CONSTITUTIONALISM

MEANING
“If men were angels, no government would be necessary. If angels were to govern men, neither
external nor internal controls on government would be necessary. In framing a government
which is to be administered by men over men, the great difficulty lies in this: you must first
enable the government to control the governed; and in the next place oblige it to control itself.
A dependence on the people is, no doubt, the primary control on the government; but
experience has taught mankind the necessity of auxiliary precautions.”
-Alexander Hamilton (Federalist Papers No. 51)
The basic idea of constitutionalism is about placing limitations on various organs of the
State and those manning these organs.
Constitutionalism’ means limited government or limitation on government. It is antithesis
of arbitrary powers. Constitutionalism recognizes the need for government with powers but
at the same time insists that limitation be placed on those powers. The antithesis
of constitutionalism is despotism.
A government which goes beyond its limits loses its authority and legitimacy. Therefore,
to preserve the basic freedoms of the individual, and to maintain his dignity and personality, the
Constitution should be permeated with ‘Constitutionalism’; it should have some
inbuilt restrictions on the powers conferred by it on governmental organs.
HISTORY
The history of constitutionalism can be traced to Social Contract Theory according to which
individuals as members of society surrendered certain rights in favour of the Sovereign in lieu
of protection of their life, liberty and property. The rights not surrendered to the Sovereign
would act as a limitation on the exercise of power and authority by the Sovereign.
ELEMENTS
Entrenchment: One of the important features of constitutionalism is that the norms imposing
limits upon government power must be in some way be entrenched, either by law or by way of
constitutional convention. Entrenchment not only facilitates a degree of stability over time, it
is arguably a requirement of the very possibility of constitutionally limited government. Were
a government institution entitled, at its pleasure, to change the very terms of its constitutional
limitations, we might begin to question whether there would, in reality, be any such limitations.
Written ness: Constitutional rules do not exist unless they are in some way enshrined in a
written document. Others argue that constitutions can be unwritten, and cite, as an obvious
example of this possibility, the constitution of the United Kingdom. Though the UK has
nothing resembling the American Constitution and its Bill of Rights, it nevertheless contains a
number of written instruments which arguably form a central element of its constitution.
Magna Carta (1215 A.D.) is perhaps the earliest document of the British constitution,
while others include The Petition of Right (1628) and the Bill of Rights (1689).
Written constraints in the constitution are not enough. A ruler with dictatorial tendencies will
not become a benevolent ruler simply because the constitution says so. To guard against
violations against the letter and spirit of the constitution, there needs to be a set of institutional
arrangements such as:

• Government according to the constitution;

• Separation of powers;
• Sovereignty of the people and democratic government;
• Constitutional review & Independent judiciary;
• Limited government subject to a bill of individual rights;
• Civilian control of the military; and
• No state power, or very limited and strictly circumscribed state power, to suspend the
operation of some parts of, or the entire, constitution.
POLITICAL AND LEGAL CONSTITUTIONALISM
1. Political constitutionalism focuses on design of democratic process such as: selection
of electoral system, choice between presidential or parliamentary forms of government,
unitary or federal polity, unicameral or bicameral Parliament
2. Legal constitutionalism interprets arbitrariness as interference with individual rights.
3. It attempts and to establish protections for the ruled through introducing separation of
powers and a judicially protected Constitution
4. This includes Bill of Rights and a mechanism for its enforcement
5. Arbitrariness means capacity to govern wilfully, govern with complete control &
discretion and to serve the ruler’s interests.
6. It can be checked by designing systems to determine- who can rule; how can rule; and
for what purpose ruler can rule.
DESCRIPTIVE AND PERSPECTIVE CONSTITUTIONALISM
Constitutionalism has prescriptive and descriptive uses. Law professor Gerhard Casper
captured this aspect of the term. Used descriptively, it refers chiefly to the historical struggle
for constitutional recognition of the people's right to 'consent' and certain other rights,
freedoms, and privileges…. Used prescriptively … its meaning incorporates those features of
government seen as the essential elements of the … Constitution."
Descriptive use
One example of constitutionalism's descriptive use is law professor Bernard Schwartz's seeks
to trace the origins of the U.S. Bill of Rights. While hardly presenting a "straight-line," the
account illustrates the historical struggle to recognize and enshrine constitutional rights and
principles in a constitutional order.
Prescriptive use
In contrast to describing what constitutions are, a prescriptive approach addresses what a
constitution should be. As presented by Canadian philosopher
Wil Waluchow, constitutionalism embodies "the idea … that government can and should be
legally limited in its powers, and that its authority depends on its observing these limitations.
GREEK AND ROMAN CONSTITUTIONALISM, PLATO’S PHILOSOPHER KING
INTRODUCTION

• Greek Constitutionalism and Roman Constitutionalism generally understood

as Conservative theories of Constitutionalism
• Both were more about practice than theory
• Both had certain value preferences
• Both had preference for restrictions
BODY-MIND RELATIONSHIP

• Greek Constitutionalism had only public law concept

• Analogy to organism of individual human beings
• Body-mind i.e. ruled and ruler
ROMAN CONSTITUTIONALISM

• Greek idea taken forward in Roman Constitutionalism

• People alone source of law
• People are State and not a part of State
• It mooted the idea of people as sovereign
• Public Law – Uniform Law
• Laws of benefit and immunity to particular groups, though no concept of personal law
• Roman Constitutionalism consisted of rules supported by laws which in turn were
supported by religion
MEDIAEVAL CONSTITUTIONALISM

• Church and Religion influenced law

• A combination of Law and Religion was common
• Both public and private law
• Kinship and personal bond with people important rather than political
• Akin to Aristotle’s Royal Rule i.e. Superior governs his subjects for their benefit
• Power to govern was inherited
• It undermines political equality
GREEK CONSTITUTIONALISM

• Tradition of constitutionalism began in ancient Athens

• It had two kinds of devices to check autocratic tendencies
o Institutional arrangements to protect substantial interests from
government encroachments
o Laws should be prospective and general
• Among substantial interest property was prominent
 • Institutional Arrangements
• Nomoi: constitutional law had greater dignity and it was subject to change only
at annual revision
• Psephimata: Decrees or statutory rules
• Graphe Paranoman: indictment for illegal means
• Ecclesia: Assembly of all citizens. Laws could be changed only at annual revision by
citizens assembled at Ecclesia.
PLATO’S PHILOSOPHER KING

• Society is organised into three groups

• Philosopher King- small group of people who have reached highest level of
philosophical traits
• Guardians- Managerial class...soldiers, administrators etc
• Merchants
• Plato advocated limited private property
• He said citizens belong to State
• Best form of government is in which philosophers rule
• Criticism of Philosopher King
TYPES OF CONSTITUTIONALISM
Constitutionalism is understood as a doctrine that aims to determine and limit a
government’s authority by a body of laws. The purpose is to prevent arbitrary functioning
of the government and its functionaries.
ARBITRARINESS
Arbitrariness has three elements: Capacity to govern willfully, govern with complete control
and discretion, to serve their own interests and not those of the ruled. Arbitrariness can be
checked by designing systems to determine: Who can rule, how can rule, for what purpose ruler
can rule.
TWO VARIETIES OF CONSTITUTIONALISM
Broadly, there are two varieties or traditions of Constitutionalism: Political and Legal. Political
constitutionalism seeks to interpret arbitrariness as domination of the ruled by the rulers. It
attempts to check it by establishing a condition of political equality characterized by a balance
of power between all the relevant groups and parties within a polity. This is to ensure that no
one can rule without consulting the interests of the ruled.
ORIGIN OF POLITICAL CONSTITUTIONALISM
It's a journey from mixed government to representative democracy. The theory of mixed
government originated with ancient thought and the classification of political systems on
the basis of whether one, a few, or many ruled. According to this theory, there are three basic
types of polity:
 • Monarchy
• Aristocracy
• Democracy

The problem in Political Constitutionalism is Monarchy, Aristocracy and Democracy

degenerate into tyranny, oligarchy, and anarchy, respectively because of concentration of
power in the hands of a single person or group leading to abuse through allowing arbitrary
rule. But certain good aspects. Monarchy has a strong Executive. Aristocracy has the
involvement of the better or nobler elements of society. Democracy has popular legitimacy.
Mixing these aspects can give a better government.

LEGAL CONSTITUTIONALISM
Legal constitutionalism interprets arbitrariness as interference with individual rights. It
attempts and to establish protections for the ruled through introducing separation of powers
and a judicially protected Constitution. This includes Bill of Rights i.e. a guaranteed set
of fundamental rights. Mechanism for enforcement of fundamental rights. The second is often
seen as necessary to ensure the fairness of the procedures.
Political and Legal Constitutionalism work together both verities of constitutionalism can be
found at work in most modern democracies side by side. The political tradition focuses on
design and functioning of democratic process.

• Selection of electoral system

• Choice between presidential or parliamentary forms of government
• Unitary or federal polity
• Unicameral or bicameral Parliament
Judicial Review is seen as one of the important aspects of Legal Constitutionalism. Often,
political constitutionalism can be seen getting eclipsed by legal constitutionalism due to
judicial review. Also, in the absence of Legal Constitutionalism, the outcomes of Political
Constitutionalism can’t be ensured. Despite that the two varieties/traditions can be seen
complementing each other, thereby entrenching constitutionalism and checking arbitrary use
of power and authority by State instrumentalities.
A rights-based Constitution ensures stable and accountable government, obliging legislatures
and executives to operate according to the established rules and procedures. It prevents
individual rights from being violated due to administrative convenience, popular prejudices, or
short-term gains. Constitutions alone can restrain a genuinely tyrannical government. It's seen
as a foundation for a working towards a non-arbitrary system.
CRITICISM
Murray Rothbard, who coined the term "anarcho-capitalism", attacked constitutionalism,
arguing that constitutions are incapable of restraining governments and do not protect the rights
of citizens from their governments.
Jeremy Waldron contends that constitutionalism is often undemocratic: Constitutions are not
just about retraining and limiting power; they are about the empowerment of ordinary people
in a democracy and allowing them to control the sources of law and harness the apparatus of
government to their aspirations.
It is always possible to present an alternative to constitutionalism as an alternative form of
constitutionalism: scholars talk of "popular constitutionalism" or
"democratic constitutionalism."
CONSTITUTIONALISM IN US
The US constitutionalism has been defined as a complex of ideas, attitudes, and patterns of
behaviour elaborating the principle that the authority of government derives from the people,
and is limited by a body of fundamental law. These ideas, attitudes and patterns of behaviour,
according to one analyst, derive from "a dynamic political and historical process rather
than from a static body of thought laid down in the eighteenth century".
In US history, constitutionalism—in both its descriptive and prescriptive sense—has
traditionally focused on the federal Constitution. Indeed, a routine assumption of many
scholars has been that understanding "American constitutionalism" necessarily entails the
thought that went into the drafting of the federal Constitution and the American experience
with that constitution since its ratification in 1789. There is a rich tradition of
state constitutionalism that offers broader insight into constitutionalism in the US.
CONSTITUTIONALISM IN UK
The UK is one of the best examples of constitutionalism in a country that has an uncodified
constitution.
A variety of developments in seventeenth-century England, including "the protracted struggle
for power between king and Parliament was accompanied by an efflorescence of political ideas
in which the concept of countervailing powers was clearly defined," led to a well-developed
polity with multiple governmental and private institutions that counter the power of the state.
CONSTITUTIONALISM IN INDIA
India is a democratic country with a written Constitution. Rule of Law is the basis for
governance of the country and all the administrative structures are expected to follow it in both
letter and spirit. It is expected that Constitutionalism is a natural corollary to governance in
India.
But the experience with the process of governance in India in the last six decades is a mixed
one. On the one hand, we have excellent administrative structures put in place to oversee even
the minutest of details related to welfare maximization but crucially on the other it has only
resulted in excessive bureaucratization and eventual alienation of the rulers from the ruled.
Since independence, those regions which were backward remained the same, the gap between
the rich and poor has widened, people at the bottom level of the pyramid remained at the
periphery of developmental process, bureaucracy retained colonial characters and overall
development remained much below the expectations of the people.
IMPORTANT CASE LAWS

• Kesavananda Bharti vs. State of Kerala (1973)

• Minerva Mills Ltd vs. Union of India (1980)
• Rameshwar Prasad and Ors. Vs. Union of India (UOI) and Anr (2006)
• I.R. Coelho (Dead) By LRs. vs. State of Tamil Nadu and Ors (2007)
• Shatrughan Chauhan vs. Union of India (2014)

CONCEPT OF FEDERALISM
INTRODUCTION
Federalism, mode of political organization that unites separate states or other polities within an
overarching political system in a way that allows each to maintain its own integrity. It is one
of the most popular forms of government. Be it a bigger country like Australia or a smaller one
such as Switzerland – both have opted for federalism as a form of government. There are
roughly 25 federal countries in the world, representing 40 per cent of the world's population.
They include some of the most complex democracies - India, the US, Brazil, Germany and
Mexico. Their system of government, while it can be complex, has made many federations
amongst the most prosperous countries in the world with high standards of government
services.
ORIGIN AND KEY FEATURES
Early origins of federalism can be traced to city states in ancient Greece. History, geography,
religion and culture contribute to adoption of federalism as a form of government in a particular
country.
During colonialism, the European powers such as the British, the French, the Portuguese, the
Spanish and the Italians used to keep their colonies under brute control by suppressing their
regional, linguistic, religious, ethnic and other such identities. Once the colonial powers left,
the countries of Asia, Africa and Latin America needed a political system that could
accommodate diversity and give their people a sense of participation in the political system.
Federalism as a system of government had the ability to serve the purpose.
The key features of Federalism are:

• Written Constitution
• Dual polity & Division of Powers
• Non-centralisation
• A real division of power
• Elements maintaining the Federation/Union
There are two types of federalism
Coming Together: Independent states coming together on their own to form bigger unite,
increase security by pooling sovereignty and retaining identity, all constituent states have equal
power. Eg- USA, Switzerland, Australia.
Holding Together: Large country decides to divide power between constitutional units and
center, center is more powerful than state, constituent units of federation have unequal powers.
Eg – Spain, India and Belgium.
FEDERALISM IN INDIA
After India became independent in 1947, federalism was the most natural choice to go for as a
system of government because of its diversity in terms of religion, language, ethnicity, regions
and culture. But federalism in India is different from that followed in many other countries
including the US. Indian federalism is a “holding together” federalism and not a “coming
together” as is the case with the US. Perhaps that is why Article 1 of the Indian
Constitution declares: “India, that is Bharat, shall be a Union of States.”
FEATURES

• The Constitution establishes dual polity.

• 7th schedule of the Constitution clearly divides subjects on which Centre and States can
make laws.
• Under the Union List, there are 98 subjects/entries on which Parliament can make laws.
• Under the State List, there are 61 subjects/entries on which state assemblies can make
laws.
• Under the Concurrent List, there are 52 subjects/entries on which both the Centre and
its states can make laws.
IS INDIA TRULY FEDERAL

• India is often described as non-federal due to emergency powers given to the Centre
which can impinge upon the areas earmarked only for the states in some cases.
• Part XVIII of the Constitution i.e. Article 352 to Article 360 talk about Emergency
Provisions.
• All 3 types of emergencies – National Emergency, State Emergency and Financial
Emergency – give more powers to the Centre.
• The power to amend the constitution under Article 368 and Article 248 declares that all
residuary powers vest in the Centre.
• In Kesavananda Bharati vs. state of Kerala (1973), the Supreme Court declared that
federalism is a part of the basic structure of the Constitution.
FEDERALISM IN US AND INDIA
FEDERALISM IS MOST POPULAR FORM OF GOVERNMENT
The earliest form of political organisation was not federal but unitary. But it is the pressure of
economic, political and social circumstances which impelled unitary monarchical
States to enter into alliance with other States for meeting common problems, - which initially
related to defence. Though there were loose forms of union in the world between States prior
to 1787, modern federalism started with the Constitution of the United States (1787), which is
regarded as the model of Federal Constitutions.
Adoption of the federal form in Canada, Switzerland and Australia gave a great impetus to
federalism and a number of federal constitutions have cropped up since World Wars I and II,
notable amongst which are – the U.S.S.R., West Germany, India, Malaysia and Nigeria.
FEDERAL V. UNITARY STATE SYSTEMS
Constitutions are generally classified as unitary and federal, from the organizational
standpoint, i.e. from the standpoint of distribution of governmental powers.
Dicey observed that “Unitarianism... means the concentration of the strength of the state in
the hands of one visible sovereign power…Federalism means the distribution of the force of
the state among a number of co-ordinate bodies each originating in and controlled by the
Constitution”.
Broadly speaking, while in a unitary State, all power is vested in a single Central
Government, without imposing any constitutional limitations upon its authority, and the local
authorities operate as administrative agencies of the Central government, exercising such
powers as the Central government might delegate to the latter.
On the other hand, in the federal State, the Constitution divides the powers between the central
and regional governments, each deriving its powers from the provisions of written
Constitution, so that there is a sphere of autonomy belonging to the territorial organizations
called States, which cannot be withdrawn or curtailed at the will of the central organization,
called the Federal Government.
Federalism is thus a system of government of a country under which there exist simultaneously
a federal or Central Government (legislature and executive) and several State or provincial
legislatures and governments as contrasted with a unitary State. Both federal and State
governments derive their powers from the federal Constitution, both are supreme in particular
spheres and both operate directly on the people; the State governments accordingly are not
exercising powers delegated by the federal governments, nor they are subordinate to it (though
they may deal with less important matters).
SALIENT FEATURES OF FEDERALISM
1. Written Constitution – A federal state derives its existence from the Constitution, just as a
corporation derives its existence from the grant or statute by which it is created. Every power
– executive, legislative or judicial- whether it belongs to the federation, or to the component
States, is subordinated to and controlled by the Constitution. Therefore, a federal State requires
a written Constitution for the obvious reason that in order to be workable and stable and the
limitations upon them to be enforceable, must be precisely defined by a written instrument.
Thus, even though Australia adopted the system of responsible government (or the Cabinet
system) from the unwritten Constitution of the U.K., it had to be embodied in a
written Constitution. When a federal polity possesses two constitutions as in the case of U.S.A.
and Australia (one for the federation and another relating to the internal structure and
administration of each State) and if there is a conflict between the two, then the Federal
Constitution shall prevail.
2. Dual Government – The Constitution sets up a dual government – one government having
authority over the whole territory of the country or nation which adopts that Constitution (i.e;
the Units of the federation) and a Government for each of the regional units of which the
federation is composed (i.e; the Units of the federation)
3. Distribution of Powers - The most essential feature of a federal system is the distribution of
powers between two governmental units – national and regional. However, even in unitary
system, there is some distribution or devolution of powers as between the national and local
governments, but no Court can interfere if the national government withdraws or revokes the
powers which had been delegated by itself to the regional administration.
Whereas in the federation, the regional units derive their powers, not by delegation from the
national government, but from the same source as does the national government itself, viz., the
Constitution, and the distribution of powers between the two units, which is made by the
Constitution, is binding on the national as much as on the regional Governments, so that if
either the general or a regional government transgresses the boundaries demarcated by such
constitutional distribution of powers, its act would be pronounced by the Courts to be
unconstitutional and void.
The Constitution distributes powers between the two Governments in such a way that
the governmental organs of each of the two Governments operate with direct authority over the
citizens. In the case of a regional government, it has authority over the citizens residing within
the territory of that region, while in the case of the federal government; its authority extends
over citizens residing over the entire territory of the country, irrespective of the territorial
barriers of the units of the federation.
4. No Unilateral Change – The foregoing distribution of powers made by the Constitution
cannot be changed or amended at the unilateral will of the parties to the federation, i.e; the
Federal Government or the Regional Governments. The Constitution provides a process for
changing its provisions, called ‘amendment’. In other words, the Federal nations generally have
rigid Constitution.
5. Interpretation By Judiciary – The distribution of powers made by the Constitution must be
guarded by the Judiciary, which is to interpret the Constitution as the ‘fundamental law’ of the
land and to enforce its provisions against both the Federal and Regional Governments and to
invalidate any of their acts which transgresses the limitations imposed upon them by the
Constitution. Where the Federating States have separate Constitutions, the problem arises as to
how far the Constitutional decisions of the Federal Supreme Court shall be binding upon the
States and their Courts.
In Marbury vs. Madison, the US SC stated hat the Federal judiciary is supreme in the
exposition of the law of the Constitution, and that principle has ever since been respected by
this Court and the Country as a permanent and indispensable feature of constitutional system
All these features exist in the Constitutions of the U.S.A., Australia, Germany on the one
hand, and also in the Constitutions of Canada and India (subject to variations in matters of
details), on the other hand, even though the latter two are strongly characterised by a central
bias or balance in favour of the centripetal factors.
DISTRIBUTION OF LEGISLATIVE POWERS IN USA & INDIA
Distribution of powers between the Union and the States is perhaps the most important feature
of the federal Constitutions, so that chaos and conflict between the two competing jurisdiction
can be avoided. Though the federal principle has been adopted by other countries from the
American precedent, each country has introduced variation of its own, as a result of which the
world of federalism today consists of different types of federal Constitutions, - none being an
exact replica of the other.
Even in the United States, owing to activist judicial interpretation as well as constitutional
practice, federalism has assumed a shape which the founding fathers could little envisage.
Nevertheless, the essentials of American federalism are the same after two centuries, namely,
a legally enforceable division of powers between two governments, - federal and regional – by
the written Constitution and the authority of the Courts to interpret, apply and enforce that
constitutional distribution of powers.
As in other matters, the pattern of distribution of legislative powers is not the same under the
different Federal Constitutions. But there is a general test which is broadly adopted by the
different constitutions, namely, those matters of national concern must be handed over to the
Union, while the States should have jurisdiction over matters of regional concern. The patterns
of distribution in U.S.A. and India are as follows:
U.S.A.
In USA, there is a single enumeration of powers, which signifies that the Constitution
simply enumerates the powers specially assigned to the Federal Legislature and leaves the
entire unremunerated residue to the State Legislatures. Woodrow Wilson stated that “the
State Governments are the ordinary governments of the country; the federal government is its
instrument only for the particular purposes”[6]. The Constitution of the USA makes the
division of powers between the Federation and the States by the following four provisions:
1. Powers of the Union - The Federal Congress has no general power to make laws for the
people; it has got only enumerated powers. These powers are enumerated in Article. I, Section
8 to declare war, raise armies, coin money, regulate foreign commerce etc. As to the powers of
the national government, Marshall, C.J. said in the case of Gibbons v. Ogden[7] that “the
genius and character of the whole government seem to be, that its action is to be applied to all
the external concerns of the nation, and to those internal concerns which affect the States
generally, but not to those which are completely within a particular State, which do not affect
other States, and with which it is not necessary to interfere for the purpose of executing some
of the general powers of the national Government”
2. Powers of the States – The powers of the States are not enumerated by the Constitution.
However, according to the Tenth Amendment, the powers not delegated to the United States
by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or
the people. Thus, the residuary powers are given to the States. The reserved rights of the States
inter alia includes the right to pass laws, to give effect to laws through executive action, to
administer justice through the Courts, and to employ all necessary agencies for legitimate
purposes of State Government.
3. Limitations on Union Powers – Congress is prohibited from taxing exports or
giving preference to particular States in the exercise of its ‘Commerce’ powers, namely; “No
Tax or Duty shall be laid on Articles exported from any State and no preference shall be given
by any Regulation of Commerce or Revenue to the Ports of one State over those of another,
nor shall Vessels bound to or from, one State, be obliged to enter, clear or pay Duties in
another” by Clauses. (5) and (6) of Article I, Section 9 respectively.
4. Limitation on States Powers – Though all powers not expressly given to the Union were
reserved to the States (10th Amendment), the Constitution at the same time imposed certain
limitations upon the exercise of those reserved powers so that their exercise might not interfere
with the exercise of the powers conferred upon the National Government. These limitations
are e.g;
a) Taxation – No State may, without the consent of Congress, lay any tax on tonnage or
on imports and exports beyond what may be necessary for enforcing its inspection laws
under Article I, Section 10(3) and Section 10(2) respectively.
b) Monetary – Under Article 1 Section 10(1), no State shall coin money, emit bills
of credit; make anything but gold and silver coin a tender in payment of debts. Thus, the
power over “currency and coin” given to the National Government
is exclusive. Actually, it is essential in the commercial and economic interests of the
Union to have a uniform monetary system.
c) Foreign and Inter-State Agreements – As per Article I, Section 10 “no State shall
enter into any treaty or confederation…..No State shall, without the consent of
Congress, enter into any agreement or compact with another State or with a foreign
power”. The prohibition against foreign agreements supplements the provisions
regarding treaties {Article II, Section 2(2)} in favour of the National Government. The
power is made exclusive by prohibiting the States to enter into that field and the
prohibition against the inter-State compacts without the consent of Congress is,
obviously, meant to prevent the growth of political combinations which may encroach
upon the supremacy of the United States. In practice, however, the Clause has made
possible inter-state co-operation on common problems with the approval of the
National Government.
Subject to the above limitations, the States have full sovereign powers over all persons and
things within their respective territorial limits with respect to all matters which are not
delegated to Congress by the Constitution, expressly or by necessary implication.
Thus, there is no Concurrent List in the American Constitution. However, a concurrent sphere
has resulted from the judicial interpretation that there is a sphere, where a State can legislate
so long as Congress does not ‘occupy the field’ or the State legislation does not conflict with a
federal legislation. Nevertheless, it seems that each government, national and State, is supreme
within their own sphere. In other words neither Government can exercise its powers in such
manner as to obstruct the free exercise of power by another.
The position on paper today is that Congress itself cannot under any device; exercise any
power which is not granted to it expressly or by necessary implication. But the area of concern
is “implied power” founded inter alia, upon the “necessary and proper clause” clause in Article
I, Section 8(18) which signifies that the Courts have helped in the expansion of the federal
power to an extent undreamt of by the fathers of the Constitution and hence the Congress may
legislate on matters under the pretext of necessary and proper which though not comes under
their domain
India
The federal scheme in the Constitution of India is adopted from the Government of India Act,
1935. The said Act made an innovation upon several precedents to make a treble enumeration
of powers, in order to make it as exhaustive as possible and also to minimize judicial
intervention and litigation. The three legislative lists (I, II and III) respectively enumerated the
powers vested in the Federal Legislature, the Provincial Legislature and to both of
them concurrently (Section 100). If however, a matter was not covered by any of the three Lists
that would be treated as a residuary power of the Federal Parliament (Section 104) and Section
107 provided for predominance of federal law in case of inconsistency with a Provincial Law,
in the concurrent sphere.
Borrowing the pattern of treble enumeration from the Government of India Act, 1935, the
Constitution of India makes a three-fold division of powers namely;
a) List I or the Union List – It contains subjects over which the Union shall have
exclusive powers of legislation, including 97 items. These include defence, foreign affairs,
banking, currency and coinage; union duties and taxes and the like.
b) List II or the State List – It comprises of 66 items or entries over which the State Legislature
shall have exclusive power of legislation, such as public order and police, local Government,
public health and sanitation, agriculture, forests and fisheries, education, State taxes and duties,
and the like.
c) List III or the Concurrent List – It gives concurrent powers to the Union and the State
Legislatures over 47 items, such as Criminal Law and procedure, Civil Procedure, marriage,
contracts, torts, trusts, welfare of labour, social insurance, economic and social planning.
Thus the framer of the Indian Constitution attempted to exhaust the whole field of legislation
as they could comprehend, into numerous items, thus narrowing down the scope for filling up
the details by the judicial process of amplifying the given items. Besides, wherever any conflict
could be anticipated, the Constitution has given predominance to the Union jurisdiction, so as
to give the federal system a strong central bias. Similarly, in all the cases which have come up
to the Supreme Court, the Court has upheld the jurisdiction of the Union Parliament.
Thus, in case of overlapping, the power of the State Legislature to legislate with respect to
matters enumerated in the State List has been made subject to the power of the Union
Parliament to legislate in respect of matters enumerated in the Union and Concurrent Lists, and
the entries in the State List have to be interpreted accordingly.[14] Similarly, in the concurrent
sphere, in case of repugnancy between a Union and a State law relating to the same subject,
the former prevails. If, however, the State law was reserved for the assent of the President and
has received such assent, the State law may prevail notwithstanding such repugnancy, but it
would still be competent for Parliament to override such State law by subsequent legislation
{Article 254(2)}.
These apart, the vesting of residual power under the Constitution follows the precedent of
Canada, for it is given to the Union instead of the States as in USA and Australia. The
Constitution of India vests the residuary power i.e; the power to legislate with respect to any
matter not enumerated in anyone of the three Lists,- in the Union Legislature (Article 248).
However, the final determination as to whether a particular matter falls under the residuary
power or not is that of the Courts.
Moreover, even apart from the central bias in the normal distribution of powers, there are
certain extraordinary provisions in the Indian Constitution which provide for expansion of the
federal power in cases of emergency or other predominating national interests, instead of
leaving it to the judicial interpretation as in USA, Australia or Canada, as we have noticed.
These provisions therefore constitute additional limitations upon the powers of the State
Legislatures. These exceptional circumstances are:
1. National Interest – In the national interest, Parliament shall have the power to make laws
with respect to any matter included in the state List, for the temporary period, if the Council of
States declares by the resolution of 2/3 of its members present and voting, that it is necessary
in the national interest that parliament shall have power to legislate over such matters. Each
such resolution will give rise a leases of one year to ten law in question. A law made by
Parliament, which Parliament would not but for the passing of such resolution have been
competent to make, shall, to the extent of the inconsistency, seas to have effect on the
expiration of a period of six months after the resolution has ceased to be in force, except as
respects things done or omitted to be done before the expiration of the said period (Article 249).
The resolution of the council of states may be renewed for a period of one year at a time.
2. Proclamation of emergency – While a proclamation of emergency made by the parliament
is in operation, parliament shall have similar power to legislate with respect to State subjects
{Articles 250, 353(b)}. A law made by the parliament, which parliament would not but for the
issue of such proclamation have been competent to make, shall, to the extent of in competency,
cease to have effect on the expiration of a period of six months after the Proclamation has
ceased to operate, except as respects things done or omitted to be done before the expiration of
the said period (Article 250).
3. By agreement between States – If the Legislatures of two or more States resolve that it shall
be lawful for Parliament to make laws with respect to any matters included in the State List
relating to those States, Parliament shall have such power as regards such States. It shall also
be open to any States to adopt such Union Legislation in relation to itself by a resolution passed
in that behalf in the Legislature of the state. In short, this is an extension of the jurisdiction of
the union parliament by consent of the State Legislatures (Article 252).[17]
4. To implement Treaties – Parliament shall have the power to legislate with respect to
any subject for the purpose of implementing treaties or international agreements
and conventions. In others, the normal distribution of powers will not stand in the way
of parliament to enact legislation for carrying out its international obligations, even
though such legislation may be necessary in relation to a State subject (Article 253)
5. Proclamation of Failure of Constitutional Machinery in the States – When such
a proclamation is made by the President, the President may declare that the powers of
the Legislature of the State in question shall be exercisable by or under the authority
of Parliament {Article 356(1)(b)
COMPARISON BETWEEN USA AND INDIA
On the plain reading of the Constitutions of India and America, it seems that the basic structures
of the division of power are same. However, there are some apparent distinctions between the
two setups. Firstly, under the Indian Constitution, the powers are relatively more enumerative
than the USA. Unlike the latter, the former lays down as many as 211 items into three lists.
Secondly, Indian Constitution provides three Lists namely; Union List, State List and
Concurrent List whereas; in USA, there is a single enumeration of powers, which signifies that
the Constitution simply enumerates the powers specially assigned to the Federal Legislature
and leaves the entire unremunerated residue to the State Legislatures. Finally, in India
Residuary Powers is given to the Union whereas; in USA, the same is given to the States.
CONCLUSION
Federalism originated in the experience gathered from political experiments that not
merely defence but a number of other subjects, such as control of foreign affairs, inter-state
and foreign commerce, export and import and the like, are matter of national interest which
require to be dealt with by a national organisation whereas; other matters such as public order,
public health, fire, water and electric supply services, which are the concern of the inhabitants
of a particular local area and have problems of their own connected with the exigencies of that
particular locality, would be best administered if entrusted to the representatives of that area.
The basic concept of division of power is same even today in every federal structure.
However, the principles of strictly separating the power between the two governments are not
an easy task and disputes and differences are always there. The only golden rule seems to be
that in case of conflict and doubt as to the appropriate government in relation of any matter is
that the benefit should be given to the Central government. However, this rule is not always
justifiable especially in the case of taxation simply because the Regional or State governments
also need the finance to run the administration.
Nevertheless, Federalism is appropriate to large countries like India where government from
one centre would be complicated and difficult and could readily be out of touch with the needs
and desires of widely separated areas and to countries, where particular parts are radical,
linguistic and legal or other particularities which they desire to have safeguarded. In short, in
spite of some difficulties in interpreting the legislative entries of the federal structure,
federalism will stay more importantly because of the globalisation of the economy and the
desire to achieve the “welfare state”.
CONVENTIONS OF CONSTITUTION
MEANING
Constitutional conventions are generally accepted descriptive statements of constitutional and
political practice which are unwritten.
The existence of a constitutional convention may be determined by asking three things:
1. whether there is precedent for the rule;
2. whether those operating under the convention believe themselves obligated to do so;
3. and whether there is a reason for the convention.
Conventions are result of an evolutionary process and develop through usage. There is no fixed
time required to establish the existence of a convention. Because of their unwritten nature, it
can be very difficult to identify whether a particular convention exists.
PURPOSE
Conventions offer the constitution flexibility. The principles provided in the form of
conventions often develop because of a desire to avoid formal change through enactment of
laws. Hence conventions can be helpful in easing constitutional change in an informal way.
EXAMPLES

Best examples of constitutional convention are the powers exercised by the British Monarch:
The Monarch has the legal right to grant/refuse the Royal Assent; under convention
exercises that right on the advice of Ministers; and
The Crown holds the legal right to appoint the Prime Minister, who under convention is
the leader of the Party that holds the majority at a General Election and commands the
confidence of the Commons.
The most important constitutional conventions designed to secure executive accountability are
individual and collective ministerial responsibility.
Some conventions can be deliberately created, rather than emerging from practice. One
example would be the ‘Sewel Convention’, created in 1999, which prevents Parliament from
legislating in matters that have been devolved to the Scottish Parliament without obtaining its
consent.

CONSTITUTIONAL CONVENTION IN INDIA

• Appointment of Prime Minister:

 • Article 75(1) of the Constitution simply says, “The Prime Minister shall be appointed
by the President and the other Ministers shall be appointed by the President on the
advice of the Prime Minister”.
• Appointment of Chief Minister: Article 164 of the Constitution has a similar provision
regarding the appointment of Chief Minister by Governor
BINDING NATURE
Conventions are generally followed not because of legal consequences but because of political
difficulties that may arise otherwise, if they were not followed. According to noted British
jurist A.V. Dicey, conventions may regulate conduct of constitutional functionaries but ‘are
not in reality laws at all since they are not enforced by the courts’.
CONSTITUTIONAL AMENDMENT PROCESS IN INDIA
ART. 368

• Article 368 provides for amendment to the Constitution by way of Amendment Acts.
• Article 368(1) talks about Parliament’s constituent powers to amend the Constitution.
• Article 368(2) prescribes the procedure for amendment.
• But there are certain provisions which were kept out of the purview of Article 368.
• Article 13(1) and Doctrine of Eclipse
• Article 13(2) says, “The State shall not make any law, which takes away or abridges
the rights conferred by this Part and any law made in contravention of this clause shall,
to the extent of the contravention, be void.”
• Article 13(3) defines the expression “law” for the purposes of Article 368.
PROCEDURE TO AMEND

THERE ARE THREE WAYS THE CONSTITUTION CAN BE AMENDED

Amendment by Simple Majority

Articles 5-11 (Citizenship), 169 (Abolition or creation of Legislative Councils in States) and
239-A (Creation of local Legislatures or Council of Ministers or both for certain Union
Territories) of the Indian Constitution can be made by simple majority. These Articles are
specifically excluded from the purview of the procedure prescribed under Article 368.

Amendment by Special Majority

Articles which can be amended by special majority are laid down in Article 368. All
amendments, except those specifically excluded from the purview of Article 368 must be
affected by a majority of total membership of each House of Parliament as well as 2/3rd of the
members present and voting.

Amendment by Special Majority and Ratification by States

Proviso to Article 368 says that amendment to certain Articles requires special majority as
well as ratification by states. Ratification by states means that there has to be a resolution to
that effect by one-half of the state legislatures.
This category includes Article 54 (Election of President), 55 (Manner of election of President),
73 (Extent of executive power of the Union), 162 (Extent of executive power of State), 124-
147 (The Union Judiciary), 214-231 (The High Courts in the States), 241 (High Courts for
Union Territories), 245-255 (Distribution of Legislative powers) and Article 368 itself. Any
list of seventh schedule or representation of states in Parliament as mentioned in the fourth
schedule also falls under this category.
GOLAKNATH V. STATE OF PUNJAB (1967)
The Supreme Court prospectively overruled its decision in Shankari Prasad and Sajjan Singh
cases and held that Parliament had no power to amend Part III of the Constitution so as
to abridge or take away any of the Fundamental Rights.
It said Article 368 merely lays down the procedure for the purpose of amendment.
An amendment is a law under Article 13(2) of the Constitution of India and if it violates any
fundamental right, it may be declared void.
24TH, 25TH AND 29TH AMENDMENTS

• 24th Amendment (1971) added Clause (3) to Article 368 which said “Nothing in article
13 shall apply to any amendment made under this Article.”
• 24th Amendment also added Clause 4 to Article 13
• 25th Amendment (1972) restricted property rights and compensation in case the State
were to take over private property.
• 29th Amendment (1972) placed land reform laws and amendments to these laws under
the Ninth Schedule of the Constitution.
KESVANANDA BHARATI JUDGMENT AND DOCTRINE OF BASIC STRUCTURE

• In the Keshvanand Bharati case, a 13-judge Constitution Bench of the SC propounded

the “Doctrine of Basic Structure”.
• While upholding Parliament’s power to amend the Constitution under Article 368, the
Supreme Court ruled that it was a limited power subject to judicial review.
• The court also said that by using the power to amend the Constitution, Parliament
cannot alter its basic or essential features such as federal structure, separation of powers
between the three organs of the states, judicial review etc.
• Since then the court has added many other features to the list of basic features like
secularism etc.
• The Doctrine of Basic Structure applies only to the constitutionality of amendments
and not to ordinary Acts passed by Parliament, which can be declared unconstitutional
for violation of any provision of the Constitution and and not just its basic structure.
42ND AMENDMENT
• 42nd Amendment (1976) added Clause 4 and Clause 5 to Article 368.
• Clause 4 read, “No amendment of this Constitution (including the provisions of Part
III) made or purporting to have been made under this Article [whether before or after
 the commencement of section 55 of the Constitution (Forty second Amendment) Act,
1976] shall be called in question in any court on any ground.”
• Clause 5 read, “For the removal of doubts, it is hereby declared that there shall be no
limitation whatever on the constituent power of Parliament to amend by way
of addition, variation or repeal the provisions of this Constitution under this Article.”
HOW SC APPLIED BASIC STRUCTURE DOCTRINE
In Minerva Mills versus Union of India (1980), the Supreme Court struck down clauses (4)
and (5) of Article 368 inserted by the 42nd amendment. Justification for the deletion of the said
clauses was based on the destruction of Basic Structure.
The Court said 368 (4) and (5) clearly destroyed the Basic Structure as it gave the Parliament
absolute power to amend Constitution. Limitation on the amending power of the
Parliament is a part of the Basic Structure.
In S. P. Sampath Kumar V. Union Of India (1987), the Constitutional validity of Article
323A and the provisions of the Administrative Tribunals Act was challenged on the ground
that it excluded the jurisdiction of High Court under Article 226 and 227.
The Supreme Court held that Article 323A and Administrative Tribunals Act was valid as it
has not excluded Judicial Review under Article 32 and 136. It was not proved beyond
reasonable doubt that Article 323A and Administrative Tribunals Act destroyed the
basic structure and the Court upheld their validity.
In L. Chandra Kumar versus Union of India (1997), the Supreme Court struck down clause
2(d)of Article 323A and clause 3(d) of Article 323B as they excluded the jurisdiction of High
court under Article 226 and 227 as well as jurisdiction of Supreme Court under Article 32 as
they damage the power of Judicial Review which is a basic feature of Constitution.
SC RULING IN I. R. COELHO VERSUS STATE OF TAMIL NADU (2007)
• Article 31-B saves conflict of laws with fundamental rights by giving validation based
on “fictional immunity” that laws enacted under it and placed in the Ninth Schedule are
immune to challenge in a court of law even if such a law violated fundamental rights.
• The petitioners had challenged various laws placed in the Ninth Schedule on the ground
that any law violating fundamental rights should be struck down as “unconstitutional”
and that the court’s power of judicial review cannot be taken away.

• What did the SC Constitution Bench say?

• The SC upheld the validity of Article 31-B and Parliament’s power to place a particular
law in the Ninth Schedule. But it said laws placed in the Ninth Schedule are open to
judicial scrutiny and that such laws do not enjoy a blanket protection.

• Laws placed in the Ninth Schedule after the Kesavanand Bharati Judgment on April 24,
1973, when it propounded the “basic structure” doctrine, were open to challenge.
 • If the SC has already upheld the validity of any Ninth Schedule Law, it would not be
open to challenge such a law again on the principles declared in the latest judgment
delivered on January 11, 2007. All actions taken or transactions finalized, as a result of
the impugned Acts shall not be open to challenge.
•
• It laid down dual test to examine the validity of a Ninth Schedule Law i.e. first check
whether it violates any fundamental right and if yes whether the violation also damages
or destroys the basic structure. If the answer to both the questions is in the affirmative,
then only a law placed in the Ninth Schedule can be declared unconstitutional.
•
CRITICISM OF DOCTRINE OF BASIC STRUCTURE

• Best of minds can’t envisage all the problems and situations that can arise in future.
• The US Constitution makers’ oversight and the US Bill of Rights
• The Indian Constitution makers’ oversight and the First Amendment
• Each generation must have right to amend the Constitution as per its needs
• Theological interpretation of Constitution and its pitfalls
CONSTITUTIONAL AMENDMENT PROCESS IN SWITZERLAND
There are two procedures provided for amending the Swiss Constitution – Total Revisionand
Partial Revision
PROCESS OF TOTAL REVISION OF SWISS CONSTITUTION
A total revision of the constitution means the adoption of a new or totally revised Constitution.
Total revision can be affected in any of the following three possible ways:
1. If the federal parliament by an approval of each of its two houses, passes a new draft
for a total revision of the constitution a referendum is held. If the new draft gets the
approval of the majority of the voters as well as of the cantons, it comes into operation.
2. Rejection in the referendum by the voters or by the cantons or by both, finally rejects
the new draft and the old constitution continues to operate.
3. If one house of the federal parliament approves the draft for the total revision of the
constitution but the other house rejects it, the issue is submitted to the people in a
referendum. If the majority of the Swiss voters approves the proposal, the federal
parliament is dissolved. Fresh elections are held.
Thereafter, a new federal parliament is constituted. It prepares and approves a draft of a revised
constitution. The same is the submitted to a referendum. If in this second referendum the new
constitution is approved by both the majority of the Swiss voters as well as the cantons, the old
constitution ceases to operate and the new constitution comes into operation.
The proposal for a total revision of the constitution can also come through an initiative. If
1,00,000 of the Swiss voters submit a proposal for a total revision of the constitution, the
proposal is submitted to the people in a referendum.
In case the proposal is supported by the majority of voters, the federal parliament then prepares
a new constitution and it is put before the people in a referendum. If the new constitution is
approved both by the majority of voters as well as the cantons it becomes operative and
replaces the old constitution.
After the successful total revision of the 1848 constitution in 1874, three unsuccessful attempts
at total revision of the constitution were made in 1880, 1935 and 1975. However, the attempt
made in 1998-99 has proved to be successful.
Draft of a total revision of the constitution was adopted by the federal parliament of 18th
December 1988, it was adopted by a majority of the people and the cantons in a referendum on
18th April, 1999.
The federal parliament issued a decree for its enforcement on 28th September, 1999 and a new
constitution came into operation which came into effect 1st January, 2000.
PROCESS OF PARTIAL REVISION OF SWISS CONSTITUTION
A partial revision or an amendment of the constitution can be initiated and adopted in two
ways:
A proposal for a partial revision of the constitution can be made by the two houses of the federal
parliament. Thereafter, the proposal is submitted to the people in a referendum. If the majority
of the people as well as the cantons approves the proposal, the amendment gets incorporated
in the constitution.
The proposal for a partial revision of the constitution can also come from the people.
If 1,00,000 of the Swiss voters submit a general proposal for a partial amendment of
the constitution, the same is put before the people in a referendum. If it gets the approval of the
majority of voters, the federal parliament drafts the amendment on the basis of the general
proposal made by people through an initiative.
This draft is then submitted to the people in a referendum. If the majority of the both Swiss
voters and the cantons approve it, the amendment gets incorporated in
the constitution. However if the initiative for a partial revision, as made by 1,00,000
Swiss voters, is made in the form of a complete draft, the draft is discussed by the
federal parliament.
The federal parliament gives its verdict either in its favour or against the proposed
partial revision, in either case, the draft is submitted to the people in a referendum. If it
is approved by a majority of both the people and the cantons, the amendment gets incorporated
in the constitution.
From the above account, it is clear that the process of amendment of the Swiss constitution is
difficult, cumbersome and complicated. It gets completed in two stages: Proposal Stage and
Approval Stage. The proposal can come either from the Federal Parliament or through
a popular Initiative by 1,00,000 Swiss voters.
At the approval stage the amendment proposal has to get the approval of the majority of both
the Swiss voters as well as of the Swiss cantons. However in actual practice, the process has
proved to be neither very rigid nor very complicated. Some 80 partial amendments
were successfully incorporated between 1874-1999.
In 1999, the Swiss constitution was totally revised and consolidated by incorporating all
the amendments made during 1874 – 1999 as well as by adding a bill of rights social goals,
more detailed description of the powers of the federation and the principles governing
relation between the federal and cantons.
The Swiss constitution has now 196 Articles while before this total revision it had only
123 Articles. The maturity of the Swiss voters and the convention of working through a
general consensus has softened in actual practice the rigidity of the formal process of
amendment of the constitution.
The most salient feature that makes the amendment process very distinctive the fact is that no
amendment, total or partial, can be made in the constitution without the approval
of the majority of the people as well as of the cantons.
A canton is deemed to have approved the amendment if the majority of the people of
that canton approve the amendment.
CONSTITUTIONAL AMENDMENT PROCESS IN THE US
ARTICLE V OF THE US CONSTITUTION
“The Congress, whenever two thirds of both houses shall deem it necessary, shall propose
amendments to this Constitution, or, on the application of the legislatures of two thirds of the
several states, shall call a convention for proposing amendments, which, in either case, shall
be valid to all intents and purposes, as part of this Constitution, when ratified by the legislatures
of three fourths of the several states, or by conventions in three fourths thereof, as the one or
the other mode of ratification may be proposed by the Congress; provided that no amendment
which may be made prior to the year one thousand eight hundred and eight shall in any manner
affect the first and fourth clauses in the ninth section of the first article; and that no
state, without its consent, shall be deprived of its equal suffrage in the Senate.”
In Ullman v. United States (1956), the US Supreme Court ruled that the amendment process
provided for under Article V was the only method of amending the Constitution.
The text of Article V provides two possibilities for proposing an amendment -- proposal of
amendments by the US Congress or such a proposal by a convention.
Congress may propose an amendment to the states, upon a two-thirds vote of both houses; or
A convention may propose an amendment to the states. A convention is called by Congress,
on application of two-thirds of the states.
Ratification of an Amendment by the States
Once an amendment is formally proposed, ratification may occur through one of two processes,
as determined by Congress:
(1) Ratification by three-fourths of state legislatures; or
(2) Ratification by three-fourths of states, acting by state convention.
The substance of proposed amendments is not limited, except that an amendment may not
modify the balance of power among states in the Senate, without the consent of each affected
state. Article V also contains now obsolete language prohibiting certain types of amendments
from being adopted prior to the year 1808.
PROCESS FOR AMENDMENTS PROPOSED BY US CONGRESS
The procedure for proposing amendments, submission to the states, and final ratification follow
the requirements of Article V, provisions of federal law, and the customs and practices that
have developed to guide the process over time.
Step 1: Proposal by Congress
Congress is empowered to submit a proposed amendment to the states on a two-thirds vote of
both the House of Representatives and the Senate. The custom of Congress is that amendment
proposals are formatted as a joint resolution. The content of the joint resolution includes the
text of the proposed amendment and the method of state ratifications (by legislatures or by state
conventions). For the past century, nearly all resolutions have also included a deadline for state
ratification.
Step 2: Submission to States
Upon approval by Congress, the proposed amendment is forwarded to the National Archives
and Records Administration’s Office of the Federal Register. Unlike in India, it’s not presented
to the US President for approval or assent. The Office of the Federal Register publishes the
proposed amendment, and prepares a package of informational material on the ratification
process for delivery to each state. The Archivist of the United States sends the proposed
amendment and informational material to each state’s governor. The state’s governor then
submits the proposal to the state legislature for consideration.
Step 3: Ratification Proposal by Congress.
When a state has ratified an amendment, it must submit a set of paperwork back to the National
Archives and Records Administration. The Office of the Federal Register verifies that the
documents appear to be in proper order and acknowledges receipt. The National Archives and
Records Administration also receives records of other legislative actions—such as rejection of
an amendment or rescission of a ratification—but it does not make any substantive
determination about the validity of these actions. When it appears that a sufficient number
of states have ratified a proposed amendment, the Archivist of the US issues a proclamation
certifying that the amendment has been ratified. The certification is published and serves as
official notice of ratification. A ratified amendment is effective as of the day a sufficient
number of state ratifications are completed, not on the day the certification is proclaimed.
Congress is empowered to submit a proposed amendment to the states on a two-thirds vote of
both the House of Representatives and the Senate. The custom of Congress is that amendment
proposals are formatted as a joint resolution.
The content of the joint resolution includes the text of the proposed amendment and the method
of state ratifications (by legislatures or by state conventions). For the past century, nearly all
resolutions have also included a deadline for state ratification.
PROCEDURE FOR AMENDMENTS PROPOSED BY CONVENTION
Apart from the requirements of Article V, there are no provisions of federal law, or established
customs and practices that direct a specific procedure related to convening or administering
a convention.
A Federal Convention has not taken place since the 1787 original Convention to draft the US
Constitution.
The experiences of individual states in amending their state constitutions by convention —
which has occurred with some regularity over time—may be helpful in considering and
resolving the issues that might arise in a Federal Convention.
The state legislatures have developed customs and practices for submitting applications for a
convention to the US Congress.
NO ROLE ASSIGNED TO US PRESIDENT IN AMENDMENT PROCESS
There is no official role for the US President in the amendment process under Article V even as
many US Presidents often take political positions on proposed amendments as they are being
considered by Congress or the states.
In Hollingsworth versus Virginia (1798), the US Supreme Court heard a challenge to the
11th amendment (state sovereignty). After approval by US Congress, the proposed amendment
was sent to the states despite not having been approved by the President.
The US Supreme Court ruled that a proposed constitutional amendment is not part of
the “ordinary business of legislation” that requires presidential approval, and upheld
the amendment as valid.
The Court pointed out the potential odd result if a presidential veto were permitted.
The threshold to override a veto and the threshold for congressional approval of a
proposed amendment is the same i.e. a two-thirds vote of both Houses, it noted.
Despite a president’s lack of veto authority, on several occasions presidents have taken
on ceremonial—and sometimes more formal—roles in the amendment submission and
ratification process.
In 1978, President Jimmy Carter signed Congress’s extension of the ratification period for
the proposed Equal Rights Amendment, acknowledging that “the Constitution does not
require that the President sign a resolution concerning an amendment to the Constitution of
the United States” but that he wanted to “demonstrate…full support for the ratification of
the equal rights amendment.”
FUNDAMENTAL RIGHTS IN INDIA
IDEALS OF FREEDOM STRUGGLE
Constitutional guarantee for certain basic rights for all Indians was one of the persistent
demands of the Indian freedom struggle.
By 1949, when the Constituent Assembly completed the drafting of the Fundamental Rights
Chapter, it had before it the Universal Declaration of Human Rights, 1948.
The Constitution reflects the vision for change as envisaged by our founding fathers. The
Preamble expresses the ideals and aspirations of a new India that emerged out of a long period
of foreign domination and oppression under a feudal system.
It has a vision for movement towards dignity and hope in order to get rid of social ills such as
illiteracy, superstition, child-marriage, agrarian exploitation, child-labour, bonded labour,
gender-inequality afflicting the society.
Fundamental Rights are one of the most important tools for achieving the constitutional
objectives set out in the Preamble.
PROMISES MADE IN THE PREAMBLE
The Preamble promises Justice, social, economic and political; Liberty of thought, expression,
belief, freedom of faith and worship; Equality of status and of opportunity and to promote
Fraternity, assuring the dignity of the individual and the unity and integrity of the Nation.
Speaking of the imperatives of social democracy, Dr BR Ambedkar said:
"it was, indeed, a way of life, which recognizes liberty, equality and fraternity as the
principles of life and which cannot be divorced from each other: Liberty cannot be
divorced from equality; equality cannot be divorced from liberty. Nor can liberty and
equality be divorced from fraternity. Without equality, liberty would produce the
supremacy of the few over the many. Equality without liberty would kill
individual initiative. Without fraternity, liberty and equality could not become a natural
course of things."
DEFINITION OF “STATE” UNDER ARTICLE 12
'State' includes:
The Government and Parliament of India, the Government and Legislature of each of States,
Local Authorities or Other Authorities within the territory of India or under the control of Govt
of India.
But Judiciary is not included in ‘State’
Article 12 is Gateway to Fundamental Rights i.e. Part III of the Constitution
Fundamental Rights are negative rights enforceable against 'State'. So it's important to know
what constitutes 'State' and what all entities can be covered under it
DR. BR AMBEDKAR ON “STATE” UNDER ARTICLE 12
The Chairman of the Drafting Committee, Dr BR Ambedkar clarified that ‘other authorities’
would refer to those that had ‘the power to make laws or the power to have discretion vested
in it’. He said it would be cumbersome to list the various institutions upon whom Part III was
binding, so the term ‘State’ was useful in this regard. While initiating a debate on this article
in the Draft Constitution, Dr Ambedkar described the scope of this article and the reasons for
placing it in Part III. He said the object of the fundamental rights is twofold. First,
that every citizen must be in a position to climb those rights. Second, they must be binding
upon every authority. I shall presently explain what the word ‘authority’ means – upon every
authority which has got either the power to make laws or the power to have discretion vested
in it.
FUNDAMENTAL RIGHTS IN INDIA

• Right to Equality (Articles 14-18)

• Right to freedom (Articles. 19-22)
• Right Against Exploitation (Articles. 23-24)
• Right to Freedom of Religion (Articles. 25-28)
• Cultural and Educational Rights (Articles. 29-30), and
• Right to Constitutional Remedies (Articles. 32-35)
• Right to Education (Article 21A)
MECHANISM FOR ENFORCEMENT OF FUNDAMENTAL RIGHTS
Fundamental rights are enforceable only against ‘State’. One can get fundamental rights
enforced through the mechanism of writs by approaching the Supreme Court under Article 32
or a high court under Article 226 of the Constitution. These are a means for the enforcement
of the Fundamental Rights of the citizens of the country.
There are five type of writs:
• Habeas Corpus: Court directs the person or authority who has detained another person
to produce the body of the prisoner before it to decide the validity, jurisdiction or
justification for such detention.
• Mandamus: it’s a command issued by a court to an authority directing it to perform a
public duty imposed upon it by law. This writ can be issued where an authority vested
with a power improperly refuses to exercise it.
• Quo Warranto: “What’s your authority?” Quo warranto is used to judicially
control executive action in the matter of making appointments to public offices
under relevant statutory provisions. It’s also used to protect a citizen from the holder
of a public office to which he has no right.
 • Certiorari: Under Article 226, this writ is issued for correcting gross error of
jurisdiction i.e. when a subordinate court is found to have acted
(a) without jurisdiction or by assuming jurisdiction where there exists none, or
(b) in excess of its jurisdiction by over stepping or crossing the limits of jurisdiction,
or
(c) acting in flagrant disregard of law or rules of procedure or acting in violation
of principles of natural justice where there is no procedure specified and thereby
causing failure of justice.

• Prohibition: It’s normally issued when inferior court or tribunal

(a) proceeds to act without jurisdiction or in excess of jurisdiction, or
(b) proceeds to act in violation of rules of natural justice, or
(c) proceeds to act under a law which is itself ultra vires or unconstitutional, or
(d) proceeds to act in contravention of fundamental rights.

• Prohibition and Certiorari are issued at different stages of proceedings. When an

inferior court takes up a hearing for a matter over which it has no jurisdiction, the person
against whom hearing is taken can move the superior court for writ of Prohibition on
which order would be issued forbidding the inferior court from continuing the
proceedings.
•
• But if the court hears the matter and gives the decision, the aggrieved person can move
a superior court for quash the decision/order on the ground of want of jurisdiction.

Role of PILs & Supreme Court in Expansion of Fundamental Rights(empty slide)

FUNDAMENTAL RIGHTS IN THE UK
UNCODIFIED NATURE OF BRITISH CONSTITUTION
Unlike most modern states, Britain does not have a codified constitution but an unwritten one
formed of Acts of Parliament, court judgments and conventions. Despite not having a written
constitution, historically the UK has had a rich heritage of pioneering constitutional charters
and documentation. First and foremost is Magna Carta (1215), the ‘Great Charter of the
Liberties of England’ which established the principle that the King could not do whatever
he liked, but was subject to the law as agreed with the barons he governed. This simple concept
laid the foundations for constitutional government and freedom under the law. Magna Carta
was ‘the first great public act of the nation’, which also established the direction of travel for
the English political system towards representative institutions and democracy.
PARLIAMENTARY SOVEREIGNTY & ROLE OF THE JUDICIARY
Parliamentary sovereignty is the most distinctive features of the British constitutional system.
The absolute and unfettered sovereignty of Parliament is the cornerstone of British system.
Parliament has the right to make or unmake any law whatsoever, and no person or body has
the right to override or set aside the legislation of Parliament.
There is no distinction between laws that are not fundamental or constitutional and laws that
are fundamental or constitutional.
There is no ‘grund norm’ or the supreme law against which validity of other laws can be tested.
MANGA CARTA, 1215
Nine of America's 27 amendments to the U.S. Constitution are traceable to the Magna Carta,
most notably the concept of due process, which states that every citizen is subject to the same
laws and judicial procedures.
In the UK, only three clauses of the Magna Carta are still valid today: the one guaranteeing the
liberties of the Church of England, the clause confirming the privileges of the City of London
and other towns, and the clause that states that no free man shall be imprisoned without
the lawful judgment of his equals.
BILL OF RIGHTS & ACT OF SETTLEMENT
The Bill of Rights (1689) settled the primacy of Parliament over the monarch’s
prerogatives, providing for the regular meeting of Parliament, free elections to the Commons,
free speech in parliamentary debates, and some basic human rights, most famously freedom
from ‘cruel or unusual punishment’. This was shortly followed by the Act of Settlement
(1701) which controlled succession to the Crown, and established the vital principle of judicial
independence.
VERDICTS ON RACE RELATIONS
• The Race Relations Act 1968 prohibits discrimination on the ground of colour, race,
or ethnic or national origins in a wide range of situations, including employment,
housing, education, and the provision of goods, facilities, or services to the public.
• Four cases have been decided by the House of Lords under the present Act, all of
which raised difficult questions of statutory interpretation.
• In Ealing London Borough Council v. Race Relations Bd., [1972], a local
government authority adopted a rule that a condition of acceptance on its waiting list
for public housing was that "an applicant must be a British subject." It therefore refused
to place a Polish national on the list.
• The question was whether it thereby had discriminated on the basis of "national
origins."
• The High Court judge decided that it had acted unlawfully. Inasmuch as a person's
national origins dictate his original nationality and the vast majority of people retain
their nationality of origin, the practical effect of the condition was to place the vast
majority of people of other national origins in a less favourable position than almost all
people of British or Commonwealth origin, and thus to discriminate on the ground of
national origins. It was a common-sense approach that looked to the practical effect of
the condition.
• The House of Lords, however, adopted a more technical approach. In their view, the
phrase "national origins" meant something akin to race. The ground of the
discrimination was that the applicant was not a British subject. "It was his nationality
 at the time when he applied, not his national origins, that led to the refusal to put his
name on the waiting list."
EFFECT OF THE UK JOINING EUROPEAN UNION
Individual already enjoy some fundamental rights in the United Kingdom, indirectly through
the European Convention, and directly through the Rome Treaty. The European
Communities Act, 1972 made the UK a legal partner in the European Union. HUMAN
RIGHTS ACT, 1998 radically transformed the constitutional framework, the administrative
law, and the judicial process of the United Kingdom. It established a bill of rights and freedoms
actionable by individuals through courts. Even after Brexit the constitutional position remains
the same as it’s an Act passed by Parliament.
SHOULD THE UK HAVE A WRITTEN CONSTITUTION?
There have been demands for a written constitution and a more European and American
approach to fundamental rights. According to Robert Blackburn, Professor of Constitutional
Law at King’s College London, the question then arises in this 800th anniversary year – should
the UK now take steps to codify all its laws, rules and conventions governing the government
of the country into one comprehensive document, ‘a new Magna Carta’? The case for a written
UK constitution has been debated at universities and by politicians of all parties for several
decades and has been the subject of a House of Commons committee inquiry during the 2010–
15 Parliament.
If a written constitution for the future is to be prepared, it must be one that engages and involves
everyone, especially young people, and not simply legal experts and parliamentarians. Some
of the mystique and charm of our ancient constitution might be lost in the process, but a written
constitution could bring government and the governed closer together, above all by making the
rules by which our political democracy operates more accessible and intelligible to all.
FUNDAMENTAL RIGHTS IN THE US
AMERICAN WAR OF INDEPENDENCE
On July 4, 1776, the Us Congress approved the Declaration of Independence. Its main author,
Thomas Jefferson, wrote the Declaration as a formal explanation as to why Congress voted on
July 2, 1776 to declare independence from Great Britain.It happened more than a year after the
outbreak of the American Revolutionary War. The Declaration was in fact a statement
announcing that the thirteen American Colonies were no longer a part of the British Empire.
Congress issued the Declaration of Independence in several forms. It was initially published as
a printed broadsheet that was widely distributed and read to the public. Philosophically, the
Declaration stressed two themes: individual rights and the right of revolution. These ideas
became widely held by Americans and spread internationally as well, influencing in particular
the French Revolution.
THE US CONSTITUTION
Written during the summer of 1787 in Philadelphia, the Constitution of the United States of
America is the fundamental law of the US federal system of government and the landmark
document of the Western world. It is the oldest written national constitution in use and defines
the principal organs of government and their jurisdictions and the basic rights of citizens.
However, there was no fundamental rights guaranteed to the US citizens in the Constitution
that was signed on September 17, 1787 by delegates to the Constitutional Convention in
Philadelphia and came into force on March 4, 1789. The French Declaration of the Rights of
Man and of the Citizen, one of the basic charters of human liberties, containing the principles
that inspired the French Revolution. Its 17 articles, adopted between August 20 and August 26,
1789, by France’s National Assembly, served as the preamble to the Constitution of 1791.
BILL OF RIGHTS
One of the principal points of contention between the Federalists and Anti-Federalists was the
lack of an enumeration of basic civil rights in the Constitution.
Many Federalists (Federalist Papers No. 84) argued that the people surrendered no rights in
adopting the Constitution. In several states, however, the ratification debate hinged on the
adoption of a bill of rights.
The solution was known as the Massachusetts Compromise, in which four states ratified the
Constitution but at the same time sent recommendations for amendments to the Congress.
James Madison introduced 12 amendments to the First Congress in 1789. Ten of these would
go on to become what we now consider to be the Bill of Rights.
One was never passed, while another dealing with Congressional salaries was not ratified until
1992, when it became the 27th Amendment.
WHAT’S THERE IN BILL OF RIGHTS
Based on the Virginia Declaration of Rights, the English Bill of Rights, the writings of the
Enlightenment, and the rights defined in the Magna Carta, the Bill of Rights contains rights
that many today consider to be fundamental to the US.
The Bill of Rights i.e. the first 10 amendments to the US Constitution came into effect on
December 15, 1791.
The First Amendment provides that Congress make no law respecting an establishment of
religion or prohibiting its free exercise. It protects freedom of speech, the press, assembly, and
the right to petition the Government for a redress of grievances.
The Second Amendment gives citizens the right to bear arms.
The Third Amendment prohibits the government from quartering troops in private homes, a
major grievance during the American Revolution.
The Fourth Amendment protects citizens from unreasonable search and seizure. The
government may not conduct any searches without a warrant, and such warrants must be issued
by a judge and based on probable cause.
The Fifth Amendment provides that citizens not be subject to criminal prosecution and
punishment without due process. Citizens may not be tried on the same set of facts twice,
and are protected from self-incrimination (the right to remain silent). The amendment also
establishes the power of eminent domain, ensuring that private property is not seized for public
use without just compensation.
The Sixth Amendment assures the right to a speedy trial by a jury of one’s peers, to be
informed of the crimes with which they are charged, and to confront the witnesses brought by
the government. The amendment also provides the accused the right to compel testimony from
witnesses, and to legal representation.
The Seventh Amendment provides that civil cases also be tried by jury.
The Eighth Amendment prohibits excessive bail, excessive fines, and cruel and unusual
punishments.
The Ninth Amendment states that the list of rights enumerated in the Constitution is not
exhaustive, and that the people retain all rights not enumerated.
The Tenth Amendment assigns all powers not delegated to the United States, or prohibited to
the states, to either the states or to the people.
WHAT DOES BILL OF RIGHTS DO?
Bill of Rights limits the US federal government’s powers and protects rights of all citizens,
residents/visitors in the US territory.
The Bill of Rights protects freedom of speech, freedom of religion, the right to keep and bear
arms, the freedom of assembly and the freedom to petition.
It also prohibits unreasonable search and seizure, cruel and unusual punishment and compelled
self-incrimination.
Among the legal protections it affords, the Bill of Rights prohibits Congress from making any
law respecting establishment of religion and prohibits the federal government from depriving
any person of life, liberty or property without due process of law.
In federal criminal cases it requires indictment by a grand jury for any capital offense, or
infamous crime, guarantees a speedy public trial with an impartial jury in the district in which
the crime occurred, and prohibits double jeopardy.
RECONSTRUCTION AMENDMENTS & EQUALITY UNDER LAW
The American Civil War – which took place between April 12,1861 and April 9, 1865 --
resolved two fundamental questions left unresolved by the revolution: Whether the United
States was to be a dissolvable confederation of sovereign states or an indivisible nation with a
sovereign national government? Whether the US – a nation born of a declaration that all
men were created with an equal right to liberty -- would continue to exist as the largest
slaveholding country in the world? Northern victory in the war preserved the United States as
one nation and ended the institution of slavery that had divided the country from its beginning.
After the Civil War certain amendments 13th, 14th and 15th Amendments were introduced and
approved. These amendments are known as Reconstruction Amendments.
13TH AMENDMENT
It was important to have equality enshrined as a part of the Constitution after the Civil
War abolished slavery.
The 13th Amendment passed by Congress on January 31, 1865, and ratified on December
6, 1865, abolished slavery in the United States.
It states that "Neither slavery nor involuntary servitude, except as a punishment for
crime whereof the party shall have been duly convicted, shall exist within the United States,
nor any place subject to their jurisdiction."
14TH AMENDMENT
Passed by Congress June 13, 1866 and ratified July 9, 1868, the 14th Amendment declared:
“All persons born or naturalized in the United States, and subject to the jurisdiction thereof,
are citizens of the United States and of the State wherein they reside. No State shall make or
enforce any law which shall abridge the privileges or immunities of citizens of the United
States; nor shall any State deprive any person of life, liberty, or property, without due process
of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
So far as the federal government was concerned, the Fifth Amendment already
prohibited unreasonable discrimination by the laws, that is discrimination by criteria irrelevant
to the law's application. The Fourteenth Amendment did it for the states.
15TH AMENDMENT
Passed by Congress February 26, 1869, and ratified February 3, 1870, the 15th amendment
gave African American men the right to vote.
According to the 15th Amendment, “The right of citizens of the United States to vote shall
not be denied or abridged by the United States or by any State on account of race, colour, or
previous condition of servitude.”
The 15th Amendment granting African-American men the right to vote was adopted into the
U.S. Constitution in 1870.
Despite the amendment, by the late 1870s discriminatory practices were used to prevent blacks
from exercising their right to vote, especially in the South.
It wasn’t until the Voting Rights Act of 1965 that legal barriers were outlawed at the state and
local levels if they denied African-Americans their right to vote under the 15th Amendment.
A day after it was ratified, Thomas Mundy Peterson of Perth Amboy, New Jersey, became the
first black person to vote under the authority of the 15th Amendment.
ENFORCEMENT OF FUNDAMENTAL RIGHTS
Fundamental rights are meaningless if they are not enforced. One needs a higher law, a
touchstone against which all legislative and executive actions can be tested to judge their
validity.
Article VI of the US Constitution fulfils this requirement.
Article VI, Clause 2 declares,
“This Constitution, and the Laws of the United States which shall be made in Pursuance
thereof; and all Treaties made, or which shall be made, under the Authority of the
United States, shall be the supreme Law of the Land; and the Judges in every State shall
be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary
notwithstanding.”
If a law contradicts a higher law, then the former is without legal value and thus cannot be
enforced in courts.
JUDICIAL REVIEW
Judicial review is one of the most important tools of constitutionalism aimed at checking
arbitrariness in State actions. The commonly understood meaning of judicial review is the
power of constitutional courts to examine the constitutionality of laws passed by the
Legislature and the decisions taken by the Executive arm of the State.
It’s based on the concept of grundnorm i.e. the basic law. In Indian context, the Constitution in
general and its basic structure in particular can be described as grundnorm.
It gives us a touchstone to judge the validity of State actions which can be declared
unconstitutional if found to be violating provisions of the Constitution.
Judicial review means power of the courts to test the validity of legislative, executive, and
administrative actions of parliament and government and to declare those found inconsistent
with constitutional provisions and principles unconstitutional.Constitutional judicial review is
considered to have begun with the US Supreme Court’s decision in Marbury versus Madison
in 1803 when Chief Justice Marshall asserted that the US Supreme Court had the power to
invalidate a law enacted by Congress.
The US Supreme Court declared that if any such law is found to be in violation of the
constitution, then such a law would be declared by the court as ultra-vires of the constitution.
While doing so the Supreme Court referred to Article VI, Section 2 of the Constitution.

ALEXANDER HAMILTON ON JUDICIAL REVIEW

Alexander Hamilton, one of the framers of the American Constitution in 1789, wrote in the
‘Federalist’. “The interpretation of the laws is the proper and peculiar province of the courts.
A constitution is in fact and must be regarded by the judges as a fundamental law. It therefore
belongs to them to ascertain its meaning and meaning of an act passed by the legislature.” If
there was any conflict between the two, that is the constitution and the law, the judges should
prefer the constitution as it is supreme, Hamilton said.
SEPARATION OF POWERS AND JUDICIAL REVIEW
The judiciary by using this power keeps the legislative and the executive organs within the
purview of the constitution. Judicial review is an example of the functioning of separation of
powers in a modern governmental system that envisages the judiciary is one of three branches
of the government.
LEGISLATIVE SUPREMACY VS CONSTITUTIONAL SUPREMACY
For instance in United Kingdom which is a common law country, Parliamentary Supremacy
has been established and thus Judicial Review of Legislative Acts is not permitted. On the
other hand in the United States of America [the “US’], Constitutional Supremacy prevails.
Similarly in India the Doctrine of Separation of Powers has been held as the Basic Structure of
Constitution and Constitutional Supremacy established, permits the review of the legislative
acts as well.
ORIGIN OF JUDICIAL REVIEW
The doctrine of judicial review is one of the most important contributions of the US political
system to the development political theory. It was developed by Chief Justice Marshall of the
US Supreme Court in Marbury v. Madison case (1803).
Chief Justice Marshall ruled the judiciary has the power to examine the laws made by the
Congress. He declared that if any such law is found to be in violation of the constitution, then
such a law would be declared by the court as ultra-vires of the constitution.
The US Supreme Court referred to Article VI, Section 2 of the US Constitution which is
commonly described as the Supremacy Clause of the US Constitution.
It establishes that the Constitution, federal laws made pursuant to it, and treaties made under
its authority, constitute the ”Supreme Law of the Land", and thus take priority over any
conflicting state laws.
WHAT PURPOSE DOES JUDICIAL REVIEW SERVE?
Judicial review is important because laws passed need to be checked to make sure they
are constitutional.
Judicial review allows the higher courts to review the outcomes of the lower courts and It also
helps to check on the other branches of government.
It also helps to protect individual rights and to balance government powers. It’s impossible to
guarantee individual rights and civil liberties without having judicial review.
OBJECTIVES
Judicial Review as formulated by Chief Justice Marshall was:
• To uphold the principle of the supremacy of the Constitution
• To maintain federal equilibrium i.e. balance between the centre and the states
• To protect the fundamental rights of the citizens
ABSTRACT AND CONCRETE JUDICIAL REVIEW
Judicial review of legislation takes place in different procedures and forms. The most important
distinction here is between ‘abstract’ and ‘concrete’ review proceedings. Concrete judicial
review is exercised only in the context of a genuine, adversarial legal dispute which focuses on
the legal effects of the challenged legislation on the rights and interests of the parties to a case.
By contrast, abstract review is an objective procedure which allows the court to examine the
constitutionality of the legislation in every aspect. Abstract judicial review occurs when a court
gives its advice on the constitutionality of a specific law or government policy at the request
of another government agency or other entity in a political system. That advice is usually not
legally binding; it is essentially that court's answer to a question on how a constitution should
be interpreted within a specific context.
Constitutional review in the US mostly takes the form of concrete review, as the ‘cases and
controversies’ requirement in Article III Section 2 of the US Constitution seems to exclude
abstract review proceedings.
However, in recent decades the US Congress has altered the practical effect of the case-or-
controversy requirement for the US Supreme Court, facilitating judicial hearings of disputes
that might not have been recognized as actual cases in the nineteenth century.
In particular, Congress now routinely fast-tracks to the Supreme Court
constitutional challenges to statutes before they are implemented, and has authorized federal
courts to issue declaratory judgments as a remedy that likewise opens the door to constitutional
suits before the actual application of a statute.
In many European constitutional systems such as Austria, Germany, Italy and Spain), on the
other hand, abstract review is a standard procedure well established in the national constitutions
and constitutional court laws.

CENTRALISED SYSTEM OF JUDICIAL REVIEW

Centralised system of judicial review locates judicial review in one specific court, instead of
several courts. The centralized judicial review is often called the Kelsenian model of
review. Centralized judicial review is mainly found in European legal systems that are based
on Roman, or civil law. In such systems courts are often specialized and adjudicate only certain
types of legal disputes.
In centralized judicial review systems the court with the exclusive power to decide
constitutional disputes is commonly termed a constitutional court. For example, the German
Federal Constitutional Court has exclusive power over constitutional disputes. Whenever a
constitutional dispute is raised in a lower German court, that dispute will be sent up to the
Federal Constitutional Court for a decision; the lower court will not decide the dispute itself.
Centralized review generally means that the court charged with deciding constitutional
disputes will normally be a highly specialized court that devotes all its attention to
constitutional issues.

DECENTRALIZED SYSTEM OF JUDICIAL REVIEW

In decentralized systems courts exercising constitutional judicial review are generalist and
decide all types of legal disputes, including all those related to the constitution. Other European
nations have constitutional courts similar to the German Constitutional Court that exercise
centralized judicial review. The Italian Constitutional Court was created in the 1947 Italian
Constitution and began operation in 1956.
The Spanish Constitutional Tribunal was created in the post-Franco 1978 Constitution and
started operating in 1980. The French Constitutional Council was established in the 1958
Constitution of the Fifth Republic. The main distinction between decentralized and
centralized judicial review is that in decentralized systems most, if not all, courts
exercise judicial review under the watchful eye of one Supreme Court, and in centralized
systems only one specific court addresses constitutional disputes under judicial review.
JUDICIAL REVIEW IN INDIA
The Supreme Court of India is often described as the most powerful Supreme Court in the
world. Even the high courts often invite criticism for striking down legislative and executive
actions of the State.
The framework for judicial review broadly works under the Constitution. But the Supreme
Court has expanded its scope and ambit by bring in “Doctrine of Basic Structure” and
“Constitutional Morality”.
JUDICIAL REVIEW IN PRE-CONSTITUTION ERA
In India the concept of Judicial Review is founded on the Rule of Law. Even in pre-
Constitution era, courts exercised power of judicial review after the Crown took over following
the 1857 revolt.
The Government of India Act, 1858 and The Indian Council Act, 1861 imposed some
restrictions on the powers of Governor General in Council even though there was no provision
of judicial review. The court had only power to implicate.
Emperor v. Burah (1877)
It was the first case which interpreted and originated the concept of Judicial Review in India in
1877. In this case court held that aggrieved party had right to challenge the constitutionality of
a legislative Act enacted by the Governor General Council in excess of the power given to him
by the Imperial Parliament. In this case the High court and Privy Council adopted the view that
Indian courts had power of Judicial Review with some limitations.
Lord Haldane in, Secretary of State v. Moment (1913)
It was observed that “the Government of India cannot by legislation take away the right of the
Indian subject conferred by the Parliament Act i.e. the Government of India Act of 1858”.
Annie Besant v. Government of Madras (1918)
On the basis of Privy Council decisions, the Madras High Court said there was a fundamental
difference between the legislative powers of the Imperial Parliament and the authority of the
subordinate Indian Legislature, and any enactment of the Indian Legislature in excess of the
delegated powers or in violation of the limitation imposed by the imperial Parliament will be
null and void.
JUDICIAL REVIEW IN POST-CONSTITUTION ERA

• Doctrine of Eclipse
• Doctrine of Severability
• Doctrine of Prospective Over-ruling
• Judicial Review of Constitutional Amendments
• Judicial Review of Laws Enacted by Parliament and State Legislatures
• Judicial Review of Executive Actions
• Judicial Activism and Overreach
• Latest Trends in Judicial Review in India
JUDICIAL REVIEW IN THE UK
UNIQUE CONSTITUTIONAL FEATURE OF THE UK
Judicial Review establishes supremacy of the Constitution. But in UK, because
of Parliamentary Supremacy Judicial Review of Acts passed by Parliament is not permitted.
There are two types of laws in the UK – Primary and Secondary. 'Primary legislation' is the
term used to describe the main laws passed by the legislative bodies of the UK e.g. Acts of the
UK Parliament, Scottish Parliament, Welsh Parliament and Northern Ireland Assembly.
It also includes Acts passed by historical parliaments, other primary legislation for Northern
Ireland and Church of England Measures (legislation for the established church in England
passed by the General Synod of the Church of England).
'Secondary legislation' (also called 'subordinate legislation') is delegated legislation made by a
person or body under authority contained in primary legislation. Typically, powers to make
secondary legislation may be conferred on ministers, on the Crown, or on public bodies.
There are three main types of UK Statutory Instrument: 'Orders', 'Regulations',
'Rules'. However, there is no limit imposed on the descriptions that may be given to Statutory
Instruments.
A secondary legislation can be tested on the touchstone of primary legislation. However, courts
can’t overturn a primacy legislation because of parliamentary supremacy.
LIMITED NATURE OF JUDICIAL REVIEW
• Generally, the lawfulness of a decision or action made by a public body is challenged
under judicial review.
• In the UK, however, judicial review is a challenge to the way in which a decision has
been made, rather than the rights and wrongs of the conclusion reached.
• It is not really concerned with the conclusions of that process and whether those were
‘right’, as long as the right procedures have been followed.
• The court will not substitute what it thinks is the ‘correct’ decision. The public body
will be able to make the same decision again, so long as it does so in a lawful way.
WHAT’S GENERALLY CHALLENGED UNDER JUDICIAL REVIEW IN THE UK?
Judicial review is a kind of court case, in which someone challenges the lawfulness of a
government decision.
This can be the decision of a central government department, another government body such
as a regulator, a local authority, or certain other bodies when they are performing a public
function.
If the claimant wins, then the government decision can be declared unlawful, or quashed.
That will sometimes mean that the decision has to be made again. Alternatively, the court can
order the government to do or not do something.
The law which applies in cases of this kind is sometimes called “public law” or
“administrative law”.
In very important cases which concern fundamental rights or the relationships between
democratic institutions, it is sometimes called “constitutional law”.
Types of decision which may fall within the range of judicial review:
• Decisions of local authorities in the exercise of their duties to provide various welfare
benefits and special education for children in need of such education;
• Certain decisions of the immigration authorities and the Immigration and Asylum
Chamber;
• Decisions of regulatory bodies;
• Decisions relating to prisoner’s rights.
GROUNDS OF JUDICIAL REVIEW IN THE UK
• There are three main grounds of judicial review: illegality, procedural unfairness,
and irrationality.
• A decision can be overturned on the ground of illegality if the decision-maker did not
have the legal power to make that decision, for instance because Parliament gave them
less discretion than they thought.
• A decision can be overturned on the ground of procedural unfairness if the process
leading up to the decision was improper. This might, for instance, be because a
decision-maker who is supposed to be impartial was biased. Or it might be because a
decision-maker who is supposed to give someone the chance to make representations
before deciding on their case failed to do so.
• A decision can be overturned on the ground of irrationality if it is so unreasonable that
no reasonable person, acting reasonably, could have made it. This is a very high bar to
get over, and it is rare for the courts to grant judicial review on this basis.
• In addition, a decision can be overturned if a public authority has acted in a way
which is incompatible with human rights that are given effect to by the Human Rights
 Act 1998. There is one exception to this, though: if the public authority is merely doing
what parliament told it to do, then it is not acting unlawfully even if it does act
incompatibly with one of those rights.
• A judge cannot quash or declare unlawful a government decision merely on the basis
that the judge would have made a different decision, or that the decision was wrong.
REAL QUESTION: CAN UK COURTS OVERTURN A LAW?
• The courts cannot overturn or quash primary legislation passed by parliament. This is
because, in the UK constitution, parliament is sovereign.
• The courts can overturn secondary legislation, made by ministers, on the normal
grounds of judicial review.
• In addition, while the UK was in the Brexit transition period, the courts were obliged
to “disapply” legislation that is incompatible with EU law.
• If one argues that a decision was incorrect, judicial review may not be the best option.
• There are alternative remedies, such as appealing against the decision to a higher court
which apply Rule of Law test to judge the validity of such decisions.
INTERNATIONAL HUMAN RIGHTS OBLIGATIONS AND THE EU
The government’s further reform consultation paper may be thought to lack clarity in relation
to its impact on the courts’ obligations under the Human Rights Act 1998 and the European
Communities Act 1972. The consultation paper states that ‘primary legislation is
not susceptible to judicial review’.
This is correct outside the impact of those two statutes. But the European Communities Act
obliges domestic courts to disapply primary legislation which is inconsistent with EU law; and
the Human Rights Act gives the High Court and other courts:
• The duty to interpret primary legislation in a way which is compatible with rights under
the European Convention on Human Rights, so far as it is possible to do so; and
• The power to declare that a provision of primary legislation is incompatible with a
Convention right.
NUMBER OF CASES FILED; AND SUCCESS RATE
• In 2018, some 3,597 cases of judicial review were filed in the High Court. However,
most cases do not get very far, because a claimant must convince the court that they
have an “arguable” case in order to be granted permission to proceed to a full hearing.
• Only 184 cases, or about 5% of total cases commenced, reached a full oral hearing in
2018. The rest were mostly refused permission to proceed, withdrawn, or resolved
out of court.
 • Of the cases that did proceed to a full hearing, the government body under challenge
won 50% and lost 40%. The other cases were mostly withdrawn or have not yet reached
a conclusion.
JUDICIARY’S POSSIBLE RESPONSE TO LAWS CONTRARY TO RULE OF LAW
• It is conceivable that a claimant would argue that the amendment should not be applied
by the judiciary at all because it infringes the rule of law.
• A traditional understanding of Parliamentary sovereignty -- that Parliament can
legislate for what it likes and the courts will apply its will -- would put paid to this
argument.
• However, there are judicial dicta which suggest it may be unwise to assume that the
courts would necessarily apply a traditional understanding of Parliamentary
sovereignty in extreme circumstances where they considered Parliament to be eroding
the rule of law.
• There is some judicial support for the proposition that while the supremacy or
sovereignty of Parliament is still the general principle of the UK constitution, the
principle is not absolute and, because the principle was created by judges, judges could
decide not to follow it in certain circumstances.
FOX HUNTING CASE- R (JACKSON) VS. ATTORNEY GENERAL (2006)
Lord Steyn said, “In exceptional circumstances involving an attempt to abolish judicial review
or the ordinary role of the courts, the…Supreme Court may have to consider whether this is
a constitutional fundamental which even a sovereign Parliament acting at the behest of a
complaisant House of Commons cannot abolish.”
Lord Hope said, “My Lords, I start where my learned friend, Lord Steyn, has just ended. Our
constitution is dominated by the sovereignty of Parliament. But parliamentary sovereignty
is no longer, if it ever was, absolute. It is not uncontrolled in the sense referred to by Lord
Birkenhead LC in McCawley v The King [1920] AC 691, 720. It is no longer right to say that
its freedom to legislate admits of no qualification whatever. Step by step, gradually but surely,
the English principle of the absolute legislative sovereignty of Parliament which Dicey derived
from Coke and Blackstone is being qualified.”
FUTURE OF JUDICIAL REVIEW IN THE UK
• There is speculation about whether the UK, especially now it has a Supreme Court,
might have its own Marbury versus Madison.
• Whether the UK judiciary might increasingly lay the foundations for the courts, in an
extreme case, expressly not applying a statute because of its lack of compliance
with fundamental constitutional principles.
• It may be unwise for the government and Parliament to assume, simply because the
judiciary in this country have so far not purported to review primary legislation for
its compliance with constitutional principles, that this is a fixed constitutional
 arrangement. On one view, it is not and will merely endure for so long as the judiciary
restrain from doing so.

• Under a traditional understanding of Parliamentary sovereignty, legislation will

be applied by the courts and there is no reason to question this most of the
time. However, there is some judicial support for the proposition that while the
supremacy or sovereignty of Parliament is still the general principle of our constitution,
the principle is not absolute.

• Because the principle of parliamentary supremacy was created by judges, judges could
decide not to follow it in certain circumstances, such as an attempt to abolish judicial
review.

• This proposition is controversial and there is no consensus about it. However, it may be
unwise for the government and Parliament to assume, simply because the judiciary in
this country have so far not purported to review primary legislation for its compliance
with constitutional principles, that this is a fixed constitutional arrangement.

• Furthermore, the judiciary has considerable powers of statutory interpretation

which judges have used in the past to ‘disobey’ Parliament’s intention, while
maintaining that they are upholding it.

• The judiciary might find it easier to use such powers if Parliament were to maintain that
it is acting in accordance with the rule of law, because this may justify the judiciary in
interpreting legislation not in accordance with its wording, but in accordance with
judicial interpretation of what the rule of law entails.

IS JUDICIAL REVIEW BEING MODIFIED

• The Conservative manifesto said that the government would “update” administrative
law to ensure a “proper balance” between individual rights, national security and
effective government.
• The manifesto also said that the government would ensure that judicial review “is not
abused to conduct politics by another means or to create needless delays.”
• At some point in this parliament, it is therefore likely that the law in this area will
change. The government may pursue procedural changes, for instance by limiting the
class of people who can bring a case. Or, it may pursue substantive changes, changing
the grounds on which a government decision can be overturned in court.
• However, the manifesto promised to set up a commission in the first year of the
parliament to examine these issues in depth, so it is unlikely that the government will
bring forward legislation on judicial review until that commission has reported.

• Proposals to restrict judicial review have the potential to significantly alter

the constitutional balance of power. It is possible that this may be what the government
wants to do, in the sense of increasing its power over the judiciary.
 • However, such reform proposals have the potential to alter the constitutional balance in
ways in which the government and Parliament may not have anticipated.

• For example, if the judiciary were to feel compelled in extreme circumstances to resist
statutory measures which it thought prejudiced the courts’ ability to protect the rule of
law, judges may in practice not implement such measures.

• This could arguably have the opposite effect to that which the government may intend,
namely increasing the effective power of the judiciary in the constitutional balance. The
government and Parliament may then need to escalate the power required in response
in order to right the balance.

• The result could be a constitutional crisis of uncertain effect and proportions. Such a
scenario is speculative and extreme. But judicial review is at the heart of the
UK constitutional balance and the courts are likely to take any threat to their ability to
maintain the rule of law seriously. It may therefore be considered entirely appropriate
to imagine what might happen in extreme situations and exercise caution when
considering reform.

JUDICIAL/COURT STRUCTURE IN INDIA, THE UK & THE US

• One of the unique features of the Indian Constitution is that, notwithstanding the
adoption of a federal system and existence of Central Acts and State Acts in their
respective spheres, it generally provides for a single integrated system of Courts to
administer both Union & State laws.
• At the apex of the judicial system, exists the Supreme Court below which are the High
Courts in each State or group of States. Below the High Courts lies a hierarchy of
Subordinate Courts. Panchayat Courts also function in some States under various
names like Nyaya Panchayat, Panchayat Adalat, Gram Kachheri to decide civil &
criminal disputes of petty & local nature.
• Different State laws provide for different kinds of jurisdiction of courts. Each State is
divided into judicial districts presided over by a District and Sessions Judge, which is
the principal civil court of original jurisdiction and can try all offences including those
punishable with death.
• The Sessions Judge is the highest judicial authority in a district. Below him, there are
Courts of civil jurisdiction, known in different States as Munsifs, Sub-Judges, Civil
Judges and the like. Similarly, the criminal judiciary comprises the Chief Judicial
Magistrates and Judicial Magistrates of First and Second Class.
INTRODUCTION TO COURT SYSTEM IN THE UK
• The UK courts system is complicated and – in places – confusing, because it
has developed over 1,000 years rather than being designed from scratch.
 • Different types of cases are dealt with in specific courts: for example, all criminal cases
will start in the magistrates’ court, but the more serious criminal matters are committed
(or sent) to the Crown Court. Appeals from the Crown Court will go to the High Court,
and potentially to the Court of Appeal or even the Supreme Court.
• Civil cases will sometimes be dealt with by magistrates, but may well go to a county
court. Again, appeals will go to the High Court and then to the Court of Appeal –
although to different divisions of those courts.
• The tribunals system has its own structure for dealing with cases and appeals,
but decisions from different chambers of the Upper Tribunal, and the
Employment Appeals Tribunal, may also go to the Court of Appeal.
• The courts structure covers England and Wales; the tribunals system covers England,
Wales, and in some cases Northern Ireland and Scotland.
• The diagrams in the links below show the routes taken by different cases as they go
through the courts system, and which judges deal with each
INTRODUCTION TO COURT SYSTEM IN THE US
• The US federal judiciary operates separately from the executive and legislative
branches, but often works with them as the Constitution requires. Federal laws are
passed by Congress and signed by the President.
• The judicial branch decides the constitutionality of federal laws and resolves other
disputes about federal laws. However, judges depend on the government’s executive
branch to enforce court decisions.
• Courts decide what really happened and what should be done about it. They decide
whether a person committed a crime and what the punishment should be.
• They also provide a peaceful way to decide private disputes that people can’t resolve
themselves. Depending on the dispute or crime, some cases end up in the federal courts
and some end up in state courts. Learn more about the different types of federal courts.
SUPREME COURT
The Supreme Court is the highest court in the United States. Article III of the U.S. Constitution
created the Supreme Court and authorized Congress to pass laws establishing a system of lower
courts. In the federal court system’s present form, 94 district level trial courts and 13 courts of
appeals sit below the Supreme Court. Learn more about the Supreme Court.
COURTS OF APPEALS
There are 13 appellate courts that sit below the U.S. Supreme Court, and they are called the
U.S. Courts of Appeals. The 94 federal judicial districts are organized into 12 regional circuits,
each of which has a court of appeals. The appellate court’s task is to determine whether or
not the law was applied correctly in the trial court. Appeals courts consist of three judges and
do not use a jury. A court of appeals hears challenges to district court decisions from courts
located within its circuit, as well as appeals from decisions of federal administrative agencies.
In addition, the Court of Appeals for the Federal Circuit has nationwide jurisdiction to hear
appeals in specialized cases, such as those involving patent laws, and cases decided by the U.S.
Court of International Trade and the U.S. Court of Federal Claims.
BANKRUPTCY APPELLATE PANELS
Bankruptcy Appellate Panels (BAPs) are 3-judge panels authorized to hear appeals of
bankruptcy court decisions. These panels are a unit of the federal courts of appeals, and must
be established by that circuit. Five circuits have established panels: First Circuit, Sixth
Circuit, Eighth Circuit, Ninth Circuit, and Tenth Circuit.
Federal courts have exclusive jurisdiction over bankruptcy cases involving personal, business,
or farm bankruptcy. This means a bankruptcy case cannot be filed in state court. Through the
bankruptcy process, individuals or businesses that can no longer pay their creditors may either
seek a court-supervised liquidation of their assets, or they may reorganize their financial affairs
and work out a plan to pay their debts.

DISTRICT COURTS
• The nation’s 94 district or trial courts are called U.S. District Courts. District courts
resolve disputes by determining the facts and applying legal principles to decide who
is right.
• Trial courts include the district judge who tries the case and a jury that decides the case.
Magistrate judges assist district judges in preparing cases for trial. They may also
conduct trials in misdemeanour cases.
• There is at least one district court in each state, and the District of Columbia. Each
district includes a U.S. bankruptcy court as a unit of the district court. Four territories
of the United States have U.S. district courts that hear federal cases, including
bankruptcy cases: Puerto Rico, the Virgin Islands, Guam, and the Northern Mariana
Islands.
• There are also two special trial courts. The Court of International Trade addresses cases
involving international trade and customs laws. The U.S. Court of Federal Claims deals
with most claims for money damages against the U.S. government.
ARTICLE I COURTS
Congress created several Article I, or legislative courts that do not have full judicial power.
Judicial power is the authority to be the final decider in all questions of Constitutional law, all
questions of federal law and to hear claims at the core of habeas corpus issues. Article I Courts
are:

• U.S. Court of Appeals for Veterans Claims

• U.S. Court of Appeals for the Armed Forces
• U.S. Tax Court
PARLIAMENTARY FORM OF DEMOCRACY
Parliamentary system is a democratic form of government in which the party or a group of
parties or a political alliance having the highest number of seats in the Lower House forms the
government. The leader of the winning party/alliance becomes the Prime Minister and gets to
form his/her Cabinet/Council of Ministers. The Executive functions are exercised by the
Council of Ministers headed by the Prime Minister. The parties having lesser number of seats
in the Lower House serve in the opposition and question the government on various issues on
a daily basis. The modern concept of parliamentary system of government emerged in
the Britain between 1707-1800. Initially, it was only a parliamentary system of government in
Britain which became a democratic system at a later stage, particularly after 1918 when general
male suffrage was granted. Women got equal right of voting only in 1928.
IMPORTANT FEATURES
Nominal Head of State: The head of the state holds a ceremonial position and is the
nominal executive.
Executive is a Part of Legislature: There is no strict separation of powers and the Executive
is a part of the Legislature. In India, only an MP can become the PM or a minister.
However, Article 75(5) provides that a person can be appointed as a minister for a period of
not more than six consecutive months if he/she is not an MP.
Govt can fall anytime: PM may be removed whenever the government loses confidence of
the lower House.
Collective Responsibility: The council of ministers are collectively responsible to
the parliament. The lower house of parliament has an ability to dismiss a government by
getting the no confidence motion passed in the house. In India, the government survives till the
time it enjoys support of the majority of members in the Lok Sabha.
PM as the Centre of Power: In India, the Prime Minister is the real executive. He is the
head of the government, the council of ministers and the ruling government. Thus, he has
to play a significant and important role in the working of the government.
Independent Civil Service: The civil servants advise and implement decisions of
the government. Civil servants hold permanent appointments based on merit-based
selection process. They ensure continuity of employment even when the government changes.
Bicameral Legislature: Most of the countries following parliamentary system have
bicameral legislature.
ADVANTAGES
Accommodates Diversity: The parliamentary form of government provides opportunity to
various ethnically, racially, linguistically and ideologically diverse groups to be a part of law
making and policy making.
Better Co-Ordination Between Legislature and Executive: The executive is a part of the
legislature. As the government enjoys the support of majority of members in the Lower House,
the tendency of disputes and conflicts decreases.
Prevents Authoritarianism: Unlike in the presidential system, in a parliamentary system the
tendency of authoritarianism decreases as the power is vested in the council of minister rather
than a single individual. Government can be dislodged through no-confidence motion.
Responsible Government: Unlike in the presidential system, Parliament can check the
activities of the Executive as the latter is responsible to the former. The members of the
parliament can ask question, move resolutions, and discuss matters of public importance to
pressurize the government.
Availability of Alternate Government: The Lower House can pass a no-confidence motion.
In such a situation, the head of the state invites the leader of the opposition party to form the
government. In the UK, the opposition forms a shadow cabinet for the cabinet of the
government, so that they can become ready for the role.
PARLIAMENTARY FORM OF GOVERNMENT IN THE UK & FIXED-TERM PARLIAMENTS ACT
2011
WHAT’S FIXED TERM PARLIAMENT ACT, 2011
The Fixed-term Parliaments Act 2011 creates a five year period between general elections.
Early elections may only be held in specified circumstances. It introduced fixed-term elections
in the UK for the first time.
The Act specifies that early elections can be held only:
• if a motion for an early general election is agreed either by at least two-thirds of the
whole House or without division; or
• if a motion of no confidence is passed and no alternative government is confirmed by
the Commons within 14 days.
BACKGROUND
Old System of Royal Prerogative
• Before the passage of the FTPA Parliament could be dissolved by Royal Proclamation
by virtue of the Royal Prerogative. This originally meant that the English, and later
British, monarch decided when to dissolve Parliament. Over time the monarch
increasingly acted only on the advice of the Prime Minister and by the 19th century
Prime Ministers had a great deal of de facto control over the timing of general elections.
• The Septennial Act, 1715 provided that a Parliament expired seven years after it had
been summoned. That period was reduced to five years by the Parliament Act, 1911.
Why was the Act passed?
 • The Liberal Democratic Party manifesto for 2010 election included a commitment
to introduce four-year fixed-term Parliaments. The 2010 election resulted in a
hung parliament. The Conservative Party got 306 seats and the Liberal Democrats 57.
The two parties had a coalition agreement to form a government, and a commitment to
legislate for fixed-term Parliaments was included in the deal.
• The 2010 Coalition agreement included a commitment to “establish five-year fixed-
term Parliaments”. A fixed-term Parliament offered the Coalition Government a certain
amount of stability as it created an expectation that Parliament would run for a full term.
• It was also argued that the legislation removed “the right of a Prime Minister to seek
the Dissolution of Parliament for pure political gain.”
What does the Act do?
The FTPA sets a five-yearly interval between general elections. Scheduled elections take place
on the first Thursday in May.
Early general elections can take place if:
At least two-thirds of all MPs vote for an early general election; or
After a vote of no confidence, the existing government or an alternative government does not
secure the confidence of the House of Commons within 14 days.
Previously, Parliament was dissolved by Royal prerogative. Instead, the Act put the dissolution
of Parliament on a statutory footing. Under the Act, Parliament is dissolved 25 working days
before election day. Previously the Prime Minister could request a dissolution, and the
consequences of losing a confidence vote were determined entirely by convention.
What effect has the Act had?
The 2010 Parliament in which the Act was passed continued to its full term. But the two
subsequent Parliaments were brought to an end earlier than expected (see chart showing
duration and expected duration of recent Parliaments).
The 2015 Parliament ended in April 2017, after the House of Commons agreed to a motion for
an early general election by 522 votes to 13.
The 2017 Parliament ended in November 2019, after the Early Parliamentary General Election
Act 2019 was passed. The next election is scheduled to take place on 2 May 2024, as if the
election in December 2019 had been set by the FTPA.
Before this happened, the Government failed to secure the two-thirds majority needed for an
early general election on three occasions (4 September, 9 September and 28 October 2019).
Has the Act affected existing confidence conventions?
Before the Act, if a government lost the confidence of the House of Commons, the Prime
Minister could resign or request a dissolution, leading to a general election.
The FTPA sets out a specific procedure for demonstrating no confidence. Following a motion
of no confidence, a 14-day period begins. In this time, a new government may be appointed or
the existing government may regain confidence. If neither happens, a general election is
triggered. Parliament is then automatically dissolved 25 days before the general election.
The Teresa May Government argued that non-statutory no confidence motions are no longer
binding. Parliament would need to consider whether to replace the no confidence procedure in
the FTPA with a new statutory procedure. One option would be to replace the FTPA’s
two triggers for an early general election with:
• A procedure to force a change of government without triggering an election; and
• A single procedure for triggering an early election.
Has the power of the Prime Minister been reduced?
The House of Commons now determines whether early general elections take place. The power
to request dissolution is no longer the Prime Minister’s. However, the Prime Minister can still
initiate and press for an early election under the FTPA and, if one is triggered, set the date.
Concern has also been expressed that a Prime Minister could refuse to resign during the 14-
day period after a vote of no confidence. This would lead to a general election, rather than a
change of government without an election.
Current Political Discourse around FTPA
• Both the Conservative and Labour Parties have promised to repeal the Fixed-term
Parliaments Act 2011 (FTPA), which determines when general elections usually
take place.
• “We will get rid of the Fixed Term Parliaments Act – it has led to paralysis at a time
the country needed decisive action” – Conservative Party Manifesto 2019
• “A Labour government will repeal the Fixed-term Parliaments Act 2011, which has
stifled democracy and propped up weak governments” – Labour Party
Manifesto, 2019.
Why does Conservative Party want to abolish it?
• The law frustrated three attempts by Boris Johnson to call an election on his own terms
as it requires two-thirds of MPs to vote for a poll.
• The Tory manifesto pledged to “get rid” of the Act as it has “led to paralysis at a time
the country needed decisive action”. Jeremy Corbyn’s Labour manifesto also said it
would abolish the law as it “stifled democracy and propped up weak governments”.
• It was thought to be a one-off fix to ensure David Cameron’s coalition did not collapse.
If it’s repealed, Boris Johnson and his successor PMs will have the power to call an
election whenever he chooses.
• The Conservative Party, currently in government, is committed to repealing the FTPA.
 • A Private Member Bill to repeal and replace the FTPA, substantially restoring the
position as it was before the FTPA was passed, was introduced in the House of Lords
by a Conservative peer on 3 February 2020.
Can the prerogative of dissolution be restored?
• It is generally accepted that when an Act abolishes a royal prerogative, it cannot be
restored by simple repeal of the Act. If the prerogative has only been put into abeyance,
on the other hand, it can be restored.
• Experts who gave evidence to the Lords Constitution Committee disagreed about
whether the royal prerogative of dissolution could be restored if the FTPA was
abolished.
• Unless this question can be resolved, it may be safer to replace the FTPA with new
statutory provisions on dissolution, rather than attempt to restore the prerogative power
of dissolution.
PRESIDENTIAL FORM OF DEMOCRACY
INTRODUCTION
A Presidential system is a system of government where a Head of Government is is also Head
of State. Unlike the Prime Minister in the Parliamentary form of government, the President is
directly elected by popular mandate and he/she leads the Executive. The President and his/her
ministers are not dependent upon Parliament for their survival. The President cannot be
removed by a vote of no confidence in Parliament and he/she can only be impeached. The
President is not accountable to the Legislature and is free to choose his cabinet from outside.
IMPORTANT FEATURES
Separation of Powers: First three Articles of the US Constitution are about separation of
powers. Articles 1, 2 and 3 assign Legislative, Executive and Judicial powers to the Congress,
the President and the US Supreme Court. This ensures efficiency of administration as there is
no confusion about their powers and authorities which are clearly demarcated.
Political Stability: Since the President is not accountable to Parliament, there is greater
political stability in the Presidential form of government. Also, it’s very difficult to remove the
President as was evident in the recent failed attempt to impeach the US President Donald
Trump. On December 18, 2019, the US House of Representatives approved his impeachment
on charges of (a) abuse of power and (b) obstruction of Congress. But, the Senate acquitted
him on January 16, 2020.
Power of Veto: The US President has power to veto a law passed by the US Congress. The
President has 10 days, excluding Sundays, to sign a bill passed by Congress. A regular
veto occurs when the President returns the legislation to the House in which it originated, with
a message explaining the reasons for his decision to veto the law. However, this veto can be
overridden by a two-thirds vote in both the Houses. A pocket veto occurs when congress
adjourns during the 10 day period. The President cannot return the bill to Congress. His
decision not to sign the law is a pocket veto and the Congress doesn’t have the opportunity to
undo it.
Power to Grant Pardon: The President has the power to pardon, commute or remit
sentence awarded to a criminal by the courts.
Expert Government: Unlike the Parliamentary form of government, the President is not
bound to select his ministers from members of the Legislature. He is free to choose experts
from various fields to be part of his cabinet.
Least Influenced by Party Politics: Since, the President is not dependent upon Parliament for
his survival, he is least influenced by party politics and he can take decision keeping in mind
the long term national interest.
DISADVANTAGES
Less responsible Executive: There is too much concentration of powers in the hands of the
President. Since the Legislature has no control over the Executive and the President can turn
authoritarian.
Deadlocks between Executive and Legislature: Because of strict separation of powers, there
is frequent tussles between both arms of the government, especially of the Legislature is not
dominated by the President’s political party. It often leads to shut down of the US federal
government. This happened between December 22, 2018 and January 25, 2019 for 35
days which was the longest shut down of federal government in the US history.
Rigid government: Presidential systems are often accused of being inflexible.
Spoils system: The system gives the President sweeping powers of patronage. He can choose
executives as per his sweet will. This gives rise to the spoils system where people close to the
President get prominent roles in the government. President Trump’s daughter Ivanka Trump is
serving as an advisor to her father since 2017. Ivanka’s husband, Jared Kushner is also a
senior advisor to his father-in-law.
SEPARATION OF POWERS
Separation of powers one of the most important tools of constitutionalism. It prevents too much
concentration of powers in one organ of the State and thereby attempts to avoid a
situation where one person of a group of persons can become a despot or despots.
It’s the most important feature of any modern Constitution. All modern constitutions provide
for division of legislative, executive and judicial functions between separate and independent
bodies.
If a one person or group has a large amount of power, there is higher possibility of abuse of
power thereby restricting space for individual and group freedoms.
In practical terms it means that the same persons should not form part of more than one of the
three organs of the State. Separation of powers limits the possibility of arbitrary use of powers
by government.
ORIGIN OF SEPARATION OF POWERS
The doctrine of separation of powers may be traced to ancient and medieval theories of mixed
government, according to which government should involve monarchic, aristocratic and
democratic elements of society.
Aristotle said: “There are three elements in each constitution …first, the deliberative, which
discusses everything of common importance; second the officials; and third, the judicial
element.”
This highlights the three elementary functions that are required for the organisation of any state.
Nowadays, they are defined as the legislature, the executive and the judiciary, and are carried
out by Government.
Ancient Rome had a system of mixed Constitution under three main divisions: Monarchy
represented by the consul; Aristocracy represented by the Senate; and Democracy represented
by the people).
English philosopher John Locke had argued that legislative power should be divided between
king and Parliament. But he could not think about having an independent judiciary.
It’s French philosopher Montesquieu who is credited with the doctrine of separation of powers
in its modern sense.
In his famous work The Spirit of Laws (1748), Montesquieu argued that there should be
government of law rather than depending on whims of the official.
“When the legislative and executive powers are united in the same person, or in the same body
of magistrates, there can be no liberty... there is no liberty if the powers of judging is not
separated from the legislative and executive... there would be an end to everything, if the same
man or the same body... were to exercise those three powers,” Montesquieu said.
He also emphasised that there should be independence of judiciary free from other organs of
the State. If the judiciary is not independent the State can lapse into a tyrannical form a
government because of too much concentration of powers in a single hand.
INFLUENCE OF MONTESQUIEU ON MODERN CONSTITUTIONS
• The constituent Assembly of France in 1789 noted that “There would be nothing like a
Constitution in the country where the doctrine of separation of powers is not accepted.”
• His work influenced the framing of the US Constitution where separation of powers is
much more visible. That document further precluded the concentration of
political power by providing staggered terms of office in the key governmental bodies.
• All modern Constitutions, including that of India, have been influenced by
Montesquieu’s doctrine of separation of powers which serves as a bedrock for drafting
of any constitution.
SEPARATION OF POWERS IN THE US
 • The doctrine of separation of powers forms the foundation on which the whole structure
of the US constitution is based.
• The US Constitution establishes three separate but equal branches of government: the
legislative branch (makes the law), the executive branch (enforces the law), and the
judicial branch (interprets the law).
• The US Constitution makers structured the government in this way to prevent one
branch of government from becoming too powerful, and to create a system of checks
and balances.
• Under this system of checks and balances, there is an interplay of power between the
three branches.
• Each branch has its own authority, but also must depend on the authority of the other
branches for the government to function.
SEPARATION OF POWERS NOT ALWAYS CLEAR
While the American government model is based on separation of powers between the judicial,
executive, and legislative branches, the boundaries between these branches are not always
clear.
The framers of the Constitution sought to protect individual liberty through shared government
power.
Three assumptions underline the necessity to separate powers:
(1) Government is run by humans, therefore it reflects human nature;
(2) It is human nature for people to act ambitiously in their self-interests; and
(3) Concentrating governmental authority in one such self-interested entity’s control
will provide governmental leaders with the power and ability to oppress their
constituents.
James Madison, an important contributor to the Constitution, defended these beliefs in The
Federalist Papers by writing, "The accumulation of all powers, legislative, executive, and
judicial, in the same hands ... may justly be pronounced the very definition of tyranny."
Two-Pronged Approach
The Framers believed that counteracting these tendencies required the creation of a type of
government where “Ambition must be made to counteract ambition.” Drawing upon
their experiences with then-existing state governments, they devised a two-prong approach
to American government:
First, the doctrine of the separation of powers gives each of the three branches of government
independence from the others, gives each branch the sole power to perform specific functions
and prohibits each from performing some of the other branches’ functions.
Second, the doctrine of checks and balances imposes a series of “counterweight[s]”
that interlock each branch, preventing any one branch of from imposing its will on the other
or the country. The doctrine of checks and balances “provides each branch with weapons
to fight off encroachment by the other two branches.”
The Framers developed rules for how a government based on these two concepts would
be constituted in what became the United States Constitution.
However, the expressions “separation of powers” or “checks and balances” are
nowhere written in the Constitution. Instead, these concepts are implied from the system
created by the Constitution. Addressing the matter, Supreme Court Justice Robert Jackson
wrote: “The doctrine of separation of powers… arises, not from … any … single provision of
the Constitution, but because ‘behind the words of the constitutional provisions are
postulates which limit and control.”
In addition to the separation of powers in the federal government (a “horizontal” separation of
powers), there is also a “vertical” separation between the federal government and
state governments, also assigning each its own sphere of authority. This “vertical” separation
is also known as “federalism.”
ROLES OF EACH BRANCH
• The legislative branch’s function is to create the laws. The executive branch is
given authority to implement and enforce the legislation that is passed by the
legislative branch. Finally, the judicial branch interprets the meaning of the laws and
decides cases involving the creation and enforcement of these laws and of the
Constitution itself.
• In practice, each of the branches has used the authority given it by the Constitution
to expand its powers. For example, the Constitution gives Congress authority to
regulate interstate commerce, and Congress has used this authority very broadly to
regulate industries such as aviation, securities and commerce.
• Moreover, its power to tax and spend allows the legislative branch to discourage certain
behaviours by increasing the costs of these behaviours. The Constitution provides the
President with the power to negotiate treaties and appoint ambassadors, but Presidents
have used that power to conduct foreign relations and negotiate agreements that are not
expressly anticipated by the Constitution.
• The judicial branch has used its power of “judicial review” to become the last word on
the abilities of the other branches to carry out their powers.
• These are not necessarily “bad” things, either. The framers anticipated that
branches would compete for power, which is why the intricacies of the checks and
balances system that they developed is so important and has proven so useful.
CHECKS AND BALANCES
The checks and balances system empowers one branch of government to oversee the work of
another branch in a harmonious manner. The framers recognized that if a single branch of
government was left unchecked, it could amass enough strength to overpower the other two
branches. To avoid any problems, the Framers tempered the separation of powers with a series
of checks and balances.
The system of checks and balances has textual support in the Constitution. Under Article I of
the Constitution, the legislative branch can oversee the executive branch’s actions in the
following ways:
Override a Presidential veto by vote of two-thirds of both the Houses;
Declare war;
Approve certain Presidential appointments;
Approve treaties made by the President;
Approve the funds needed to run the Executive branch;
Remove the President from office through impeachment

In turn, the executive branch has oversight over the legislative branch in many ways. The
President:
• Can veto legislation
• Can require Congress to meet in what is called a “Special Session”;
• Through the Vice President, preside over the Senate and have his vote serve as a tie-
breaker
The judicial branch’s checks on the President and Congress lie in its power of
judicial review. As advocated by Alexander Hamilton in the Federalist Papers, the Supreme
Court’s status as the final arbiter of the Constitution implies its ability to nullify the laws
or actions of the other branches. In fact, it took the Supreme Court only until 1803 to
strike down its first congressional act as unconstitutional. It should be noted as well that
lower courts also have the power of judicial review, though their decisions can always
be appealed to higher courts until the case gets to the United States Supreme Court.
Both other branches have significant checks on the judicial branch in that the
President appoints federal judges with consent of the Senate. Additionally, Congress can
amend rules or pass new ones to replace laws that have been struck down.
PRACTICAL EFFECTS
• The growth of the United States’ government has created separation of powers
issues that go beyond what the framers could have envisioned. The need for practicality
has made certain encroachments on separated powers accepted practice. The
following examples demonstrate how these “shared” powers operate in the current
political context.
• The first example is administrative regulations, which the executive branch can issue.
It is impossible for Congress to foresee all the ways that the laws it writes and passes
will be implemented. Administrative regulations govern how the executive branch will
 implement a law. Examples include treasury regulations promulgated by the Internal
Revenue Service and aviation security rules written by the Transportation Safety
Administration or Federal Aviation Administration. Unless contradicted by other
federal law, these regulations have the same force as laws passed by Congress.
• Another example is administrative adjudications. Many executive agencies retain
the power to make judicial decisions about violations of agency regulations.
The decisions are made by Administrative Law Judges, appointed and employed by
the agency and have the same binding effect as decisions made by federal judges. In
this way, executive agencies serve judicial functions.

• A third example concerns war powers. According to Section 8 of Article I of

the Constitution, power to declare war is reserved to Congress. Despite this, presidents
have committed troops to combat without Congressional approval.

• This does not mean, however, that a branch can encroach on another with
impunity. In Clinton v. City of New York, for example, the Supreme Court overturned
the Line Item Veto Act, which allowed the President to veto part of a bill without
vetoing the whole bill. The Court found that it was an unlawful encroachment because
it contravened the constitutional requirement that bills be approved or vetoed in their
entirety.

• Moreover, in INS v. Chadha, the Supreme Court invalidated legislation that allowed
either house of Congress, acting alone, to overturn certain decisions by the Attorney
General regarding deportations. The Court held that the bill improperly encroached on
the Constitution’s requirement that legislation be passed by both houses.

• In another case, Bowsher v. Synar, the Court overturned a law that allowed Congress
to remove the U.S. Comptroller General for “inefficiency, 'neglect of duty,'
or 'malfeasance.'” The Court found the law violated the constitutional requirement
that executive officers be removed through impeachment process.
• James Madison wrote, “A dependence on the people is, no doubt, the primary control
on the government; but experience has taught mankind the necessity of
auxiliary precautions.”

• Doctrines of separation of powers and checks and balances are in place to serve as
these precautions. These flexible approaches have ensured the United States’ stability
as a functioning democracy.

SEPARATION OF POWERS IN THE UK

• The UK is one of the most peculiar states in the world. It is one of those few states
which do not have a written constitution.
 • Due to the absence of a formal written constitution, there has been no formal
separation of powers in the UK.
• Therefore, the UK does not have a classic separation of powers of the kind that exists
in the US.
• Historically, the apparent merger of the executive and the legislature, with a
powerful Prime Minister drawn from the largest party in Parliament and usually with a
safe majority, led theorists to contend that the separation of powers is not applicable to
the UK.
• However, in recent years it does seem to have been adopted as a necessary part of
the UK constitution.
SEPARATION OF POWERS AND JUDICIARY IN THE UK BEFORE CONSTITUTIONAL REFORM
ACT, 2005
• The office of Lord Chancellor had been both a ministerial and a judicial office. In the
main, ministerial powers were exercisable by the Lord Chancellor that did not relate to
the judiciary or the administration of the courts were not affected by the Act.
• However, some of the Lord Chancellor’s functions had been exercised in his capacity
as ‘Head of the Judiciary’, although this has not historically been a formal or statutory
title.
• Other functions, statutory and otherwise, were exercisable by the Lord Chancellor in
relation to the judiciary or to the Lord Chancellor’s judicial role.
• The Act ended the judicial role of the Lord Chancellor and precluded the office-holder
from holding judicial office. It also modified the Lord Chancellor’s judiciary-related
functions in line with the Concordat.
CHANGE IN ROLE OF LORD CHANCELLOR’S ROLE AFTER CONSTITUTIONAL REFORM ACT,
2005
• The Lord Chancellor was usually a member of the Cabinet and had a responsibility for
upholding the rule of law and protecting judicial independence.
• The Constitutional Reform Act 2005 removed the judicial functions of the
Lord Chancellor, and his former role as head of the judiciary is now filled by the
Lord Chief Justice (head of the judiciary in England and Wales).
• The role of Lord Chancellor is now combined with that of the Secretary of State
for Justice. In addition, the Lord Chancellor no longer sits as Speaker of the House
of Lords, which now elects its own Speaker. This was all intended to create a
more formal separation of powers.
• The UK Supreme Court has replaced the appellate committee of the House of Lords as
the highest Court of appeal in the UK.
 • During the passage of the legislation, Lord Falconer, the Lord Chancellor at the time of
the legislation that established the UKSC, told the House that “the time has come for
the UK’s highest court to move out from under the shadow of the legislature ...the key
objective is to achieve a full and transparent separation between the judiciary and the
legislature … the Supreme Court will be administered as a distinct constitutional entity.
Special arrangements will apply to its budgetary and financial arrangements in order to
reflect its unique status.”
HOW DID JUDICIAL APPOINTMENTS SYSTEM CHANGE AFTER CONSTITUTIONAL REFORM
ACT?
• Before the Constitutional Reform Act 2005, judicial appointments were made on
the recommendation of the Lord Chancellor, who was a Government Minister.
• The legislation established an independent Judicial Appointments Commission /Boards
for England and Wales, for Northern Ireland and for Scotland. In England and Wales
judges are represented on the Commissions, but do not hold a majority, and the
Commissions have to have a lay Chair.
• The Commissions recommends candidates to the Lord Chancellor, who has a
very limited power of veto. The Act gives the Commissions a specific statutory duty
to “encourage diversity in the range of persons available for selection
for appointments”. In England and Wales, the Commission recommends candidates
to the Lord Chancellor, but that is not the case in either Scotland or Northern Ireland.
• In Scotland it is a Judicial Appointments Board and not a Commission. In
Northern Ireland the Commission does not have a lay chair but the Lord Chief Justice
chairs.
• Separate procedures apply to the appointment of Supreme Court judges, which
take account of the fact that the Court has a UK-wide remit. When a new UKSC
Justice needs to be appointed, an ad hoc selection commission is set up and presided
over by the President of the UKSC. The Lord Chancellor has limited rights to reject
or invite a reconsideration, but once he is content the recommendation passes to
the Prime Minister, who then passes the recommendation to The Queen.
HOW DOES UK SC FULFIL SEPARATION OF POWERS?
• Although new Justices are given a courtesy title of Lord or Lady, they are not influenced
by politics, cannot sit in the House of Lords and do not have a peerage, maintaining
the separation of powers. They will thereby not be easily influenced by politics or be
involved in the creation of legislation. Nor will there be any perception thereof.
• This also applies to former Law Lords who became the inaugural Supreme Court
Justices’, they can only return to the House of Lords once they have retired from their
judicial position.
• The new court has much greater accessibility with its own building open to the
public transparent court procedures and educational programme. This allows for a
 greater understanding of the work of the court and has boosted the profile of the highest
level of the judiciary.
• When it remained in the House of Lords, the judiciary there was dominated by
the legislature and members of the public found it very difficult to access and knew
little about it. This might have created the perception of an unfair balance between the
branches of state.
• The court is completely transparent in its work. The design of the building reflects this,
for example with vast glass panels leading into the entrance and to the modern
courtroom two. The UKSC has its own YouTube channel showing past judgments and
screens its main UKSC cases live on the Supreme Court live website.
• This increases the profile of the court and allows for the public to see ‘justice in action’,
as well as enabling the public to keep check that the judiciary remains open and fair.

SYSTEM OF AFFIRMATIVE ACTION IN INDIA AND THE US

• There is no nation or society in the world – ancient or modern, rich or poor, former
colonies or their colonisers – where there is no social, political and economic disparity.
• But degrees vary. Extreme disparities demand special action to bridge the gap, else it
will lead to violence, socio-political instability and threaten the constitutional order.
• Many countries have adopted affirmative action in various forms to deal with the
problem and to uplift the sections of their societies that significantly lag behind.
• Affirmative action is an area where Sociology meets History, Politics, Economics, Law
and Constitution. It’s a complex area which requires a much broader approach. A
hyper-legal approach may not help beyond a particular point.
• It tests the collective will, compassion and foresight of a society and determines the
future direction it’s headed to.
HISTORICAL WRONGS AGAINST CERTAIN SECTIONS OF SOCIETY
• Affirmative action in India is largely based on the understanding that
government policies ought to compensate for the historical wrongs of a system that
generated systematic disparity between caste groups and excluded certain castes from
the benefits of the socio-economic order.
• In South Africa, similar arguments have been made about the injustice done to Blacks
during Apartheid.
• In Australia, scholars talk about the “stolen generation” -- the children of
Australian Aboriginal and Torres Strait Islander descent who were removed from their
families by the Australian federal and state government agencies and church missions,
under acts of their respective parliaments between 1910 and the 1970s.
 • In the US, racial discrimination was of the extreme form. Since the colonial era, Blacks
have been discriminated against and the discrimination involved laws, government
practices and actions.
• Whilst most White Americans had rights and privileges in education,
immigration, voting rights, citizenship, land and other fields, Blacks were denied the
same.
• Slavery was legal in the US until 1865. Passed by Congress on January 31, 1865,
and ratified on December 6, 1865, the 13th amendment abolished slavery in the US.
POLITICAL RESERVATIONS IN INDIA
• Part XVI deals with reservation of SC and ST in Central and State legislatures.
• Article 330 and 332 provide for specific representation through reservation of seats for
SCs and STs in the Parliament and in the State Legislative Assemblies respectively.
• Article 243D provides for reservation of seats for SCs and STs in every Panchayat.
• Article 243T provides for reservation of seats for SCs and STs in every Municipality.
QUOTAS IN GOVERNMENT JOBS IN INDIA
• Article 15(4) and 16(4) of the Constitution enabled the State and Central Governments
to reserve seats in government services for the members of the Backward Classes of
citizens.
• Article 16(6) enables the State to provide reservation in jobs to those belonging to
Economically Weaker Sections of society.
• The Constitution was amended by the Constitution (77th Amendment) Act, 1995 and
a new clause (4A) was inserted in Article 16 to enable the government to provide for
reservation in promotion.
• There have been four Constitutional Amendments on Reservation in Promotions.
QUOTAS IN HIGHER EDUCATION IN INDIA
• Article 15 (3) enables the State to make special provision for women and children.
• Article 15 (4) enables the State to make special provision for the advancement of any
socially and educationally backward classes of citizens or for the Scheduled Castes and
the Scheduled Tribes.
• Article 15 (5) enables the State to make special provision, by law, for the advancement
of any socially and educationally backward classes of citizens or for the Scheduled
Castes or the Scheduled Tribes in so far as such special provisions relate to their
admission to educational institutions including private educational institutions, whether
aided or unaided by the State, other than the minority educational institutions referred
to in clause (1) of article 30.
 • Article 15(6) provides for reservations to economically weaker sections for admission
to educational institutions including private educational institutions, whether aided or
unaided by the State, other than the minority educational institutions referred to in
clause (1) of Article 30.
KEY DIFFERENCES BETWEEN AFFIRMATIVE ACTION SYSTEMS IN INDIA AND THE US
• Both India and the US take affirmative action to reduce disparities and
inequalities between various social and racial groups.
• Affirmative action policies have a much longer history in India compared to the US.
• In India, affirmative actions are constitutionally guaranteed.
• The affirmative action system in India provides for quotas in government jobs
and educational institutions.
• Reservation is also there in Parliament, State Assemblies and local bodies.
• In the US, the affirmative program is barely five-decade-old.
• It’s not constitutionally guaranteed.
• The US affirmative action prefers not to compromise with merit and quotas are ruled
out
BACKGROUND OF AFFIRMATIVE ACTION IN THE US
• The US had one of the most extreme forms of racial discrimination system. Since the
colonial era, Blacks have been discriminated against and the discrimination involved
laws, government practices and actions.
• Whilst most White Americans had rights and privileges in education, immigration,
voting rights, citizenship, land and other fields, Blacks were denied the same.
• Slavery was legal in the US until 1865. Passed by Congress on January 31, 1865, and
ratified on December 6, 1865, the 13th amendment abolished slavery in the US.
• Even after abolition of slavery, discrimination against Blacks continued. There were
separate schools for Blacks who could not go to the ones meant for White children.
• It was only after the US Supreme Court’s verdict in Brown versus Board of Education
(1954) that this system of racial segregation in schools ended.
AFFIRMATIVE ACTION SYSTEM IN THE US
There is no constitutionally guaranteed affirmative action system in the US which prefers not
to compromise on merit and rules out quota.
The US has a set of procedures designed to:eliminate unlawful discrimination against
applicants from disadvantaged groups;remedy the results of such prior discrimination; and
prevent such discrimination in the future.
 • It can be a case of admission to an educational program or professional employment.
• In modern American jurisprudence, it typically imposes remedies against
discrimination on the basis of, at the very least, race, creed, colour, and national origin.
AFFIRMATIVE ACTION IN EMPLOYMENT IN THE US
• Affirmative action began in the US with President John F Kennedy's Executive
Order 10925 (1961). It read:
• "The contractor will take affirmative action to ensure that applicants are employed, and
that employees are treated during employment, without regard to their
race, creed, color, or national origin."
• Executive Order 11246, signed by President Lyndon B. Johnson on September
24, 1965, established requirements for non-discriminatory practices in hiring
and employment on the part of US government contractors.
• It requires affirmative action and prohibits federal contractors from discriminating on
the basis of race, colour, religion, sex, sexual orientation, gender identity, or national
origin.
• Since 1965, government contractors have to document their affirmative
action programs through compliance reports, to contain "such information as to
the practices, policies, programs, and employment policies, programs, and
employment statistics of the contractor and each subcontractor . . . "
• Executive Order 11246 has been amended over the years to strengthen it and
it remains a major safeguard, protecting the rights of workers employed by
federal contractors—approximately one–fifth of the entire US labour force —to remain
free from discrimination on the basis of their race, colour, religion, sex,
sexual orientation.
• Enforcement is conducted by the US department of Labor Office of Federal Contract
Compliance Programs.
LEGISLATIVE MEASURES ON AFFIRMATIVE ACTION IN THE US
• Employers who contract with the government or who otherwise receive federal funds
are required to document their affirmative action practices and metrics.
• Affirmative action is also a remedy, under the Civil Rights Act, 1964, where a court
finds that an employer has intentionally engaged in discriminatory practices.
• The Equal Employment Opportunity Commission, created by Title VII of the Civil
Rights Act of 1964, enforces the following employment anti-discrimination laws:
• Equal Pay Act of 1963: Signed in to law by President John F Kennedy on
June 10, 1963, it was one of the first federal anti-
discrimination laws that addressed wage differences based on gender.
 • The Act made it illegal to pay men and women working in the same place different
salaries for similar work.
• It prohibited discrimination on account of sex in the payment of wages by employers
engaged in commerce or in the production of goods for commerce.

• Title VII of the Civil Rights Act of 1964: Considered to be a landmark civil rights and
labour law in the US, it outlaws discrimination based on race, color, religion, sex,
national origin, and later sexual orientation.
• Age Discrimination in Employment Act of 1967: It prohibits
employment discrimination against anyone at least 40 years of age in the United States.
In 1967, the bill was signed into law by President Lyndon B. Johnson
• Rehabilitation Act of 1973, Sections 501 and 505: Section 501 prohibits employment
discrimination against individuals with disabilities in the federal sector. Section
505 contains provisions governing remedies and attorney's fees under Section 501.
• Titles I and V of the Americans with Disabilities Act of 1990: These apply to employers
with 25 or more employees on July 26, 1992, prohibits employment discrimination
against qualified individuals with disabilities.
• Civil Rights Act of 1991: It was passed in response to United States Supreme Court
decisions that limited the rights of employees who had sued their employers for
discrimination. ... President Bush had used his veto against the more
comprehensive Civil Rights Act of 1990.

AFFIRMATIVE ACTION IN EDUCATION

Recipients of federal funds are required to document their affirmative action practices and
metrics. Educational institutions which have acted discriminatorily in the past must take
affirmative action as a remedy. (34 CFR § 100.3(6)(ii)).
The Office of Civil Rights enforces the following education anti-discrimination laws:
(source: OCR)
Title VI of the Civil Rights Act of 1964 (race, color, religion, national origin)
Age Discrimination Act of 1975 (people of a certain age)
Title IX of the Educational Amendments of 1972 (gender)
Section 504 of the Rehabilitation Act of 1973 (people with disabilities)
Title II of the Americans with Disabilities Act of 1990
The Boy Scouts of America Equal Access Act (Section 9525 of the Elementary and Secondary
Education Act of 1965, as amended by the No Child Left Behind Act of 2001) (equal access
for outside community groups to school facilities during non-school hours)

SC VERDICTS ON AFFIRMATIVE ACTION IN EDUCATION

In chronological order, here is a non-exhaustive list of Supreme Court decisions related to
affirmative action.
Brown v Board
 In Brown v. Board of Education, 374 U.S. 483 (1954), the Supreme Court held that
public schools may not exclude minority students from white schools by sending the
minority students to a school that separately services minority students. This decision
acted as a precursor to many of the education-based affirmative action cases in the
Supreme Court which followed in later years.
Regents v. Bakke
In Regents of the University of California v. Bakke, 438 U.S. 265 (1978), the University
of California's Medical School at Davis reserved 16 spots in each entering class of 100
students for minority students. The Court did not hold a majority opinion, but the main
legal takeaway from Bakke is that the Constitution prohibits a school from having
racial quotas.
RESERVATION IN PROMOTIONS
RESERVATION IN PROMOTIONS: HISTORICAL BACKGROUND
• The Mandal commission was established by Janata Party Government led by Prime
Minister Morarji Desai in January 1979 to study condition of socially and educationally
backward classes and recommended steps for their upliftment and advancement.
• Officially known as Socially and Educationally Backward Classes Commission
(SEBC), it was chaired by BP Mandal.
• It was mandated to identify the socially or educationally backward classes and to
consider reservations as a tool to address inequality and discrimination.
MANDAL COMMISSION RECOMMENDATION
• In its report submitted to the President in December 1980, Mandal
Commission recommended:
• 27% quota public sector and government jobs for OBCs for those who do not qualify
on merit.
• 27% quota for promotions at all levels for OBCs in public service.
• If unfilled, reserved quota should be carried forward for three years and deserved
only after that.
• OBCs should be the same age relaxation as applicable to SCs and STs.
• A roster system should for the backward classes on the pattern of that for the SCs and
STs.
• Reservations in PSUs, banks, private sector undertakings receiving government
grants, colleges and universities.
• The government should introduce necessary legal changes to implement
the recommendations.
 • VP Singh Government decided to implement Mandal Commission recommendations in
1990.
• The decision led to violent protests on campuses across India and many
students committed self-immolation against implementation of Mandal
Commission recommendations.
INDRA SAWHNEY & OTHERS VS UOI & OTHERS (NOV 16, 1992)
The Supreme Court came to the following CONCLUSIONS in the case popularly known
as Mandal Case:
Both the impugned orders issued by the respective governments in 1990 and 1991
reserving appointments and posts for socially and educationally backward classes of citizens,
without discharging their constitutional obligation of examining if the identification of
backward class by the Commission was in consonance with constitutional principle and
philosophy of the basic feature of the Constitution and if the group or collectivity so identified
was adequately represented or not which is the sine qua non for the exercise of the power
under Article 16(4), are declared to be unenforceable.
(1) Reservation in public services either by legislative or executive action is neither a matter
of policy nor a political issue. The higher courts in the country are constitutionally obliged to
exercise the power of judicial review in every matter which is constitutional in nature or has
potential of constitutional repercussions.
(2)
(a) Constitutional bar under Article 16(2) against state for not discriminating on race, religion
or caste is as much applicable to Article 16(4) as to Article 16(1) as they are part of the same
scheme and serve same constitutional purpose of ensuring equality.
Identification of backward class by caste is against the Constitution.
(b) The prohibition is not mitigated by using the word, 'only' in Article 16(2) as a cover and
evolving certain socio-economic indicators and then applying it to caste as the identification
then suffers from the same vice. Such identification is apt to become arbitrary as well as the
indicators evolved and applied to one community may be equally applicable to other
community which is excluded and the backward class of which is denied similar benefit.
Identification of a group or collectivity by any criteria other than caste, such as,
occupation cum social cum educational cum economic criteria ending in caste may not be
invalid.
(c) Social and educational backward class under Article 340 being narrower in import
than backward class in Article 16(4) it has to be construed in restricted manner. And the
words educationally backward in this Article cannot be disregarded while
determining backwardness.
(3) Reservation under Article 16(4) being for any class of citizens and citizen having
been defined in Chapter II of the Constitution includes not only Hindus but Muslims,
Christians, Sikhs, Buddhists Jains etc. the principle of identification has to be of universal
application so as to extend to every community and not only to those who are either converts
from Hinduism or some of who carry on the same occupation as some of the Hindus.
(4) Reservation being extreme form of protective measure or affirmative action it should
be confined to minority of seats. Even though the Constitution does not lay down any
specific bar but the constitutional philosophy being against proportional equality the principle
of balancing equality ordains reservation, of any manner, not to exceed 50%.
(5) Article 16(4) being part of the scheme of equality doctrine it is exhaustive of
reservation, therefore, no reservation can be made under Article 16(1).
(6) Reservation in promotion is constitutionally impermissible as, once the advantaged and
disadvantaged are made equal and are brought in one class or group then any further benefit
extended for promotion on the inequality existing prior to be brought in the group would be
treating equals unequally. It would not be eradicating the effects of past discrimination but
perpetuating it.
(7) Economic backwardness may give jurisdiction to state to reserve provided it can find out
mechanism to ascertain inadequacy of representation of such class. But such group
or collectivity does not fall under Article 16(1).
(8) Creamy layer amongst backward class of citizens must be excluded by fixation of proper
income, property or status criteria.
Reservation by executive order may not be invalid but since it was being made for the first time
in services under the Union propriety demanded that it should have been laid before Parliament
not only to lay down healthy convention but also to consider the change in social, economic
and political conditions of the country as nearly ten years had elapsed from the date of
submissions of the report, a period considered sufficient for evaluation if the reservation may
be continued or not.
CONSTITUTIONAL AMENDMENTS TO UNDO MANDAL VERDICT
• June 1995: 77th Amendment to the Constitution added Clause 4-A to Article 16 which
enables government to continue with reservation in promotions for SCs and STs even
after expiry of the said five-year period.
• June 2000: 81st Amendment added Clause 4-B to Article 16 which permits
government to treat backlog of reserved vacancies as a separate group to which 50%
ceiling wouldn’t apply.
• September 2000: 82nd Amendment added a proviso to Article 335 of the Constitution
to allow relaxation of qualifying marks and other criteria for reservation in promotion
for SC/ST candidates
• 2001: 85th Amendment introduced changes in Clause 4-A of Article 16 to give benefit
of consequential seniority to SC/ST candidates promoted through reservation. This
Amendment was made applicable retrospectively from June 17, 1995.
M NAGARAJ & OTHERS VS UNION OF INDIA & OTHERS (OCT, 2006)
• A five-judge Constitution Bench led by the then CJI YK Sabharawal upheld the validity
of 77th, 81st, 82nd and 85th Amendments.
• However, it stipulated that in each case State will have to show existence of
"compelling reasons", including "backwardness", "inadequacy of representation"
and overall "administrative efficiency” before making provisions for reservation.
• Top Court said if a state government wishes to make provisions for reservation to
SC/STs in promotion, the state concerned has to collect quantifiable data
showing backwardness of the class and inadequacy of representation of that class.
IMPACT OF M NAGARAJ CASE VERDICT
• Citing SC ruling in Nagraj’s case, several high courts have struck down decisions for
reservation in promotions
• Most of such cases have reached Supreme Court which referred the issue to a
Constitution Bench
• May 17, 2018: in another case, a Bench headed by Justice Kurian Joseph says pendency
of the issue shall not stand in the way of taking steps for promotion from ‘reserved
to reserved, unreserved to unreserved and ‘promotion on merits’
• June 5, 2018: SC says Centre not “debarred from making promotions in accordance
with law, subject to further orders”.
JARNAIL SINGH VS LACHHMI NARAIN GUPTA (2018)
On September 26, 2018, the Supreme Court ruled that Scheduled Castes and Scheduled
Tribes candidates can be granted reservation in promotions in public employment if
“quantifiable data” showed that they were inadequately represented in the cadre in which the
promotion was contemplated.
Rejecting petitions seeking to send its 2006 verdict in the M Nagaraj vs Union of India case to
a seven-judge Bench for reconsideration, a five-judge Constitution Bench headed by the then
CJI Dipak Misra said the concept of creamy layer could be applied to SC/ST reservation by the
government or courts.
The Bench, however, said the Nagaraj verdict was incorrect in holding that there was need
for quantifiable data to prove backwardness of SC/ST communities, saying once a caste of tribe
was declared SC or ST under Article 341 or Article 342, their backwardness had to be
presumed. To that extent, the Nagaraj verdict was against the court’s ruling in the Mandal case,
it said.
“Thus, we may make it clear that quantifiable data shall be collected by the state, on the
parameters as stipulated in Nagaraj (case) on the inadequacy of representation, which can be
tested by the courts. We may further add that the data would be relatable to the cadre
concerned,” said the Bench.
While upholding the validity of 77th, 81st, 82nd and 85th Constitutional Amendments in the
Nagaraj case, the SC had in 2006 stipulated that in each case the state will have to show
existence of “compelling reasons”, including “backwardness”, “inadequacy of representation”
and overall “administrative efficiency” before making provisions for reservation in promotion.
It had said if a state government wanted to make provisions for reservation to SCs/STs in
promotion, the state concerned was needed to collect quantifiable data showing backwardness
of the class and inadequacy of representation of that class. Citing the ruling in the Nagaraj’s
case, the SC and several HCs had struck down decisions of various states and departments for
reservation in promotions.
But now the court has said backwardness has to be presumed in case of SC/ST candidates
but insisted that inadequacy in representation in a particular cadre has to be shown
through quantifiable data.
SC also rejected the Centre’s demand that the proportion of SC/ST population to India’s
population should be taken into consideration to judge their representation in
government services.
K PAVITHRA & ORS VS. UOI & ORS (MAY 10, 2019)
• On March 19, 2020, the Supreme Court upheld the validity of a 2018 Karnataka law
for grant of reservation in promotion to Scheduled Caste and Scheduled Tribe
employees.
• Affirming its earlier verdict in BK Pavitra's case delivered on May 10, 2019, a Bench
headed by Justice DY Chandrachud turned down the plea by 227 general category
candidates for post-based quota and for applying creamy layer concept at the entry
level, saying it was not maintainable.
• In its May 10, 2019 verdict in B K Pavitra and Others versus Union of India – known
as ‘BK Pavitra II Case’, the top court had upheld the constitutional validity of the
Karnataka Extension of Consequential Seniority to Government Servants Promoted on
the Basis of Reservations (to the Posts in the Civil Services of the State) Act 2018.
• Two hundred and twenty seven candidates had moved the top court seeking direction
to the State of Karnataka to implement ‘post based reservation’ in terms of the judgment
passed by this Hon’ble Court in R.K. Sabharwal vs State of Punjab – (1995) and to re-
work all promotions on ‘post’ basis before any further action.
• They wanted the top court to direct the Karnataka government to apply ‘creamy layer’
and to exclude individuals belonging to the Scheduled Castes and Scheduled Tribes
who no longer require reservation under Article 16(4-A) of the Constitution with a
further direction to the State to apply creamy layer at entry level to disqualify those who
were creamy layer at that stage and to conduct the exercise from
17th June, 1995, i.e. the date of the 77th Amendment.
• They had also sought to restrain the State from taking any action where, no exercise is
undertaken for that service or cadre on adequacy or where there is adequacy of
representation particular when every specific application of order in relation to each
cadre must be Nagaraj compliant.”
 • The applicants contended that until the backlog is cleared, the proportion of Scheduled
Castes/Scheduled Tribes will exceed 15 per cent and 3 per cent and that the state was
bound to implement post-based reservation.
• Holding that the applications were “not maintainable”, the Bench said, “If
the applicants are aggrieved by the steps which have been taken by the
State government, it is open to them to pursue a substantive remedy for challenging the
steps taken by the State government in independent proceedings.

US SUPREME COURT VERDICTS ON AFFIRMATIVE ACTION

BROWN VERSUS BOARD OF EDUCATION (1954)
• Brown versus Board of Education is one of the greatest decisions of the US Supreme
Court which ended racial segregation of children in public schools.
• The US Supreme Court unanimously held that the racial segregation of children in
public schools violated the Equal Protection Clause of the Fourteenth Amendment.
• Although the decision did not succeed in fully desegregating public education in the
US, it put the Constitution on the side of racial equality and galvanized the civil rights
movement.
• Brown versus. Board constituted a watershed moment in the struggle for racial
equality in the US.
BACKGROUND OF THE CASE
In 1954, large portions of the United States had racially segregated schools, made
legal by Plessy v. Ferguson (1896), which held that segregated public facilities were
constitutional so long as the black and white facilities were equal to each other.
The case of Brown v. Board of Education as heard before the Supreme Court
combined five cases:
· Brown v. Board of Education
· Briggs v. Elliott (filed in South Carolina)
· Davis v. County School Board of Prince Edward County (filed in Virginia)
· Gebhart v. Belton (filed in Delaware)
· Bolling v. Sharpe (filed in Washington, D.C.)

In 1909, the National Association for the Advancement of Colored People (NAACP) a
civil rights organization was formed in the US as an interracial endeavor to advance justice
for African Americans.
However, by the middle of 20th century, civil rights groups set up legal and
political, challenges to racial segregation.
In the early 1950s, NAACP lawyers brought class action lawsuits on behalf of
black schoolchildren and their families in Kansas, South Carolina, Virginia, and Delaware,
seeking court orders to compel school districts to let black students attend white public schools.
FACTS OF THE CASE
• One of these class actions, Brown v. Board of Education was filed against the Topeka,
Kansas school board by representative-plaintiff Oliver Brown, parent of one of the
children denied access to Topeka's white schools.
• Brown claimed that Topeka's racial segregation violated the Constitution's Equal
Protection Clause because the city's black and white schools were not equal to each
other and never could be.
• The federal district court dismissed his claim, ruling that the segregated public schools
were "substantially" equal enough to be constitutional under the Plessy doctrine.
• Brown appealed to the Supreme Court, which consolidated and then reviewed all the
school segregation actions together. Thurgood Marshall, who would in 1967 be
appointed the first black Justice of the Court, was chief counsel for the plaintiffs.
THE VERDICT
• Chief Justice Earl Warren’s leadership ensured that the verdict was unanimous. Chief
Justice Warren himself penned the historic verdict.
• The decision held that racial segregation of children in public schools violated the Equal
Protection Clause of the Fourteenth Amendment, which states that "no state shall make
or enforce any law which shall ... deny to any person within its jurisdiction the equal
protection of the laws."
• The Court said that Congress, when drafting the Fourteenth Amendment in the 1860s,
did not expressly intend to require integration of public schools. On the other hand, that
Amendment did not prohibit integration.
• It said the Fourteenth Amendment guarantees equal education today and that public
education in the 20th century had become an essential component of a citizen's public
life, forming the basis of democratic citizenship, normal socialization, and professional
training.
• Noting that a child denied a good education would be unlikely to succeed in life, the
US Supreme Court held that where a state has undertaken to provide
universal education, such education becomes a right that must be afforded equally to
both blacks and whites.
RACIAL SEGREGATION CREATES DANGEROUS INFERIORITY COMPLEXES
• The lower courts had had held that the black and white schools "substantially" equal to
each other.
• However, after reviewing psychological studies showing black girls in segregated
schools had low racial self-esteem, the US Supreme Court concluded that separating
 children on the basis of race creates dangerous inferiority complexes that may
adversely affect black children's ability to learn.
• The Court concluded that, even if the tangible facilities were equal between the black
and white schools, racial segregation in schools is "inherently unequal" and is thus
always unconstitutional.
• At least in the context of public schools, Plessy v. Ferguson was overruled.
• In Brown II (1955), the Supreme Court ordered the states to integrate their schools
"with all deliberate speed."
COOPER V. AARON (1958)
• Opposition to Brown I and II reached the US Supreme Court in Cooper versus. Aaron
(1958) in which the Court ruled that states were constitutionally required to implement
the Supreme Court's integration orders.
• The Supreme Court ruled that the state of Arkansas could not pass
legislation undermining the Court's ruling in Brown v. Board of Education (1954) that
racial segregation in public schools is unconstitutional.
• In establishing that the states were bound by its rulings, the Supreme Court affirmed
that its interpretation of the Constitution was the "supreme law of the land."
• In its landmark decision Brown versus Board of Education (1954), the US SC
had declared that the Fourteenth Amendment of the U.S. Constitution forbade the states
from segregating students in their public schools on account of race.
• In a 1955 in Brown versus Board of Education II, the Court directed all federal district
courts to monitor the states' compliance with the Brown decision. The states were
ordered to integrate their schools "with all deliberate speed."
• Thereafter, the school board of Little Rock, Arkansas, developed a court-approved plan
to integrate its segregated school system.
OPPOSITION OF BROWN VS BOARD OF EDUCATION RULINGS
• The Arkansas governor and legislature passed new state laws and constitutional
amendments outlawing integration in the state.
• The Little Rock school board and the state clashed on September 4, 1957, when the
Arkansas National Guard, under the direction of Arkansas Governor Orval Faubus,
prevented a group of nine African American students ("The Little Rock Nine") from
enrolling at Little Rock's Central High School pursuant to the school board's integration
plan.
• Under threat of violence, a local federal court nevertheless ordered the school board to
carry out the plan. The next day, again meeting resistance from the Arkansas National
Guard, the U.S. government obtained an injunction against Governor Faubus in the
local federal court, forcing Faubus to withdraw the state national guard.
 • President Dwight Eisenhower then sent in federal national guard troops to protect the
nine students from mobs. By the end of September, the students were finally able to
enter the school and began attending classes there.
INITIAL DECISIONS
• But the drama continued and In February 1958, the Little Rock school board petitioned
the local federal court to approve postponing their integration plan.
• The board cited "chaos, bedlam and turmoil" that had engulfed Central High School
since the African American students enrolled. The court agreed, ordering that the
students be removed from the school and that plans for integration be delayed another
two and a half years.
• Acting on behalf of the Little Rock Nine, the National Association for
the Advancement of Colored People (NAACP) appealed the decision to the
Eighth Circuit Court of Appeals, which reversed the lower court's decision and
held that the delay would violate the constitutional rights of the Africa
American students.
• Finally, the matter went to the US Supreme Court.
US SC’S RULING IN COOPER V. AARON (1958)
• The Supreme Court unanimously held that the constitutional rights of the African
American students could not be sacrificed for the sake of "order and peace" in public
high schools.
• The African American students could thus remain at Central High School and the
school board's original integration plan must go forward.
• The Court did not stop there, however, and insisted that the governor and legislature of
Arkansas were bound by its orders.
• First, the state government is bound to the terms of the U.S. Constitution under the
Supremacy and Oath Clauses (see Article VI).
• Second, because the Supreme Court is the "voice" of the U.S. Constitution, the state
government is bound to the Supreme Court's decisions and may not annul them with
legislation, amendments, or orders.
• If Brown versus Board of Education provided the foundation for school integration in
the 1950s and 1960s, Cooper v. Aaron provided the muscle.
• Though Cooper simply reiterated constitutional principles that were already accepted,
the decision affirmed the power of the federal courts to enforce federal civil rights laws
and court decisions against the states, and the primacy of the Supreme Court in defining
what the Constitution requires.
• As the Court declared, the states' compliance with the principles of civil rights, as
articulated by the federal courts, is "indispensable for the protection of the freedoms
guaranteed by our fundamental charter for all of us. Our constitutional ideal of equal
justice under law is thus made a living truth."