LLM Group 1 Constitutional and Administrative Law Constitutionalism Pluralism and Federalism 2016 Question Paper with Solutions

The field is smaller than students assume, and saying so early earns marks. Criminal law, contract, evidence, transfer of property, partnership, negotiable instruments and the whole of procedure are already uniform across communities. What remains disparate is marriage, divorce, maintenance, guardianship, adoption, succession and inheritance. Hindus, Buddhists, Jains and Sikhs are governed by the four Hindu Code Acts of 1955 and 1956; Muslims by uncodified law applied through the Muslim Personal Law (Shariat) Application Act, 1937, with the Dissolution of Muslim Marriages Act, 1939 and the Muslim Women (Protection of Rights on Divorce) Act, 1986; Christians by the Indian Christian Marriage Act, 1872 and the Divorce Act, 1869; Parsis by the Parsi Marriage and Divorce Act, 1936. The Special Marriage Act, 1954, is a secular option available to anyone, and the Indian Succession Act, 1925, a general law of succession. Goa alone has had a common civil code since the Portuguese Civil Code of 1867 was continued after 1961.

The legislative response is inseparable from the case. Parliament enacted the Muslim Women (Protection of Rights on Divorce) Act, 1986, which appeared to limit the husband's liability to the iddat period. Danial Latifi v. Union of India, (2001) 7 SCC 740, upheld the Act by construing it: under section 3(1)(a) a "reasonable and fair provision and maintenance" must be made and paid within the iddat, but the provision so made must suffice for the whole of her life unless she remarries. The result of Shah Bano was thereby preserved through the statute that had been passed to undo it.

Ms. Jordan Diengdeh v. S.S. Chopra, (1985) 3 SCC 62, decided in the same year, identified the practical mischief with unusual precision. A marriage between an Indian Christian woman and a Sikh had irretrievably broken down and no ground of dissolution was available to her under the applicable law. The Court found the law of marriage and divorce to be in a state of confusion and called for complete reform.

The 2000s onwards: reform without a code

John Vallamattom v. Union of India, (2003) 6 SCC 611, struck down section 118 of the Indian Succession Act, 1925, which restricted the power of a Christian with a nephew or niece to bequeath property for religious or charitable purposes. Khare CJ recorded that it was a matter of regret that Article 44 had not been given effect to.

Shayara Bano v. Union of India, (2017) 9 SCC 1, struck down talaq-e-biddat by three to two, two judges holding it manifestly arbitrary under Article 14 because it permits the capricious breaking of a marriage with no attempt at reconciliation, and one holding it contrary to the Quran. Parliament followed with the Muslim Women (Protection of Rights on Marriage) Act, 2019.

Jose Paulo Coutinho v. Maria Luiza Valentina Pereira, (2019) 20 SCC 190, deciding a succession dispute under the Portuguese Civil Code as applied in Goa, described Goa as a shining example of an Indian State which has a uniform civil code applicable to all regardless of religion, and observed that the founders' hope had not been attempted.

The obstacle: Narasu Appa Mali

State of Bombay v. Narasu Appa Mali, AIR 1952 Bom 84, holds that uncodified personal law is not "law in force" for the purposes of Article 13, so it cannot be struck down for inconsistency with fundamental rights; Chagla CJ and Gajendragadkar J. reasoned that the framers, having provided for a code in Article 44, intended personal laws to survive until replaced. That decision has been criticised but not overruled. Chandrachud J. said expressly in Indian Young Lawyers Association v. State of Kerala, (2019) 11 SCC 1, that it was incorrectly decided, and the reasoning of the two-judge majority in Shayara Bano had to travel through the 1937 Act, which is statute, rather than through personal law itself. Until a larger Bench decides the point, personal law is largely insulated from direct constitutional challenge, which is the doctrinal reason reform arrives by statute.

The arguments, and where the initiative now lies

For a code: Article 44 is an express constitutional direction; gender justice has repeatedly turned on which community a woman belongs to; a code removes the incentive to convert in order to change marital obligations; and uniformity in criminal law and contract has never been thought to threaten identity.

Two States have now legislated, and this is the largest change since these papers were set. The Uniform Civil Code of Uttarakhand Act, 2024 received assent on 12 March 2024 and came into force on 27 January 2025, prohibiting polygamy and halala, providing a common law of marriage, divorce and succession, requiring registration of live-in relationships and exempting Scheduled Tribes; an amending ordinance followed in January 2026. Gujarat became the second State on 24 March 2026, its Assembly passing the Gujarat Uniform Civil Code Bill, 2026 after the committee chaired by Justice Ranjana Prakash Desai reported.

The constitutional questions those Acts raise should be named rather than assumed away. Entry 5 of the Concurrent List covers marriage, divorce, adoption, succession and joint family, so State competence is not in doubt, subject to Article 254. The live-in registration provisions are challenged on the privacy and decisional autonomy grounds recognised in K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1; the Supreme Court declined an interim stay in February 2025 and issued notice on petitions including one by Jamiat Ulama-i-Hind. And a code enacted State by State is by definition not uniform throughout the territory of India, which is what Article 44 asks for.

For full marks, cover: how the Declaration came to be adopted and by what vote; its structure, using Cassin's own image of a portico; the rights group by group with the article numbers, because the question says "in detail"; the legal status of a declaration and how it has hardened; how it was received in India; and the criticism, including the cultural relativism debate, answered rather than merely reported.

Structure

Cassin described the Declaration as the portico of a temple, and the image organises the answer. The foundation is Articles 1 and 2: all human beings are born free and equal in dignity and rights, endowed with reason and conscience, and entitled to all the rights set out without distinction of race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. The four columns are the four groups of rights. The pediment is Articles 28 to 30, which supply the conditions and the limits.

First column, Articles 3 to 11, the rights of the person. The right to life, liberty and security of person (3); freedom from slavery and the slave trade (4); freedom from torture and from cruel, inhuman or degrading treatment or punishment (5); recognition everywhere as a person before the law (6); equality before the law and equal protection without discrimination (7); an effective remedy before a competent national tribunal (8); freedom from arbitrary arrest, detention or exile (9); a fair and public hearing by an independent and impartial tribunal (10); and the presumption of innocence with the prohibition of retrospective criminal law (11).

Third column, Articles 18 to 21, the public liberties. Freedom of thought, conscience and religion, including the freedom to change religion or belief (18); freedom of opinion and expression, including the freedom to seek, receive and impart information and ideas through any media and regardless of frontiers (19); freedom of peaceful assembly and association, with the corollary that no one may be compelled to belong to an association (20); and the right to take part in government directly or through freely chosen representatives, to equal access to public service, and to periodic and genuine elections by universal and equal suffrage and secret ballot, the will of the people being the basis of the authority of government (21).

The pediment, Articles 28 to 30. Everyone is entitled to a social and international order in which these rights can be fully realised (28), which is the article most often forgotten and the one that makes the rest more than a wish. Everyone has duties to the community, and rights may be limited only by law and solely for securing recognition and respect for the rights of others and for meeting the just requirements of morality, public order and the general welfare in a democratic society (29). And nothing in the Declaration may be interpreted as implying a right to engage in any activity aimed at the destruction of the rights declared (30), which is the anti-abuse clause.

Reception in India

The correspondence with Part III is close enough to be set out. UDHR Article 3 corresponds to Article 21; Article 4 to Article 23; Article 5 to Articles 20 and 21 as read after Maneka Gandhi; Articles 6 and 7 to Article 14; Article 8 to Articles 32 and 226; Article 9 to Article 22; Articles 10 and 11 to Articles 20 and 21; Article 13 to Article 19(1)(d) and (e); Article 18 to Article 25; Article 19 to Article 19(1)(a); Article 20 to Article 19(1)(b) and (c); Article 21 to Articles 325 and 326. The fourth column corresponds largely to Part IV, Articles 38, 39, 41, 42, 43 and 47, and Article 26 became a fundamental right in Article 21A by the Eighty-sixth Amendment, 2002.

Article 51(c) directs the State to foster respect for international law and treaty obligations, and Article 253 empowers Parliament to legislate to implement them. India follows the dualist rule that a treaty is not self-executing, but the courts use unincorporated instruments as an aid to construction where domestic law is silent or ambiguous.

Criticism, answered

Three criticisms recur. The first is that the Declaration contains no enforcement machinery, which is true of the instrument itself and is answered by the Covenants, their treaty bodies, the Human Rights Council and its universal periodic review, and by national constitutions.

The second is cultural relativism: that the Declaration reflects a liberal individualist tradition and imposes it on societies organised around family, community and duty. The historical answer is that the drafting committee included Chang of China, Malik of Lebanon and Mehta of India, and that Article 29 expressly recognises duties to the community. The political answer came at the World Conference on Human Rights in Vienna in June 1993: the Bangkok Declaration of Asian States that April had stressed national and regional particularities, and the Vienna Declaration and Programme of Action answered that while the significance of such particularities must be borne in mind, it is the duty of States, regardless of their political, economic and cultural systems, to promote and protect all human rights, which are universal, indivisible, interdependent and interrelated.

Conclusion. The Declaration of 1948 is thirty articles long, was adopted without a dissenting vote, and created no legal obligation whatever. Its importance lies in what followed. It supplied the vocabulary in which every subsequent human rights treaty is written, it hardened in part into customary law, and it was converted into binding obligation by the two Covenants of 1966. For India its significance is double: it was drafted with Indian participation and its influence is visible in the structure of Parts III and IV, which divide the same catalogue into enforceable and directive halves; and it continues to be used by the Supreme Court as an aid to construction, from Jolly George Verghese to Puttaswamy. A document with no court behind it has been enforced, in India, through a court that had no obligation to notice it.

The reason the Constitution names groups rather than individuals is that the disadvantage it addresses is inherited. A rule addressed to individual misfortune cannot reach a disability that attaches to birth into a caste, a tribe or a sex, and which is reproduced by the ordinary operation of society. That is the sense in which protection and pluralism are connected: a plural society produces group-based disadvantage, and only group-based remedies reach it.

Indra Sawhney v. Union of India, 1992 Supp (3) SCC 217, remains 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 others. A nine judge Bench upheld the 27 per cent, struck down the 10 per cent, and held that backwardness under Article 16(4) is social and educational rather than merely economic; the creamy layer must be excluded; reservation should not ordinarily exceed 50 per cent; and Article 16(4) does not extend to promotions.

The promotion holding was reversed by amendment and the reversal produced two further cases. Article 16(4A), inserted in 1995, and Article 16(4B) were upheld in M. Nagaraj v. Union of India, (2006) 8 SCC 212, subject to the State collecting quantifiable data on backwardness, inadequacy of representation and administrative efficiency. Jarnail Singh v. Lachhmi Narain Gupta, (2018) 10 SCC 396, removed the requirement of proving backwardness for Scheduled Castes and Scheduled Tribes, whose backwardness is presumed by their listing, while retaining the creamy layer principle and the data requirement on representation.

Women

The provisions are Articles 15(1), 15(3), 16(2), 23, 39(a), (d) and (e), 42, 51A(e), 243D(3) and 243T(3). Article 15(3) is enabling and is not a licence for protection that harms. In C.B. Muthamma v. Union of India, (1979) 4 SCC 260, a rule requiring a woman in the Indian Foreign Service to seek permission before marriage was struck down. In Air India v. Nergesh Meerza, (1981) 4 SCC 335, termination of an air hostess on first pregnancy was held manifestly arbitrary.

Vishaka v. State of Rajasthan, (1997) 6 SCC 241, arose from the gang rape of Bhanwari Devi, a saathin in the Rajasthan Women's Development Programme, in reprisal for her attempt to stop a child marriage, and the acquittal of the accused. Women's groups petitioned for a framework rather than damages, and the Court, invoking Article 32 and the Convention on the Elimination of All Forms of Discrimination against Women, laid down binding guidelines with the force of law. Parliament legislated sixteen years later, in the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.

Political representation remains unfinished. The Constitution (One Hundred and Sixth Amendment) Act, 2023 reserves one third of the seats in the House of the People and the State Assemblies for women. It came into force on 16 April 2026 and is still not operative, because Article 334A ties its operation to a delimitation following the next census. It is enacted, in force and inapplicable, and it should be described in those words.

Scheduled Tribes

Tribal protection is territorial as well as personal, which distinguishes it from the other two. Articles 244 and 244A with the Fifth and Sixth Schedules create a separate administrative regime: in Fifth Schedule areas the Governor may direct that a Union or State law shall not apply or shall apply with modifications, and a Tribes Advisory Council must exist; in the Sixth Schedule areas of Assam, Meghalaya, Tripura and Mizoram, autonomous district and regional councils exercise legislative, executive and judicial powers over land, forests, shifting cultivation, inheritance, marriage and social custom. Articles 330, 332, 335, 338A, 339 and 275(1) supply representation, services, machinery, reporting and finance.

Samatha v. State of Andhra Pradesh, (1997) 8 SCC 191, held by two to one that the word "person" in a regulation prohibiting transfer of land in a scheduled area includes the State, so government land there cannot be leased to non-tribals for mining. Orissa Mining Corporation v. Ministry of Environment and Forests, (2013) 6 SCC 476, the Niyamgiri case, required the gram sabhas of the Dongria Kondh to decide whether bauxite mining would affect their religious and community forest rights; all twelve rejected it and the clearance was refused. It is the clearest Indian instance of a constitutional protection producing an outcome the State did not want. Kailas v. State of Maharashtra, (2011) 4 SCC 738, contains the fullest judicial statement of what the nation owes its tribal population, while Madhu Kishwar v. State of Bihar, (1996) 5 SCC 125, declining to strike down customary succession rules excluding tribal women, remains the standing illustration of the conflict between protecting a group and protecting a woman inside it.

Conclusion. The Constitution protects these three groups by three different techniques: preferential access for backward classes, the removal of disabling rules and the imposition of positive duties for women, and territorial autonomy with inalienable land for Scheduled Tribes. All three rest on the same reading of Article 14, that equality of opportunity is empty where starting positions are unequal, and all three have been extended more often by the Court than by the legislature. The record is genuinely mixed: Niyamgiri, Vishaka, Babita Puniya and Davinder Singh show the protections working; the prison manuals struck down in Sukanya Shantha and the inoperative women's reservation show how much remains on paper. A plural society is not one in which law ignores identity, but one in which law notices identity in order to remove the disadvantage attached to it.

The provisions should be named precisely. Article 13(1) and (2) declare void any pre-Constitution law inconsistent with Part III and forbid the State to make any law taking away or abridging those rights. Article 32 makes the right to move the Supreme Court for enforcement of fundamental rights itself a fundamental right, which Ambedkar called the very soul of the Constitution and the heart of it. Article 226 gives the High Courts a wider writ power extending to any other purpose. Articles 245 and 246 with the Seventh Schedule make legislative competence justiciable. Articles 131, 136, 143 and 227 complete the apparatus.

Review has three distinct objects and separating them structures the answer. Review of legislation for conformity with Part III and for legislative competence; review of executive and administrative action for legality, rationality and procedural fairness; and review of constitutional amendments for conformity with the basic structure, which is the specifically Indian contribution.

Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225, decided by thirteen judges by seven to six, upheld the Twenty-fourth Amendment but held that the amending power under Article 368 does not extend to altering the basic structure or framework of the Constitution. It upheld the first part of Article 31C and struck down the second part, which had provided that a declaration by the legislature that a law gives effect to Articles 39(b) and (c) should not be questioned in any court, because that clause removed judicial review and review is part of the basic structure.

Indira Nehru Gandhi v. Raj Narain, 1975 Supp SCC 1, applied the doctrine within two years. Clause (4) of Article 329A, inserted by the Thirty-ninth Amendment during the Emergency, declared that the election of a person holding the office of Prime Minister could not be called in question in any court and validated it retrospectively. The Court struck the clause down: Parliament had decided a pending case by amendment, which is the exercise of judicial power by a legislature.

The two cases that answer this question most directly

L. Chandra Kumar v. Union of India, (1997) 3 SCC 261, is the decision that puts judicial review beyond doubt as a basic feature. Articles 323A and 323B, inserted by the Forty-second Amendment, had authorised administrative tribunals, and Article 323A(2)(d) permitted the exclusion of the jurisdiction of all courts except the Supreme Court under Article 136. A seven judge Bench held that the power of judicial review vested in the High Courts under Article 226 and in the Supreme Court under Article 32 is an integral and essential feature of the Constitution and part of the basic structure, that clause 2(d) of Article 323A and the corresponding provisions of the tribunal statutes were unconstitutional to the extent they excluded High Court jurisdiction, and that tribunal decisions are subject to scrutiny before a Division Bench of the High Court within whose jurisdiction the tribunal falls. The line continues in Madras Bar Association v. Union of India, (2014) 10 SCC 1 and (2021) 7 SCC 369, and in the Court's judgment of 19 November 2025 on tribunal appointments and service conditions.

Reviewing administrative action

The grounds are conventionally those stated by Lord Diplock in Council of Civil Service Unions v. Minister for the Civil Service, [1985] AC 374: illegality, irrationality and procedural impropriety, with proportionality foreshadowed. Indian courts apply all four. Illegality covers want of jurisdiction, error of law and abuse of power. Irrationality is the Wednesbury standard, a decision so unreasonable that no reasonable authority could have reached it. Procedural impropriety covers breach of natural justice, and the Indian development here is substantial: A.K. Kraipak v. Union of India, (1969) 2 SCC 262, applied natural justice to administrative as well as quasi-judicial functions, and Maneka Gandhi v. Union of India, (1978) 1 SCC 248, made a fair hearing part of Article 21. Proportionality is now the governing standard where a fundamental right is limited, after K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1, and Anuradha Bhasin v. Union of India, (2020) 3 SCC 637, where the Court applied it to internet shutdowns in Jammu and Kashmir and held that indefinite suspension is impermissible and that every order must be published and is subject to review.

The second is judicial overreach. Public interest litigation has taken the Court into administration, and continuing mandamus has kept it there. The answer is that the jurisdiction was created by the failure of other institutions, and that the Court has itself imposed limits, warning against roving inquiries and dismissing publicity litigation with costs.

The third is the appointments controversy, which cannot be avoided in a question about judicial review. In Supreme Court Advocates-on-Record Association v. Union of India, (2016) 5 SCC 1, the Ninety-ninth Amendment and the National Judicial Appointments Commission Act, 2014, were struck down by four to one as violating the independence of the judiciary, a basic feature, chiefly because the presence of the Law Minister and two eminent persons with a two member veto could defeat the judicial view. The criticism is that the Court decided a case about its own composition and restored a collegium system it had itself invented in the Second and Third Judges cases. A candidate should state that criticism and then state the answer: no other organ could have decided the question, which is precisely the difficulty with making a court the guardian of its own independence.

For full marks, cover: what the word "dynamic" is doing in the question, that is, federalism as a continuing process rather than a fixed allocation; the four vocabularies used to describe that process; the Union's levers of control, listed and grouped; the States' claims and the commissions that examined them; the fiscal dimension, which is where the real dispute now lies; the case law; and an assessment that identifies which way the balance has actually moved.

"Dynamic" is the operative word

A federal constitution allocates powers once; a federal system negotiates them continuously. The dynamic of federalism is the second of those, and it is driven by four things the text cannot control: the party system, since a single party holding office at both levels behaves very differently from divided government; the financial dependence of the units; the growth of subjects, such as environment, data and disaster management, which no 1950 list anticipated; and the courts, which decide the boundary disputes the first three generate.

Legislative. The Union List is numbered to 97 and now carries 98 subjects against the State List's 59, numbered to 66, the Concurrent List gives Parliament the upper hand through Article 254, and the residue lies with the Union under Article 248 and Entry 97. Article 249 lets Parliament legislate on a State subject if the Council of States resolves by two thirds that it is necessary in the national interest; Article 250 lets it do so during a Proclamation of Emergency; Article 252 permits legislation for two or more consenting States; and Article 253 permits legislation for the whole of India to implement any treaty or international agreement, which has become a large opening as international regulation has grown.

Executive. Article 256 obliges every State to exercise its executive power so as to ensure compliance with laws of Parliament; Article 257 subjects State executive power to Union directions; and Article 365 provides that failure to comply with a direction is a ground on which the President may hold that the government of the State cannot be carried on in accordance with the Constitution. India therefore has the opposite of the American anti-commandeering rule laid down in Printz v. United States, 521 US 898 (1997).

The Sarkaria Commission, appointed in 1983 and reporting in 1988, is the standard reference. Of its 247 recommendations the important ones are: Article 356 should be used only as a last resort, and the report of the Governor should be a speaking document; a Governor should be an eminent person from outside the State, not recently in active politics, and should be appointed after consultation with the Chief Minister; the Inter-State Council should be constituted under Article 263, which was done in 1990; the residuary power except taxation might be moved to the Concurrent List; and the Union should ordinarily consult the States before legislating on a Concurrent List subject.

The Punchhi Commission, 2007 to 2010, went further and its distinctive proposals are worth two sentences: a localised emergency confined to a district or part of a State, so that Article 356 need not be used against a whole State; a fixed five year tenure for Governors with removal only by impeachment by the State legislature; a clear articulation of the duty under Article 355; and consultation with the States before legislation under Article 253 on subjects in the State List.

The Goods and Services Tax is the largest single change to the federal balance since 1950. The Constitution (One Hundred and First Amendment) Act, 2016, inserted Article 246A, which gives the Union and the States concurrent power to tax supplies of goods and services, Article 269A for inter-State supply, and Article 279A creating the GST Council, in which the Union has one third of the votes and all the States together two thirds, with decisions requiring a three fourths majority. The States surrendered most of their independent indirect taxing power in exchange for a seat in a body where the Union holds a blocking third. In Union of India v. Mohit Minerals, (2022) 10 SCC 700, the Court held that the recommendations of the Council are persuasive and not binding on the Union or the States, since both have simultaneous power under Article 246A, and described Indian federalism as a dialogue in which the units must persuade rather than command.

The case law on control

S.R. Bommai v. Union of India, (1994) 3 SCC 1, is the turning point in the dynamic. After the Babri Masjid demolition in December 1992 the Union dismissed four State governments under Article 356, and the Karnataka government had earlier been dismissed on a claim of lost majority. A nine judge Bench held that federalism is a basic feature, that the President's satisfaction is justiciable and the material examinable, that a majority must be tested on the floor of the House, and that the Assembly may not be dissolved until both Houses of Parliament approve the proclamation. The measurable effect is the point: Article 356 had been invoked more than a hundred times before 1994, and its use has been comparatively rare since.

The Delhi litigation is the sharpest current illustration of control against autonomy. In Government of NCT of Delhi v. Union of India, (2018) 8 SCC 501, a Constitution Bench held that the Lieutenant Governor is bound by the aid and advice of the Council of Ministers except on police, public order and land, and has no independent decision-making power. On 11 May 2023 a Constitution Bench held that the Delhi government has legislative and executive power over services other than those three subjects. Within a week the Union promulgated an Ordinance, enacted as the Government of National Capital Territory of Delhi (Amendment) Act, 2023, which restored control over services to the Union through a National Capital Civil Service Authority. The challenge to that Act has been referred to a Constitution Bench and remains pending. It is the clearest example in the system of a legislature reversing a constitutional judgment by ordinary law, and of the dynamic operating faster than adjudication.

Assessment

The honest reading is that the balance has moved in both directions at once, and a good answer says which way on which axis. On the legislative and territorial axes the Union remains dominant and the 2019 reorganisation of Jammu and Kashmir, upheld in In Re: Article 370 of the Constitution, decided 11 December 2023, shows how far that dominance runs. On the emergency axis the States have gained decisively, because Bommai converted a political weapon into a reviewable power. On the fiscal axis the position is mixed: GST reduced independent State taxing power while giving the States a collective two thirds in the Council, and Mineral Area Development Authority returned a valuable field. On the executive axis the Governor remains the standing grievance, and the Delhi services litigation shows the Union willing to legislate around an adverse judgment.

For full marks, cover: the proposition and its Aristotelian origin; the two limbs of Article 14 and where each came from; the doctrine of reasonable classification as a working test, with the case that produced it and the seven propositions that codified it; the difference between the anti-classification and the anti-subordination readings of equality, which is what the quotation is really about; the arbitrariness doctrine; and the modern cases, ending with sub-classification.

The proposition

The sentence is the second half of the Aristotelian formula. Justice requires that likes be treated alike and that unlikes be treated differently in proportion to their difference. Only the first half is intuitive, and a constitution which stopped there would guarantee that every existing inequality survived intact, because a rule applied identically to unequal people produces unequal results.

Classification as a test

State of West Bengal v. Anwar Ali Sarkar, AIR 1952 SC 75, founded the doctrine. Section 5(1) of the West Bengal Special Courts Act, 1950, allowed the State by notification to refer any offences, classes of offences, cases or classes of cases to a special court applying a truncated procedure. The Court struck the provision down so far as it allowed individual cases to be referred, because the Act supplied no principle of selection: the preamble's reference to "speedier trial" stated the object and not the basis of classification. A law which leaves to unguided executive choice the question of who shall face a harsher procedure offends Article 14 however fairly the executive behaves in fact.

Ram Krishna Dalmia v. Justice S.R. Tendolkar, AIR 1958 SC 538, codified the position in seven propositions. The essentials are the presumption of constitutionality; the burden on the challenger; that a law may be valid though directed at a single person if he forms a class by himself; that the court may look at matters of common knowledge and the history of the times; and that the legislature is presumed to understand the needs of its own people.

The reading of equality the quotation demands

The heart of this question is a choice between two conceptions and it should be stated explicitly. On the anti-classification view, equality forbids the State to draw distinctions on prohibited grounds, and the ideal law is one that notices nothing about the people it governs. On the anti-subordination or substantive view, equality forbids the State to maintain the subordination of a group, and a law which notices nothing may do exactly that. The sentence in the question is a statement of the second view.

The Constitution adopts the second and its text proves it. Article 15(1) forbids discrimination and Article 15(3) to (6) then require special provision; Article 16(1) guarantees equality of opportunity and Article 16(4) authorises reservation; Article 17 abolishes untouchability, which is a status and not a transaction; Article 46 directs the State to promote the educational and economic interests of the weaker sections. A purely anti-classification Constitution could not contain Articles 15(4), 16(4) and 17 at all.

Arbitrariness, and how it fits

E.P. Royappa v. State of Tamil Nadu, (1974) 4 SCC 3, held that equality and arbitrariness are sworn enemies and that an arbitrary act is by that fact unequal. Ajay Hasia v. Khalid Mujib Sehravardi, (1981) 1 SCC 722, put the relationship between the two doctrines correctly: classification is a judicial formula for determining whether State action is arbitrary, and is not a substitute for the equality principle itself. Shayara Bano v. Union of India, (2017) 9 SCC 1, then applied manifest arbitrariness to strike down a statutory recognition of talaq-e-biddat, and Navtej Singh Johar v. Union of India, (2018) 10 SCC 1, and Joseph Shine v. Union of India, (2018) 2 SCC 189, used the same instrument against sections 377 and 497 of the Indian Penal Code.

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

Lt. Col. Nitisha v. Union of India, (2021) 15 SCC 125, makes the point where no reservation is involved at all. Women officers granted permanent commission were assessed against benchmarks derived from the medical and performance standards applied to male officers years earlier. The criterion was neutral on its face. The Court held this to be indirect discrimination, requiring the enquiry to look at the effects of a rule and not only at its terms.

Anuj Garg v. Hotel Association of India, (2008) 3 SCC 1, supplies the limit from the other side. Section 30 of the Punjab Excise Act, 1914, prohibited the employment of women where liquor was consumed. The Court struck it down, holding that legislation resting on sex stereotypes attracts strict scrutiny and that protective discrimination restricting a woman's autonomy in the name of her safety is self-defeating. Not every differential treatment of unequals is a remedy; some of it is the inequality restated as protection.

Conclusion. The quotation is not an attack on equality but a description of it. Article 14 forbids two errors, and most discussion notices only one: treating equals as unequals, which the classification doctrine polices, and treating unequals as equals, which the same doctrine permits the State to correct and which Articles 15(4), 16(4) and 17 require it to correct. The twin test of Anwar Ali Sarkar, codified in Dalmia, remains the working instrument, now supplemented by the direct arbitrariness test of Royappa and Shayara Bano. The direction of the case law has been steadily towards the substantive reading, from N.M. Thomas in 1976 to Nitisha on indirect discrimination and Davinder Singh in 2024, which held that even a protected class must sometimes be divided if the protection is to reach the people it was created for.

The origin of the doctrine

The question is whether Parliament's power to amend under Article 368 is unlimited, and the Court answered it three times before settling. In Shankari Prasad Singh Deo v. Union of India, AIR 1951 SC 458, and Sajjan Singh v. State of Rajasthan, AIR 1965 SC 845, the Court held that "law" in Article 13(2) does not include a constitutional amendment, so fundamental rights could be amended; in Sajjan Singh, Mudholkar J. asked whether the Constitution has basic features beyond the reach of amendment. In I.C. Golak Nath v. State of Punjab, AIR 1967 SC 1643, a Bench of eleven held by six to five that an amendment is "law" and that fundamental rights cannot be abridged, applying prospective overruling.

Parliament replied with three amendments. The Twenty-fourth, 1971, amended Articles 13 and 368 to put amendments outside Article 13. The Twenty-fifth inserted Article 31C, protecting laws giving effect to Articles 39(b) and (c) and providing that a legislative declaration to that effect should not be questioned in any court. The Twenty-ninth placed the Kerala land reform statutes in the Ninth Schedule.

Minerva Mills Ltd. v. Union of India, (1980) 3 SCC 625. Clauses (4) and (5) of Article 368, inserted by the Forty-second Amendment, declared that no amendment shall be called in question in any court and that there shall be no limitation on the amending power. Both were struck down: a limited power cannot be used to make itself unlimited, and the harmony between Parts III and IV, disturbed by the widened Article 31C, is itself a basic feature.

L. Chandra Kumar v. Union of India, (1997) 3 SCC 261, held the power of judicial review under Articles 32 and 226 to be part of the basic structure and struck down Article 323A(2)(d) so far as it excluded High Court jurisdiction over tribunals. I.R. Coelho v. State of Tamil Nadu, (2007) 2 SCC 1, held that laws placed in the Ninth Schedule after 24 April 1973 are open to challenge if they damage the basic structure, the test being whether the essence of a right under Articles 14, 19 or 21 is destroyed. Supreme Court Advocates-on-Record Association v. Union of India, (2016) 5 SCC 1, struck down the Ninety-ninth Amendment and the National Judicial Appointments Commission Act by four to one, holding the independence of the judiciary a basic feature. Union of India v. Rajendra N. Shah, (2021) SCC OnLine SC 474, struck down Part IXB for want of ratification under the proviso to Article 368(2), which is the federal safeguard enforced against Parliament.

The qualification the question requires

The proposition in the question, taken literally, is wrong about ordinary legislation, and the marks are in saying why. The basic structure doctrine was devised as a limit on the amending power, because an amendment cannot by definition be inconsistent with the Constitution, since it changes it. Ordinary legislation is in a different position: it can be tested directly against every provision of the Constitution, so there is no need for an additional judge-made standard, and applying one would let a court strike down a statute without pointing to any provision it violates.

The authorities are clear. In Indira Nehru Gandhi v. Raj Narain, Ray CJ, Mathew and Chandrachud JJ. held that the basic structure test does not apply to ordinary legislation. In State of Karnataka v. Union of India, (1977) 4 SCC 608, and Kuldip Nayar v. Union of India, (2006) 7 SCC 1, the point was restated: a challenge to ordinary legislation must be founded on legislative competence or on a violation of a specific constitutional provision, and a plea that it damages the basic structure is not by itself a ground. Kuldip Nayar rejected exactly such a challenge to the removal of the domicile requirement for Rajya Sabha candidates.

First, through the provision in which the value is located. Judicial independence is protected by Articles 50, 124, 217 and 235 as well as by the basic structure. Free and fair elections are protected by Articles 324 to 329. Secularism is protected by Articles 14, 15, 25 to 28. So a statute that offends one of these values will almost always offend a specific article, and the court will say so. In Madras Bar Association v. Union of India, (2014) 10 SCC 1, the National Tax Tribunal Act, 2005, was struck down because the transfer of the High Court's jurisdiction over substantial questions of law to a tribunal lacking the attributes of a court violated the separation of powers and judicial independence; the reasoning is basic-structure reasoning, and it was applied to an ordinary statute through those provisions. Rojer Mathew v. South Indian Bank Ltd., (2020) 6 SCC 1, and Madras Bar Association v. Union of India, (2021) 7 SCC 369, continued that line on tribunal composition and tenure.

Criticism

The doctrine's critics make three points and each deserves an answer. It has no textual basis: Article 368 speaks of amendment, and the reply is that "amendment" does not naturally include replacement, and that without the limit a two-thirds majority could abolish elections. It is counter-majoritarian: unelected judges override a supermajority of the elected legislature, and the reply is that constitutionalism is by design a limit on majorities, and that the doctrine has been used sparingly, against roughly a dozen amendments in fifty years. It is indeterminate, since no list exists, and this criticism has force; the answer is that the content has been settled case by case and that judicial technique can do no better with a concept of this kind. Its comparative career is instructive: adopted in Bangladesh in Anwar Hossain Chowdhury v. Bangladesh, 1989 BLD (Spl) 1, influential in Pakistan and Nepal, and rejected by the Supreme Court of Kenya in the Building Bridges Initiative decision of 2021.

For full marks, cover: both notes, since the paper offers no choice. Each is worth about 12.5 marks, so roughly twenty minutes each. In (a) give the constitutional sources of the grievance, the three demand documents, the two commissions, the fiscal question and the current flashpoints. In (b) distinguish internal from external self-determination, give the international instruments and the leading opinions, and state India's own reservation and constitutional position, which is what makes the note an Indian answer rather than a summary of international law.

The specific grievances are five and should be listed as such. The Governor, appointed by the President and holding office during pleasure under Articles 155 and 156, who reports under Article 356, reserves Bills under Article 200 and has repeatedly been at the centre of government formation disputes. Article 356, used more than a hundred times before 1994, very often against governments of a different party from the Union. The legislative encroachment permitted by Articles 249, 250, 252 and above all 253, under which Parliament may legislate on a State subject to implement a treaty. The All India Services under Article 312, officered by people the State does not recruit and cannot finally discipline. And the fiscal position, where the States bear roughly sixty per cent of expenditure while raising about a third of revenues.

The three demand documents are the Rajamannar Committee report of 1971, appointed by Tamil Nadu, which sought deletion of Articles 356, 357 and 365 and transfer of entries to the State List; the Anandpur Sahib Resolution of 1973, which sought to confine the Union to defence, external affairs, communications, currency and railways; and the West Bengal Memorandum of 1977, which proposed substituting "Federal" for "Union".

Two flashpoints are live and should close the note. The Delhi services dispute: after the Constitution Bench decision of 11 May 2023 gave the elected government control over services, the Union enacted the Government of National Capital Territory of Delhi (Amendment) Act, 2023, restoring that control to itself, and the challenge is pending before a Constitution Bench. And the Governor's assent question, where State of Tamil Nadu v. Governor of Tamil Nadu, 8 April 2025, prescribed timelines under Articles 200 and 201, and the advisory opinion on the Presidential Reference of 20 November 2025 held that courts may not prescribe such timelines and that deemed assent is alien to the Constitution, while holding that a Governor may not sit on a Bill indefinitely.

Two General Assembly resolutions gave it operative content. Resolution 1514 (XV) of 14 December 1960, the Declaration on the Granting of Independence to Colonial Countries and Peoples, declared that the subjection of peoples to alien subjugation is a denial of fundamental human rights and that inadequacy of political, economic, social or educational preparedness is never a pretext for delaying independence; it added that any attempt aimed at the partial or total disruption of the national unity and territorial integrity of a country is incompatible with the Charter. Resolution 2625 (XXV) of 1970, the Friendly Relations Declaration, restated the right and added the safeguard clause: nothing in it authorises any action which would dismember or impair the territorial integrity of sovereign and independent States conducting themselves in compliance with the principle of equal rights and self-determination and possessed of a government representing the whole people without distinction.

Four decisions supply the law. The International Court of Justice in the Western Sahara advisory opinion, 1975, held that self-determination requires a free and genuine expression of the will of the peoples concerned. In East Timor (Portugal v. Australia), 1995, it held the right to be erga omnes, owed to the international community as a whole, while declining jurisdiction for want of Indonesia's consent. In Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, 2004, it treated the Palestinian people's right to self-determination as established. In Legal Consequences of the Separation of the Chagos Archipelago from Mauritius, 25 February 2019, it held that the decolonisation of Mauritius had not been lawfully completed because the detachment of the Chagos Archipelago in 1965 was not based on the free and genuine expression of the people's will, and that the United Kingdom was under an obligation to bring its administration to an end as rapidly as possible; the General Assembly endorsed this in resolution 73/295.

India's position is a declaration made on accession and it decides the Indian answer. On acceding to both Covenants on 10 April 1979, India declared that the words "the right of self-determination" in Article 1 apply only to peoples under foreign domination and not to sovereign independent States or to a section of a people or nation, which is the essence of national integrity. Several States objected to the declaration; India has not withdrawn it.

The constitutional position is consistent with that declaration. Article 1 makes India a Union of States from which no unit may secede, and Ambedkar said so in terms in the Constituent Assembly. The Sixteenth Amendment, 1963, added the sovereignty and integrity of India as a ground of restriction under Article 19(2), (3) and (4) and to the oaths in the Third Schedule. The Unlawful Activities (Prevention) Act, 1967, defines and penalises activity supporting cession or secession. In In Re: Article 370 of the Constitution, decided 11 December 2023, the Supreme Court held that Jammu and Kashmir retained no element of internal sovereignty after accession.

Conclusion. The two notes are connected, and saying so is worth a mark. State autonomy is a claim to internal self-determination made inside a constitutional order that supplies the machinery for it: a federal division, an asymmetric set of special provisions, language and minority rights, and a court willing to enforce them. The right of self-determination in international law protects exactly that internal claim for peoples inside functioning representative States, and reserves the external claim for colonial and occupied peoples, as Quebec and the Chagos opinion show from opposite ends. India's declaration of 1979 states the same distinction in its own words. The Indian answer to the autonomy grievance is therefore not secession, which the Constitution excludes, but the unfinished work the Sarkaria and Punchhi Commissions identified: the office of Governor, the use of Article 356 and Article 253, and the shrinking of the divisible pool.

This question is set on both papers in this scan. It is question 6 of Q.P. Code 307701 and question 1 of Q.P. Code 11757, in almost the same words. The full answer is written out under Q.6 of Q.P. Code 307701 in this volume and is not repeated here, because a candidate sitting either paper writes the same script.

The marks plan, so that the shape is available without turning back.

Open with the proposition itself. It is the second half of the Aristotelian formula: likes treated alike, unlikes treated differently in proportion to their difference. A constitution which honoured only the first half would guarantee that every inherited inequality survived, because an identical rule applied to unequal people produces unequal results.

Then the two limbs of Article 14. "Equality before the law" is Dicey's and negative; "equal protection of the laws" comes from the Fourteenth Amendment to the United States Constitution and is positive, and it is the limb that carries classification.

Then arbitrariness. E.P. Royappa v. State of Tamil Nadu, (1974) 4 SCC 3; Ajay Hasia v. Khalid Mujib Sehravardi, (1981) 1 SCC 722, for the proposition that classification is a formula in the service of the equality principle and not a substitute for it; Shayara Bano v. Union of India, (2017) 9 SCC 1, for manifest arbitrariness striking down a statutory recognition of talaq-e-biddat.

Then the modern applications. Indra Sawhney v. Union of India, 1992 Supp (3) SCC 217, and the creamy layer as the same principle applied within a group. Lt. Col. Nitisha v. Union of India, (2021) 15 SCC 125, on indirect discrimination, where a neutral benchmark derived from male officers' standards was held unconstitutional. And the decision that vindicates the quotation most directly, State of Punjab v. Davinder Singh, decided 1 August 2024, in which seven judges held by six to one that States may sub-classify within the Scheduled Castes and overruled E.V. Chinnaiah v. State of Andhra Pradesh, (2005) 1 SCC 394, precisely because a single quota shared equally between sub-groups of unequal condition is captured by the strongest of them.

For full marks, cover: Dicey's three limbs and the criticism of each; the formal and substantive conceptions and why the difference decides cases; the Delhi Declaration of 1959 and Lord Bingham's principles; where the doctrine lives in the Indian Constitution; the case law, worked; the operation of the doctrine in administrative law, which is where it is used most often and which most scripts omit; the departures; and a conclusion that does not simply praise the doctrine.

Dicey, and the standard criticism

A. V. Dicey's Introduction to the Study of the Law of the Constitution, 1885, gives three meanings. First, the absolute supremacy of regular law as against arbitrary power, prerogative or wide discretionary authority, so that a person may be punished only for a distinct breach of law established before the ordinary courts. Second, equality before the law, meaning the equal subjection of all classes to the ordinary law administered by the ordinary courts, which for Dicey excluded any separate system of administrative law. Third, that the general principles of the English constitution are the result of judicial decisions determining the rights of private persons in particular cases.

The substantive version includes the content of the law, and it has two well known statements. The Delhi Declaration of the International Commission of Jurists, adopted at the Congress of Jurists in New Delhi in 1959, declared that the rule of law is a dynamic concept which should be employed not only to safeguard civil and political rights but to establish social, economic, educational and cultural conditions under which legitimate aspirations may be realised. Lord Bingham's eight principles, in The Rule of Law (2010), require law to be accessible, intelligible and predictable; questions of right to be decided by law and not discretion; equality before the law subject to objective differences; the reasonable, good faith and intra vires exercise of public powers; adequate protection of fundamental human rights; means of resolving disputes without prohibitive cost or inordinate delay; fair adjudicative procedures; and compliance by the State with its international obligations.

Indian constitutional practice has adopted the substantive version, which is why the Indian material cannot be organised around Dicey alone.

Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225, made the rule of law part of the basic structure. Indira Nehru Gandhi v. Raj Narain, 1975 Supp SCC 1, applied it at once: clause (4) of Article 329A, inserted by the Thirty-ninth Amendment, declared the Prime Minister's election beyond challenge in any court and validated it retrospectively while an appeal was pending. The Court struck it down, because Parliament had not changed the law of elections but decided a pending case, which is the exercise of judicial power by a legislature.

Delegated legislation. The bulk of the modern statute book is subordinate legislation, and the rule of law requires that it stay within the parent Act, be published, and not be retrospective without authority. In In Re: Delhi Laws Act, 1912, AIR 1951 SC 332, the Court held that essential legislative functions, that is the laying down of policy and the enactment of that policy into a binding rule, cannot be delegated, though ancillary functions may be. Harla v. State of Rajasthan, AIR 1951 SC 467, held that a law cannot bind unless published, because natural justice requires that a person be able to know the rule before being punished under it.

Discretion. The rule against unfettered discretion is the doctrine's central administrative application, and the authorities are Jaisinghani, Royappa and Ajay Hasia v. Khalid Mujib Sehravardi, (1981) 1 SCC 722. Discretion must be exercised by the authority on whom it is conferred, for the purpose for which it was conferred, on relevant considerations, and reasonably.

The departures, stated honestly

Preventive detention is authorised by Article 22 itself and permits detention without trial for up to three months without reference to an Advisory Board. Article 361 gives the President and Governors personal immunity from court process. Cost and delay put the courts out of reach of the people the doctrine most protects, which is why access to justice was recognised as a fundamental right with four facets in Anita Kushwaha v. Pushap Sudan, (2016) 8 SCC 509.

Conclusion. Dicey supplied the phrase and one durable idea, that no one is above the law, and very little else that survives contact with a written constitution and a modern administrative state. What has survived is the substantive conception stated in the Delhi Declaration of 1959 and by Lord Bingham: that all power must derive from law, be exercised within legal limits and for proper purposes, be answerable before an independent court, and that the law itself must respect fundamental rights. India has adopted that version and made it a basic feature, so that it binds even the amending power. Its record contains both ADM Jabalpur and Puttaswamy, both the immunity in Article 361 and the refusal of immunity in the Manipur case, both an unpublished discretionary order and the requirement in Anuradha Bhasin that every such order be published. The doctrine is best judged not by its statements but by whether a court will apply it against the government of the day, and on that test the Indian record is imperfect and improving.

The unit of determination is the examinable question. In D.A.V. College v. State of Punjab, (1971) 2 SCC 269, the Court held that where a State law is challenged, the minority status of a community is to be judged in relation to that State. That reading was confirmed by an eleven judge Bench in T.M.A. Pai Foundation v. State of Karnataka, (2002) 8 SCC 481, which held that for the purposes of Article 30 the State is the unit, so that linguistic and religious minorities are to be determined State-wise, since the reorganisation of States was itself carried out largely on a linguistic basis. A community may therefore be a minority in one State and a majority in another, and the practical consequence is that Hindus are a minority for these purposes in States such as Punjab, Meghalaya, Mizoram, Nagaland and Jammu and Kashmir, a point on which litigation continues.

Statutorily, the National Commission for Minorities Act, 1992, empowers the Union to notify minorities, and five communities were notified in 1993, Muslims, Christians, Sikhs, Buddhists and Parsis, with Jains added in 2014 after Bal Patil v. Union of India, (2005) 6 SCC 690, had declined to direct their notification and observed that the very object of the constitutional scheme is that in time the need for such categories should diminish.

The two articles pull against each other and that tension is the subject of the litigation. In State of Bombay v. Bombay Education Society, AIR 1954 SC 561, an order restricting admission in English-medium schools to pupils whose mother tongue was English was struck down under Article 29(2). In Ahmedabad St. Xavier's College Society v. State of Gujarat, (1974) 1 SCC 717, the Court held that the right to administer does not include a right to maladminister, and that regulations securing standards of education, qualifications of teachers and the welfare of staff are permissible, while measures displacing management are not.

Pramati Educational and Cultural Trust v. Union of India, (2014) 8 SCC 1, upheld Article 15(5) in full and held that the Right of Children to Free and Compulsory Education Act, 2009, does not apply to minority institutions, whether aided or unaided, because the twenty five per cent admission obligation under section 12(1)(c) would abridge the Article 30(1) right. That holding is criticised for producing a situation in which the poorest children's access depends on the character of the school nearest them, and it is the clearest current instance of Article 30 operating as an exemption rather than as a protection.

Anjum Kadari v. Union of India, decided 5 November 2024, concerned the Uttar Pradesh Board of Madarsa Education Act, 2004, which the Allahabad High Court had struck down as violating secularism. The Supreme Court set that judgment aside and upheld the Act, holding that a statute can be struck down only for breach of Part III or want of legislative competence and not for an alleged violation of the basic structure at large; that the Act is within Entry 25 of the Concurrent List and regulates the standard of education in madarsas rather than religious instruction; and that the State's interest in ensuring that students attain a level of competence enabling them to participate in society is consistent with Article 30. It severed and struck down only the provisions conferring Fazil and Kamil degrees, which conflict with the University Grants Commission Act, 1956. The judgment is also the Court's fullest recent statement of positive secularism, that the State may regulate the secular component of a minority institution's education without ceasing to be neutral.

The essential religious practices doctrine, laid down in Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt, AIR 1954 SC 282, is the instrument by which courts decide what Article 25 actually protects, and it is contested: it requires a secular court to determine what a religion regards as essential to itself. A nine judge reference arising out of Kantaru Rajeevaru v. Indian Young Lawyers Association, (2020) 2 SCC 1, on the scope of the doctrine and its relationship with constitutional morality, remains pending.

Internationally the standard is Article 27 of the International Covenant on Civil and Political Rights, under which persons belonging to ethnic, religious or linguistic minorities shall not be denied the right, in community with others, to enjoy their own culture, profess and practise their own religion, or use their own language; and the United Nations Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, 1992, which adds positive duties on States to protect the existence and identity of minorities.

This question is set on both papers in this scan, as question 1 of Q.P. Code 307701 and as question 4 of Q.P. Code 11757. The full answer is written out under Q.1 of Q.P. Code 307701 in this volume and is not repeated, since the two stems ask for the same thing.

The marks plan, so the structure is available without turning back.

Open with Article 44 and the size of the field. The State shall endeavour to secure a uniform civil code throughout the territory of India; it sits in Part IV, so Article 37 makes it unenforceable while declaring it fundamental in governance. Criminal law, contract, evidence, property and procedure are already uniform; what remains disparate is marriage, divorce, maintenance, guardianship, adoption and succession. Goa has had a common code since the Portuguese Civil Code of 1867. Ambedkar's answer of 23 November 1948, that Article 44 is enabling and that a code might begin as purely voluntary, explains the Special Marriage Act, 1954.

Then the decisions, in three groups.

The line of restraint, which a balanced answer must give. Pannalal Bansilal Pitti v. State of Andhra Pradesh, (1996) 2 SCC 498, that a uniform law though desirable may be counter-productive and that gradual progressive change is the constitutional method; and Ahmedabad Women Action Group v. Union of India, (1997) 3 SCC 573, declining to strike down personal law as raising issues of State policy.

Then the obstacle. 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, which is why Shayara Bano v. Union of India, (2017) 9 SCC 1, had to travel through the Shariat Application Act, 1937, to strike down talaq-e-biddat.

For full marks, cover: the historical fact that the two documents were being written at the same time and by overlapping people; the article by article correspondence, set out as a table because that is what "in conformity" invites; the constitutional provisions that connect Indian law to international law and the dualist rule; the cases in which the Declaration has actually been used by Indian courts; and, most importantly, the places where the Indian Constitution departs from the Declaration, since a script that only lists similarities has not discussed anything.

The bridge between international and Indian law

Article 51(c) directs the State to foster respect for international law and treaty obligations in the dealings of organised peoples with one another. Article 253 empowers Parliament to make law for the whole or any part of the territory of India for implementing any treaty, agreement or convention with any other country or any decision made at any international conference, association or other body, and Entry 14 of the Union List covers entering into and implementing treaties.

India is dualist: a treaty does not become part of domestic law until Parliament legislates. The qualification, which is where all the case law lies, is that an unincorporated instrument may be used as an aid to construction where domestic law is silent or ambiguous and there is no inconsistency. Gramophone Company of India Ltd. v. Birendra Bahadur Pandey, (1984) 2 SCC 534, states the rule: the comity of nations requires that rules of international law be accommodated in municipal law even without express legislative sanction, provided they do not conflict with an Act of Parliament.

Apparel Export Promotion Council v. A.K. Chopra, (1999) 1 SCC 759, applied Vishaka to a disciplinary proceeding and restored the dismissal of a superior who had harassed a subordinate, holding that in cases involving the violation of human rights the courts must for ever remain alive to international instruments and conventions.

Chairman, Railway Board v. Chandrima Das, (2000) 2 SCC 465. A Bangladeshi national was raped by railway employees at a yatri niwas in Howrah, and it was argued that as a foreign national she could not invoke Part III. The Court awarded compensation, holding that Article 21 protects "persons" and not only citizens, and relying expressly on the Universal Declaration for the proposition that the rights it declares attach to every human being.

K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1, recognised privacy as a fundamental right under Article 21, drawing on Article 12 of the Declaration and Article 17 of the Covenant, and overruled A.D.M. Jabalpur v. Shivakant Shukla, (1976) 2 SCC 521. National Legal Services Authority v. Union of India, (2014) 5 SCC 438, recognised transgender persons as a third gender and relied on the Yogyakarta Principles and the Covenant. Vellore Citizens Welfare Forum v. Union of India, (1996) 5 SCC 647, held the precautionary principle and the polluter pays principle to be part of the customary international law that is deemed to be incorporated into domestic law.

Marriage. Article 16 of the Declaration gives men and women of full age the right to marry and found a family. India has no such express right. In Supriyo v. Union of India, decided 17 October 2023, a Constitution Bench held unanimously that there is no fundamental right to marry under the Constitution, declined to read the Special Marriage Act, 1954, as gender neutral, and left the recognition of non-heterosexual unions to Parliament, while directing the Union to constitute a committee to consider entitlements for such couples. This is the clearest current divergence between the Declaration and Indian constitutional law.

Asylum. Article 14 of the Declaration gives everyone the right to seek and enjoy asylum from persecution. India is not a party to the Refugee Convention of 1951 or its 1967 Protocol and has no domestic refugee statute; refugees are governed by the Foreigners Act, 1946. In Mohammad Salimullah v. Union of India, (2021) SCC OnLine SC 296, the Court declined to restrain the deportation of Rohingya detainees, holding that the rights under Articles 14 and 21 are available to all persons but the right not to be deported is ancillary to the right to reside under Article 19(1)(e), which is confined to citizens, while requiring that any deportation follow the prescribed procedure.

Conclusion. The proposition in the question is correct and needs three qualifications to be worth stating. First, the conformity is structural and not accidental: the two documents were drafted in the same years with Indian participation, and Part III tracks the Declaration's civil and political articles closely enough to be tabulated. Second, India divided the Declaration into an enforceable Part III and a directive Part IV, anticipating by eighteen years the split into two Covenants, and the Supreme Court has since undone much of that division through Article 21. Third, the conformity is not complete: India withdrew the right to property from Part III, has no right to marry, no refugee law, and a narrower freedom to change religion, while going beyond the Declaration on untouchability and compensatory discrimination. The accurate summary is that the Indian Constitution is in conformity with the Declaration in its architecture and in most of its content, and that where it departs, it departs deliberately and for reasons rooted in Indian social conditions rather than through oversight.

Part one: the features of a federal government

A federal government is one in which the powers of government are divided by a constitution between a general government and regional governments, each acting directly on the citizen within its own sphere. K. C. Wheare's classic definition is that the federal principle is the method of dividing powers so that the general and regional governments are each, within a sphere, coordinate and independent. A. V. Dicey described a federal state as a political contrivance intended to reconcile national unity and power with the maintenance of state rights. Sir Robert Garran defined it as a form in which sovereignty or political power is divided between the central and local governments so that each is supreme within its own sphere.

Six features are essential and each should be explained in a sentence.

A written constitution. The division of powers must be recorded in a document, because a division resting on convention could be altered by the level that happened to be stronger.

An independent judiciary with the power of review. Someone external to both levels must decide boundary disputes, or the division is enforceable only by force. This function was discussed above at Q.4 of Q.P. Code 307701 in the context of judicial review generally.

A bicameral legislature with a chamber representing the units. The Senate in the United States and the Council of States in India, though the representation formula differs and that difference is treated below.

Part two: how India and the United States differ

S.R. Bommai v. Union of India, (1994) 3 SCC 1, corrected that description. Nine judges held that federalism is a basic feature, that the States are not mere appendages of the Centre and are supreme within their own sphere, that the President's satisfaction under Article 356 is justiciable, and that a majority must be tested on the floor of the House.

Two recent decisions show the Indian units gaining real ground. Union of India v. Mohit Minerals, (2022) 10 SCC 700, held the recommendations of the Goods and Services Tax Council persuasive and not binding, since both levels have simultaneous power under Article 246A. Mineral Area Development Authority v. Steel Authority of India, decided 25 July 2024, held by eight to one in a nine judge Bench that royalty under the Mines and Minerals (Development and Regulation) Act, 1957, is not a tax, and that the States' power to tax mineral rights and mineral bearing land under Entries 50 and 49 of the State List survives; it overruled India Cement Ltd. v. State of Tamil Nadu, (1990) 1 SCC 12.

The second consequence is asymmetry, and here India is more inventive than the United States rather than less federal. American States are formally identical. India's are not: Article 371 and Articles 371A to 371J make special provision for eleven States, and Article 371A protects Naga customary law and land so strongly that a law of Parliament on those subjects does not apply unless the State Assembly decides that it shall. The Sixth Schedule creates autonomous district councils with legislative and judicial powers in four north-eastern States, and Article 239AA gives Delhi a legislature with defined exclusions. Asymmetry of that kind is India's constitutional answer to plural society: equality of status among the units is given up in order to keep very different units inside one Union.

For full marks, cover: the concept of a plural society, distinguishing the descriptive from the normative sense and naming the theorists; the Indian facts, with figures, because a question about pluralism answered without any is weak; then each of the four kinds of pluralism named in the question, with the constitutional provisions and the case law for each; and an assessment of how a constitution manages plurality without either suppressing it or dissolving into it.

In the normative sense pluralism is the view that this diversity is a good to be preserved, and that a political order should be designed to accommodate it. Isaiah Berlin's value pluralism holds that human goods are genuinely plural and sometimes incommensurable, so that no single ordering of them can be imposed without loss. Robert Dahl's account of polyarchy treats the dispersal of power among many organised groups as the actual mechanism of democracy. Arend Lijphart's consociational democracy is the constitutional design most often proposed for divided societies, and its four elements are worth naming: government by grand coalition, segmental autonomy, proportionality in representation and public appointments, and a minority veto on vital matters.

India is a plural society in Furnivall's descriptive sense and a pluralist State in the normative sense, and the Constitution is the instrument by which the second was built on the first. The framers rejected the two alternatives available to them: assimilation, which would have required a single national language and a uniform civil identity, and separation, which had just produced partition and the communal electorates the Assembly abolished.

Ethnic pluralism

Ethnic pluralism is diversity of descent-based community, and in India the constitutionally salient form is tribal identity. Article 342 provides for the specification of Scheduled Tribes by the President in relation to each State. Articles 244 and 244A with the Fifth and Sixth Schedules create a distinct administrative order: in Fifth Schedule areas the Governor may direct that a law shall not apply or apply with modifications; in the Sixth Schedule areas of Assam, Meghalaya, Tripura and Mizoram, autonomous district and regional councils exercise legislative, executive and judicial power over land, forests, inheritance, marriage and social custom. Articles 371A to 371H protect the customary law and land of Nagaland, Mizoram, Manipur, Sikkim, Arunachal Pradesh and others, and Article 371A is the strongest of them, providing that no Act of Parliament on Naga religious or social practices, customary law and procedure, or ownership and transfer of land, shall apply unless the Legislative Assembly of Nagaland so decides.

Linguistic pluralism

Linguistic diversity was the most dangerous fault line of the first decade and the settlement reached is the best example of Indian pluralism working. Articles 343 to 351 constitute Part XVII. Hindi in Devanagari is the official language of the Union, with English continuing under Article 343(3) and the Official Languages Act, 1963, which after the amendment of 1967 provides that English shall continue in addition to Hindi for so long as any State that has not adopted Hindi so desires. Article 345 lets a State adopt its own official language; Article 347 lets the President recognise a language spoken by a substantial proportion of a State's population; Article 350A requires facilities for instruction in the mother tongue at the primary stage for children of linguistic minorities, and Article 350B creates a Special Officer for Linguistic Minorities.

Cultural pluralism

Cultural pluralism in the Indian scheme is carried by Articles 25 to 30 and by Article 51A(f), which makes it a duty of every citizen to value and preserve the rich heritage of our composite culture. Article 25 guarantees freedom of conscience and free profession, practice and propagation of religion, subject to public order, morality and health, and expressly saves State regulation of secular activity associated with religious practice and laws providing for social welfare and reform. Article 26 gives every denomination the right to manage its own affairs in matters of religion. Articles 29 and 30 protect cultural and educational rights, and the leading decisions are T.M.A. Pai Foundation v. State of Karnataka, (2002) 8 SCC 481, on the State as the unit of determination and the limits of regulation, and Aligarh Muslim University v. Naresh Agarwal, decided 8 November 2024, which overruled S. Azeez Basha v. Union of India, AIR 1968 SC 662, and held that statutory incorporation does not by itself destroy an institution's minority character.

Political pluralism

Political pluralism is the dispersal of political power among many centres, and it has four constitutional supports. Federalism, which distributes power territorially, so that a party defeated nationally may govern a State. Article 19(1)(c), the right to form associations or unions, which protects parties, trade unions and civil society. Free and fair elections, held to be part of the basic structure in Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225, and Indira Nehru Gandhi v. Raj Narain, 1975 Supp SCC 1, and administered by an Election Commission whose independence rests on Article 324. And decentralisation, through the Seventy-third and Seventy-fourth Amendments of 1992, which created panchayats and municipalities with reserved seats for Scheduled Castes, Scheduled Tribes and women.

Assessment

A constitution for a plural society has to solve two problems at once and the Indian answer to each should be named. The first is protection: minorities must be safe from the majority, and the Constitution answers with Articles 25 to 30, the Fifth and Sixth Schedules, the Article 371 series and reserved representation. The second is cohesion: the units and communities must have reason to stay, and the Constitution answers with single citizenship, a common criminal law and market, an integrated judiciary and a Preamble committed to fraternity assuring the dignity of the individual and the unity and integrity of the nation.

The standing risks are three. Majoritarianism, in which formal equality masks the dominance of the largest group. Fragmentation, in which recognition of every identity leaves no shared civic space. And what may be called the freezing of identity, where legal recognition of a group hardens a boundary that was fluid, which is the criticism made of caste enumeration and of the essential practices doctrine alike.

For full marks, cover: both notes, since no choice is offered. Note (a) is set on both papers in this scan and is answered in full elsewhere in this volume; the marks plan is given here. Note (b) is set only on this paper and is written out fully.

(a) Right of self-determination

This note is set on both papers in this scan, as note (b) under question 8 of Q.P. Code 307701 and as note (a) under question 8 of Q.P. Code 11757. It is written out in full under Q.8 of Q.P. Code 307701 in this volume and is not repeated here.

Then the authorities. The International Court of Justice in Western Sahara, 1975, on the free and genuine expression of the will of the people; East Timor (Portugal v. Australia), 1995, holding the right erga omnes; the Wall advisory opinion, 2004; and Legal Consequences of the Separation of the Chagos Archipelago from Mauritius, 25 February 2019, holding decolonisation not lawfully completed. Above all Reference re Secession of Quebec, [1998] 2 SCR 217, holding that there is no right of unilateral secession in either international or domestic law, that external self-determination is confined to colonial and oppressed peoples, and that a clear majority on a clear question would create only a duty to negotiate.

Its structure was transformed by Protocol No. 11, in force from 1 November 1998. Before that Protocol there were two bodies, a European Commission of Human Rights which filtered applications and a Court which sat part-time, and the right of individual petition was optional. Protocol No. 11 abolished the Commission, made the Court permanent and full-time, and made the right of individual petition compulsory for every contracting party. Protocol No. 14, in force 2010, introduced single-judge formations and a new admissibility criterion that the applicant must have suffered a significant disadvantage. Protocol No. 15, in force 2021, wrote subsidiarity and the margin of appreciation into the Preamble of the Convention and reduced the time limit for applications from six months to four. Protocol No. 16, in force 2018, allows the highest courts of participating States to request advisory opinions.

The doctrines it has developed are the reason it matters to an Indian constitutional lawyer. The margin of appreciation, first articulated in Handyside v. United Kingdom (1976), recognises that national authorities are better placed to assess local moral and social conditions, and gives them a discretion whose width varies with the right and the aim; it is the Convention analogue of the deference Indian courts show to legislative judgment. The living instrument doctrine, from Tyrer v. United Kingdom (1978), holds that the Convention must be interpreted in the light of present-day conditions, which is the same technique the Indian Supreme Court used in Maneka Gandhi and Puttaswamy. Positive obligations, from Marckx v. Belgium (1979) onwards, require States not merely to abstain but to act. And autonomous concepts prevent a State from escaping the Convention by relabelling a criminal charge as an administrative one.

The comparison with India should close the note. Asia has no regional human rights court; the Council of Europe's system, the Inter-American Court and the African Court have no counterpart here, and SAARC has never created one. The functions the Strasbourg Court performs for forty six States are performed in India by the Supreme Court under Articles 32 and 136 and by the High Courts under Article 226, which is one reason those jurisdictions are so wide. The trade-off is worth naming: a domestic court has enforcement machinery that Strasbourg lacks, and Strasbourg has an independence from the national political order that no domestic court can have.

Two further features of the Strasbourg system are worth a paragraph each, because they answer the obvious objection that a court of forty six States cannot cope with individual petitions.

Derogation under Article 15 defines the system's outer limit. In time of war or other public emergency threatening the life of the nation a State may take measures derogating from its obligations to the extent strictly required by the exigencies of the situation, provided the measures are not inconsistent with its other obligations in international law and the Secretary General is informed. Certain articles can never be derogated from: Article 2 on the right to life, except for lawful acts of war, Article 3 on torture and inhuman or degrading treatment, Article 4(1) on slavery, and Article 7 on retrospective criminal law. The comparison with India is exact and should be made: Article 359 of the Indian Constitution permits the suspension of the enforcement of fundamental rights during an emergency, and after the Forty-fourth Amendment, 1978, Articles 20 and 21 are excluded from suspension, which is India's own list of non-derogable rights, arrived at by amendment after the Emergency rather than written in at the start.