LLM Group 1 Constitutional and Administrative Law Constitutionalism Pluralism and Federalism 2025-26 Question Paper with Solutions

Constitutionalism is not the same as a constitution

Every State has a constitution; not every State has constitutionalism. The distinction is the starting point and it should be made in the first two sentences. C. H. McIlwain put it that constitutionalism has one essential quality, a legal limitation on government, and is the antithesis of arbitrary rule. Carl Friedrich described it as the institutionalised system of effective, regularised restraints upon governmental action. A constitution which confers total power on one organ, or which can be set aside at will, is a constitution without constitutionalism, and the Soviet Constitution of 1936 is the standard example: a generous bill of rights alongside a system in which none of it was enforceable.

A written constitution which is supreme, so that no organ may act outside it. Limited government, meaning that every power is a conferred power and may be exercised only for the purpose for which it was conferred. Separation of powers, so that no organ combines the making, the applying and the adjudicating of law. Rule of law, so that power is exercised by known rules and is answerable in an independent court. Guaranteed and enforceable fundamental rights, since a right without a remedy is a description of a policy. And accountability, through periodic free elections, a responsible executive, an independent audit and a free press.

Two further features are sometimes added and both matter in India. Federalism, because the vertical division of power is as much a limit on government as the horizontal one. And an entrenched amendment procedure, so that the limits cannot be removed by the ordinary majority they bind.

The provisions

Supremacy and limited government. Article 13(1) and (2) void any law inconsistent with Part III. Article 245 subjects all legislative power to the Constitution. Articles 53, 73, 154 and 162 confer executive power in terms and therefore confine it.

Entrenchment. Article 368 requires a special majority, and its proviso requires ratification by half the State legislatures for the federal provisions, which was enforced against Parliament in Union of India v. Rajendra N. Shah, (2021) SCC OnLine SC 474.

The judicial interpretations

This is where the marks are, and each interpretation should be tied to the feature it protects.

Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225, protects entrenchment. Thirteen judges held by seven to six that the amending power under Article 368 does not extend to altering the basic structure, so that a two thirds majority cannot convert the Constitution into a different kind of document. It also struck down the second part of Article 31C, because a clause providing that a legislative declaration should not be questioned in any court removes judicial review.

L. Chandra Kumar v. Union of India, (1997) 3 SCC 261, protects the remedy. Seven judges held that the power of judicial review under Articles 32 and 226 is an integral and essential feature and part of the basic structure, and struck down Article 323A(2)(d) so far as it excluded the High Courts' jurisdiction over tribunals. I.R. Coelho closed the Ninth Schedule route, holding that laws placed there after 24 April 1973 may be tested against the basic structure.

Supreme Court Advocates-on-Record Association v. Union of India, (2016) 5 SCC 1, protects judicial independence, striking down the Ninety-ninth Amendment and the National Judicial Appointments Commission Act by four to one.

K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1, protects the individual against the modern State, recognising privacy under Article 21, adopting a proportionality test of legitimate aim, rational connection, necessity and balance, and overruling ADM Jabalpur.

Preventive detention. Article 22(3) removes the safeguards of clauses (1) and (2) from a preventive detainee, and Article 22(4) permits detention for up to three months without reference to an Advisory Board. India is unusual among constitutional democracies in authorising preventive detention in the constitutional text itself.

Ordinance government. Articles 123 and 213 permit legislation by the executive when the legislature is not in session. In D.C. Wadhwa v. State of Bihar, (1987) 1 SCC 378, the Court found that Bihar had promulgated 256 ordinances between 1967 and 1981, kept alive by mechanical re-promulgation for periods ranging from one year to fourteen, and held the practice a fraud on the Constitution. In Krishna Kumar Singh v. State of Bihar, (2017) 3 SCC 1, a seven judge Bench held that re-promulgation is a fraud on the Constitution and a subversion of democratic legislative processes, that the satisfaction of the President or Governor is subject to judicial review on the ground of mala fides or an absence of relevant material, and that an ordinance does not create enduring rights unless the legislature approves it.

Conclusion. Constitutionalism means limited government, and India possesses both the text and, for the most part, the practice. The text supplies supremacy in Articles 13 and 245, enforceable rights in Part III with Article 32 at their centre, judicial independence in Articles 50, 124 and 217, accountability in Articles 75(3), 148 and 324, and entrenchment in Article 368. The judicial interpretations supply what the text cannot: Kesavananda and Minerva Mills made the limits unamendable, Maneka Gandhi made procedure substantive, Bommai made the emergency power reviewable, L. Chandra Kumar and I.R. Coelho made the remedy itself part of the basic structure, and Puttaswamy supplied proportionality as the standard for every future limitation. Against that stand emergency powers, constitutional preventive detention, ordinance government which the Court had to condemn twice in thirty years, an unresolved question about the Money Bill route, and delay. The honest verdict is that India has constitutionalism because its courts have insisted on it, and that this is both the system's strength and its single point of failure.

Two distinctions are needed. De facto asymmetry is difference in size, wealth or population, which every federation has: the United States has both California and Wyoming. De jure asymmetry is difference written into the constitution, and that is what the question is about. Second, asymmetry may be enlarging, giving a unit more autonomy than the norm, as with Nagaland, or diminishing, giving it less, as with Delhi, which is a Union territory with a legislature rather than a State.

The Indian design is what Alfred Stepan called a holding-together federation. The Union was not created by a compact between sovereign units; it was formed by reorganising a unitary colonial state and 562 princely states into units. Asymmetry is the price such a federation pays to keep very different units inside it, and India uses it more extensively than any other large federation.

On 11 May 2023 a Constitution Bench held that the Delhi government has legislative and executive power over "services", that is over the officers who staff its departments, other than in relation to police, public order and land. The reasoning went to the heart of responsible government: an elected government which cannot control the officers who implement its decisions is not answerable to the electorate in any real sense.

Within a week the Union promulgated an Ordinance, enacted as the Government of National Capital Territory of Delhi (Amendment) Act, 2023, which created a National Capital Civil Service Authority and restored control over services to the Union. The challenge to that Act was referred to a Constitution Bench and remains pending. Delhi is therefore the clearest illustration of diminishing asymmetry, and of the fact that in India asymmetry is a legislative gift and not an entrenched status.

The Sixth Schedule

The Sixth Schedule, framed under Article 244(2) and Article 275(1) on the recommendation of the Bordoloi Sub-Committee of the Constituent Assembly, provides for the administration of tribal areas in Assam, Meghalaya, Tripura and Mizoram. It is the most extensive grant of self-government in the Indian Constitution and it should be described precisely.

The councils are real institutions and should be named: the Bodoland Territorial Council, the North Cachar Hills and Karbi Anglong councils in Assam, the Khasi Hills, Jaintia Hills and Garo Hills councils in Meghalaya, the Tripura Tribal Areas Autonomous District Council, and the Chakma, Lai and Mara councils in Mizoram. Ladakh has demanded inclusion in the Sixth Schedule since the reorganisation of 2019, which shows that the instrument is still regarded as the strongest available protection.

The Article 371 series

Articles 371 and 371A to 371J make special provision for eleven States and each should be identified, since the stem says "and other states".

Article 371 provides for development boards for Vidarbha, Marathwada and the rest of Maharashtra, and for Saurashtra, Kutch and the rest of Gujarat. Article 371A, for Nagaland, is the strongest provision of its kind: no Act of Parliament in respect of Naga religious or social practices, Naga customary law and procedure, the administration of civil and criminal justice involving decisions according to Naga customary law, or the ownership and transfer of land and its resources shall apply to Nagaland unless the Legislative Assembly of Nagaland by resolution so decides.

Is the arrangement well suited to India?

The case in favour has four limbs. It reflects the facts. Nagaland's customary law, Delhi's status as the seat of the Union government and Ladakh's demography are genuinely different problems, and a uniform rule would answer none of them. It has kept units inside the Union. Article 371A and Article 371F are the constitutional expressions of the Sixteen Point Agreement of 1960 and of Sikkim's accession, and both settled conflicts that had no other solution. It protects the smallest minorities. The Sixth Schedule gives a tribal community legislative power over its own land and custom, which no bill of rights can achieve. And it is the alternative to secession, which the Constitution excludes and which Reference re Secession of Quebec, [1998] 2 SCR 217, shows international law also confines to colonial situations.

P. Sambamurthy v. State of Andhra Pradesh, (1987) 1 SCC 362, is the most important and the one candidates almost always miss. Article 371D(5) empowered the State Government of Andhra Pradesh to modify or annul a final order of the Andhra Pradesh Administrative Tribunal. The Supreme Court struck down clause (5) and its proviso as unconstitutional, holding that a power in the executive to override a judicial determination destroys the rule of law and judicial review, which are part of the basic structure. The significance for this question is exact: an asymmetric special provision, written into the Constitution itself by amendment, was held to go too far. Asymmetry is permitted to depart from uniformity; it is not permitted to depart from the basic structure. The rest of Article 371D survives, which is also the point, because the Court cut out the offending clause rather than the arrangement.

Union of India v. Rajendra N. Shah, (2021) SCC OnLine SC 474, supplies the counterweight from the other direction. Part IXB of the Constitution, inserted by the Ninety-seventh Amendment to regulate cooperative societies, was struck down so far as it applied to societies within a State, because it dealt with a State List subject and had not been ratified by half the State legislatures as the proviso to Article 368(2) requires. A federal safeguard was enforced against Parliament, which is the strongest reply available to the objection that asymmetry in India is purely a matter of Union grace.

S.R. Bommai v. Union of India, (1994) 3 SCC 1, is the background against which all of this operates: nine judges held federalism a basic feature, made the President's satisfaction under Article 356 justiciable and required a floor test. Read together the four decisions state the position: asymmetry may be created and withdrawn by the political branches, its exercise is reviewable, and the one thing it may not do is breach the basic structure.

For full marks, cover: the term "compensatory discrimination" and where it comes from, since the paper has chosen it deliberately; the argument that it strengthens rather than dilutes equality, made from the constitutional text and from N.M. Thomas; the provisions; the leading cases worked out; the safeguards which are what make the scheme defensible; the criticisms answered; and a conclusion.

The term, and the argument

"Compensatory discrimination" is the phrase Marc Galanter used in Competing Equalities: Law and the Backward Classes in India (1984), and the paper's choice of it is deliberate. It captures something that "reservation" does not: the measure is a compensation for a disadvantage the State itself created or tolerated, and it discriminates in form in order to remedy discrimination in substance.

The provisions

Article 15(4), inserted by the First Amendment, 1951, in answer to State of Madras v. Champakam Dorairajan, AIR 1951 SC 226, permits special provision for socially and educationally backward classes and for Scheduled Castes and Scheduled Tribes. Article 15(5), inserted by the Ninety-third Amendment, 2005, extends this to admission in private educational institutions, aided or unaided, other than minority institutions. Article 15(6) and Article 16(6), inserted by the One Hundred and Third Amendment, 2019, permit up to ten per cent for economically weaker sections.

Article 16(4) permits reservation in appointments for any backward class not adequately represented in the services. Article 16(4A), inserted by the Seventy-seventh Amendment, 1995, permits reservation in promotion with consequential seniority for Scheduled Castes and Scheduled Tribes, and Article 16(4B), by the Eighty-first Amendment, 2000, takes carry-forward vacancies out of the fifty per cent ceiling for the year in which they are filled.

The leading cases

Indra Sawhney v. Union of India, 1992 Supp (3) SCC 217, is the framework. On the Mandal Commission's recommendation an office memorandum of 1990 reserved 27 per cent of central posts for Other Backward Classes, and a second added 10 per cent for the economically backward among the forward classes. Nine judges upheld the 27 per cent and struck down the 10 per cent, and laid down four propositions still in force: backwardness under Article 16(4) is social and educational, not merely economic; the creamy layer among a backward class must be excluded; reservation should not ordinarily exceed 50 per cent; and Article 16(4) does not extend to promotions. The Court also held that caste may be the starting point for identifying a class, since in India a caste is very often a social class.

State of Punjab v. Davinder Singh, decided 1 August 2024, is the most important recent development and any answer written from an older book is wrong. A seven judge Bench held by six to one that the Scheduled Castes are not a homogeneous class, that a Presidential list under Article 341 identifies castes for the purpose of the protection and does not fuse them into an indivisible unit, and that States may sub-classify within the Scheduled Castes to give preference to the most disadvantaged. It overruled E.V. Chinnaiah v. State of Andhra Pradesh, (2005) 1 SCC 394. Sub-classification must rest on quantifiable data of inadequate representation and the whole quota may not be reserved for one sub-group. Four judges further expressed the view that the creamy layer principle should be applied to Scheduled Castes and Scheduled Tribes.

Janhit Abhiyan v. Union of India, (2023) 5 SCC 1, upheld the ten per cent for economically weaker sections by three to two, holding that reservation on economic criteria alone does not violate the basic structure and that the fifty per cent ceiling is not inviolable; the minority held that excluding the poor among the Scheduled Castes, Scheduled Tribes and Other Backward Classes was itself discriminatory. Jaishri Laxmanrao Patil v. Chief Minister, (2021) 8 SCC 1, struck down the Maratha reservation for breaching the ceiling without extraordinary circumstances.

The criticisms, answered

That it perpetuates caste consciousness. The answer is that caste consciousness is not created by the remedy, and that Sukanya Shantha v. Union of India, decided 3 October 2024, found caste segregation written into the prison manuals of several States, dividing labour and barracks by caste, which the Court struck down under Articles 14, 15, 17, 21 and 23. The disadvantage is present tense, and a remedy cannot be criticised for noticing what the State itself was still practising in 2024.

That it sacrifices merit and efficiency. Indra Sawhney and Article 335 both address this, and the Court has repeatedly held that merit is not the same as an examination score, since an examination measures preparation as much as ability. In B.K. Pavitra v. Union of India (II), (2019) 16 SCC 129, upholding a Karnataka statute on consequential seniority, the Court held that a benchmark of merit which ignores the social and structural inequalities of the starting line is not merit at all, and that the inclusion of disadvantaged groups in public service enhances the efficiency of administration by making it representative.

Conclusion. Compensatory discrimination strengthens equality because Indian equality is substantive and not formal. Article 14 forbids treating unequals as equals as much as it forbids treating equals as unequals, and N.M. Thomas settled that Article 16(4) is a facet of Article 16(1) and not a concession carved out of it. The scheme is not open-ended: it is bounded by the creamy layer, by the requirement of quantifiable data, by a ceiling and by the requirement of periodic review, and the courts have enforced each of those against the States, in Nagaraj, in Jaishri Laxmanrao Patil and again in Davinder Singh in August 2024. What that last decision adds is the point on which the whole argument turns: the purpose of the measure is to reach those actually disadvantaged, and where a uniform quota fails to reach them, equality requires the quota itself to be divided. A remedy which is willing to be corrected in that way is not an exception to equality; it is equality being administered.

The Universal Declaration contains no minorities article

A draft article on the rights of minorities was considered during the drafting and was left out of the final text. On the same day that it adopted the Declaration, 10 December 1948, the General Assembly adopted resolution 217C (III), "Fate of Minorities", which recorded that the United Nations could not remain indifferent to the fate of minorities, that it was difficult to adopt a uniform solution to this complex and delicate question with its special aspects in each State, and it referred the question to the Economic and Social Council and to the Sub-Commission on Prevention of Discrimination and Protection of Minorities for thorough study. The omission was deliberate and it must be stated at the outset, because an answer that invents a minorities article in the Declaration is wrong on its central fact.

Article 18 protects freedom of thought, conscience and religion, including freedom to change religion and to manifest it in teaching, practice, worship and observance, alone or in community with others. The words "in community with others" are the nearest the Declaration comes to a group right.

Article 26(3) gives parents a prior right to choose the kind of education given to their children, which is the provision under which minority schools are protected. Article 27 protects the right freely to participate in the cultural life of the community.

The mechanism is therefore this: a minority is protected as an aggregate of individuals each of whom holds a right to non-discrimination, to religion and to culture. That approach has a real strength and a real weakness. Its strength is universality: it protects a member of a minority who does not wish to be treated as one. Its weakness is that it cannot compel a State to take positive measures to preserve a group's language, script or institutions, because no such duty is owed to an individual.

The United Nations Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, 1992, goes further, requiring States to protect the existence and the national, ethnic, cultural, religious and linguistic identity of minorities and to encourage conditions for its promotion. The Convention on the Elimination of All Forms of Racial Discrimination, 1965, and the Convention on the Rights of the Child, 1989, in its Article 30, add treaty obligations.

The Genocide Convention: protection of a different kind

The Convention on the Prevention and Punishment of the Crime of Genocide was adopted on 9 December 1948 by resolution 260 (III), the day before the Declaration, and entered into force on 12 January 1951. It protects minorities in the most fundamental sense available, by protecting their physical existence as groups, and it is the only one of the two instruments in this question that speaks of groups directly.

The Convention's two great limitations

The protected groups are four and the list is exhaustive. Political groups and social classes were excluded during the drafting, largely at Soviet insistence and with support from several other States which feared that internal political repression would be internationalised. The consequence is that the destruction of a group defined by its politics is not genocide however systematic, and the exclusion is the most criticised feature of the Convention.

Cultural genocide was dropped. Lemkin's original conception included the destruction of a group's language, religion, institutions and monuments, and a draft article to that effect was rejected. The single survival of the idea is Article II(e), the forcible transfer of children of the group to another group, which is why that provision has been so important in the litigation about residential schools and about deported children. A State may therefore extinguish a minority's language, close its schools and demolish its shrines without committing genocide as the Convention defines it, and that is the gap the 1992 Declaration and Article 27 of the Covenant are meant to fill.

Croatia v. Serbia, 2015, dismissed both claim and counter-claim for want of the special intent. The Gambia v. Myanmar, preliminary objections, 22 July 2022, held that any State party may invoke another's responsibility for breach of obligations erga omnes partes, without needing to show any special interest of its own, which greatly widens access to the Court. South Africa v. Israel, in orders of 26 January, 28 March and 24 May 2024, indicated provisional measures on the footing that the rights asserted were plausible.

On the criminal side, Prosecutor v. Akayesu, ICTR, 2 September 1998, was the first international conviction for genocide and held that rape and sexual violence may constitute genocide where committed with intent to destroy a group in whole or in part, since they cause serious bodily and mental harm and may prevent births. Article 6 of the Rome Statute of 1998 reproduces the Convention definition; India is not a party to the Rome Statute.

The Indian position under both instruments, tested

An Indian examiner will expect the comparison brought home, and it can be done in three propositions.

On the Declaration's side, Indian law goes considerably beyond it. The Declaration protects a member of a minority only through individual rights, and cannot compel a State to take positive measures. Articles 29 and 30 of the Indian Constitution do exactly what the Declaration declined to do: Article 29(1) protects the right of any section of citizens with a distinct language, script or culture to conserve it, and Article 30(1) confers on religious and linguistic minorities a positive right to establish and administer educational institutions, with Article 30(2) forbidding discrimination against them in the grant of aid. In Ahmedabad St. Xavier's College Society v. State of Gujarat, (1974) 1 SCC 717, the Court held that regulation to secure educational standards is permissible but measures displacing management are not, and in Aligarh Muslim University v. Naresh Agarwal, decided 8 November 2024, seven judges held by four to three that incorporation by statute does not destroy minority character, overruling S. Azeez Basha v. Union of India, AIR 1968 SC 662. No provision of the Declaration could have produced either result, because neither is an individual right.

Between the two instruments sits the case that shows what each is for. In Bosnia and Herzegovina v. Serbia and Montenegro, 2007, the International Court held that Serbia had not itself committed the Srebrenica genocide but had violated its obligation to prevent it, because it knew of the serious risk and had influence over those about to commit it and did not use that influence. That is a duty of conduct owed by a State towards a minority in another State, and nothing in the Universal Declaration creates anything like it. The Declaration tells a State how to treat the people within its jurisdiction; the Convention tells every State in the world that a minority anywhere is its concern, which is what the Court meant in The Gambia v. Myanmar, 22 July 2022, by obligations erga omnes partes.

For full marks, cover: the word "evolved" in the stem, which asks for the doctrine's development and not merely its statement; the origin of the test and the case that founded it in India; the seven propositions of Dalmia and the twin test; the four stages of development after it, namely arbitrariness, heightened scrutiny, manifest arbitrariness and proportionality; the shift from anti-classification to substantive equality; and a conclusion which says what the doctrine now is.

Origin

Article 14 has two limbs. "Equality before the law" is Dicey's and negative: no person is above the ordinary law. "Equal protection of the laws" is taken from the Fourteenth Amendment to the United States Constitution and is positive: the law shall operate alike on all persons in like circumstances, in the privileges conferred and the liabilities imposed. Classification lives in the second limb, because equal protection has never meant that one rule must govern everyone: a law on motor vehicles does not offend equality by leaving pedestrians alone.

Ram Krishna Dalmia v. Justice S.R. Tendolkar, AIR 1958 SC 538, restated the law in the seven propositions still cited. The operative ones are that a law may be constitutional though it applies to a single individual if he forms a class by himself; that there is a presumption of constitutionality and the burden lies on the person attacking the law; that the presumption may be rebutted by showing that no reasonable basis exists; that the court may take into account matters of common knowledge and the history of the times; and that good faith and knowledge of existing conditions are presumed on the part of the legislature.

The twin test, which is what all of this reduces to, has two limbs and both are necessary. There must be an intelligible differentia which distinguishes the persons or things grouped together from those left out; and that differentia must have a rational nexus with the object sought to be achieved by the statute.

Stage two: arbitrariness

E.P. Royappa v. State of Tamil Nadu, (1974) 4 SCC 3, opened a second route. The Court held that equality is a dynamic concept which cannot be cribbed within traditional limits, that equality and arbitrariness are sworn enemies, and that where an act is arbitrary it is implicit that it is unequal. Maneka Gandhi v. Union of India, (1978) 1 SCC 248, confirmed that Article 14 strikes at arbitrariness in State action and that the principle of reasonableness pervades Article 14 like a brooding omnipresence. Ajay Hasia v. Khalid Mujib Sehravardi, (1981) 1 SCC 722, settled the relationship between the two routes: the doctrine of classification is merely a judicial formula for determining whether the action is arbitrary, and is not a substitute for the equality principle itself.

The practical difference between the two routes is that classification requires a comparator and arbitrariness does not. Where a law burdens a group and no similarly situated group can be pointed to, classification analysis stalls; the arbitrariness test still works. That is why the newer route has mattered most in cases about personal law, sexuality and dignity.

Stage four: manifest arbitrariness

Shayara Bano v. Union of India, (2017) 9 SCC 1, took the decisive step of applying arbitrariness to strike down legislation and not merely executive action. Two of the three judges in the majority held that talaq-e-biddat, recognised by section 2 of the Muslim Personal Law (Shariat) Application Act, 1937, permits the capricious and whimsical breaking of a marriage without any attempt at reconciliation and is therefore manifestly arbitrary and void under Article 14. The doctrine, as later formulated, catches a provision enacted without adequate determining principle, or which is excessive and disproportionate.

The criticism should be stated. Rajbala v. State of Haryana, (2016) 2 SCC 445, had said that a statute cannot be struck down as arbitrary and that substantive due process has no place in Indian constitutional law. Shayara Bano is inconsistent with that, and the objection is that "manifest arbitrariness" gives a court a standard with no fixed content. The answer is that the standard is not at large: it asks whether there is a determining principle behind the provision, which is the same question the nexus limb of the twin test asks, put without a comparator.

The shift to substantive equality

Running through the whole development is a change in what equality is taken to mean. State of Kerala v. N.M. Thomas, (1976) 2 SCC 310, held that Article 16(4) is a facet of Article 16(1) and not an exception, so that special provision for the disadvantaged is an application of equality rather than a departure from it. Lt. Col. Nitisha v. Union of India, (2021) 15 SCC 125, recognised indirect discrimination, holding that a facially neutral criterion, in that case evaluation benchmarks derived from standards applied to male officers years earlier, is unconstitutional if it produces disproportionate disadvantage for a protected group; the enquiry must examine effects and not only terms. State of Punjab v. Davinder Singh, decided 1 August 2024, held by six to one in a Bench of seven that the Scheduled Castes are not a homogeneous class and that States may sub-classify within them, overruling E.V. Chinnaiah v. State of Andhra Pradesh, (2005) 1 SCC 394. That decision is classification doctrine used for a purpose the 1952 Court never contemplated: not to test a distinction the State has drawn, but to require one it had failed to draw.

The paper asks for any two and each is worth 12.5 marks, so about twenty minutes each. All three are written out below because the choice differs from candidate to candidate. Note (c) is the one most likely to be avoided and is the easiest to score on, because it has a small and definite body of material.

(a) Article 44, Constitution of India

Article 44 provides that the State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India. It appears in Part IV, so by Article 37 it is not enforceable by any court, while being fundamental in the governance of the country and a duty of the State to apply in making laws. The verb is "endeavour", which is weaker than the mandatory language of Articles 39A, 45 and 47, and the object is the civil code: criminal law, contract, evidence, transfer of property and procedure are already uniform.

The judicial history divides in three. Exhortation: Mohd. Ahmed Khan v. Shah Bano Begum, (1985) 2 SCC 556, holding section 125 of the Code of Criminal Procedure a secular provision cutting across personal law, with Chandrachud CJ's remark that Article 44 has remained a dead letter; Sarla Mudgal v. Union of India, (1995) 3 SCC 635; John Vallamattom v. Union of India, (2003) 6 SCC 611; and Jose Paulo Coutinho v. Maria Luiza Valentina Pereira, (2019) 20 SCC 190, describing Goa as a shining example. Restraint: Pannalal Bansilal Pitti v. State of Andhra Pradesh, (1996) 2 SCC 498, that a uniform law though desirable may be counter-productive to the unity and integrity of the nation; and Ahmedabad Women Action Group v. Union of India, (1997) 3 SCC 573, that personal law raises issues of State policy. Reform by statute: Danial Latifi v. Union of India, (2001) 7 SCC 740; Shayara Bano v. Union of India, (2017) 9 SCC 1; and Mohd. Abdul Samad v. State of Telangana, decided 10 July 2024.

The obstacle to any judicial route is State of Bombay v. Narasu Appa Mali, AIR 1952 Bom 84, holding uncodified personal law not to be "law in force" under Article 13; doubted by Chandrachud J. in Indian Young Lawyers Association v. State of Kerala, (2019) 11 SCC 1, but not overruled.

(b) Freedom of Speech and Expression

Article 19(1)(a) guarantees to all citizens the right to freedom of speech and expression, and Article 19(2) permits the State to impose reasonable restrictions on eight grounds: the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality, contempt of court, defamation, and incitement to an offence. Sovereignty and integrity was added by the Sixteenth Amendment, 1963; public order, friendly relations and incitement, together with the word "reasonable", were added by the First Amendment, 1951, in answer to Romesh Thappar v. State of Madras, AIR 1950 SC 124, and Brij Bhushan v. State of Delhi, AIR 1950 SC 129.

The tests for a restriction are three. The proximity test: in Superintendent, Central Prison, Fatehgarh v. Ram Manohar Lohia, AIR 1960 SC 633, the connection between the expression and public order must be proximate and not remote or far-fetched. The incitement test: in S. Rangarajan v. P. Jagjivan Ram, (1989) 2 SCC 574, the expression must be like a spark in a powder keg, and the State cannot plead its own inability to keep order; and in Shreya Singhal v. Union of India, (2015) 5 SCC 1, striking down section 66A of the Information Technology Act, 2000, discussion and advocacy are protected however unpopular, and only incitement may be restricted. And proportionality, after K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1, applied to internet shutdowns in Anuradha Bhasin v. Union of India, (2020) 3 SCC 637, which held indefinite suspension impermissible and required every order to be published and periodically reviewed.

The standing limitations should be named: criminal defamation, upheld in Subramanian Swamy v. Union of India, (2016) 7 SCC 221; sedition under section 124A of the Indian Penal Code, kept in abeyance by the order in S.G. Vombatkere v. Union of India of 11 May 2022 and reappearing as section 152 of the Bharatiya Nyaya Sanhita, 2023; and the practical burden of defending a prosecution, which operates as a restraint whatever the doctrine says.

(c) Doctrine of domestic jurisdiction in international law

The doctrine holds that certain matters fall within the reserved domain of a State and are therefore not subject to international regulation or to intervention by an international organisation. It is the corollary of sovereign equality and of the principle of non-intervention.

Its treaty home is Article 2(7) of the Charter of the United Nations: nothing contained in the Charter shall authorise the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any State, or require the Members to submit such matters to settlement under the Charter, but this principle shall not prejudice the application of enforcement measures under Chapter VII.

The governing authority on how the boundary is drawn is the Permanent Court of International Justice in Nationality Decrees Issued in Tunis and Morocco, advisory opinion, 1923. France had issued nationality decrees in its protectorates and objected to the Council's jurisdiction on the ground that nationality is a matter of domestic jurisdiction. The Court gave the answer that is still quoted: the question whether a certain matter is or is not solely within the jurisdiction of a State is an essentially relative question; it depends upon the development of international relations. Matters which in principle are not regulated by international law, and which are therefore within the reserved domain, may cease to be so when the State has entered into international engagements about them.

The doctrine has not disappeared, and two authorities show what survives of it. In Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States), 1986, the International Court held that non-intervention is a principle of customary international law, that a State's choice of political, economic, social and cultural system is a matter on which each State is permitted to decide freely, and that support for armed opposition in another State is a prohibited intervention. And Article 2(7) still bars the Organisation from intervening in matters not otherwise regulated, so that questions of the form of government, the structure of the economy and the content of the criminal law remain, in principle, reserved.

Conclusion. The three notes touch three levels of the same theme. Article 44 concerns the uniformity a State may impose on its own plural society, and after seventy five years the endeavour has passed from Parliament to two State legislatures whose codes are not uniform at all. Freedom of speech concerns the space a State must leave its own citizens, and Indian doctrine has widened it steadily from Romesh Thappar to Imran Pratapgadhi in March 2025, while procedure has narrowed it. And domestic jurisdiction concerns what is left of the State's reserved domain against the world: an "essentially relative question", as the Permanent Court said in 1923, whose answer has moved a long way since 1945 and has not moved to nothing.

Australia, 1901, is a coming-together federation drafted with both British and American models in front of it. Six self-governing colonies federated by the Commonwealth of Australia Constitution Act 1900, an Act of the Imperial Parliament. Section 51 confers on the Commonwealth Parliament a list of concurrent powers, section 52 a short list of exclusive powers, and the residue remains with the States. Section 109 provides that where a State law is inconsistent with a Commonwealth law, the latter prevails and the former is invalid to the extent of the inconsistency. Section 128 requires an amendment to be approved by a double majority, a majority of electors nationally and majorities in a majority of States. Australia combines American federalism with responsible parliamentary government on the Westminster model, which is exactly the combination India also adopted.

India, 1950, is the holding-together model. Article 1 declares India a Union of States which is not the result of an agreement, and from which no unit may secede. Three lists in the Seventh Schedule distribute subjects, the residue lies with the Union under Article 248 and Entry 97, Article 3 permits Parliament to alter State boundaries after merely ascertaining the State's views, the judiciary and the electoral machinery are integrated, and Articles 352, 356 and 360 permit the system to become unitary.

Umpiring in the United States

Marbury v. Madison, 5 US 137 (1803), established judicial review, which the text does not confer. McCulloch v. Maryland, 17 US 316 (1819), is the foundational federal case: Maryland taxed the notes of the Second Bank of the United States, and Marshall CJ held that the necessary and proper clause gives Congress implied powers, and that a State may not tax an instrumentality of the Union because the power to tax involves the power to destroy. Gibbons v. Ogden, 22 US 1 (1824), gave the commerce clause a wide reading, and the New Deal cases extended it further.

Umpiring in Australia

The High Court of Australia is the umpire, and its decisive intervention came early. Amalgamated Society of Engineers v. Adelaide Steamship Co. Ltd. (1920) 28 CLR 129, the Engineers' Case, abolished the two doctrines by which the Court had until then protected the States, the implied immunity of instrumentalities and the reserved State powers doctrine, and held that Commonwealth powers must be construed according to the ordinary meaning of the words, without reading down to preserve a supposed State sphere. It is the single most centralising decision in Australian constitutional history and has no Indian equivalent, because India never had a reserved-powers doctrine to abolish.

New South Wales v. Commonwealth (2006) 229 CLR 1, the Work Choices Case, upheld the use of the corporations power in section 51(xx) to regulate the employment relations of constitutional corporations, effectively transferring industrial relations to the Commonwealth. The comparison with India is exact and worth making: section 51(xxix) of the Australian Constitution and Article 253 of the Indian Constitution both permit the centre to legislate on a subject otherwise belonging to the units, simply by entering into a treaty about it.

Umpiring in India

The Indian umpire has express jurisdiction, unlike the American one. Article 246 with the Seventh Schedule distributes; Article 131 gives the Supreme Court exclusive original jurisdiction over Union-State and inter-State disputes involving a legal right; Article 254 resolves repugnancy; Articles 32, 226 and 136 supply the remedies; and Article 143 supplies the advisory jurisdiction.

The interpretive doctrines are shared with the other two systems: pith and substance, State of Bombay v. F.N. Balsara, AIR 1951 SC 318; colourable legislation, K.C. Gajapati Narayan Deo v. State of Orissa, AIR 1953 SC 375; and repugnancy, M. Karunanidhi v. Union of India, (1979) 3 SCC 431.

The limits of the Indian umpire should also be given. In Re: Article 370 of the Constitution, decided 11 December 2023, upheld the conversion of a State into two Union territories and directed restoration of statehood at the earliest, which has not occurred. The Delhi services judgment of 11 May 2023 was reversed by statute within a week. And on the Presidential Reference decided 20 November 2025 the Court held that it may not prescribe timelines for assent under Articles 200 and 201 and that deemed assent is alien to the Constitution, withdrawing the remedy it had fashioned in April 2025.

One structural point should close the comparison. The Australian amendment procedure is the most protective of the units and it has produced the most centralised federation, because the double majority in section 128 has defeated all but eight of forty five proposals since 1901, so change has come entirely through judicial interpretation of section 51. India's procedure is the least protective of the units and has produced a federation in which the courts have repeatedly ruled for the States. The lesson is that the formal protection of the units in the amendment rule is a poor predictor of the actual federal balance; what matters is how the umpire reads the grants of power.