COMPARATIVE NOTES

15M

Parliamentary Forms of Government in India and England: Elaborated Analysis

Parliamentary Form of Government in India

1. Definition:
India follows a parliamentary democracy where the President is the nominal head of
state, and the Prime Minister, as the head of government, wields real executive power.
The executive is drawn from the legislature and is accountable to it.
2. Key Features:
o Bicameral Legislature:
The Indian Parliament consists of two houses:
 Lok Sabha (House of the People): Directly elected representatives; the
government must maintain the confidence of this house.
 Rajya Sabha (Council of States): Indirectly elected; represents states
and union territories.
o Nominal Executive:
The President acts on the aid and advice of the Council of Ministers led by the
Prime Minister (Article 74).
o Real Executive:
The Prime Minister and the Council of Ministers hold real power. The Prime
Minister plays a pivotal role in policy formulation, cabinet formation, and
administration.
o Collective Responsibility:
Enshrined in Article 75(3), the Council of Ministers is collectively responsible
to the Lok Sabha, meaning a no-confidence motion against one minister can
lead to the resignation of the entire council.
o Independent Judiciary:
The judiciary acts as the guardian of the Constitution and ensures the
parliamentary system operates within its constitutional limits.
3. Case Laws:
o S.R. Bommai v. Union of India (1994): Reinforced the principle of majority
rule and collective responsibility, ensuring the executive remains accountable
to the legislature.
o Ram Jawaya Kapur v. State of Punjab (1955): Clarified the constitutional
framework of the parliamentary system, emphasizing that real powers reside
with the Council of Ministers.
4. Challenges:
o Coalition Politics: When no party secures a majority, coalition governments
emerge, which can lead to instability.
o Regional Influences: The rise of regional parties has shifted focus from
national to state-specific interests.

Parliamentary Form of Government in England

 1. Definition:
The United Kingdom is the originator of the parliamentary system, characterized by a
constitutional monarchy and parliamentary sovereignty. The government is formed by
the political party with the majority in the House of Commons, and the monarch
remains the ceremonial head of state.
2. Key Features:
o Monarchy:
The monarch (e.g., King Charles III) serves as the ceremonial head of state.
The monarchy has no real power in governance, with actions largely dictated
by the elected government.
o Bicameral Parliament:
 House of Commons: The primary legislative body; its members are
directly elected by citizens.
 House of Lords: Composed of life peers, bishops, and hereditary peers;
its role is largely revisory.
o Prime Minister's Dominance:
The Prime Minister is the leader of the majority in the House of Commons and
is pivotal in shaping policy and governance.
o Conventions Overwritten Law:
The UK's constitution relies heavily on unwritten conventions, such as the
monarch inviting the majority leader to form the government.
o Parliamentary Sovereignty:
The UK Parliament is supreme and can legislate on any subject without legal
constraints. Judicial review is limited.
3. Conventions and Traditions:
o The monarch gives Royal Assent to bills, which is a formal gesture.
o The Prime Minister must command the confidence of the House of Commons.
4. Judicial Review:
Judicial review in the UK is limited due to the principle of parliamentary sovereignty.
The courts cannot question the validity of laws passed by Parliament.

Comparison Between India and England

Aspect India England

Source of Unwritten, based on customs,
Written and rigid (adopted in 1950).
Constitution conventions, and statutes.
President (elected nominal head, Monarch (hereditary, purely
Head of State
limited powers). ceremonial).
Bicameral: Lok Sabha (directly Bicameral: House of Commons
Legislative
elected) and Rajya Sabha (directly elected) and House of
Composition
(indirectly). Lords.
Prime Minister and Cabinet
Executive Council of Ministers accountable to
accountable to House of
Accountability Lok Sabha (Article 75).
Commons.
Judiciary has extensive powers
Limited judicial review;
Judicial Review (e.g., Kesavananda Bharati case,
Parliament is sovereign.
1973).
 Aspect India England
Legislative Constitution limits Parliament’s Parliament is sovereign; no law
Sovereignty power. can be declared invalid.
Prime Minister's Central; chosen by the majority in Central; leader of the majority in
Role Lok Sabha. the House of Commons.

Key Observations and Contrasts

1. Written vs. Unwritten Constitution:

India's governance is regulated by a detailed written Constitution, whereas the UK's
reliance on conventions allows flexibility but can lead to ambiguity.
2. Role of Judiciary:
In India, the judiciary acts as the guardian of the Constitution, with the power to strike
down laws violating fundamental rights. In contrast, UK courts lack the authority to
overrule Parliamentary enactments.
3. Parliamentary Sovereignty vs. Constitutional Supremacy:
The UK's Parliament can legislate on any matter without restriction, demonstrating
absolute sovereignty. In India, Parliament operates within the boundaries set by the
Constitution.
4. Role of Head of State:
While both systems feature nominal heads of state, the Indian President is elected and
has limited discretionary powers under the Constitution, whereas the UK monarch’s
role is entirely ceremonial.

Conclusion

The parliamentary systems in India and England share foundational principles like collective
responsibility, accountability, and a fusion of executive and legislative functions. However,
India's adoption of constitutional supremacy ensures checks and balances, making it more
structured. England's model emphasizes flexibility and tradition, showcasing the enduring
relevance of unwritten conventions in governance.

Federalism: Concept and Distribution of Legislative Powers

1. Introduction to Federalism
Federalism refers to a system of governance where sovereignty is constitutionally divided
between a central authority and sub-national units (states, provinces, etc.). It ensures
decentralization of power, promoting unity while preserving regional autonomy. Federalism
is rooted in the principle of dual governance, balancing shared and independent
responsibilities between levels of government.

Key features of federalism:

 Division of powers
 Written and rigid constitution
 Supremacy of the Constitution
 Independent judiciary
 Bicameralism (in most federal systems)

2. Models of Federalism in Major Constitutions

Federal systems vary globally. Key examples include the U.S., India, Canada, and Australia,
each adopting unique mechanisms for power distribution.

a. United States

 Constitutional Basis: U.S. Constitution (1787).

 Division of Powers:
o Federal powers: Enumerated in Article I, Section 8 (e.g., defense, foreign
affairs, interstate commerce).
o State powers: Reserved under the Tenth Amendment (e.g., education,
policing).
o Concurrent powers: Shared between federal and state governments (e.g.,
taxation).
 Judicial Interpretation: The U.S. Supreme Court resolves conflicts, maintaining
federal supremacy (e.g., McCulloch v. Maryland, 1819).

b. India

 Constitutional Basis: Indian Constitution, 1950 (quasi-federal with unitary bias).

 Division of Powers: Article 246 and Seventh Schedule categorize powers into:
1. Union List (List I): Exclusive powers of the central government (e.g., defense,
foreign affairs, banking).
2. State List (List II): Exclusive powers of state governments (e.g., police,
public health).
3. Concurrent List (List III): Shared powers (e.g., criminal law, education,
environment).
 Conflict Resolution:
o In case of overlap, Union law prevails (Article 254).
o Residual powers are vested in the Union (Article 248).
 Judicial Interpretation: Supreme Court and High Courts uphold the federal balance
(e.g., State of West Bengal v. Union of India, 1963).

c. Canada
  Constitutional Basis: British North America Act, 1867 (now Constitution Act, 1982).
 Division of Powers:
o Federal powers: Enumerated in Section 91 (e.g., trade, defense).
o Provincial powers: Enumerated in Section 92 (e.g., property, civil rights).
o Residual powers: Vested in the federal government.
 Distinctive Feature: Strong central government with limited provincial autonomy.

d. Australia

 Constitutional Basis: Australian Constitution, 1901.

 Division of Powers:
o Exclusive powers: Federal authority (e.g., customs, defense).
o Concurrent powers: Shared powers; federal law prevails in conflicts (Section
109).
o Residual powers: State jurisdiction.
 Judicial Interpretation: High Court ensures balance (e.g., Amalgamated Society of
Engineers v. Adelaide Steamship Co., 1920).

3. Comparative Analysis of Legislative Power Distribution

Feature U.S. India Canada Australia

Dual Strongly Dual
Type Quasi-Federal
Federalism Federal Federalism
Residual
States Union Union States
Powers
Conflict Supreme Parliamentary Supremacy Judicial Judicial
Resolution Court (Union prevails) Review Review
Concurrent
Yes Yes Yes Yes
Powers

4. Indian Federalism: Special Features and Challenges

 Special Status: Certain states (e.g., Jammu & Kashmir, Article 370; Northeast,
Article 371).
 Emergency Provisions: Central dominance during emergencies (Articles 352, 356).
 Challenges:
o Fiscal imbalance (GST aims to address this).
o Regional autonomy demands (e.g., linguistic reorganization).
o Central overreach through Governors and President's Rule (S.R. Bommai v.
Union of India, 1994).

5. Conclusion
Federalism provides a framework for diverse societies to coexist under a unified political
system. The distribution of legislative powers across countries reflects unique historical,
cultural, and political contexts. India's quasi-federal model blends centralized control with
state autonomy, fostering cooperative governance while accommodating regional diversity.

Applicability of Foreign Precedents in the Interpretation of the Constitution of India

India’s Constitution is one of the most comprehensive and dynamic in the world, blending
features of various constitutions. Foreign precedents, particularly from countries like the
USA, UK, Canada, and Australia, have played an instrumental role in its interpretation.
Indian courts, especially the Supreme Court, have frequently drawn upon foreign judgments
to fill gaps, clarify ambiguities, and evolve jurisprudence in consonance with global
developments. However, these precedents are persuasive rather than binding and are applied
contextually to suit Indian constitutional values and socio-political realities.

1. Constitutional Framework and Relevance of Foreign Precedents

 Article 51(c): Promotes respect for international law and fosters adherence to
international practices, creating an indirect pathway for referencing foreign
precedents.
 Judicial Review (Basic Structure Doctrine): The judiciary’s power to interpret the
Constitution expansively often necessitates comparative analysis, particularly for new
or complex issues not directly addressed by Indian statutes or precedents.

Examples of Constitutional Borrowings:

 Fundamental rights: Inspired by the US Bill of Rights.

 Parliamentary system: Modeled after the UK.
 Judicial independence: Derived from the USA and Canada.

This diverse heritage encourages courts to look beyond domestic law for interpretative
assistance.

2. Justifications for Using Foreign Precedents

 Guidance for Novel Issues: Emerging legal challenges like privacy, environmental
justice, and technology-related disputes often require reliance on comparative
jurisprudence.
 Global Legal Convergence: In an interconnected world, constitutional courts aim to
harmonize fundamental principles of justice and human rights.
 Enrichment of Jurisprudence: Foreign judgments serve as a reservoir of ideas,
enabling Indian courts to refine doctrines and evolve new principles.

3. Key Approaches Adopted by Indian Courts

Indian courts apply foreign precedents through three distinct methods:

A. Adoption
When a foreign precedent aligns directly with Indian constitutional provisions or values, it is
adopted with minimal modification.
Case Example:

 Vishaka v. State of Rajasthan (1997): The Supreme Court framed guidelines on sexual
harassment at the workplace by referring to the Convention on the Elimination of All
Forms of Discrimination Against Women (CEDAW) and international practices.

B. Adaptation

Foreign precedents are tailored to fit India’s unique socio-political and constitutional context.
Case Example:

 Kesavananda Bharati v. State of Kerala (1973): The “basic structure doctrine” was
inspired by German constitutional principles but adapted to reflect India’s federal
structure and parliamentary democracy.

C. Rejection

Courts reject foreign precedents if they conflict with Indian constitutional principles or
societal realities.
Case Example:

 A.K. Gopalan v. State of Madras (1950): Rejected the US concept of "due process"
(later reconsidered in Maneka Gandhi v. Union of India (1978)).

4. Landmark Cases Referencing Foreign Precedents

A. Right to Equality and Non-Discrimination

 Maneka Gandhi v. Union of India (1978): The interpretation of “procedure

established by law” under Article 21 was influenced by the US doctrine of substantive
due process (Royappa v. Jackson).
 Navtej Singh Johar v. Union of India (2018): The decriminalization of homosexuality
under Section 377 IPC drew heavily from decisions like Lawrence v. Texas (USA)
and Naz Foundation cases.

B. Right to Privacy

 Justice K.S. Puttaswamy v. Union of India (2017): Declared privacy a fundamental

right under Article 21, referencing Griswold v. Connecticut (USA) and R v. Dyment
(Canada).

C. Environmental Protection

 MC Mehta v. Union of India (1987): Adopted the “polluter pays principle” and
“precautionary principle” from international environmental law, particularly the Rio
Declaration.
D. Gender Justice

 Joseph Shine v. Union of India (2018): Struck down Section 497 IPC (adultery) after
analyzing decisions like Stahl v. Stahl (USA), emphasizing gender equality.

E. Judicial Review and Basic Structure Doctrine

 Minerva Mills v. Union of India (1980): Reinforced the basic structure doctrine,
drawing inspiration from Weimar Germany’s limitations on parliamentary supremacy.

5. Criticism and Limitations

A. Over-Reliance on Foreign Jurisdictions

Critics argue that excessive reliance on foreign judgments may dilute the Indian judiciary’s
role in shaping indigenous jurisprudence. For example:

 Socio-economic disparities between India and Western nations make direct adoption
of precedents impractical.
 Blind transplantation risks ignoring the unique cultural and legal contexts of India.

B. Selective Application

Courts are often accused of selectively using foreign precedents to justify preconceived
conclusions.

C. Sovereignty Concerns

Excessive reliance could undermine India’s legislative autonomy and constitutional

uniqueness, as warned in cases like S.R. Bommai v. Union of India (1994).

6. Judicial Philosophy on Foreign Precedents

 Justice V.R. Krishna Iyer: Advocated using foreign judgments to advance justice,
provided they respect the Indian socio-cultural framework.
 Justice H.R. Khanna: Emphasized that while foreign precedents may inspire, they
must not overshadow India’s constitutional goals

7. Conclusion

Foreign precedents provide a rich comparative perspective and have greatly influenced Indian
constitutional law. They serve as a tool for judicial innovation and global alignment, yet their
applicability must remain sensitive to India’s unique constitutional ethos. Courts must
continue balancing foreign jurisprudence with the nation’s distinctive socio-political realities,
ensuring justice while upholding sovereignty.
Significance and Importance of the Study of Comparative Constitution

Comparative constitutional law examines the similarities and differences in the structure,
principles, and governance systems of various countries. It provides a comprehensive
framework for understanding how constitutions shape governance, safeguard rights, and
adapt to social and political changes. This study is vital for both theoretical and practical
purposes in legal, political, and administrative fields.

1. Understanding Governance Systems

 Constitutions define the framework of governance, delineating powers among organs

of government and ensuring checks and balances.
 Comparative study enables scholars and practitioners to understand how different
systems function (e.g., federalism in the U.S. vs. quasi-federalism in India).
 Example: The Indian Constitution, inspired by U.S. federalism, introduced features
like separation of powers and judicial review.

2. Facilitating Constitutional Development

 Lessons from other nations help in drafting, amending, and interpreting constitutions.
 For instance, India’s Constitution borrowed features such as:
o Parliamentary system from the U.K.
o Fundamental Rights from the U.S.
o Directive Principles of State Policy from Ireland.
 D.D. Basu emphasizes that comparative constitutional studies guided India’s framers
in addressing diverse socio-political challenges.

3. Strengthening Judicial Review and Interpretation

 Comparative constitutional law aids courts in interpreting ambiguous provisions,

especially regarding fundamental rights and federal conflicts.
 Example: The Indian Supreme Court has referred to international practices while
adjudicating cases like Kesavananda Bharati v. State of Kerala (1973) (Basic
Structure Doctrine) and Maneka Gandhi v. Union of India (1978) (Due Process).
 Dr. Chakradhar Jha highlights the importance of studying judicial review mechanisms
globally to ensure robust constitutional adjudication.

4. Promoting Democratic Values and Human Rights

 A comparative perspective fosters a deeper understanding of universal democratic

principles and human rights frameworks.
 Example:
 o India’s Fundamental Rights resonate with the U.S. Bill of Rights.
o Global conventions like the Universal Declaration of Human Rights (1948)
influence constitutional guarantees, such as equality and freedom.
 M.P. Jain notes that cross-referencing foreign constitutions strengthens domestic
safeguards for individual rights.

5. Adapting to Globalization

 In an interconnected world, constitutional issues such as environmental governance,

digital rights, and international treaties require global approaches.
 Comparative studies equip nations to respond to these emerging challenges
effectively.
 Example: Climate-related provisions in the Indian Constitution (Article 48A, 51A)
draw inspiration from international trends.

6. Resolving Federal and Multicultural Challenges

 Federal systems face issues like center-state relations and minority rights.
 Comparative study aids in addressing these challenges by analyzing the experiences
of countries like Canada (Quebec issue) or South Africa (post-apartheid
reconciliation).
 D.D. Basu in Comparative Federalism highlights how India adapted federal
principles to manage its diversity.

7. Enhancing Constitutional Resilience

 Studying constitutional crises and reforms abroad helps in strengthening domestic

frameworks.
 Example: India’s emergency provisions (Articles 352-360) were modeled after
lessons from historical crises in Germany and the U.K.
 H.R. Khanna in Making of India’s Constitution underscores the need for flexibility
and stability, learned through comparative insights.

8. Facilitating International Cooperation

 Comparative constitutions play a role in shaping international relations by promoting

shared values and legal standards.
 Example: Regional unions like the European Union offer lessons in cooperative
federalism, influencing India’s handling of interstate trade under Article 301.
Conclusion

The study of comparative constitutional law is indispensable for scholars, policymakers, and
jurists. It deepens understanding, fosters innovation, and ensures constitutions remain
dynamic instruments of governance. By borrowing ideas and adapting them to local contexts,
countries like India have created a robust constitutional framework while contributing to
global constitutional thought. For a nuanced understanding, scholars like D.D. Basu, M.P.
Jain, and H.R. Khanna provide invaluable insights through their comparative analyses.
Judicial Review: An Essential Characteristic of the Constitution

Introduction
Judicial review is a fundamental principle that empowers courts to determine the legality and
constitutionality of legislative and executive actions. It upholds the supremacy of the
Constitution, ensures the protection of fundamental rights, and maintains the balance of
power between the organs of government. In India, judicial review has evolved as an
essential tool for the growth and development of constitutional law.

Judicial Review in India

1. Constitutional Basis for Judicial Review:

Judicial review in India derives its authority directly from the Constitution:
o Article 13(2): Declares that laws inconsistent with Fundamental Rights are
void. This establishes the foundation for reviewing legislative actions.
o Article 32: Empowers the Supreme Court to enforce Fundamental Rights
through writs. Dr. B.R. Ambedkar called this "the heart and soul of the
Constitution."
o Article 226: Extends the power of judicial review to High Courts, enabling
them to issue writs for enforcing Fundamental Rights and other rights.
o Article 131: Grants the Supreme Court original jurisdiction in disputes
between states or between states and the Union, allowing review of federal
disputes.
o Article 136: Provides the Supreme Court with discretionary appellate
jurisdiction.
2. Objectives of Judicial Review:
o Supremacy of the Constitution: Ensures all laws and actions conform to the
constitutional framework.
o Protection of Fundamental Rights: Safeguards individuals against State
encroachments on rights.
o Separation of Powers: Maintains the balance between legislative, executive,
and judicial branches.
o Rule of Law: Guarantees that no one, including the government, is above the
law.

Historical Evolution of Judicial Review in India

1. Pre-Constitution Period:
The concept of judicial review was borrowed from the U.S. case of Marbury v.
Madison (1803), where Chief Justice John Marshall articulated the principle that
courts have the authority to review the constitutionality of legislative acts.
2. Constituent Assembly Debates:
The framers of the Indian Constitution emphasized the need for judicial review to
ensure constitutional governance. H.V. Kamath and B.N. Rau strongly advocated for
this provision to safeguard against legislative excesses. (H.R. Khanna, Making of
India’s Constitution).
Seminal Case Laws Establishing Judicial Review

1. A.K. Gopalan v. State of Madras (1950):

o The Supreme Court adopted a restrictive approach to judicial review, limiting
it to the interpretation of laws.
o Marked the beginning of judicial scrutiny of executive and legislative actions
under Fundamental Rights.
2. Kesavananda Bharati v. State of Kerala (1973):
o Introduced the Basic Structure Doctrine, holding that Parliament cannot
amend the Constitution in a way that destroys its essential features. Judicial
review itself was held to be part of the Basic Structure.
o Landmark case for curbing Parliament’s amending power under Article 368.
3. Maneka Gandhi v. Union of India (1978):
o Expanded the scope of judicial review by broadening the interpretation of
Article 21 (Right to Life and Personal Liberty).
o Introduced the principle of due process of law and procedural fairness.
4. Minerva Mills v. Union of India (1980):
o Reiterated the Basic Structure doctrine and emphasized judicial review as its
integral component.
o Asserted that judicial review ensures harmony between Fundamental Rights
and Directive Principles.
5. I.R. Coelho v. State of Tamil Nadu (2007):
o Held that laws placed in the Ninth Schedule post-1973 are subject to judicial
review if they violate the Basic Structure.
o Reinforced judicial review as a safeguard against legislative overreach.
6. Recent Cases:
o Navtej Singh Johar v. Union of India (2018): Scrutinized and decriminalized
Section 377 of the IPC, expanding the scope of individual rights.
o Justice K.S. Puttaswamy v. Union of India (2017): Recognized the Right to
Privacy as part of Article 21, showcasing judicial review's adaptability to
contemporary issues.

Contributions of Judicial Review to Indian Constitutional Law

1. Ensuring Constitutional Supremacy:

Judicial review reinforces the supremacy of the Constitution by invalidating laws and
actions inconsistent with constitutional principles.
2. Protection of Fundamental Rights:
o Prevents arbitrary actions by the State.
o Expanded rights jurisprudence, such as environmental rights (MC Mehta v.
Union of India, 1987), digital privacy (Puttaswamy case), and LGBTQ+ rights
(Navtej Singh Johar).
3. Balancing Federalism:
o Resolves disputes between the Centre and States.
o In State of Rajasthan v. Union of India (1977), the Court upheld federal
principles while reviewing the dissolution of State Assemblies.
 4. Enhancing Accountability:
o Judicial review ensures checks on executive and legislative actions, thereby
fostering accountability.
o Examples include the Coalgate (2014) and 2G Spectrum cases, where judicial
review uncovered corruption and inefficiency.
5. Strengthening Democratic Values:
Judicial review preserves the democratic fabric by protecting minority rights and
curbing majoritarianism.

Comparative Analysis of Judicial Review

1. United States:
o Judicial review is robust and deeply rooted in the doctrine of separation of
powers.
o Decisions like Brown v. Board of Education (1954) have significantly
influenced socio-political changes (D.D. Basu, Comparative Constitutional
Law).
2. United Kingdom:
o Limited judicial review due to parliamentary sovereignty. However, under the
Human Rights Act, courts can review laws for compatibility with the
European Convention on Human Rights (M.V. Paylee, Constitutions of the
World).
3. India:
o Strikes a balance between parliamentary sovereignty and judicial supremacy.
o Expands to socio-economic and environmental rights, reflecting its dynamic
nature.

Challenges to Judicial Review in India

1. Judicial Overreach:
Instances of judicial activism have raised concerns about courts encroaching on
legislative or executive domains (Arun Gopal v. Union of India, 2017).
2. Delay in Judicial Process:
Judicial backlog affects timely adjudication of cases, undermining the efficacy of
judicial review.
3. Conflict with Parliamentary Sovereignty:
Critics argue that excessive reliance on judicial review challenges the principle of
separation of powers.

Conclusion

Judicial review is indispensable to the growth and sustenance of Indian constitutional law. By
ensuring the supremacy of the Constitution, protecting fundamental rights, and balancing
federalism, it has evolved into a dynamic instrument for justice. Despite challenges, its
contributions, from advancing rights jurisprudence to promoting accountability, underscore
its pivotal role in fostering constitutionalism and democracy. As D.D. Basu aptly observed,
judicial review is "the sentinel on the qui vive" of our constitutional framework.
Types of Constitutions

The term "Constitution" refers to the fundamental legal framework governing a state,
outlining the powers of government organs and the rights and duties of citizens. Constitutions
vary based on their origins, content, flexibility, and functions. Below is a detailed analysis of
the types of constitutions, incorporating insights from recommended readings.

1. Written and Unwritten Constitutions

 Written Constitution:
A written constitution is a formal document systematically codifying the fundamental
principles of governance. It is authoritative, precise, and legally binding.
o Examples: The U.S. Constitution (1787), the Indian Constitution (1950).
o Indian Context: The Indian Constitution is the most detailed written
constitution, incorporating provisions on federalism, fundamental rights, and
directive principles.
o Advantages: Certainty, clarity, ease of reference, and stability.
o Case Law: Kesavananda Bharati v. State of Kerala (1973) emphasizes the
sanctity of constitutional text and the basic structure doctrine.
 Unwritten Constitution:
An unwritten constitution evolves through customs, traditions, judicial decisions, and
conventions.
o Examples: The United Kingdom.
o Features: Flexibility, adaptability to changing circumstances, reliance on
conventions.

References: D.D. Basu, Comparative Constitutional Law, discusses how written

constitutions ensure legal certainty, while unwritten constitutions are suitable for historical
continuity.

2. Rigid and Flexible Constitutions

 Rigid Constitution:
Rigid constitutions require a special procedure, such as a supermajority, for
amendment.
o Examples: The U.S. Constitution requires a two-thirds majority in Congress
and ratification by three-fourths of the states.
o Indian Context: Though largely flexible, certain amendments (e.g., altering
federal provisions) require special procedures under Article 368.
 Flexible Constitution:
Flexible constitutions can be amended through ordinary legislative processes.
o Examples: The UK Constitution, which allows laws and conventions to
evolve with parliamentary approval.

Case Law: In Sajjan Singh v. State of Rajasthan (1965), the Indian Supreme Court
acknowledged the distinction between flexible and rigid constitutional provisions.
Reference: M.V. Paylee, Constitutions of the World, compares the rigidity of the U.S.
Constitution with the flexibility of the UK model.

3. Federal and Unitary Constitutions

 Federal Constitution:
Federal systems distribute power between the central and regional governments, each
operating independently in their spheres.
o Examples: The U.S., Canada, and India (quasi-federal).
o Indian Context: Dr. B.R. Ambedkar described India as "federal in form but
unitary in spirit." Key features include:
 Distribution of legislative powers (Articles 245–254).
 Independent judiciary and dual polity.
o Case Law: State of West Bengal v. Union of India (1963) upheld the
supremacy of the central government in India.
 Unitary Constitution:
Unitary systems concentrate all powers in a central authority.
o Examples: The UK, France.
o Features: Centralized governance, uniform laws, no independent regional
autonomy.

Reference: D.D. Basu, Comparative Federalism, highlights how federal and unitary systems
influence governance structures and dispute resolution.

4. Presidential and Parliamentary Constitutions

 Presidential Constitution:
In a presidential system, executive power is vested in a directly elected president who
is independent of the legislature.
o Examples: The U.S., Brazil.
o Features: Separation of powers, fixed tenure, veto powers.
 Parliamentary Constitution:
In a parliamentary system, the executive is part of and accountable to the legislature.
o Examples: India, the UK.
o Indian Context: The President is the nominal head, while the Prime Minister
and Council of Ministers wield real power (Articles 74–75).
o Case Law: S.R. Bommai v. Union of India (1994) emphasized the
parliamentary system's accountability to democratic principles.

Reference: H.R. Khanna, Making of India’s Constitution, discusses how India adopted a
parliamentary system to ensure executive accountability.

5. Enacted and Evolved Constitutions

  Enacted Constitution:
Prepared and adopted at a specific point in time, usually through a constituent
assembly.
o Examples: India (1950), the U.S. (1787).
o Indian Context: Drafted by the Constituent Assembly under the leadership of
Dr. B.R. Ambedkar, the Indian Constitution reflects modern principles of
democracy, rights, and federalism.
 Evolved Constitution:
Developed gradually over time, incorporating customs and judicial decisions.
o Examples: The UK Constitution.

Reference: M.P. Jain, Indian Constitutional Law, explores how India's enacted Constitution
contrasts with the evolutionary nature of the UK model.

Conclusion

The classification of constitutions provides insight into their design and operation. While
India adopted a comprehensive written, rigid-yet-flexible, federal, parliamentary, and enacted
constitution, other countries have chosen frameworks suited to their socio-political contexts.
Understanding these types helps evaluate governance models globally.
Characteristics of Modern Constitutions

Modern constitutions, irrespective of their country of origin, share certain essential

characteristics. These elements define their relevance, adaptability, and functionality in
modern governance. Below is a detailed analysis of the characteristics of modern
constitutions, drawing insights from Indian and global contexts:

1. Supremacy of the Constitution

 The constitution serves as the supreme law, overriding all other laws and
governmental actions.
 It establishes the framework for governance and defines the limits of power.
 Example: Article 13 of the Indian Constitution invalidates laws inconsistent with
fundamental rights.

Reference: D.D. Basu, Comparative Constitutional Law, highlights that constitutional

supremacy is vital for a stable democratic system.

2. Written and Codified Structure

 Most modern constitutions are written documents to ensure clarity and accessibility.
 Examples:
o The Indian Constitution (1950) is one of the most comprehensive in the
world.
o The U.S. Constitution (1789) is a concise, written document.
 Exceptions: The UK Constitution, which is largely unwritten, relies on statutes,
conventions, and judicial decisions.

3. Democratic Principles

 Modern constitutions uphold democratic values, emphasizing popular sovereignty and

representation.
 Provisions for free and fair elections and participatory governance are central.
 Example: Articles 324-329 of the Indian Constitution establish the Election
Commission and the electoral process.

Reference: M.V. Paylee, Constitutions of the World, notes that democracy is the hallmark of
modern constitutions.

4. Separation of Powers and Checks and Balances

  Modern constitutions delineate the roles of the executive, legislature, and judiciary to
prevent power concentration.
 Example: In India, this principle is evident in Article 50, which mandates the
separation of the judiciary from the executive.
 Landmark Case: Kesavananda Bharati v. State of Kerala (1973) affirmed the basic
structure doctrine, including separation of powers.

Reference: M.P. Jain, Indian Constitutional Law, underscores how separation of powers is
pivotal to constitutional governance.

5. Guarantee of Fundamental Rights

 Modern constitutions prioritize individual freedoms and human rights.

 Example:
o Part III of the Indian Constitution guarantees fundamental rights like equality
(Article 14) and freedom (Article 19).
o The U.S. Bill of Rights (1791) protects similar liberties.

Reference: H.R. Khanna, Making of India’s Constitution, emphasizes that safeguarding

rights is essential to constitutionalism.

6. Adaptability and Flexibility

 Modern constitutions incorporate mechanisms for amendment to adapt to changing

societal needs.
 Examples:
o Article 368 of the Indian Constitution provides for constitutional amendments,
ranging from simple to rigid procedures.
o The U.S. Constitution, while concise, allows amendments through a defined
process.

Landmark Case: Indira Nehru Gandhi v. Raj Narain (1975) reaffirmed that amendments
cannot alter the basic structure.

7. Judicial Review

 Modern constitutions empower the judiciary to interpret and enforce constitutional

provisions, ensuring laws' validity.
 Example: Article 13(2) of the Indian Constitution empowers courts to declare
unconstitutional laws void.
 Landmark Case: Marbury v. Madison (1803) in the U.S. established judicial review
globally.
Reference: Dr. Chakradhar Jha, Judicial Review of Legislative Acts, explores the evolution of
judicial review in various legal systems.

8. Federalism with a Unitary Bias

 Many modern constitutions adopt federal structures with centralized powers to ensure
unity.
 Example:
o India is a quasi-federal state, with features like a strong center (Articles 245-
256) but decentralized governance through Panchayati Raj (Part IX).
o The U.S. Constitution emphasizes federalism with significant state autonomy.

Reference: D.D. Basu, Comparative Federalism, illustrates how federal frameworks adapt to
varying needs.

9. Directive Principles of State Policy

 Modern constitutions often include non-justiciable principles guiding governance for

social and economic justice.
 Example: Part IV of the Indian Constitution outlines principles like securing a living
wage and equal pay (Article 39).

10. Provisions for Emergency

 Modern constitutions incorporate provisions for emergencies, ensuring continuity of

governance.
 Example:
o Articles 352-360 in the Indian Constitution allow for emergency declarations.
o The Weimar Constitution (Germany) introduced emergency measures later
misused by Adolf Hitler.

Conclusion

The characteristics of modern constitutions reflect their purpose of balancing governance,

rights, and adaptability. By embedding principles like separation of powers, federalism, and
judicial review, constitutions ensure democratic governance and the rule of law. The Indian
Constitution, with its unique blend of rigidity and flexibility, serves as a model of a modern,
inclusive, and dynamic constitution
Procedure for Amending the Constitution: India, U.S.A., and Australia

1. India

The amendment process is outlined in Article 368 of the Constitution of India. It ensures a
balance between rigidity and flexibility to preserve the Constitution’s core values while
adapting to evolving needs.

Types of Amendments:

1. By Simple Majority (Outside Article 368)

o Used for provisions not deemed constitutional amendments, such as state
boundaries (e.g., State Reorganization Act, 1956).
o Requires a majority of members present and voting in both Houses of
Parliament.
2. By Special Majority
o Applicable to most constitutional provisions, including Fundamental Rights
and Directive Principles.
o Requires a majority of the total membership of each House and at least two-
thirds of members present and voting.
3. By Special Majority and State Ratification
o Applies to amendments affecting federal features, such as the division of
powers or election of the President.
o Requires ratification by at least half of the state legislatures.

Judicial Safeguards:

 Kesavananda Bharati v. State of Kerala (1973): Established the Basic Structure

Doctrine, limiting Parliament's amending power.
 Minerva Mills v. Union of India (1980): Reinforced the inviolability of the
Constitution’s basic structure.

Relevant Readings:

 D.D. Basu, Comparative Constitutional Law.

 M.P. Jain, Indian Constitutional Law.

2. U.S.A.

The amendment procedure in the U.S. is governed by Article V of the U.S. Constitution. It
is highly rigid, ensuring stability and deliberate change.

Two Methods of Proposal:

1. Congressional Proposal
 o Requires a two-thirds majority in both the Senate and the House of
Representatives.
2. Constitutional Convention
o Convened by two-thirds of state legislatures (never used so far).

Ratification:

 Amendments must be ratified by three-fourths of state legislatures or by conventions

in three-fourths of the states.

Notable Amendments:

 First Amendment (1791): Freedom of speech, religion, and press.

 Twenty-Seventh Amendment (1992): Regulating congressional pay.

Judicial Interpretation:

 Marbury v. Madison (1803): Established judicial review, influencing amendment

interpretation.

Relevant Readings:

 D.D. Basu, Comparative Federalism.

 Dr. Chakradhar Jha, Judicial Review of Legislative Acts.

3. Australia

The amendment process is prescribed in Section 128 of the Commonwealth of Australia

Constitution Act, 1901. It is rigid and involves both federal and popular approval.

Steps for Amendment:

1. Parliamentary Approval
o Requires an absolute majority in both Houses of Parliament.
o If one House rejects the proposal, it can be passed again after three months
and sent to referendum.
2. Referendum
o Must secure a double majority:
 A majority of votes nationwide.
 A majority of votes in at least four of the six states.
3. Royal Assent
o Following a successful referendum, the Governor-General grants formal
approval.
 Success Rate:

 Of 44 amendment proposals, only 8 have been successful (e.g., 1967 Aboriginal

Referendum).

Relevant Readings:

 M.V. Paylee, Constitutions of the World.

 D.D. Basu, Comparative Constitutional Law.

Comparative Analysis

Aspect India U.S.A. Australia

Flexibility Moderate Highly rigid Rigid

Parliament’s
Central Partial Central
Role

Indirect (via Indirect (via state Direct (referendum

People’s Role
Parliament) ratification) required)

This comparative analysis highlights how federalism, democratic principles, and historical
contexts influence amendment procedures.