun Free School Zones Act of 1990, which made it a federal offence to possess a firearm within a thousand feet of a school. Five judges to four held the Act beyond the commerce power: possessing a gun in a school zone is not economic activity, the statute contained no jurisdictional element requiring a connection with interstate commerce, and to sustain it would leave no activity beyond federal reach. It was the first invalidation of a federal statute on commerce grounds in nearly sixty years and it marks the outer limit of what Gibbons had set in motion, which is exactly the point a note on Gibbons should close with.

For full marks, cover: the word basis, which asks for the criterion behind each classification, and then the kinds that follow; six classifications with real examples; India worked through every one, which is where the detail marks lie; the difficulties; and a conclusion on what classification is for.

The organising idea. A classification is only as useful as the criterion it rests on, and constitutions have been classified on at least six criteria: the form in which the constitution exists, the method by which it may be amended, the manner of its coming into being, the territorial distribution of power, the relation between the executive and the legislature, and whether the constitution is actually observed. Each criterion produces its own kinds, and one constitution occupies a different position on each.

Amendment: rigid and flexible. Lord Bryce's criterion is whether the amending procedure differs from the ordinary legislative process. The United States is the extreme of rigidity, requiring two thirds of both Houses and three quarters of the States, and has produced twenty seven amendments in two hundred and thirty seven years. Britain is the extreme of flexibility, since the Human Rights Act 1998 could in law be repealed by a simple majority. India is deliberately on both sides: Article 368 requires a special majority, and for the matters in the proviso to Article 368(2) ratification by half the States, while Articles 4 and 169 permit a simple majority to alter State boundaries and to abolish a Legislative Council.

Origin: evolved and enacted. An evolved constitution grows without a founding act, as the British did across eight centuries. An enacted constitution is made at a moment by a constituent body, as at Philadelphia in 1787 and by the Indian Constituent Assembly, which sat from 9 December 1946 to 26 November 1949, two years, eleven months and eighteen days. The distinction matters because 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 since In re Berubari Union, AIR 1960 SC 845.

Observance: real, nominal and facade. Giovanni Sartori's classification measures constitutionalism directly. A real constitution states limits and enforces them; a nominal constitution accurately describes concentrated power; a facade constitution states limits that are not observed, the standard example being the Soviet Constitution of 1936, adopted in the year of the great purge with a long list of guaranteed freedoms. Karl Loewenstein's normative, nominal and semantic classification makes the same point through the image of a suit that fits, a suit kept for a body that has not grown into it, and a suit worn as a disguise. K.C. Wheare's version of the question is whether government is conducted according to the constitution and subject to it.

A seventh, often added. Monarchical and republican, by the head of State, distinguishing the United Kingdom, Japan and Spain from India, the United States and France.

The difficulties

The categories overlap and rigidity in the rule does not predict rigidity in practice. Switzerland has the most demanding amending procedure among the major democracies, a compulsory referendum with a double majority under Articles 140 and 142, and amends its constitution more often than any of them, because Article 139 lets a hundred thousand voters begin the process. The United States has a less demanding rule on paper and has not used it since 1992.

Classification by the source of authority, or by the manner in which a constitution was made. A constitution may be granted by a monarch, as the Japanese Meiji Constitution of 1889 was; agreed between a ruler and the people, as the French Charter of 1830 was; imposed from outside, as the Japanese Constitution of 1947 and the German Basic Law of 1949 in substantial part were; or made by a representative constituent body, as the American, Indian and South African constitutions were. The category matters because a constitution's legitimacy in argument depends on it, which is why the Indian Supreme Court's repeated appeals to the Constituent Assembly Debates, from In re Berubari Union, AIR 1960 SC 845, onwards, carry weight that no appeal to a granted document could.

Classification by length, which sounds trivial and is not. The American Constitution runs to about seven thousand four hundred words and the Indian to about a hundred and forty six thousand. Length is a proxy for how much a constitution attempts to settle rather than leave to politics, and it predicts the amendment rate: a document that settles the retirement age of judges, the division of tax revenues and the composition of public service commissions must be amended when any of those change, while a document that settles none of them need not be.

Three cases that test the classifications

State of West Bengal v Union of India, AIR 1963 SC 1241. Parliament enacted the Coal Bearing Areas (Acquisition and Development) Act, 1957, and the Union proceeded to acquire coal bearing land vested in West Bengal. The State sued under Article 131, arguing that the Union has no power to acquire the property of a State and that the federal principle forbids it. Six judges to one upheld the Act. The Constitution, they held, is not truly federal: the States are not sovereign, they were not parties to any compact, there is neither dual citizenship nor a dual judiciary, and Parliament may alter State boundaries under Article 3. Subba Rao J. dissented, holding that the Constitution accepts the federal concept and distributes sovereign power between coordinate bodies. The case is where the unitary or federal classification of India was first authoritatively answered, and it was answered against the federal label.

R (Miller) v The Prime Minister, [2019] UKSC 41. In August 2019 the Prime Minister advised the Queen to prorogue Parliament for five weeks in the run up to the date fixed for withdrawal from the European Union. Gina Miller and others challenged the advice. Eleven Justices held unanimously that the lawfulness of the advice was justiciable and that it was unlawful, because a decision to prorogue will be unlawful if it has the effect of frustrating or preventing, without reasonable justification, the ability of Parliament to carry out its constitutional functions; the prorogation was accordingly null and of no effect and Parliament had never been prorogued. The case belongs in a classification answer because it shows a court in an unwritten, flexible constitution enforcing a limit it derived from principle alone, with no text to point to.

For full marks, cover: the historical origin, since American federalism was made by States that already existed; the textual machinery; the institutional expressions; the case law that built and then limited federal power; the features that are absent; and a comparison with India.

The origin explains every feature. Thirteen colonies declared independence separately in 1776, fought as a league, and governed themselves under the Articles of Confederation of 1781, which gave Congress no power to tax, no power to regulate commerce, and no executive or judiciary. The Philadelphia Convention of 1787 was called to repair those defects, and its delegates represented States that were already sovereign. The Constitution therefore grants powers to the centre and leaves the rest where it already lay.

Restrictions on the States. Article I, section 10 forbids a State to enter a treaty, coin money, emit bills of credit, pass a bill of attainder, an ex post facto law or a law impairing the obligation of contracts, or to lay imposts on imports or exports without the consent of Congress.

Guarantees to the States. Article IV, section 3 forbids the formation of a new State within the jurisdiction of another without the consent of the legislature concerned as well as of Congress. Article IV, section 4 guarantees to every State a republican form of government and protection against invasion and domestic violence. Article IV also contains the full faith and credit clause, the privileges and immunities clause and the extradition clause. Article V entrenches the equal suffrage of the States in the Senate permanently.

The case law

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

Gibbons v Ogden, 22 U.S. (9 Wheat.) 1 (1824), held that commerce comprehends navigation and reaches into the interior, and that a federal coasting licence prevails over a State steamboat monopoly under the Supremacy Clause, making the commerce power the engine of federal authority.

What is absent

The American Constitution has no emergency chapter, no power to dismiss a State government, no All India Services equivalent officered centrally and serving in the States, no single Election Commission conducting State elections, no Comptroller and Auditor General auditing both levels, and no Governor appointed by the centre. Every one of those exists in India, which is why Wheare described the Indian Constitution as quasi federal and Jennings as federal with a strong centralising tendency.

Conditional federal spending is the real instrument of coordination, and it has a constitutional limit. Congress has no general power to legislate on education, health or highways, so it achieves national policy by attaching conditions to grants. South Dakota v Dole, 483 U.S. 203 (1987), upheld the withholding of five per cent of federal highway funds from States that did not raise the drinking age to twenty one, and set out the conditions: the spending must be for the general welfare, the condition must be unambiguous, it must relate to the federal interest in the programme, it must not violate another constitutional provision, and it must not be so coercive as to pass the point at which pressure turns into compulsion. National Federation of Independent Business v Sebelius, 567 U.S. 519 (2012), applied the last of those for the first time, holding that threatening a State with the loss of all existing Medicaid funds for refusing an expansion was a gun to the head rather than an offer.

Two American federalism cases worked out

United States v Lopez, 514 U.S. 549 (1995). Alfonso Lopez Jr carried a concealed .38 calibre handgun into his San Antonio high school and was convicted under the Gun Free School Zones Act of 1990. Five judges to four held the Act unconstitutional: the commerce power reaches the channels of interstate commerce, its instrumentalities and persons or things in it, and activities substantially affecting it, and possession of a gun near a school is none of these. Rehnquist CJ noted that the statute had no jurisdictional element and no congressional findings, and that the government's reasoning, that guns in schools impair education and so the economy, would convert the commerce power into a general police power. It was the first such invalidation since 1937 and it marks the point at which the American federal balance began to be enforced against the centre rather than assumed away.

Conclusion. The federal features of the American Constitution are a written, supreme and rigid text from which both governments derive their authority; an enumeration of federal powers with the residue reserved to the States; a supremacy clause; dual citizenship and dual courts; an equal Senate whose equality is permanently entrenched; and a Supreme Court as umpire. Their common source is the historical fact that the States existed before the Union, and their common effect is that the American centre must justify every power it exercises while the States need justify none. The trajectory since 1995, from Lopez through Printz to Sebelius, is of a Court enforcing that original allocation more strictly than at any time since 1937, which is the opposite of the Indian trajectory, where a centralised text has been read federally by the Supreme Court since S.R. Bommai v Union of India, (1994) 3 SCC 1.

This question is set twice in this volume, as question 6 of Q.P. Code 33712, the first paper in this scan, and as question 1 of Q.P. Code 33714, the second. The full answer, with the six bases, the kinds that follow from each, India's position on all of them and the limits of the exercise, is written out under question 6 of Q.P. Code 33712 earlier in this volume and is not repeated here.

The marks plan, in the order to write it.

Open with the organising idea, that a constitution is classified on several independent criteria and occupies a different position on each, so its classification is a paragraph rather than a label.

Close on the limits. The categories overlap; rigidity in the rule does not predict rigidity in practice, since Switzerland has the most demanding procedure and the highest amendment rate; and no classification except Sartori's measures whether power is in fact restrained.

Conclusion. Classification is worth making because it tells a lawyer where the constitutional limit lies, how the constitution will change and whom a reformer must persuade, and worth treating with suspicion because every category can house an unlimited government. The full treatment is at question 6 of Q.P. Code 33712 above.

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 of the Federation into Länder, the participation of the Länder in legislation, 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 content, identified case by case. Sikri CJ's illustrative list in Kesavananda was the supremacy of the Constitution, the republican and democratic form of government, its secular character, the separation of powers and its federal character. Later additions include free and fair elections, judicial review and the rule of law, from Indira Nehru Gandhi v Raj Narain, 1975 Supp SCC 1; the limited nature of the amending power and the harmony between Parts III and IV, from Minerva Mills v Union of India, (1980) 3 SCC 625; secularism, federalism and democracy, from S.R. Bommai v Union of India, (1994) 3 SCC 1; the power of judicial review under Articles 32 and 226, from L. Chandra Kumar v Union of India, (1997) 3 SCC 261; and the independence of the judiciary and the primacy of the judiciary in appointments, from Supreme Court Advocates-on-Record Association v Union of India, (2015) 5 SCC 1.

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 settled after the event and a legislature cannot know in advance what it may not do. 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 body that appoints the judges who would rule on them; and that a constitution which can be suspended 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). There is nothing like it in American law.

The three holdings, per Taney CJ, seven to two. First, that a person of African descent whose ancestors were imported and sold as slaves was not and could not become a citizen within the meaning of Article III, so no federal court had diversity jurisdiction; the opinion said such persons had for more than a century been regarded as beings of an inferior order with no rights which the white man was bound to respect. Second, and although the first holding disposed of the case, that Congress had no power to prohibit slavery in the Territories, since an Act depriving a citizen of his property merely because he brought it into a particular Territory could not be dignified with the name of due process of law, so the Missouri Compromise was void. Third, that Scott's status on his return was governed by the law of Missouri, which did not free him.

The dissents. McLean and Curtis JJ. dissented. Curtis J. showed that free black men had voted as citizens in at least five States at the time of ratification, which destroyed the historical basis of the majority's first holding; he resigned from the Court soon afterwards.

Whether the doctrine reaches ordinary legislation, and why the question matters

The doctrine was created to test constitutional amendments, and the most contested question about it is whether an ordinary statute can be struck down for violating the basic structure. The point is not academic: if it can, then every Act of Parliament is exposed to a ground of challenge that has no textual source and no closed content.

The Court has said no, more than once. In Indira Nehru Gandhi v Raj Narain, 1975 Supp SCC 1, Ray CJ, Mathew and Beg JJ. held that the basic structure doctrine applies to constitutional amendments alone, because an ordinary law is already fully testable against Part III and against the legislative lists, so there is nothing for the doctrine to add. State of Karnataka v Union of India, (1977) 4 SCC 608, and Kuldip Nayar v Union of India, (2006) 7 SCC 1, repeated the proposition, the latter holding expressly that a challenge to ordinary legislation on the ground of a violation of the basic structure is not available.

The reconciliation the Court has offered is that a statute is struck down not for violating the basic structure as such, but for violating the particular constitutional provision in which the relevant basic feature is located. So the tribunal statutes fall because they offend Articles 32 and 226, not because they offend an abstraction. The distinction is real but thin, and the honest statement for an examination is that the formal position is that the doctrine applies to amendments alone, while the practical effect of L. Chandra Kumar and the tribunal line is that a statute impairing judicial review will not survive.

The comparative point closes the discussion. Article 79(3) of the German Basic Law is expressly confined to amendments, and no German statute has ever been struck down for violating the eternity clause as such; the Federal Constitutional Court tests statutes against the individual guarantees instead. India, having created its limit judicially rather than textually, has found it much harder to keep the doctrine inside the boundary that created it, and that difficulty is itself one of the standing criticisms of a judge made entrenchment.

Kihoto Hollohan v Zachillhu, 1992 Supp (2) SCC 651. Legislators disqualified under the Tenth Schedule for defection challenged the Schedule, and in particular paragraph 7, which ousted the jurisdiction of all courts in any matter connected with disqualification. Five judges upheld the Schedule but struck paragraph 7 down, because by excluding the jurisdiction of the High Courts under Article 226 and of the Supreme Court under Articles 32 and 136 it altered Chapter IV of Part V and Chapter V of Part VI and therefore required ratification by half the States under the proviso to Article 368(2), which had not been obtained; and it held the Speaker's decision subject to judicial review on grounds of mala fides, perversity and violation of natural justice. It is the only amendment ever struck down for want of the federal ratification the proviso requires.

Conclusion. The two notes make one comparative point. Dred Scott is what happens when a constitution contains no limit on the amending power and no limit on what a court may read into a general clause: the injustice could be removed only by two amendments and a war. The basic structure doctrine is the Indian answer to the same danger from the other direction, holding that some features of a constitution are beyond the reach even of a validly passed amendment. India's framers, having enumerated rights in Part III rather than leaving them to be inferred from a due process clause, and the Supreme Court, having placed the amending power under review in 1973, between them closed both of the routes by which Dred Scott became possible.

Source

In the United States the power is not conferred anywhere. 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. 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, without which the supremacy clause would have been unenforceable against a hostile State bench.

Scope

Legislation is reviewed on two grounds in both systems, competence and violation of a protected right, and Indian courts have built a set of doctrines for the purpose: pith and substance, by which a law is judged by its true nature and character and incidental encroachment does not invalidate it; colourable legislation, that what cannot be done directly cannot be done indirectly; severability under Article 13, from R.M.D. Chamarbaugwalla v Union of India, AIR 1957 SC 628; eclipse, by which a pre Constitution law inconsistent with Part III becomes dormant rather than dead; and the rule against waiver of a fundamental right, from Basheshar Nath v Commissioner of Income Tax, AIR 1959 SC 149.

Executive action is reviewed on the ordinary administrative grounds in both, illegality, irrationality and procedural impropriety, with the addition in India of Article 14 arbitrariness after E.P. Royappa v State of Tamil Nadu, (1974) 4 SCC 3, and of proportionality after Justice K.S. Puttaswamy v Union of India, (2017) 10 SCC 1.

Standards

American law applies tiers of scrutiny. Strict scrutiny, requiring a compelling governmental interest and narrow tailoring, applies to suspect classifications such as race and to fundamental rights, and was applied to end race conscious university admissions in Students for Fair Admissions v President and Fellows of Harvard College on 29 June 2023. Intermediate scrutiny, requiring an important interest substantially related to it, applies to sex, from Craig v Boren, 429 U.S. 190 (1976), and United States v Virginia, 518 U.S. 515 (1996). Rational basis review applies to everything else and is almost always satisfied. The theoretical basis is footnote four of United States v Carolene Products, 304 U.S. 144 (1938), which suggested closer scrutiny for legislation restricting the political process or directed at discrete and insular minorities.

The political question doctrine limits America and has been narrowed in India. Baker v Carr, 369 U.S. 186 (1962), gave six factors, the first being a textually demonstrable constitutional commitment of the issue to a coordinate political department, and Rucho v Common Cause, 588 U.S. 684 (2019), held partisan gerrymandering nonjusticiable. India has moved the other way: S.R. Bommai v Union of India, (1994) 3 SCC 1, made a Proclamation under 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 textual and narrow: Articles 122 and 212 exclude review of parliamentary and State legislative 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 or unconstitutionality.

Congress may restrict the American appellate jurisdiction; Parliament may not restrict Article 32. Ex parte McCardle, 74 U.S. 506 (1869), upheld the withdrawal of an appellate jurisdiction while an appeal was pending. Article 32 is a fundamental right, and after the Forty Fourth Amendment of 1978 the enforcement of Articles 20 and 21 cannot be suspended even during a Proclamation of Emergency, which is the direct legislative answer to ADM Jabalpur v Shivkant Shukla, (1976) 2 SCC 521.

Criticism. The American objection is Alexander Bickel's countermajoritarian difficulty: why should nine unelected judges with life tenure override the considered judgment of an elected legislature. The Indian objection is different and sharper: not that the power is countermajoritarian but that it is unbounded, since Article 32, relaxed standing, continuing mandamus and the complete justice power of 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 this are selected by other judges under a collegium the Constitution does not mention.

Justice K.S. Puttaswamy v Union of India, (2017) 10 SCC 1. A retired judge of the Karnataka High Court challenged the Aadhaar scheme, and the Union argued, relying on M.P. Sharma and Kharak Singh, that the Constitution contains no fundamental right to privacy at all. Nine judges held unanimously that privacy is protected as an intrinsic part of the right to life and personal liberty under Article 21 and of the freedoms in Part III, overruled those decisions to the contrary, and expressly overruled ADM Jabalpur v Shivkant Shukla, (1976) 2 SCC 521. The Court adopted structured proportionality as the test for any invasion: a legitimate State aim, a rational connection, necessity in the sense that no less intrusive measure would serve, and a balance between the benefit and the harm to the right. It is the case that aligned the Indian standard of review with the comparative one.

Conclusion. The concept is identical in the two systems and the architecture around it differs 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 amendments. India was given the power by the text in 1950, made the remedy a fundamental right, opened it to strangers acting in the public interest, refused a general political question doctrine, and extended review to the amending power itself. The American power is more securely founded in principle and narrower in operation; the Indian is wider in operation and rests at its outer edge on a doctrine the text does not contain, which is why the criticism of each is the mirror image of the criticism of the other.

Nature, in one paragraph for each system. In the United States the power is divided so that no single institution holds it: Congress or a convention proposes, three quarters of the States ratify, and the President has no role at all, as Hollingsworth v Virginia, 3 U.S. 378 (1798), decided. In India the power is constituent and is vested in Parliament: Article 368(1), inserted by the Twenty Fourth Amendment in 1971, says in terms that Parliament may in exercise of its constituent power amend by way of addition, variation or repeal any provision of this Constitution, and the States participate only for the matters in the proviso to Article 368(2). In Switzerland the power belongs to the electorate: a hundred thousand voters may propose under Articles 138 and 139, and Article 140 requires every amendment to be approved by the people and the cantons under the double majority in Article 142.

The comparative point to close on. All three systems accept that the amending power is constituent and therefore very wide. Two of them are protected from its abuse by structure rather than by doctrine, America because ratification by three quarters of the States is nearly unattainable and Switzerland because the electorate itself must approve. India has neither protection, since a government commanding two thirds of both Houses and half the State legislatures can amend at will, and did so between 1971 and 1976. The basic structure doctrine is the Indian substitute for a structural protection the Indian procedure does not provide, which is why the doctrine exists in Delhi and not in Washington or Berne.

Conclusion. The nature of the amending power is constituent in all three constitutions and is held by three different bodies; the scope is unlimited in America and Switzerland but for two textual entrenchments and three formal conditions, and limited in India by a judicially declared doctrine. The full procedural detail is at question 4 of Q.P. Code 33712 above.

Then the two schemes. America: the first ten amendments of 1791, the Thirteenth, Fourteenth, Fifteenth and Nineteenth, Barron v Baltimore, 32 U.S. 243 (1833), and selective incorporation against the States from Gitlow v New York, 268 U.S. 652 (1925). India: Articles 12 to 35, the equality code in 14 to 18 including Article 17, the freedoms in 19, Articles 20, 21, 21A and 22, the prohibitions in 23 and 24, religion in 25 to 28, minorities in 29 and 30, and the remedy in 32.

Then enforcement, which is the decisive difference. Article 32 as a fundamental right and Article 226 as a wider power; the relaxation of standing in S.P. Gupta v Union of India, 1981 Supp SCC 87; public interest litigation with letters treated as petitions in Sunil Batra, undertrials released in Hussainara Khatoon, bonded labourers freed in Bandhua Mukti Morcha and guidelines laid down in Vishaka. Against that, the American ordinary suit under 42 U.S.C. section 1983, the injury in fact requirement of Lujan v Defenders of Wildlife, 504 U.S. 555 (1992), and qualified immunity.

This question is set twice in this volume, in identical words, as question 1 of Q.P. Code 33712 and as question 6 of Q.P. Code 33714. The full answer, with every head of jurisdiction, its provision and the authorities, is written out under question 1 of Q.P. Code 33712 earlier in this volume and is not repeated here.

The marks plan, in the order to write it.

Open with the structural reason for the difference, that India has a single integrated judiciary administering central and State law alike with one apex court, while America has two parallel systems and most American litigation never leaves the State courts.

Then the four differences. No advisory jurisdiction in America, because Article III confines the power to cases and controversies. No guaranteed writ jurisdiction, and standing under Lujan excluding the generalised grievance on which Indian public interest litigation depends. Congressional power to trim the appellate jurisdiction under the exceptions clause, as Ex parte McCardle, 74 U.S. 506 (1869), shows, against an Article 32 that Parliament cannot touch. And Article 142, which has no American equivalent.

Conclusion. Eight heads against two, and the difference follows from the structure of the two judicial systems rather than from any difference of constitutional ambition. The cost of the Indian breadth is a docket no apex court can carry, which is why Pritam Singh in 1950 and Mathai v George, (2016) 7 SCC 700, both had to say that Article 136 was never meant to make the Supreme Court a court of ordinary appeal. The full treatment is at question 1 of Q.P. Code 33712 above.

The framers' choice. Dr Ambedkar told the Constituent Assembly that to give the Chief Justice a practical veto over appointments would be to transfer the authority to the Chief Justice, which he was not prepared to concede, since the Chief Justice is a man with all the failings, sentiments and prejudices of a common man; and that appointment by the executive alone was equally dangerous. Article 124(2) as enacted therefore required consultation and not concurrence.

The guarantees

Appointment and tenure. Article 124(2) provides for appointment by the President after consultation with such judges as the President may deem necessary, the Chief Justice of India always being consulted for an appointment other than his own; Article 217 makes parallel provision for the High Courts. A Supreme Court judge holds office until sixty five, a High Court judge until sixty two. Removal under Article 124(4) requires an address by each House supported by a majority of the total membership and by two thirds of those present and voting, on proved misbehaviour or incapacity, with the machinery in the Judges (Inquiry) Act, 1968.

Institutional powers. Article 129 makes the Supreme Court a court of record with power to punish for contempt of itself, and Article 215 does the same for the High Courts. Article 50 directs the separation of the judiciary from the executive in the public services, implemented in the criminal courts by the Code of Criminal Procedure, 1973. Article 235 vests control over the subordinate judiciary in the High Court. Articles 32 and 226 supply the jurisdiction without which independence would have no object.

The four judges cases

S.P. Gupta v Union of India, 1981 Supp SCC 87. Seven judges held that consultation did not mean concurrence and that the Chief Justice's opinion had no primacy, so the executive could decline it for cogent reasons. The same judgment relaxed standing and founded public interest litigation, so the decision that weakened institutional independence widened access.

Supreme Court Advocates-on-Record Association v Union of India, (1993) 4 SCC 441. Nine judges overruled S.P. Gupta by seven to two, holding that consultation means concurrence and that the Chief Justice has primacy exercised through a collegium of senior colleagues, reasoning from Article 50 and from judicial independence as a basic feature rather than from the words of Article 124.

The criticism

Opacity. The collegium publishes no eligibility criteria, holds no application process, records no deliberations and gives no reasons. Chelameswar J. said so in dissent in 2015, and the revised Memorandum of Procedure that was to address it has been under negotiation between the collegium and the Union since that year and has never been finalised, so the process is governed by a document neither side accepts.

Executive veto by inaction. The collegium recommends and the Union appoints. Where the Union simply does not act, a recommendation lapses in practice, and reiterated recommendations, which are binding under the Second and Third Judges cases, have remained pending for years. Vacancies in the High Courts have run at roughly a third of sanctioned strength. Delay is a more effective instrument of influence than refusal, and it is invisible.

Contempt. Article 129 protects the institution from pressure and also insulates it from scrutiny. The conviction of Prashant Bhushan for criminal contempt on 14 August 2020 over two tweets, followed by a fine of one rupee, illustrated both the reach of the power and the difficulty of using it.

What should be said in the judiciary's favour. It struck down a constitutional amendment aimed at itself, against a government with a large majority, which few constitutional courts have done. It has protected the independence of tribunals repeatedly, most recently in Madras Bar Association v Union of India, decided on 19 November 2025, striking down the core provisions of the Tribunals Reforms Act, 2021, on appointment, tenure and conditions of service and directing a National Tribunal Commission within four months. And it extended the same logic to the Election Commission in Anoop Baranwal v Union of India, decided on 2 March 2023, directing appointment by a committee including the Chief Justice, although Parliament replaced the Chief Justice with a Union Cabinet Minister nine months later by the Chief Election Commissioner and other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023, a change whose validity remains undecided.

The United Kingdom appoints through a statutory commission and pays for it in a loss of democratic input. The Constitutional Reform Act 2005 created the Judicial Appointments Commission, with a lay chair and a majority of lay and judicial members, and confined the Lord Chancellor to a power to reject or require reconsideration of a single name. For Supreme Court appointments a selection commission is convened for each vacancy. The process is merit based and publicly documented, and the criticism is that it has produced a bench drawn from a narrow professional group and that ministerial and parliamentary involvement is now almost nil.

Switzerland elects its judges by parliament with open party affiliation and pays for it in security of tenure. The United Federal Assembly elects the members of the Federal Supreme Court for renewable terms of six years, and seats are distributed broadly in proportion to party strength. The bench is therefore politically representative by design rather than insulated from politics, and the standing criticism, made by the Group of States against Corruption, is that a judge seeking re election every six years from the body whose statutes he applies is not independent in the sense the Basic Principles require.

Measured against those four, India is the only major constitutional democracy in which judges are selected by judges, and the comparison identifies the precise defect. The American process is transparent and political; the British is merit based and documented; the German requires cross party consensus and forbids reappointment; the Swiss is openly political and insecure. The Indian collegium is none of these: it is not transparent, it requires no consensus outside the judiciary, and it is not accountable to anyone. The reform that follows from the comparison is not the National Judicial Appointments Commission struck down in 2015, whose defect was the two member veto, but the German combination of a supermajority requirement and a single non renewable term, which secures independence without vesting the choice in the appointees themselves.

Madras Bar Association v Union of India, 2025 INSC 1330, decided 19 November 2025. In July 2021 the Supreme Court struck down provisions of the Tribunals Reforms Ordinance fixing a four year term for tribunal members and a minimum appointment age of fifty. Within weeks Parliament re enacted substantially the same provisions in the Tribunals Reforms Act, 2021, and the Madras Bar Association challenged sections 3(1), 3(7), 4, 5, 6, 7(1) and 33. The Court struck the impugned provisions down, holding that they violate the separation of powers and judicial independence and that re enacting provisions already declared invalid, without removing the basis of the declaration, is an impermissible legislative override; it directed the Union to constitute a National Tribunals Commission within four months and restored the safeguards laid down in the earlier decisions. It is the most recent proof that the Indian judiciary will defend the independence of adjudication against the legislature, and the fact that it had to be said twice is itself the criticism.

Conclusion. The Indian Constitution secures decisional independence as well as any constitution in the world, through fixed tenure, a charged salary, a practically unusable removal procedure and a bar on legislative criticism, and the judiciary has used that security to strike down an amendment directed at itself. Institutional independence is a different matter. It rests on a doctrine the Court built out of the word consultation, and it is pressed from three directions at once: by the opacity of the collegium, which forfeits the public confidence that is a court's only real defence; by executive delay, which achieves through inaction what the Ninety Ninth Amendment could not achieve directly; and by post retirement appointments, which create an interest the Constitution never contemplated. The critical judgment is that India has an independent judiciary and an indefensible method of composing it, and that these are one problem and not two, because a process that cannot be justified in public cannot be defended when it is attacked.