LLM Group 1 Constitutional and Administrative Law Comparative Constitutional Law 2019 Question Paper with Solutions

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

(a) Marbury v Madison, 5 U.S. (1 Cranch) 137 (1803)

Facts. The election of 1800 transferred power from the Federalists to Jefferson's Republicans. In the interval before the inauguration the outgoing Congress passed the Judiciary Act of 1801 and the Organic Act for the District of Columbia, and President Adams filled the offices in his final hours. William Marbury was appointed a justice of the peace for the District of Columbia; his commission was signed by the President and sealed by the Secretary of State, John Marshall, then about to become Chief Justice, but was never delivered. Jefferson directed James Madison to withhold the undelivered commissions. Marbury applied to the Supreme Court for mandamus under section 13 of the Judiciary Act of 1789.

Criticism. Section 13 was capable of being read as conferring mandamus only in aid of the appellate jurisdiction, in which case no constitutional question arose; Marshall should arguably have recused himself, since his own failure to deliver the commissions caused the dispute; and the opinion decided the merits before deciding that the Court lacked jurisdiction.

Consequence. By declining jurisdiction the Court claimed the power of judicial review while giving the executive the result it wanted, so there was no order to disobey 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 justify its 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.

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

Comparative note. India required no judicial expansion of a commerce power, because Entry 42 of List I confers inter State trade and commerce expressly and Articles 301 to 307 constitute a separate Part on freedom of trade, commerce and intercourse. Indian case law has run the other way: Atiabari Tea Co v State of Assam, AIR 1961 SC 232, and Automobile Transport (Rajasthan) Ltd v State of Rajasthan, AIR 1962 SC 1406, built a compensatory tax exception, and nine judges discarded it in Jindal Stainless Ltd v State of Haryana, (2017) 12 SCC 1.

Marbury also settled a rule of method the Indian courts inherited. A court decides a constitutional question only when it must. That is the fourth of the seven rules 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, because the holding on citizenship disposed of the case and the holding on the Missouri Compromise was therefore unnecessary.

Gibbons founded two doctrines and not one. The affirmative commerce power is the one usually given. The second is the dormant commerce clause, the rule that the commerce power of its own force restricts State legislation discriminating against or unduly burdening interstate commerce even where Congress has said nothing. Johnson J. argued for it in his concurrence; Cooley v Board of Wardens, 53 U.S. 299 (1852), settled the compromise that subjects requiring a uniform national rule belong exclusively to Congress while local subjects may be regulated until Congress acts; and Pike v Bruce Church Inc, 397 U.S. 137 (1970), states the modern test, that a non discriminatory State law with a legitimate local purpose stands unless the burden on interstate commerce is clearly excessive in relation to the local benefits.

One further point belongs in the Marbury note. The judgment also founded the review of executive action, and it did so by a distinction that has governed administrative law in both countries since. Marshall CJ held that where the head of a department acts as the political or confidential agent of the executive, merely to execute the will of the President, his acts are examinable only politically; but where a specific duty is assigned by law and individual rights depend upon its performance, the individual injured has a right to resort to the laws for a remedy. That is the origin of the distinction between a discretionary and a ministerial act, and it is the line the Indian courts draw when they hold that mandamus lies to compel the performance of a public duty but not to dictate how a discretion is to be exercised.

Wickard v Filburn, 317 U.S. 111 (1942). Roscoe Filburn farmed a small holding in Ohio and grew twenty three acres of wheat where his quota under the Agricultural Adjustment Act of 1938 allowed eleven; the excess was fed to his own livestock and consumed on the farm, none of it entering any market. He was fined and argued that wheat never sold cannot be interstate commerce. The Court upheld the penalty unanimously, holding that even activity local in character and not regarded as commerce may be reached if it exerts a substantial economic effect on interstate commerce, and that home consumption, taken together with that of all similarly placed growers, affects the national wheat price by reducing demand. It is the furthest point the commerce power ever reached, and reading it beside United States v Lopez, 514 U.S. 549 (1995), shows the whole arc that Marshall CJ began in 1824.

Conclusion. The two notes are the two halves of Marshall CJ's achievement. Marbury established that a written constitution binds the legislature and that courts will say when the limit has been passed, in a judgment the administration could not defy. Gibbons used the same authority to read a grant of federal power broadly enough to make a single national market possible. Together they show that a constitutional court's power rests on two things, a text it can appeal to and a case in which the political branches cannot afford to disobey.

The Supreme Court of India

Article 131, original and exclusive jurisdiction in federal disputes, between the Government of India and one or more States, between the Government of India and any State on one side and other States on the other, or between two or more States, where 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 pre Constitution treaties and similar instruments. State of Bihar v Union of India, (1970) 1 SCC 67, held a private party cannot be joined; State of Karnataka v Union of India, (1977) 4 SCC 608, allowed a challenge to a commission of inquiry into a Chief Minister; State of West Bengal v Union of India, decided 10 July 2024, held maintainable a suit complaining that the Central Bureau of Investigation continued to register cases after the general consent under section 6 of the Delhi Special Police Establishment Act, 1946, had been withdrawn.

Article 136, special leave, from any judgment, decree, determination, sentence or order of any court or tribunal in India except a court or tribunal under a law relating to the armed forces. Plenary, residual and unconfined by subject matter. Pritam Singh v State, AIR 1950 SC 169, requires it to be used sparingly and in exceptional cases; Mathai v George, (2016) 7 SCC 700, repeats that it is not a regular forum of appeal.

Article 143, advisory jurisdiction. The President may refer a question of law or fact of public importance; the Court may report its opinion, which binds no one but carries great weight. The references run from In re Kerala Education Bill, AIR 1958 SC 956, and In re Berubari Union, AIR 1960 SC 845, through In re Special Courts Bill, 1978, (1979) 1 SCC 380, and In re Special Reference No 1 of 1998, (1998) 7 SCC 739, to the opinion of 20 November 2025 on Articles 200 and 201, which held that no timelines may be judicially prescribed for the Governor or the President and that deemed assent is alien to the Constitution.

Article 137, review, and the curative petition from Rupa Ashok Hurra v Ashok Hurra, (2002) 4 SCC 388, available after review is dismissed on the ground of a violation of natural justice or apprehension of bias.

Appellate jurisdiction in all other cases, with such exceptions and under such regulations as Congress shall make, a real legislative power which Ex parte McCardle, 74 U.S. 506 (1869), upheld when Congress withdrew an appellate jurisdiction while an appeal was pending. Review is now almost entirely by certiorari, after the Judiciary Act of 1925 and the Supreme Court Case Selections Act of 1988, granted on the rule of four under Supreme Court Rule 10, with about sixty of some seven thousand petitions heard each year. A narrow class of direct appeals survives under 28 U.S.C. section 1253.

Review of State court judgments, from Martin v Hunter's Lessee, 14 U.S. 304 (1816), and Cohens v Virginia, 19 U.S. 264 (1821), subject to the adequate and independent State ground doctrine.

The limits. Article III confines the power to cases and controversies, so there are no advisory opinions, settled when the Justices declined President Washington's questions in 1793; standing requires injury in fact under Lujan v Defenders of Wildlife, 504 U.S. 555 (1992); and the political question doctrine of Baker v Carr, 369 U.S. 186 (1962), applied in Rucho v Common Cause, 588 U.S. 684 (2019), excludes some disputes altogether.

Three points that complete the comparison

The relationship between Articles 32 and 226 is examinable and is frequently got wrong. Article 32 is confined to the enforcement of fundamental rights and is itself a fundamental right, so the Supreme Court cannot decline it on the ground that an alternative remedy exists, though it routinely asks a petitioner to go to the High Court first. Article 226 is wider in subject matter, since it extends to the enforcement of fundamental rights and for any other purpose, and it is wider in territory after the Fifteenth Amendment of 1963 inserted what is now Article 226(2), originally numbered clause (1A), which allows a High Court to issue a writ against an authority outside its territorial jurisdiction if the cause of action arises within it. It is narrower only in that it is not itself a fundamental right and can therefore be refused where an equally efficacious alternative remedy exists. L. Chandra Kumar v Union of India, (1997) 3 SCC 261, held the power of judicial review under both Articles to be part of the basic structure, so neither can be excluded even by constitutional amendment.

Two heads of Indian jurisdiction have no counterpart anywhere and deserve a paragraph. Article 142 permits any decree or order necessary for doing complete justice in a cause pending before the Court, used to settle the Bhopal claims in Union Carbide Corporation v Union of India, (1991) 4 SCC 584, to dissolve marriages on the ground of irretrievable breakdown, a ground the Hindu Marriage Act, 1955, does not contain, 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. And the curative petition created in Rupa Ashok Hurra v Ashok Hurra, (2002) 4 SCC 388, gives a further stage after review has been dismissed, available on the ground of a violation of natural justice or an apprehension of bias and requiring certification by a senior advocate. Neither the American nor the English apex court has any comparable residual power.

Union Carbide Corporation v Union of India, (1991) 4 SCC 584. After the release of methyl isocyanate at Bhopal in December 1984 the Union sued as parens patriae, and in February 1989 the Court recorded a settlement of four hundred and seventy million dollars and quashed the criminal proceedings then pending. Review petitions followed. Five judges upheld the civil settlement, holding that Article 142 empowers the Court to make any order necessary for doing complete justice, but restored the criminal proceedings, holding that the quashing had gone beyond what Article 142 permits because it cut across an express statutory prohibition. The case is both the widest use of Article 142 and the beginning of its limits, later stated in Supreme Court Bar Association v Union of India, (1998) 4 SCC 409, and no comparable power exists in the American or the English apex court.

Conclusion. The Indian Supreme Court has at least eight distinct heads of jurisdiction and the American two, and the difference follows from the structure of the two judicial systems rather than from any difference in constitutional 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 arithmetical, 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 meant to make the Supreme Court a court of ordinary appeal.

The schemes

America. The first ten amendments, ratified 15 December 1791, protect religion, speech, press, assembly and petition; against unreasonable search and seizure; against self incrimination and double jeopardy, with due process and just compensation; trial rights; and against cruel and unusual punishment. The Thirteenth abolished slavery in 1865, the Fourteenth in 1868 added birthright citizenship, due process and equal protection binding the States, and the Fifteenth and Nineteenth extended the franchise. Barron v Baltimore, 32 U.S. 243 (1833), confined the Bill of Rights to the federal government, and selective incorporation through the Fourteenth Amendment began with Gitlow v New York, 268 U.S. 652 (1925).

India. Articles 12 to 35: the equality code in 14 to 18 including the abolition of untouchability by Article 17; the freedoms in Article 19; protection in respect of conviction in Article 20; life and personal liberty in Article 21, with Article 21A added by the Eighty Sixth Amendment; protection against arrest and detention in Article 22; the prohibition of trafficking and forced labour in Article 23 and of hazardous child labour in Article 24; religion in Articles 25 to 28; minorities in Articles 29 and 30; and the remedy in Article 32.

The four heads

Speech. Brandenburg v Ohio, 395 U.S. 444 (1969), protects advocacy short of incitement to imminent lawless action likely to occur; New York Times Co v Sullivan, 376 U.S. 254 (1964), requires actual malice; New York Times Co v United States, 403 U.S. 713 (1971), refused a prior restraint on the Pentagon Papers. India 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, adopting the Brandenburg distinction and the doctrines of vagueness and overbreadth, and Anuradha Bhasin v Union of India, (2020) 3 SCC 637, applied proportionality to internet shutdowns.

Religion. The American establishment clause requires separation, as in Engel v Vitale, 370 U.S. 421 (1962). India has no such clause: Articles 25 and 26 are subject to public order, morality and health and to the other provisions of Part III, and Article 25(2)(b) expressly permits the State to throw open Hindu religious institutions of a public character to all classes of Hindus. Indian secularism therefore contains a power of reform, exercised through the essential religious practices test of the Shirur Mutt case, AIR 1954 SC 282.

Where India is weaker

Preventive detention. Article 22(3) to (7) permits it in peacetime, allowing three months without reference to an Advisory Board and longer on its opinion, with Article 22(6) allowing facts against the public interest to be withheld. There is no American constitutional equivalent, 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 hearing 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 could move for habeas corpus while Article 21's enforcement stood suspended, H.R. Khanna J. dissenting alone and losing the Chief Justiceship for it, and the decision was expressly overruled in Puttaswamy. The Forty Fourth Amendment of 1978 substituted armed rebellion for internal disturbance in Article 352 and provided that Articles 20 and 21 can never be suspended. The American parallel 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.

Association, assembly, and the horizontal reach of rights

Freedom of association is textual in India and judge made in America, which illustrates the whole comparison in miniature. Article 19(1)(b) protects assembly peaceably and without arms and Article 19(1)(c) the formation of associations or unions, with cooperative societies added by the Ninety Seventh Amendment in 2011, subject to the reasonable restrictions in Article 19(3) and (4). The First Amendment names assembly and petition but not association, and the freedom was derived in NAACP v Alabama, 357 U.S. 449 (1958), which held that a State could not compel the association to disclose its membership lists, because compelled disclosure of affiliation may constrain the freedom to associate as effectively as a direct restraint. That is the American technique of building an unenumerated right out of a general clause, and its fragility is the standing objection to it.

India built horizontality into the text and has since extended it further. Article 15(2) forbids denial of access to shops, public restaurants, hotels, wells, tanks, bathing ghats, roads and places of public resort on grounds of religion, race, caste, sex or place of birth, and binds private persons. Article 17 abolishes untouchability and makes its practice an offence, enforced through the Protection of Civil Rights Act, 1955, and the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. Articles 23 and 24 operate against everyone. Kaushal Kishor v State of Uttar Pradesh, (2023) 4 SCC 1, decided on 3 January 2023 by five judges, held that the rights under Articles 19 and 21 are enforceable against persons other than the State and its instrumentalities.

The practical consequence is worth stating plainly. A student refused admission to a private unaided school in India on grounds of caste has a constitutional remedy under Article 15(2) and can move a High Court under Article 226 directly. The same student in the United States has a statutory remedy under Title VI, and only if the school receives federal funds. That is the difference between enumerating a right and inferring it from an equal protection clause a century after it was enacted, and it is the strongest single argument for the Indian drafting technique.

Maneka Gandhi v Union of India, (1978) 1 SCC 248. Her passport was impounded in the public interest under section 10(3)(c) of the Passports Act, 1967, and the Government declined to give reasons, relying on section 10(5). Seven judges held that Articles 14, 19 and 21 form a single scheme and are not watertight compartments, that a procedure under Article 21 must be right, just and fair rather than merely enacted, and that the right to travel abroad is part of personal liberty. The framers had deliberately written procedure established by law rather than due process, on advice conveyed through B.N. Rau after his conversation with Justice Frankfurter, and A.K. Gopalan v State of Madras, AIR 1950 SC 27, had given the phrase its narrow meaning. This is the case in which India arrived at the American destination by a different road, and saying so is the sharpest comparative point available on Article 21.

Conclusion. India protects a longer list of liberties with an incomparably better remedy, because Article 32 makes access to the apex court a fundamental right and public interest litigation opened that access to litigants American standing doctrine would turn away. America protects a shorter list far more absolutely, particularly in speech and in the separation of religion from the State, and has no constitutional authority for preventive detention. Both failed at the same moment for the same reason, deference to executive necessity in 1944 and in 1975, and the responses are instructive: India amended its Constitution within three years so that the failure could not be repeated, and America waited seventy four years to say in a judgment that its own decision had been wrong from the day it was given.

Limits. One surviving express entrenchment, that no State may without its consent be deprived of its equal suffrage in the Senate. No implied limits: National Prohibition Cases, 253 U.S. 350 (1920), rejected the argument that prohibition was not a fit subject for an amendment, and Coleman v Miller, 307 U.S. 433 (1939), treated the effect of a prior rejection and the reasonableness of the time taken as political questions.

Record. Twenty seven amendments in two hundred and thirty seven years, ten of them ratified together in 1791. No time limit unless Congress imposes one, which is why the Twenty Seventh Amendment, proposed in 1789, was ratified in 1992.

India, Article 368

The special majority. A majority of the total membership of each House and not less than two thirds of the members present and voting, in each House separately. There is no joint sitting, because Article 108 does not apply to a constitutional amendment, so the Council of States has an absolute veto.

The judicial limit. Kesavananda Bharati v State of Kerala, (1973) 4 SCC 225, thirteen judges, seven to six, held that Article 368 confers no power to damage or destroy the basic structure. Five amendments have fallen: clause 4 of the Thirty Ninth in Indira Nehru Gandhi v Raj Narain, 1975 Supp SCC 1; sections 4 and 55 of the Forty Second in Minerva Mills v Union of India, (1980) 3 SCC 625; paragraph 7 of the Tenth Schedule in Kihoto Hollohan v Zachillhu, 1992 Supp (2) SCC 651; the immunity of post 1973 Ninth Schedule entries in I.R. Coelho v State of Tamil Nadu, (2007) 2 SCC 1; and the Ninety Ninth Amendment in Supreme Court Advocates-on-Record Association v Union of India, (2015) 5 SCC 1. Waman Rao v Union of India, (1981) 2 SCC 362, fixed 24 April 1973 as the date from which the doctrine operates.

Record. More than a hundred amendments in seventy six years.

Consequence. Because there is no judicial limit and Article 190 bars the Federal Supreme Court from reviewing federal enactments, an amendment in tension with international obligations has no domestic remedy. The minaret ban accepted in 2009 and the deportation initiative accepted in 2010 illustrate the point, and Verein KlimaSeniorinnen Schweiz v Switzerland, Grand Chamber, 9 April 2024, shows the review relocating to Strasbourg.

In Switzerland the risk falls on minorities, because there is no institution able to stop the electorate. The limits in Article 139(3) are formal and narrow, catching only unity of form, unity of subject matter and the ius cogens core, and Article 190 prevents the Federal Supreme Court from reviewing what is enacted. The minaret ban accepted in 2009 and the deportation initiative accepted in 2010 both entered the Constitution over serious objections under the European Convention on Human Rights, and the only forum left was Strasbourg, as Verein KlimaSeniorinnen Schweiz v Switzerland, Grand Chamber, 9 April 2024, shows in a different field. The Swiss answer is that a people which can amend its constitution at will is unlikely to destroy it, and the answer is a bet rather than a safeguard.

That sequence is the answer to anyone who argues that the basic structure doctrine is an unnecessary judicial invention. The Indian amending procedure was tested against a determined government with the required majorities, and it failed, twice, in five years. Germany reached the same conclusion in advance and wrote Article 79(3) of the Basic Law in 1949, having watched a constitution destroyed through its own amending clause between 1930 and 1933. The Indian doctrine is the same protection arrived at afterwards and by a court instead of a drafting committee.

I.C. Golaknath v State of Punjab, AIR 1967 SC 1643. The Golak Nath family held over five hundred acres in Jalandhar, most of it declared surplus under the Punjab Security of Land Tenures Act, 1953, which the Seventeenth Amendment had placed in the Ninth Schedule. Eleven judges held by six to five that an amendment is law within Article 13(2), so Parliament could not abridge any fundamental right, and applied prospective overruling so that past amendments survived. The holding was absolute and therefore unstable, since it left no lawful route to land reform, and Parliament answered with the Twenty Fourth Amendment, which declared the power constituent and put amendments outside Article 13. Every feature of the modern Indian amending procedure is a reaction to this decision.

Conclusion. The three differ most in who holds the initiative and least in the majorities they demand. America divides the power so finely that it can rarely be used, and constitutional change has migrated to the Supreme Court, where a bare majority of nine now does what Article V was meant to do. India concentrates the power in Parliament, involves the States only for the proviso matters and the people not at all, and has amended its Constitution more than a hundred times; its protection against abuse is not in Article 368 but in a doctrine declared in 1973. Switzerland vests the power in the electorate, which both proposes and ratifies, so every amendment carries direct democratic authority, and the price is that no institution can protect a minority against the amending majority. The design that has served its constitution best on the twin tests of stability and change is the Swiss, and the most instructive is the Indian, because it demonstrates that an amending procedure alone cannot secure a constitution.

The elements. Article 3 declares the cantons sovereign except to the extent that their sovereignty is limited by the Federal Constitution, and provides that they exercise all rights not vested in the Confederation. Article 42 confines the Confederation to the tasks assigned to it; Article 43a states subsidiarity; Article 44 requires mutual support and cooperation; Article 47 obliges the Confederation to respect cantonal autonomy, including the cantons' own organisation and financial autonomy. The Council of States has forty six members, two per full canton and one per half canton, and is perfectly equal in power with the National Council of two hundred, so every federal statute must pass both. Article 140 makes a referendum compulsory for every constitutional amendment and Article 142 requires the double majority of people and cantons, so no amendment can be carried against the cantons.

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

Two modern doctrines protect the States actively. Printz v United States, 521 U.S. 898 (1997), forbids Congress to commandeer State officers to administer a federal programme. National Federation of Independent Business v Sebelius, 567 U.S. 519 (2012), held that threatening to withdraw all existing Medicaid funds to force a State to accept an expansion was unconstitutional coercion.

India

Origin. India federated downwards. The Government of India Act, 1935, had proposed a federal scheme; the Constituent Assembly drew the provinces and the princely States into a single Union, and Article 1 calls India a Union of States precisely to signal that the federation is not the result of an agreement and that no unit may secede.

The unitary elements, which must be stated. The residue with the Union under Article 248 and Entry 97 of List I. Article 3, under which Parliament may form new States and alter the boundaries, area or name of an existing State after merely obtaining the views of its legislature, which it need not accept, so Indian States are not indestructible. Articles 352 to 360 on emergencies, under which Parliament may legislate on State subjects and the Union may assume a State's functions. Articles 249, 250, 252 and 253, permitting Parliament to legislate on State subjects in defined circumstances. Articles 256 and 257 requiring compliance and permitting directions, with Article 365 as the sanction. Single citizenship under Article 5; a single integrated judiciary; All India Services under Article 312; a single Election Commission under Article 324; a single Comptroller and Auditor General under Article 148; and Governors appointed and removable by the centre under Articles 155 and 156.

The machinery of cooperation, which the classical account leaves out

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

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

Three federalism cases worked out

Texas v White, 74 U.S. 700 (1869). During the Civil War the Confederate government of Texas sold United States bonds held in the State school fund in order to buy war supplies. After the war the reconstructed State government sued the purchasers to recover them, which required the Court to decide whether Texas had remained a State of the Union throughout. Chase CJ held that it had: the Constitution in all its provisions looks to an indestructible Union composed of indestructible States, the ordinance of secession was absolutely null, and the obligations of the State survived the rebellion. Set against Article 3 of the Indian Constitution, under which Parliament may by ordinary law alter the name, area or boundaries of a State after merely referring the Bill to its legislature for views it need not accept, the case marks the single largest difference between the two federal designs.

Mineral Area Development Authority v Steel Authority of India, decided 25 July 2024. Mineral bearing States had levied cesses and taxes on mineral rights and on mineral bearing land, and the industry resisted on the authority of India Cement Ltd v State of Tamil Nadu, (1990) 1 SCC 12, which had held royalty under the Mines and Minerals (Development and Regulation) Act, 1957, to be a tax and Entry 50 of List II to be denuded by the central Act. Nine judges held by eight to one, Nagarathna J. dissenting, that royalty is a contractual consideration for the enjoyment of mineral rights and not a tax, that Entries 49 and 50 of List II remain available to the States, and that India Cement was wrongly decided; recovery for past periods was later permitted in instalments. It is the largest judicial restoration of fiscal power to the Indian units yet made, and it answers the objection that a federation whose units cannot tax is federal only in form.

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 each; the difficulties; and a conclusion on the purpose of the exercise.

The organising idea. A classification is only as useful as the criterion it rests on. Constitutions have been classified on at least six criteria: form, method of amendment, manner of origin, territorial distribution of power, the relation of the executive to the legislature, and whether the constitution is in fact observed. Each criterion yields its own kinds, and one constitution sits in a different place 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 and Britain of flexibility. India is deliberately on both sides, since Article 368 requires a special majority and, for the proviso matters, 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; 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. The distinction matters because an enacted constitution has a text and a drafting record, 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. Sartori's classification is the only one that measures constitutionalism directly, and Loewenstein's normative, nominal and semantic classification makes the same point. The Soviet Constitution of 1936 is the standard facade, guaranteeing a long list of freedoms in the year of the great purge. Wheare's version of the question is whether government is conducted according to the constitution and subject to it.

A seventh, monarchical and republican, by the head of State, separating the United Kingdom, Japan and Spain from India, the United States and France.

The difficulties

The categories overlap, and India illustrates it twice, being both rigid and flexible and both federal and unitary in different respects. Rigidity in the rule does not predict rigidity in practice, since Switzerland has the most demanding amending procedure of the major democracies and the highest amendment rate, because Article 139 lets a hundred thousand voters begin the process, while the United States has an easier rule on paper and has not used it since 1992. And no classification except Sartori's measures whether power is actually restrained: a written, rigid, federal, republican constitution with a bill of rights can house an unlimited government, and nothing in the traditional scheme captures the independence of the appointing process for judges and electoral authorities, or whether the amending power is reviewable, which are the two features that most decide the question today.

Classification by the manner in which a constitution was made. A constitution may be granted by a ruler, 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 in substantial part the German Basic Law of 1949 were; or made by a representative constituent body, as the American, Indian and South African constitutions were. The category decides how much weight the drafting history carries in argument, which is why the Indian Supreme Court's use of the Constituent Assembly Debates, from In re Berubari Union, AIR 1960 SC 845, onwards, has an authority no appeal to a granted text could have.

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 measures how much a constitution attempts to settle rather than leave to ordinary politics, and it predicts the amendment rate directly: a document that fixes the retirement age of judges, the division of tax revenues and the composition of public service commissions must be amended whenever any of those change.

One more difficulty belongs in a complete answer, and it is the most modern of them. Every classification in the traditional list assumes that a constitution's real limits are found in the same place as its formal ones. The literature on constitutional erosion, which has grown since about 2015, describes governments that concentrate power while observing every formal rule: amendments passed by the required majorities, judges appointed by the prescribed process, elections held on time. Nothing in Bryce, Wheare, Sartori or Loewenstein identifies that pattern, because the text and the procedure are complied with throughout. What identifies it is the direction of a series of individually valid changes, which no taxonomy of a document at a point in time can capture.

Thoburn v Sunderland City Council, [2002] EWHC 195 (Admin). Steven Thoburn, a greengrocer in Sunderland, sold produce by the pound on scales marked only in imperial units, contrary to regulations giving effect to European measurement directives, and argued that the European Communities Act 1972 had been impliedly repealed by the later Weights and Measures Act 1985. Laws LJ held that it had not, because there is a class of constitutional statutes, including Magna Carta, the Bill of Rights 1689, the Acts of Union, the Reform Acts and the Human Rights Act 1998, which are immune from implied repeal and can be repealed only by express words. A constitution classified as unwritten and flexible therefore contains a hierarchy of statutes and a rule of interpretation protecting it, which is precisely what those two categories assert cannot exist.

Conclusion. Constitutions are classified on six main bases, each with its own kinds, and the exercise is worth making because it tells a lawyer where the constitutional limit lies, how the constitution will change, and whom a reformer must persuade. It is worth treating with suspicion because the categories blur, because India belongs to both sides of two of them, and because the only basis which measures whether a constitution restrains power is the one listed last. The classification of the Indian Constitution is therefore a paragraph rather than a word, and giving that paragraph is what this question rewards.

The guarantees, tested against that standard

Guaranteed by the Constitution. The Supreme Court is constituted by Article 124 and each High Court by Article 214; judicial independence has been held to be a basic feature in Supreme Court Advocates-on-Record Association v Union of India, (1993) 4 SCC 441, and again in 2015, so it is beyond the reach of amendment.

Tenure until a retiring age. Sixty five in the Supreme Court, sixty two in the High Courts. Removal under Article 124(4) requires proved misbehaviour or incapacity and an address by each House supported by a majority of the total membership and two thirds of those present and voting, with the machinery in the Judges (Inquiry) Act, 1968. No judge has ever been removed.

Conditions of service secured by law. Article 125 and the Second Schedule fix salaries, which cannot be varied to a judge's disadvantage after appointment except during a financial emergency under Article 360; salaries and administrative expenses are charged on the Consolidated Fund under Articles 146(3) and 229(3) and are therefore not votable.

Appointments: the point at which the standard is not met

S.P. Gupta v Union of India, 1981 Supp SCC 87. Seven judges held that consultation in Articles 124 and 217 did not mean concurrence and that the Chief Justice's opinion had no primacy, so the executive could decline it for cogent reasons.

Supreme Court Advocates-on-Record Association v Union of India, (1993) 4 SCC 441. Nine judges overruled that by seven to two, holding that consultation means concurrence and that the Chief Justice has primacy exercised through a collegium of senior colleagues.

In re Special Reference No 1 of 1998, (1998) 7 SCC 739. The collegium was fixed at the Chief Justice and the four senior most judges for Supreme Court appointments and the Chief Justice and the two senior most for High Court appointments and transfers, with opinions to be recorded in writing.

Executive delay is the real appointing power. The collegium recommends and the Union appoints; where the Union does not act, the recommendation lapses in practice, and reiterated recommendations, which are binding under the Second and Third Judges cases, have sat unactioned for years while High Court vacancies have run at roughly a third of sanctioned strength. Delay achieves what refusal cannot, and it leaves no record.

Post retirement appointments create an interest the Constitution never contemplated. Article 124(7) bars practice and not office, and a large proportion of retired judges take appointments to tribunals, commissions, Governorships or the Council of States. The objection, put bluntly by Arun Jaitley as a Minister, is that the desire for a post retirement job influences pre retirement judgments. A cooling off period has been recommended repeatedly and never enacted. American Article III judges hold office for life and British judges retire at seventy five, and neither system has a comparable pattern.

The removal procedure has never worked. The only motion to reach a vote, against V. Ramaswami J. in 1993, failed although the inquiry committee had found misbehaviour proved, because the ruling party abstained. What remains is the in house procedure adopted by the Court in 1997, which has no statutory basis and whose outcomes are not published.

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 anywhere have done. It has protected the independence of tribunals repeatedly, most recently in Madras Bar Association v Union of India, decided 19 November 2025, striking down the core of the Tribunals Reforms Act, 2021, and directing a National Tribunal Commission. And Anoop Baranwal v Union of India, decided 2 March 2023, extended the same reasoning to the Election Commission, directing appointment by a committee including the Chief Justice, though Parliament substituted a Union Cabinet Minister for the Chief Justice nine months later by the Chief Election Commissioner and other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023, whose validity is undecided.

The subordinate judiciary, which the question also covers and which is usually omitted

Independence of the judiciary in India does not mean the independence of the Supreme Court, and an answer that discusses only the collegium has described the top two per cent of the institution. More than ninety nine per cent of Indian litigation begins and ends in the district judiciary, and the constitutional arrangements for it are separate and specific.

What Article 235 has been held to mean. State of West Bengal v Nripendra Nath Bagchi, AIR 1966 SC 447, held that control includes disciplinary jurisdiction, so a High Court may hold an inquiry into a subordinate judge's conduct and recommend punishment, and the Governor acts on that recommendation. High Court of Judicature at Bombay v Shirishkumar Rangrao Patil, (1997) 6 SCC 339, upheld compulsory retirement on the High Court's recommendation. The purpose of vesting control in the High Court rather than the executive is precisely to keep the trial judge, who is the judge every litigant actually meets, out of the reach of the State government whose cases he decides.

Three cases on judicial independence worked out

State of West Bengal v Nripendra Nath Bagchi, AIR 1966 SC 447. Disciplinary proceedings were taken against a district judge in West Bengal by the State government, which claimed that control over the judicial service was a matter for the executive as employer. The Supreme Court held that the control vested in the High Court by Article 235 includes disciplinary jurisdiction over members of the district judiciary short of dismissal, removal or reduction in rank, which remain with the Governor under Article 311; the High Court may hold the inquiry and recommend, and the Governor acts on that recommendation. The purpose, the Court said, is to make the judiciary independent of the executive in the day to day matters that most affect a judge's mind. The case matters because ninety nine per cent of Indian litigants meet only the district judiciary, and an answer on judicial independence confined to the collegium has left them out.

Anoop Baranwal v Union of India, decided 2 March 2023. Public interest petitions challenged the practice by which Election Commissioners were appointed by the executive alone, on the ground that an Election Commission chosen by the government of the day cannot hold that government to account. Five judges held that, until Parliament legislates, appointments to the Election Commission shall be made by the President on the advice of a committee of the Prime Minister, the Leader of the Opposition in the House of the People and the Chief Justice of India. Parliament legislated within nine months, by the Chief Election Commissioner and other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023, replacing the Chief Justice with a Union Cabinet Minister, and the challenge to that Act is undecided. It shows both the reach of the reasoning that protects judicial independence and the limits of a judicial direction that Parliament is free to reverse.

Illustrations of the positive limb. Parliament has altered the succession to the throne by the Act of Settlement 1701 and His Majesty's Declaration of Abdication Act 1936; extended its own life during both world wars by the Parliament and Registration Act 1916 and the Prolongation of Parliament Acts; legislated retrospectively in the War Damage Act 1965, reversing Burmah Oil Co v Lord Advocate, [1965] AC 75; united two kingdoms by the Acts of Union 1707; and dismantled the Empire by a series of Independence Acts, including the Indian Independence Act 1947.

The negative limb and the enrolled bill rule. British Railways Board v Pickin, [1974] AC 765, held that the courts cannot examine the manner in which an Act was passed or investigate an allegation that Parliament was misled; once a Bill has received Royal Assent and appears on the roll, no court may question its validity. Edinburgh and Dalkeith Railway v Wauchope, (1842) 8 Cl and F 710, is to the same effect.

No Parliament may bind its successor. Vauxhall Estates v Liverpool Corporation, [1932] 1 KB 733, and Ellen Street Estates v Minister of Health, [1934] 1 KB 590, held that a provision purporting to give an earlier Act priority over later inconsistent legislation is ineffective, since the later Act impliedly repeals the earlier to the extent of the inconsistency.

Two decisions on the executive rather than the legislature complete the picture. R (Miller) v Secretary of State for Exiting the European Union, [2017] UKSC 5, held by eight to three that the prerogative could not be used to trigger withdrawal from the European Union because it would remove rights conferred by statute, so an Act was required. R (Miller) v The Prime Minister, [2019] UKSC 41, held unanimously that advice to prorogue Parliament for five weeks was unlawful and of no effect, because it frustrated the constitutional functions of Parliament without reasonable justification, deriving the limit from parliamentary sovereignty itself and from the accountability of the executive to Parliament.

The contrast with India in one paragraph. The Indian Parliament is not sovereign in Dicey's sense: it is a creature of a written constitution, bound by the distribution of powers in the Seventh Schedule, subject to Part III by Article 13(2), and limited even in its constituent capacity by Kesavananda Bharati v State of Kerala, (1973) 4 SCC 225. The Indian doctrine is constitutional supremacy, not parliamentary supremacy, and Indira Nehru Gandhi v Raj Narain, 1975 Supp SCC 1, in which an amendment placing the Prime Minister's election beyond challenge was struck down, is the proof.

Illustrations from British practice. Resignations on the unanimity principle include Robin Cook over Iraq in 2003 and Michael Heseltine over Westland in 1986. The convention has been suspended by agreement three times, in the agreement to differ over tariffs in 1932, over the European Economic Community referendum in 1975 and over the European Union referendum in 2016, which is itself evidence that it is a convention and not a law, since a law cannot be suspended by agreement between those bound by it.

Two Indian refinements. State of Karnataka v Union of India, (1977) 4 SCC 608, treated collective responsibility as a working principle of the Cabinet system rather than as a rule enforceable at the suit of a private person. And Article 74(1), as amended by the Forty Second and Forty Fourth Amendments, makes ministerial advice binding on the President, subject to one power to require reconsideration, which converts what is a convention in Britain into an enforceable constitutional obligation in India.

The strains on the doctrine, which the word critically would require and which improve the answer anyway. In a coalition, unanimity is routinely broken without resignation, since the parties that make up the government have separate manifestos and separate constituencies. Where the Prime Minister's personal authority is dominant, collective decision making gives way to what British writers call prime ministerial government, and the Cabinet becomes a body that ratifies rather than decides. And a large majority weakens the confidence element to the point of formality, since no government with a secure majority can be defeated on a confidence motion.

The modern practice separates accountability from culpability. A minister is now taken to be accountable to Parliament in the sense of owing it a full and truthful account, which the Ministerial Code makes explicit, while resignation follows only from personal fault or from the loss of the Prime Minister's confidence. The change was formalised after the Scott Report of 1996 on arms sales to Iraq, and the practical effect is that a departmental failure now produces an inquiry and a statement rather than a resignation.

The Indian position is that the convention exists and is weaker still. Article 75(2) provides that Ministers hold office during the pleasure of the President, which in practice means the pleasure of the Prime Minister, so the sanction is dismissal rather than resignation. Lal Bahadur Shastri's resignation as Railway Minister in 1956 after the Ariyalur railway accident is the classic Indian instance of the strict version and has few successors. What has replaced it is judicial supervision: Vineet Narain v Union of India, (1998) 1 SCC 226, over the investigation of the hawala allegations, and Common Cause v Union of India, (1996) 6 SCC 530, on the allotment of retail outlets by a Minister, show the Supreme Court doing through Article 32 what the convention had ceased to do through Parliament.

Three cases worked out

R (Miller) v The Prime Minister, [2019] UKSC 41. In August 2019 the Prime Minister advised the Queen to prorogue Parliament for five weeks at a moment when the statutory date for withdrawal from the European Union was five weeks away, and Gina Miller in England and Joanna Cherry in Scotland challenged the advice. Eleven Justices held unanimously that the lawfulness of the advice was justiciable, that a prorogation is unlawful if it has the effect of frustrating or preventing, without reasonable justification, the ability of Parliament to carry out its constitutional functions, and that this one did, so it was null and of no effect and Parliament had never been prorogued. The Court derived the limit from the two principles it identified as fundamental, parliamentary sovereignty and the accountability of the executive to Parliament, which is the doctrine in this question being enforced against the executive rather than described.

Shamsher Singh v State of Punjab, (1974) 2 SCC 831. Two probationary subordinate judges in Punjab had their services terminated, in one case by an order expressed to be made by the Governor but in fact taken by the Chief Minister and the Home Secretary, and they argued that the Governor had to act personally. Seven judges held that the President and the Governor exercise their formal constitutional powers only upon and in accordance with the advice of their Ministers, save in a few well known exceptional situations, that they are not the real executive, and that the Indian system is the Cabinet system on the British model. The case is where the British convention of ministerial advice, which the Patriation Reference tells us no court will enforce, was read into the Indian text as a rule of law, and it is the bridge between the two halves of this question.

This question is set twice in this volume, as question 2 of form 68952, the paper on page 1, and as question 2 of form 77542, the paper on page 2. The full answer, with every head of jurisdiction, its constitutional provision and the authorities, is written out under question 2 of form 68952 earlier in this volume and is not repeated here.

One point peculiar to this paper must be dealt with first. The English text of this question names the United States and India. The Marathi translation on page 3 reads "भारतातील आणि इंग्लंडमधील", which is India and England. The Marathi page's own third instruction says that the original English questions are to be treated as authoritative, so a candidate must answer on the United States and India. A candidate who reads only the Marathi and writes on England will have answered a question the paper did not set, and the safe course in the hall is to answer the English and add two sentences on the English position, which costs little and covers the discrepancy.

The marks plan, in the order to write it.

Then America, two heads. Original jurisdiction under Article III, section 2, exclusive only between two or more States under 28 U.S.C. section 1251. Appellate jurisdiction in all other cases, with such exceptions and under such regulations as Congress shall make, exercised almost entirely by certiorari after the Judiciary Act of 1925 and the Supreme Court Case Selections Act of 1988, granted on the rule of four under Rule 10.

Then the four differences. No American advisory jurisdiction, because Article III confines the power to cases and controversies. No guaranteed writ jurisdiction, and standing under Lujan v Defenders of Wildlife, 504 U.S. 555 (1992), excluding the generalised grievance on which Indian public interest litigation rests. Congressional power to trim the appellate jurisdiction, 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.

For full marks, cover: the proposition and its origin; the sequence of cases that produced it; the content, identified case by case; the five occasions on which an amendment has actually fallen, because that is the doctrine in operation; the criticism, which must be substantial because the question says critically; the defence; and the comparative position.

The proposition. Article 368 confers a power to amend and not a power to abrogate, so no constitutional amendment may damage or destroy the basic structure or essential features of the Constitution, and the Supreme Court will declare such an amendment void.

I.C. Golaknath v State of Punjab, AIR 1967 SC 1643, eleven judges, held by six to five that an amendment is law within Article 13, so Parliament could not abridge Part III at all, and applied prospective overruling so that past amendments stood. The decision was absolute and therefore unstable: it left no route by which the property provisions could be reformed.

Parliament's reply. The Twenty Fourth Amendment inserted Article 368(1), declaring the power constituent and extending to addition, variation or repeal of any provision, and Articles 13(4) and 368(3) to place amendments outside Article 13. The Twenty Fifth inserted Article 31C, and the Twenty Ninth placed the Kerala land reform statutes in the Ninth Schedule.

The content, identified case by case

Judicial review, the rule of law and free and fair elections, from Indira Nehru Gandhi v Raj Narain, 1975 Supp SCC 1. The limited nature of the amending power and the harmony and balance 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 of the High Courts under Articles 226 and 227 and of the Supreme Court under Article 32, from L. Chandra Kumar v Union of India, (1997) 3 SCC 261. Effective access to justice, from Madras Bar Association v Union of India, (2014) 10 SCC 1. 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.

The doctrine in operation: five amendments struck down in fifty three years

Clause 4 of the Thirty Ninth Amendment, in Indira Nehru Gandhi (1975), which had 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.

The criticism

The textual objection. Article 368(1) 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 in accordance with the procedure laid down. The doctrine reads into that a limitation which the words exclude, and it does so against a provision Parliament enacted in 1971 for the express purpose of removing any such limitation. Ray CJ, Mathew, Beg, Dwivedi, Palekar and Chandrachud JJ. said as much in dissent in Kesavananda.

The certainty objection. There is no closed list of basic features and none can be given, because the doctrine works by identifying them case by case after the amendment has been passed. A legislature cannot know in advance what it may not do, which is the ordinary complaint against any rule whose content is settled retrospectively, and it is a serious objection to a rule that invalidates an Act carrying a two thirds majority in both Houses.

The defence

Restraint in use. The doctrine has invalidated an amendment five times in fifty three years, which is not the record of a court substituting itself for Parliament.

The occasions. Two of the five were amendments passed during the Emergency, one of which put a sitting Prime Minister's election beyond judicial reach and the other of which declared the amending power unlimited. A doctrine whose first two applications were those two provisions is difficult to describe as an abuse.

The structural argument. A constitution which can be amended into its own opposite by a body it created is not a superior law but a statute with a heavier procedure. If the amending power is truly unlimited, nothing prevents an amendment abolishing elections, and the answer that a democratic legislature would never do so is precisely the answer the Weimar constitution's defenders gave.

Two further cases on the doctrine

I.C. Golaknath v State of Punjab, AIR 1967 SC 1643. The Golak Nath family held more than five hundred acres in Jalandhar, most of which was declared surplus under the Punjab Security of Land Tenures Act, 1953, an Act protected by its entry in the Ninth Schedule under the Seventeenth Amendment. Eleven judges held by six to five that a constitutional amendment is law within Article 13(2), so Parliament had no power to abridge Part III at all, and Subba Rao CJ applied the technique of prospective overruling so that the First, Fourth and Seventeenth Amendments survived while no future amendment could touch fundamental rights. The decision is essential to a critical answer for two reasons: it shows that the Court's first attempt at a limit was an absolute prohibition that proved unworkable, and it explains why the compromise reached in 1973 has survived where Golaknath did not.

Conclusion. The doctrine is textually indefensible, structurally necessary and empirically restrained, and a critical answer should say all three. It is textually indefensible because Article 368(1) was drafted to exclude exactly the limitation the Court read into it. It is structurally necessary because a constitution whose amending clause can be used to place a Prime Minister's election beyond challenge, as the Thirty Ninth Amendment did, and to declare the amending power unlimited, as the Forty Second did, has no other protection. It is empirically restrained, five invalidations in fifty three years, and its occasions have been the two Emergency amendments and an attempt to reconstitute the body that appoints the judges. The strongest criticism that survives all this is Chelameswar J.'s: that in 2015 the Court used the doctrine to protect a method of appointment that appears nowhere in the Constitution and that the Court itself devised, which is the one application in which the guardian and the interested party were the same institution.

Dicey's distinction. In An Introduction to the Study of the Law of the Constitution Dicey divided constitutional rules into the law of the constitution, consisting of rules enforced by the courts, and the conventions of the constitution, consisting of understandings, habits or practices which regulate the conduct of the several members of the sovereign power and are not in reality laws at all, since they are not enforced by any court.

Why they exist. Every constitution is drafted in the language of formal power and operated by a different distribution of real power, and conventions bridge the two. In the United Kingdom the monarch may in law refuse assent to a Bill, appoint anyone as Prime Minister and dismiss a government; by convention assent has not been refused since 1708, the person commanding a Commons majority is appointed, and the monarch acts on ministerial advice. In India the executive power of the Union is vested in the President by Article 53, and the reality is that the President acts on the advice of the Council of Ministers, which Article 74(1) as amended has now made a legal obligation.

Examples worth naming. In Britain: the appointment of the Prime Minister; the existence of the Cabinet, which no statute creates; collective and individual ministerial responsibility; the Salisbury convention, that the Lords do not oppose at second reading a Bill implementing a manifesto commitment; and the Sewel convention, that Westminster will not normally legislate on devolved matters without consent, written into section 28(8) of the Scotland Act 1998 by the Scotland Act 2016. In India: the Speaker's impartiality and the practice of severing party ties; the invitation to the leader of the largest party or coalition; the appointment of the senior most judge as Chief Justice of India, broken in April 1973 when three judges were superseded after Kesavananda and again in January 1977 with the supersession of H.R. Khanna J.; and the collegium itself. In the United States: the two term limit on the Presidency, a convention from Washington's time that held for a hundred and fifty years, was broken by Franklin Roosevelt's four elections and was then converted into law by the Twenty Second Amendment of 1951, which is the complete life cycle of a convention in one example.

Criticism. A convention binds only those who accept it, and the sanction for breach is political, which may be no sanction at all where a government has a secure majority. The supersessions of 1973 and 1977 in India, the five week prorogation in Britain in 2019 and Roosevelt's third term are the standard examples, and in each the eventual correction came from somewhere other than the convention: from a later government's restraint, from a court reasoning on principle in R (Miller) v The Prime Minister, [2019] UKSC 41, and from a constitutional amendment. Codification has been attempted, through the Cabinet Manual of 2011 and the statutory recognition of the Sewel convention, and Miller (No 1) shows its limit, since writing a convention into a statute did not make it enforceable. A convention becomes enforceable only when it is converted into law, at which point it ceases to be a convention.

The rigid type. The United States is the model: proposal by two thirds of both Houses of Congress or by a convention called on the application of two thirds of the States, and ratification by three quarters of the States, which has produced twenty seven amendments in two hundred and thirty seven years, ten of them together in 1791. Switzerland is rigid in a different way, requiring a compulsory referendum under Article 140 with the double majority of people and cantons under Article 142, and yet it amends its constitution frequently because Article 139 allows a hundred thousand voters to initiate the process directly. That pair shows that rigidity in the rule does not predict rigidity in practice.

Advantages and disadvantages. A rigid constitution is stable, protects minorities and the units of a federation from a temporary majority, and supplies a fixed standard against which legislation can be tested, which is what makes judicial review possible; its defects are that it may become obsolete, that it forces change into the courts, as America shows since 1992, and that it can provoke rupture where it prevents reform. A flexible constitution adapts continuously and without crisis and suits a homogeneous society with strong political conventions; its defects are that it offers no secure protection against a determined majority and no fixed standard for a court to apply, which is why the United Kingdom has no power to strike down an Act and must make do with a declaration of incompatibility under section 4 of the Human Rights Act 1998.

Three cases worked out

Re Resolution to Amend the Constitution, [1981] 1 SCR 753. The federal government proposed to ask Westminster to patriate the Canadian constitution with an entrenched charter of rights and an amending formula, over the objection of eight of the ten provinces. Three provincial references reached the Supreme Court of Canada, which was asked both whether the proposal was unconstitutional in law and whether it was unconstitutional by convention. The Court held by seven to two that as a matter of law the two federal Houses could proceed alone, and by six to three that a convention required a substantial measure of provincial consent, applying Sir Ivor Jennings' three questions expressly: what are the precedents, did the actors believe they were bound, and is there a reason for the rule. It then stated the proposition every later case relies on, that conventions are not enforceable by the courts because they are not laws and the sanction for breach is political. Nine provinces settled within weeks, and the Constitution Act, 1982, followed.

R (Jackson) v Attorney General, [2005] UKHL 56. The Countryside Alliance challenged the Hunting Act 2004, passed under the Parliament Act 1949 procedure without the consent of the House of Lords, arguing that the 1949 Act was itself invalid because it had been made under the 1911 Act by the Commons alone and a delegate cannot enlarge its own powers. Nine Law Lords upheld both Acts. The case belongs in a note on rigid and flexible constitutions because of what was said in passing: Lord Steyn described parliamentary supremacy as a construct of the common law created by judges which the courts might qualify, and Lord Hope said the rule of law enforced by the courts is the ultimate controlling factor on which the constitution is based. A constitution classified as flexible because Parliament may unmake any law is being described by a rule the highest court has reserved the right not to apply.

This question is set twice in this volume, as question 7 of form 68952 and as question 5 of form 77542, the two papers in this scan. The full answer, measured against the United Nations Basic Principles on the Independence of the Judiciary, with the constitutional guarantees, the four judges cases and six criticisms, is written out under question 7 of form 68952 earlier in this volume and is not repeated here.

The marks plan, in the order to write it.

Open with the standard, the United Nations Basic Principles of 1985, which require independence to be guaranteed by the constitution, decisions to be made without improper influence, the method of selection to safeguard against improper motives, tenure to be guaranteed to a retiring age, and conditions of service to be secured by law. Measuring the Indian arrangements against that list turns a description into a critical answer.

Then the criticism, which must be at least a third of the answer. The opacity of the collegium and the unfinished Memorandum of Procedure; executive veto by inaction, with High Court vacancies at roughly a third of sanctioned strength; post retirement appointments, which Article 124(7) does not touch; a removal procedure never completed in seventy six years; the unreviewed power of the Chief Justice as master of the roster, confirmed in Asok Pande v Supreme Court of India, (2018) 5 SCC 341, and the press conference of 12 January 2018; and the contempt jurisdiction, which protects the institution and insulates it in the same breath.

Then what should be said in the judiciary's favour, that it struck down a constitutional amendment aimed at itself against a government with a large majority, that it protected tribunal independence again in Madras Bar Association v Union of India on 19 November 2025, and that it extended the same reasoning to the Election Commission in Anoop Baranwal v Union of India on 2 March 2023, a direction Parliament reversed nine months later.

Conclusion. India secures decisional independence as well as any constitution in the world and fails on selection, and those are one problem rather than two, because a process that cannot be justified in public cannot be defended when it is attacked. The full treatment is at question 7 of form 68952 above.

India, Article 368. A majority of the total membership of each House and two thirds of those present and voting, in each House separately, with no joint sitting, so the Rajya Sabha has an absolute veto. Ratification by half the States for the matters in the proviso to Article 368(2). Simple majority amendments outside Article 368 under Articles 4 and 169 and the Fifth and Sixth Schedules. The judicial limit from Kesavananda Bharati v State of Kerala, (1973) 4 SCC 225, with five amendments struck down since. More than a hundred amendments in seventy six years.

Switzerland, Articles 138 to 142. A hundred thousand voters may demand a total revision under Article 138 or a partial revision under Article 139 within eighteen months, as a general proposal or a drafted provision; the Federal Assembly may propose under Articles 193 and 194 and may put a counter proposal on the same ballot but cannot block. Article 140 makes a referendum compulsory and Article 142 requires the double majority of people and cantons. The only limits are the three formal grounds in Article 139(3), and there is no judicial limit because Article 190 makes federal enactments binding on the Federal Supreme Court.

For full marks, cover: both notes at about twelve and a half marks each. For affirmative action, the constitutional provisions, the beneficiary classes, the leading cases in sequence and the current position, which changed in 2024. For parliamentary democracy, the definition, its features, the contrast with the presidential form, the Indian provisions and why the framers chose it.

(a) Affirmative action, or reservation policy, under the Constitution of India

The distinctive feature, stated first. Indian affirmative action is written into the Constitution, and it is treated as a facet of equality rather than as an exception to it. State of Kerala v N.M. Thomas, (1976) 2 SCC 310, held that Articles 15(4) and 16(4) are not exceptions to Articles 15(1) and 16(1) but emphatic restatements of the principle of substantive equality, which is the opposite of the American premise that any racial classification is suspect.

The leading cases in sequence. State of Madras v Champakam Dorairajan, AIR 1951 SC 226, struck down a communal government order allotting college seats by community, and produced the First Amendment within months. M.R. Balaji v State of Mysore, AIR 1963 SC 649, struck down sixty eight per cent reservation and established that it should not ordinarily exceed fifty per cent and that caste cannot be the sole test of backwardness. Indra Sawhney v Union of India, 1992 Supp (3) SCC 217, nine judges, upheld twenty seven per cent for other backward classes, required the exclusion of the creamy layer, confirmed the fifty per cent ceiling save in extraordinary situations, held that caste may be the starting point for identifying a backward class in Indian conditions, held that economic criteria alone cannot identify backwardness, and held that there could be no reservation in promotions, which Parliament reversed by inserting Article 16(4A). M. Nagaraj v Union of India, (2006) 8 SCC 212, upheld Articles 16(4A) and 16(4B) subject to the State collecting quantifiable data on backwardness, inadequacy of representation and the effect on efficiency. Jarnail Singh v Lachhmi Narain Gupta, (2018) 10 SCC 396, removed the requirement to prove the backwardness of the Scheduled Castes and Tribes but applied the creamy layer principle to them in promotion. Ashoka Kumar Thakur v Union of India, (2008) 6 SCC 1, upheld the Ninety Third Amendment and excluded the creamy layer from the other backward classes quota in higher education. Janhit Abhiyan v Union of India, decided 7 November 2022, upheld the One Hundred and Third Amendment and the ten per cent for economically weaker sections by three to two.

(b) Parliamentary democracy

Definition. Parliamentary democracy is the form of government in which the executive is drawn from and responsible to the legislature and holds office only so long as it retains the confidence of the popularly elected chamber. It is contrasted with the presidential form, in which the executive is separately constituted for a fixed term and cannot be removed by a legislative vote.

Authority. Shamsher Singh v State of Punjab, (1974) 2 SCC 831, seven judges, held that the President and the Governors exercise their formal constitutional powers only upon and in accordance with the advice of their Ministers, save in a few well known exceptional situations, and that the Indian system is the Cabinet system on the British model. U.N.R. Rao v Indira Gandhi, (1971) 2 SCC 63, held that the Council of Ministers does not cease to exist on the dissolution of the House. S.P. Anand v H.D. Deve Gowda, (1996) 6 SCC 734, upheld the appointment of a Prime Minister who was not a member of either House at the time, provided he became one within six months. S.R. Bommai v Union of India, (1994) 3 SCC 1, held that the majority of a government is to be tested only on the floor of the House.

Why India chose it. Dr Ambedkar told the Constituent Assembly that a democratic executive must satisfy two conditions, stability and responsibility, that no form of government secures both in equal degree, that the American system gives more stability and the British more responsibility, and that the Assembly preferred responsibility, because daily assessment is more effective than periodic assessment and because a plural society needs a government answerable continuously. The practical reason is equally important: India already knew the parliamentary form from the Government of India Acts of 1919 and 1935.

The comparative dimension of both notes

Affirmative action, set beside the American position, shows two systems answering the same question from opposite premises. India treats a special provision as a facet of equality, on the authority of State of Kerala v N.M. Thomas, (1976) 2 SCC 310; America treats every racial classification as suspect and applies strict scrutiny whether the classification is said to benefit or to burden a minority. From that single difference everything else follows. Quotas are the ordinary Indian form and have been forbidden in America since Regents of the University of California v Bakke, 438 U.S. 265 (1978). Reservation in promotion is permitted in India under Articles 16(4A) and 16(4B), subject to the data requirements of M. Nagaraj v Union of India, (2006) 8 SCC 212, and is not a recognised American category at all. Reserved legislative seats exist in India under Articles 330 and 332 and have no American equivalent.

Parliamentary democracy, set beside the presidential form, shows the same trade off that Dr Ambedkar identified. The presidential executive is secure for a fixed term and faces a legislature it does not control, which produces divided government and deadlock; three Presidents have been impeached and none convicted, so the removal mechanism is nominal. The parliamentary executive is removable at any moment and controls the legislature's agenda, which produces continuous accountability where the majority is narrow and none at all where it is large. Neither form secures both stability and responsibility, which was Ambedkar's point in the Constituent Assembly, and the Indian choice of the second was made in the knowledge that it purchased responsibility at the price of stability.

Three cases worked out

State of Madras v Champakam Dorairajan, AIR 1951 SC 226. A Communal Government Order in Madras allotted seats in the State's medical and engineering colleges among Brahmins, non Brahmin Hindus, Backward Hindus, Harijans, Anglo Indians and Indian Christians, and Muslims, in fixed proportions. Champakam Dorairajan, a Brahmin woman, did not in fact apply, and Srinivasan, who did, was refused a seat although his marks exceeded those of successful candidates from other communities. Seven judges struck the order down: Article 29(2) forbids denial of admission to a State maintained institution on grounds only of religion, race, caste or language, and the directive principles in Part IV, being expressly unenforceable under Article 37, cannot override a fundamental right. Parliament answered within months with the Constitution (First Amendment) Act, 1951, inserting Article 15(4). The whole of Indian affirmative action law is built on that exchange between the Court and Parliament.

Students for Fair Admissions v President and Fellows of Harvard College, decided 29 June 2023. Students for Fair Admissions sued Harvard under Title VI of the Civil Rights Act of 1964 and the University of North Carolina under the Equal Protection Clause, alleging that both used race in admissions in a way that disadvantaged Asian American applicants. The Court held both programmes unlawful because the educational benefits of diversity are not sufficiently measurable to satisfy strict scrutiny, because race was used as a negative and involved stereotyping, and because the programmes had no logical end point. Placed beside State of Punjab v Davinder Singh, decided 1 August 2024, which permitted States to sub classify within the Scheduled Castes, it shows two systems answering the same complaint in opposite ways within thirteen months: America abandoned the classification and India divided it more finely.

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

Frame the answer. Every leading Indian decision on federalism answers one of four questions: how federal is India in principle; who decides a dispute over legislative competence; what limits the centre's power to displace a State government; and how is fiscal and administrative power divided in practice. Grouping the cases in that way is what turns a list into a discussion.

S.R. Bommai v Union of India, (1994) 3 SCC 1, nine judges, is the correction and the leading case. The Court held that federalism is a basic feature of the Constitution and cannot be destroyed by amendment; that a Proclamation under Article 356 is justiciable and may be struck down if it is mala fide or based on wholly irrelevant grounds; that the only proper test of a government's majority is a floor test in the Assembly and not the Governor's subjective satisfaction; that the Assembly may not be dissolved until both Houses of Parliament have approved the Proclamation; and that a dismissed government may be restored. Secularism was held to be a basic feature in the same judgment. The number of Article 356 proclamations fell sharply after 1994, which is the practical measure of the decision's effect.

Kuldip Nayar v Union of India, (2006) 7 SCC 1, five judges, upheld the removal of the residence requirement for election to the Council of States and the introduction of open ballot, rejecting the argument that a Council of States whose members need not reside in the State they represent destroys federalism.

Fiscal federalism

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

Mineral Area Development Authority v Steel Authority of India, decided 25 July 2024, nine judges, eight to one, Nagarathna J. dissenting, held that royalty payable under the Mines and Minerals (Development and Regulation) Act, 1957, is a contractual consideration and not a tax, so the States' power to tax mineral rights under Entry 50 and mineral bearing land under Entry 49 of List II is not exhausted by the central Act. It overruled India Cement Ltd v State of Tamil Nadu, (1990) 1 SCC 12, which had stood for thirty four years, and the Court then permitted recovery for past periods in instalments. It is the largest judicial transfer of fiscal power to the States in the Constitution's history.

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

Two further lines of authority

Inter State water disputes are the largest continuing federal conflict in India and are governed by a separate constitutional scheme. Article 262 permits Parliament to provide for the adjudication of disputes over the waters of inter State rivers and to exclude the jurisdiction of the Supreme Court and of every other court, and the Inter-State River Water Disputes Act, 1956, does both. In re Cauvery Water Disputes Tribunal, 1993 Supp (1) SCC 96, an advisory opinion under Article 143, held that Karnataka's ordinance purporting to nullify the Tribunal's interim order was unconstitutional, because a State cannot sit in judgment on its own cause and cannot legislate to defeat an adjudication binding upon it, and that the Tribunal had power to make an interim order. State of Karnataka v State of Tamil Nadu, (2017) 3 SCC 1, then held that an appeal lies to the Supreme Court under Article 136 against a Tribunal's award notwithstanding the exclusion in the Act, which restored the Court's supervision over the whole subject and is a significant expansion of its federal jurisdiction.

Article 3 and the alterability of the units complete the picture. Babulal Parate v State of Bombay, AIR 1960 SC 51, upheld the States Reorganisation Act, 1956, and held that the President need neither accept the views of a State legislature obtained under the proviso to Article 3 nor make a fresh reference when Parliament modifies the Bill. In re Berubari Union, AIR 1960 SC 845, held that the cession of Indian territory to a foreign State cannot be effected under Article 3 and requires a constitutional amendment, which was then made by the Ninth Amendment. Together they establish the proposition that most sharply distinguishes India from the United States: an Indian State can be divided, renamed or reduced by an ordinary law passed after its views have merely been sought, while Texas v White, 74 U.S. 700 (1869), holds the American Union to be composed of indestructible States.

In re Cauvery Water Disputes Tribunal, 1993 Supp (1) SCC 96. The Cauvery Tribunal made an interim order directing Karnataka to release a specified quantity of water to Tamil Nadu, and Karnataka responded by promulgating an ordinance empowering itself to disregard the order. The President referred three questions under Article 143. The Supreme Court advised that the ordinance was unconstitutional, because a State cannot sit in judgment on its own cause and cannot by legislation nullify an adjudication binding upon it, and that the Tribunal had power to make an interim order. The opinion is the strongest Indian authority on the machinery Article 262 creates, and it shows the advisory jurisdiction being used to resolve a federal confrontation which no ordinary suit could have reached in time.