Comparative

publiC law
Notes
module 1
Public law
Concept

Public law refers to the relationship between individuals and the government and dealing with
the structure and operation of the government. It is the combination of Constitutional Administration
and Criminal law for providing justice to the individual. These laws regulate the structure and
administration of the government, the conduct of the government with its citizens, the responsibilities
of government employees and the relationships with foreign governments.

Meaning and definition

Public bodies, such as central and local government, have to obey the law. The type of law governing
the conduct of public bodies is known as ‘public law’. Public law principles mean that public bodies act
lawfully, rationally, fairly, and compatibly with the human rights of those affected by their actions.
Constitutional Law, Administrative Law, Criminal Law and Criminal Procedure are the subject matter of
Public Law.

Public law is the part of law that governs relations between legal persons and a government, between
different institutions within a state, between different branches of governments and relationships
between persons that are of direct concern to society. Public law comprises constitutional
law, administrative law, tax law and criminal law as well as all procedural law.

The relationships public law governs are asymmetric and inequalized. Government bodies (central or
local) can make decisions about the rights of persons. However, as a consequence of the rule-of-
law doctrine, authorities may only act within the law (secundum et intra legem). The government must
obey the law. For example, a citizen unhappy with a decision of an administrative authority can ask a
court for judicial review.

Importance

Public law is important because of the unequal relationship between the government and the public.
The government is the only body that can make decisions on the rights of individuals and they must act
within the law. A citizen can ask for judicial review if they are unhappy with a decision of an
authoritative body. Public law deals with the legal arrangements which establish the institutions of the
state and regulate the exercise of political power. It concerns some of our most basic fundamental laws.
Areas of Public Law
1. Constitutional law: In modern states, constitutional law lays out the foundations of the state. Above
all, it postulates the supremacy of law in the functioning of the state the rule of law. Secondly, it sets
out the form of government, how its different branches work, how they are elected or appointed,
and the division of powers and responsibilities between them. Traditionally, the basic elements of
government are the executive, the legislature and the judiciary. And thirdly, in describing what are
the basic human rights, which must be protected for every person, and what further civil and
political rights citizens have, it sets the fundamental borders to what any government must and
must not do.
In most jurisdictions, constitutional law is enshrined in a written document, the Constitution,
sometimes together with amendments or other constitutional laws. In some countries, however,
such a supreme entrenched written document does not exist for historical and political reasons, for
example, the Constitution of the United Kingdom is an unwritten one.

2. Tax law first became an area of public law during the 17th century, as a consequence of new
theories of sovereignty that began to emerge. Until this point, taxes were considered gifts under the
law, given to the State by a private donor (the taxpayer). It is now considered an area of public law,
as it concerns a relationship between persons and the State.

3. Administrative law refers to the body of law that regulates bureaucratic managerial procedures and
defines the powers of administrative agencies. These laws are enforced by the executive branch of a
government rather than the judicial or legislative branches (if they are different in that particular
jurisdiction). This body of law regulates international trade, manufacturing, pollution, taxation, and
the like. This is sometimes seen as a subcategory of civil law and sometimes seen as public law as it
deals with regulation and public administration.

4. Criminal law deals with the crimes and their punishment. It involves the state imposing sanctions for
defined crimes committed by individuals or businesses, so that society can achieve its brand
of justice and a peaceable social order. This differs from civil law in that civil actions are disputes
between two parties that are not of significant public concern.
Distinction between private and public law
The distinction between public law and private law dates back to Roman law, where the Roman jurist
Ulpian first noted it. It was later adopted to understand the legal systems both of countries that adhere
to the civil-law tradition, and of those that adhere to common-law tradition.

The borderline between public law and private law is not always clear. Law as a whole cannot neatly be
divided into "law for the State" and "law for everyone else". As such, the distinction between public and
private law is largely functional rather than factual, classifying laws according to which domain the
activities, participants, and principal concerns involved best fit into. This has given rise to attempts to
establish a theoretical understanding for the basis of public law.

In German legal literature, there is an extensive discussion on the precise nature of the distinction
between public law and private law. Several theories have evolved, which are neither exhaustive, nor
are they mutually exclusive or separate from each other.

It has been developed by the Roman jurist Ulpian: “Publicum ius est, quod ad statum rei Romanae
spectat, privatum quod ad singulorum utilitatem”. i.e., public law is that, which concerns Roman
state, private law is concerned with the interests of citizens. The weak point of this theory is that many
issues of private law also affect the public interest.

It focuses on explaining the distinction by emphasizing the subordination of private persons to the
state. Public law is supposed to govern this relationship, whereas private law is considered to govern
relationships where the parties involved meet on a level playing field. This theory fails in areas
commonly considered private law which also imply subordination, such as employment law. Also, the
modern state knows relationships in which it appears as equal to a person. It is concerned with the
position of the subject of law in the legal relationship in question. If it finds itself in a particular situation
as a public person (due to membership in some public body, such as a state or a municipality), public law
applies, otherwise it is private law.

Under Austrian constitution, private law is among the exclusive competences of federal legislation,
whereas public law is partly a matter of state legislation.

Laws governing the state fall in the category of PUBLIC LAW

Laws governing the affairs of the citizens fall in the category of PRIVATE LAW

Public law addresses the relationship between persons and their government, while private law looks
at dealings between to persons.
Constitutionalism
Constitution and Constitutionalism is distinct. Underlying difference between two concepts is not merely
to confer powers on various organs of the govt. but also seek to restrain those powers.
Constitutionalism recognizes the need for govt but insists upon limitations being placed upon
governmental powers. Constitutionalism envisages checks and balances and putting the powers of
legislature and executive under restraints and not making them uncontrolled and arbitrary.

It is said ‘Power corrupts and absolute power corrupts absolutely’, If the Constitution confers
unrestrained powers on either the legislature or the executive, it might lead to an authoritarian,
oppressive government. So, to preserve the basic freedom of individual, Constitution should be
permeated with ‘Constitutionalism’. Constitutionalism connotes in essence limited government or a
limitation on govt. Constitutionalism is the antithesis of arbitrary powers. Antithesis of Constitutionalism
is despotism, Unlimited power may lead to an authoritarian, oppressive govt.

If Constitution of a country seeks to decentralize power instead of concentrating it at one point and also
imposes limitations thereon, country has not only CONSTITUTION but also CONSTITUTIONALISM.

A written Constitution, independent Judiciary with powers of judicial review, the doctrine of Rule of Law
and Separation of powers, free election to legislature, accountable and transparent democratic govt,
Fundamental Rights, federalism, decentralization of powers are some of the principles and norms which
promote Constitutionalism in a country.

Constitutionalism shall be described as a concept that desires a political order governed by laws and
regulations. It stands for the supremacy of law and not of the individuals. It imbibes the principles of
nationalism, democracy and limited government. It can possibly be identified with the system of divided
power.

Separation of powers, idea of limited government and the supremacy of law together give the concept
of constitutionalism. In other words, constitutionalism is the idea that government should be limited in
its powers and whose authority depends on its observation of these limitations. A constitution is the
legal framework, setting out these powers and their limitations. This framework must represent the will
of the people, and should therefore have been arrived at through consensus.

Constitutionalism means limited government or limitation on government. Constitutionalism recognizes

the necessity for government with powers but simultaneously insists that limitation be placed on those
powers. The antithesis of constitutionalism is despotism. A government which works beyond its limits
loses its authority and legitimacy. Therefore, to preserve the essential 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.
Issues of Constitutionalism
War

It is in the war time when the government claims absolute power and in the name of defending
the realm from foreign aggression goes to the final extent of crushing the essential liberties of
the people. The government undertakes several measures like compulsory conscription,
military training, nationalization of major industries, censorship of the press, etc. for the sake of
defending the country. Whereas a constitutional government had its total doom in countries
like Italy, Germany and Japan during the days of the Second World War, it could not have the
same fate in other countries like France and Britain. A return to the normal constitutional
government occurred after the termination of hostilities.
Emergency

The suspension of the constitutional government is justified if there are the conditions of
national emergency. It was under these conditions that President Lincoln went to the
unprecedented extent of using troops to crush the revolt of the southern States of the
American Union that had raised their heads in opposition to his mission of banishing slavery.
The Government of India had made several important arrangements after the proclamation of
national emergency in 1975 that were dubbed by its critics as the ‘murder of democracy’. It
depends upon the nature of the case whether conditions of emergency entail the doom of the
constitutional government or not. Thus, while countries like the United States and Britain
returned to the era of a limited government after the termination of the conditions of
emergency, others like Italy, Germany and Japan took the matter to a point that their
constitutional governments had quite an inglorious end.
Social and economic distress

Eradication of the conditions of starvation, famine, illiteracy, disease, poverty, squalor, etc.
requires discretionary action of the state. The government is called for to take immediate and
drastic action to alleviate the sufferings of the people. What the Government of India has been
doing since the inauguration of the five-year plans can be cited as a clear instance in this
direction. We may once again reiterate the same point that the outstretched authority of the
government to alleviate the conditions of social and economic distress may, and may not, entail
the destruction of the constitutional government. It depends upon the sagacity and wisdom of
the men in power that by extending the area of their discretionary authority they may save the
country from the challenge of social and economic disintegration, or they may push it to the
most disastrous consequences. Wheare rightly suggests that conditions of national emergency
or socio-economic distress led to the suspension of the ordinary limitations upon government
in order to permit swift and effective action. Crisis or emergency government can seldom be
constitutional government, peace and prosperity are in truth strong allies of constitutional
government, their prospects are its prospects.
Rule of Law & Constitutionalism
The doctrine is ascribed to DICEY whose writing on British Constitution included three distinct ideas-

 Absence of arbitrary power

 Equality before Law
 Individual liberty

Constitutionalism and the Rule of Law are related ideas about how the powers of government and of
state officials are to be limited. The two ideas are sometimes equated. But constitutionalism usually
refers to various constitutional devices and procedures, such as the separation of powers between the
legislature, the executive and the judiciary, the independence of the judiciary, due process or fair
hearings for those charged with criminal offences, and respect for individual rights, which are partly
constitutive of a liberal democratic system of government. The Rule of Law, on the other hand,
embodies certain standards that define the characteristic virtues of a legal system as such.

In case of Bachan Singh/Case of P. Sambamurthy v. State of Andhra Pradesh Supreme Court has
invoked Rule of Law in its pronouncements to emphasise upon certain Constitutional values and
principles.

J. Khanna observed- “Rule of Law is the antithesis of arbitrariness. Rule of Law is accepted norm of all
civilised societies. It seeks to maintain a balance between the opposing notions of individual liberty and
public order. The problem arises of reconciling human rights with the requirements of public interest.”

It could reasonably be argued that the beliefs of ordinary people influence the fortunes of constitutional
government more than the theories of philosophers. A universal feature of successful constitutional
regimes has been a cultural commitment to rule of law. For a constitution to succeed the community
belief systems must support its aims. There must be a commitment to the law and rule of law.
Constitutionalism means that all power rests on the understanding that it will be exercised according to
commonly accepted principles.

Rule of law refers to the supremacy of law: that society is governed by law and this law applies equally
to all persons, including government and state officials. Following basic principles of constitutionalism,
common institutional provisions used to maintain the rule of law include the separation of powers,
judicial review, the prohibition of retroactive legislation and habeas corpus. Genuine constitutionalism
therefore provides a minimal guarantee of the justice of both the content and the form of law. On the
other hand, constitutionalism is safeguarded by the rule of law. Only when the supremacy of the rule of
law is established, can supremacy of the constitution exist. Constitutionalism additionally requires
effective laws and their enforcement to provide structure to its framework.

In Rameshwar Prasad and Ors. Vs. Union of India (UOI) and Anr. “The constitutionalism or constitutional
system of Government abhors absolutism - it is premised on the Rule of Law in which subjective
satisfaction is substituted by objectivity provided by the provisions of the Constitution itself.”
Constitutionalism is about limits and aspirations.
As observed by Chandrachud, CJ, in Minerva Mills Ltd. – “The Constitution is a precious heritage and,
therefore, you cannot destroy its identity'”
Separation of Powers and Constitutionalism
Checks and balances are required by the separation of powers in order to prevent one branch of
government usurping another and to provide each branch with the necessary constitutional means to
resist such usurpation and prevent it occurring. Checks and balances help to protect the separation, as
well as helping to ensure that each branch does not overstep its role in the constitutional scheme. This
follows from the normal precepts of institutional design. When setting up institutions, we should
structure institutions so that they can play to their institutional strengths. But we also need to consider
how to mitigate any of their attendant risks. This is why the separation of powers includes both a
division-of-labour and checks-and-balances component. Implementing the separation of powers is an
exercise, involving both the identification of the valuable role each institution can play, as well as an
appreciation of their attendant risks.

The separation of powers has both a positive and negative dimension. On the positive side, it gives us a
principled starting point for thinking about how to allocate power to different institutions. The positive
dimension of the separation of powers explains why it plays a fundamental role in constitutional
formation. After all, the foremost role of constitutions is to constitute government, to set up the
institutional framework for organizing government, setting forth the powers and procedures of the
various institutions and the basic structure of the legal system. But a good governmental structure will
also require that there are mechanisms in place to curb potential abuse of power and provide
reassurance and security that each branch of government will observe its limitations when carrying out
its role. Therefore, the separation of powers also fulfils the negative virtue of curbing, limiting, and
checking government power. As Christoph Mollers has put it, “the separation of powers should not be
understood as a pure instrument of restraining political power. It is also an instrument that constitutes
this power. It embodies what Vile described as the dual values of coordination and control”.

In I.R. Coelho (Dead) By LRs. vs. State of Tamil Nadu and Ors. view taken by the Supreme Court - The
principle of constitutionalism is now a legal principle which requires control over the exercise of
Governmental power to ensure that it does not destroy the democratic principles upon which it is
based. These democratic principles include the protection of fundamental rights. The principle of
constitutionalism advocates a check and balance model of the separation of powers, it requires a
diffusion of powers, necessitating different independent centers of decision making. The protection of
fundamental constitutional rights through the common law is main feature of common law
constitutionalism.
Federalism and constitutionalism
Federalism requires at least two tiers of government endowed with a sovereign power
on certain matters, a non-unilaterally amendable written constitution with a horizontal and vertical
division of power, a representation mechanism of self-rule and shared rule, and an umpire to settle
conflicts between the various tiers of government. These essential elements of federalism make
constitutionalism an essential condition for its operation, at least according to conventional federal
theory. Whether it is in the United States, Germany, Australia, Switzerland, Canada, or any other
federal state, it is only through constitutionalism that federalism can perform its functions, deliver its
promises, and live up to its expectations.

Indian Constitution is aid to be a federal structure only because it is said that it has clear demarcation of
boundaries between central & the state government similar to that of U.S. India having legislative and
executive authority divided between the centre and the state.

Chief essentials for a constitution to be federal are:

1. Dispersion of powers between the center and the unit states forming federation among a number of
co-ordinate bodies, controlled by constitution.
2. Rigidity – neither the center nor the state has power to amend the provision of constitution relating
separation of powers.
3. A written constitution
4. Domination of the constitution – neither of center or state have power to nullify the constitution
5. An independent body and unprejudiced authority (Eg. Judiciary)

India is often also claimed to be non- federal in matter such as the Center can impinge upon the areas
earmarked only for the states in some cases. Therefore, it infringes the principle of federalism as it
makes the state hyponym to the center. Hence, it is also said to be in a unitary form of government too.
The phenomena of such unitary form of government arises only during the period of wars or emergency
period.

A federal constitution establishes a duple polity with Union at the center and the States at the fringe,
each dowered with autonomous powers to be exercised in the field assigned to them respectively by the
constitution. Both are in a way co-ordinate to powers of each other. In fact, the basic principle of
federalism is that the legislative, executive and financial authority is divided between the centre and the
states not by law passed by the center but the Constitution itself.

Indian Constitution also defines a counterpoise of powers between the Executive, Legislature and the
Judiciary. If courts are deprived of the powers, the fundamental rights conferred on the people of the
country will become just equal to a decoration and people as puppet in the hands of the sovereign.
Thus, it will also lead to a system wayward to that of democracy and undermine its spirit.

Quasi federal refers to a system of government where the distribution of powers between the Center
and the state are not equal. India is a federation with a unitary bias and is referred as a quasi-federal
state because of strong central machinery.

The Constitution of India has not described India as a federation. On the other hand, Article 1 of the
Constitution describes India as a “Union of States.” This means, India is a union comprising of various
States which are integral parts of it. The Indian Union is not destructible. Here, the States cannot break
away from the union. They do not have the right to secede from the union. In a true federation, the
constituting units or the States have the freedom to come out of the union.

India is not a true federation. It combines the features of a federal government and the features of a
unitary government which can also be called the non-federal features. Because of this, India is regarded
as a semi-federal state. Prof K.C Wheare describes it as “a quasi-federal state”. The Supreme Court of
India also describes it as “a federal structure with a strong bias towards the Centre”. The main features
of Indian Federal system are as follows:

1) Division of Powers: The division of powers between two levels of governments is an essential feature
of federalism. Federalism means the distribution of powers of the state between the central and the
state governments. The basis of such distribution of power is that in matters of national importance, in
which a uniform policy is desirable in the interest of the units, authority is entrusted to the centre and
matters of local concern remain with the states. In a Federation there should be clear division of powers
so that the units and the centre are required to enact and legislate within their sphere of activity and
none violates its limits and tries to encroach upon the functions of others.

2) Supremacy of the Constitution: In a federation, the constitution should be the supreme source of
strength, both for the centre as well as the federating units. Accordingly, Indian constitution is also
supreme and not the hand maid of either the centre or of the states. If, for any reason, any organ of the
state dares to violate any provision of the constitution, the court of law is there to ensure the dignity of
the constitution, which is upheld at all costs.

3) A Written Constitution: A Federal constitution must almost be a written constitution. It will be

practically impossible to maintain the supremacy of the constitution and division of powers between the
centre and the states, unless the terms of the constitution have been reduced into writing. Accordingly,
the Indian constitution is a written document containing 395 Articles and 10 Schedules, and therefore
fulfills this basic requirement of a federal government. In fact, the Indian constitution is the most
elaborate constitution of the world.

4) Rigid Constitution: A natural corollary of a written constitution is its rigidity. In a rigid constitution the
procedure of amendment is complicated and difficult. But this does not mean that the constitution
should be legally unalterable. The Indian constitution is largely a rigid constitution. All the provisions of
the constitution concerning federal state relations can be amended only by the joint actions of the state
legislatures and the union parliament. Such provisions can be amended only if the amendment is passed
by a two-third majority of the members present and by voting in the parliament, and is ratified by at
least one half of the states.

5) Independent Judiciary: For a federation, it is also essential that the judiciary is impartial and
independent. A Federal court is indispensable to a federation. It acts as the guardian of the constitution.
The constitution has provided for a Supreme Court, and every effort has been made to see that the
judiciary in India is independent and supreme. The Supreme Court of India can declare a law as
unconstitutional if it contravenes any provisions of the constitution. In order to ensure the impartiality
of the judiciary, judges are not removable by executive and their salaries cannot be curtailed by
Parliament.

6) Bicameral Legislature: A bicameral system is considered essential in a federation because it is in the

Upper House alone that the units can be given equal representation. The Constitution of India also
provides for a bicameral legislature at the Centre consisting of the Lok Sabha and the Rajya Sabha. While
the Lok Sabha consists of the elected representatives of people, the Rajya Sabha mainly consists of
representatives elected by State Legislative Assemblies.

Judicial review and constitutionalism

Judicial review is the power bestowed upon the judiciary by the constitution, by virtue of which the
judiciary can examine legislative enactments and executive orders of the governments, be it state or
central. This doctrine traces its origin to the United States of America where it was put forward in the
case of Marbury Vs Madison. The courts also have the power to declare any law passed by the
legislature as null and void if the law goes against the constitution upon which the law cannot be
imposed by the government.

What is the importance of judicial review?

 Judicial review is necessary to uphold the principle of supremacy of the constitution.
 The provision of judicial review prevents the misuse of power by the legislature and executive.
 It maintains the equilibrium between the centre and state, thereby maintaining federal
equilibrium.
 The provision protects the fundamental rights of the citizens.
 This provision ensures the principle of the independence of the judiciary.

Scope of judicial review

Judicial review isn’t absolute as some conditions need to be met to challenge any law in the supreme
court or the high courts, i.e., a law can be challenged only if:
 The said law infringes upon the fundamental rights guaranteed by the constitution.
 The said law goes against the provisions listed in the constitution.
 The law that has been enacted goes beyond the competency of the authority that has framed it.

Types of judicial review

The provision of judicial review in India has been famously divided into three broad categories by Justice
Syed Shah Mohamed Quadri.
 Judicial review of constitutional amendments.
 Judicial review of legislation by the parliament and state legislatures expands to subordinate
legislation.
 Judicial review of administrative actions of the union and state expanding up to authorities
under the state.

It was in Golak Nath v State of Punjab the Supreme Court upheld the existence of judicial review and
held that any amendment which violated the fundamental rights was unconstitutional. It was later
in Keshavananda Bharati v State of Kerela, it was held that although the Constitution was flexible, the
basic structure of the Constitution was not amendable and any state action against it was subjected to
judicial review. Therefore, judicial review has evolved as an effective tool in keeping a check on the state
action whenever it encroached on the stability of the Constitution. Hence strengthening the argument
that it has evolved as a result of the implementation of reflexive constitutionalism.
module 2
Concept of State and Sovereignty
Emergence of Sovereignty
During 16th century France Jean Bodin brought up the concept of sovereignty to bolster the French
king’s power above the rebellious feudal lords, to facilitate the transition from feudalism to nationalism.
The philosopher who provided most of the term with the modern meaning was the English philosopher
Thomas Hobbes, he argued that in each individual state, some person or body of person shall have the
ultimate and absolute authority to validate a law, to divide the provided authority, in his opinions was
essential to destroy the unity of any state.

Meaning

The term Sovereignty is derived from old French word Souverain, meaning supreme power within a
territory. In political sense, it is the ultimate power or authority, in the process of decision making of the
state and to maintain an order. Its concept is one of the most controversial ideas in political science and
international law, said to be inter-related to concept of state and government along with independence
and democracy. The sovereignty in embedded in any political institution and numerous states together
forms a sovereign state system.

It is the supreme or ultimate power of the State to take decisions, establish pun. goals, set priorities,
resolve conflicts and manage its internal and external affairs. Sovereignty also. denotes the authority
that the State possesses to enforce laws and decisions by the use of legitimas. force.
The sovereign authority derives its power from a mutual acknowledgement source of legitimacy, natural
law, custom law, a divine mandate, hereditary law, a constitution and sometimes from the international
law.

Salmond’s definition of State: An association of human beings established for the attainment of certain
ends by certain means. According to him: The state is made of a society consisting of men established
for the maintenance of peace and justice, provided, within a definite territory by way of force. So, it
follows that the central authority of political society which is called State must be powerful enough to
command obedience of its subjects and must be able to withstand external aggression.

In India, the constitution is the supreme law, providing constitutionalism, constitutional governance and
also sets out norms, morality and value, embedded in articles of the constitution, and also plausible
inferred from the constitution. This dynamism feature makes it natural and, therefore, the concept of
the constitutional sovereignty is sacrosanct. And as stated earlier, all authorities in India, get their
powers from the Constitution. Constitutional Sovereignty is said to be Constitution supremacy.

Constitutional supremacy mandates that every entity of the governance is subject to the principles
embodied in the constitutional text. The Indian Constitution does not allow absolute sovereignty in a
particular entity which it creates. Judicial review, like in the Constitution of United States of America, is a
part of the basic feature of the Indian Constitution.

Thus it is clear that India does not possess the idea of absolute sovereignty and ultimate power. In India,
Federal structure, Constitutional Principles is supreme which delegates the executive sovereignty in the
President and legislative sovereignty upon the parliament and state legislature. Judiciary is a guardian of
the Constitution, but there is nothing like judicial sovereignty in India.
Systems of Governance Presidential & parliamentary systems a comparative
approach (India, England & U.S.A)
In the 21st century, many countries in the world have an organized government. The work of
government nowadays is not limited to a police state i.e., preservation of law and order and defense of
the country from an external force. The government has become a welfare state, which looks after the
welfare of its citizens along with the overall development of the country. The significant point, however,
is that in order to carry out these activities and functions whatever may be their range, it becomes
important for a country to establish certain basic organs or agents or instrumentalities which act on its
behalf and thorough which the state can function and operate. The Constitution provides for a
combination of Presidential and Parliamentary systems of Government in India. Though the President is
the Head of the state yet the system of Government is similar to British Parliament System.

Presidential System
In the Presidential System, the head of the government is the chief executive who is directly elected by
the people and the executive is not responsible to the legislature. Both the organs are separate, unlike
in the parliamentary system where the executive is responsible to the legislature. All the organs of the
government i.e., legislature, executive and judiciary function separately from each other and are
constitutionally independent. The head of the government is the President, who is responsible for
enforcing the laws. This system is founded by America and is a perfect example of this system. This
system rejects legislative supremacy and is designed for countries that are a full republic and not a
constitutional monarchy.

Features

 Executive can veto acts of the legislature

 President has a fixed tenure
 President holds quasi-judicial powers
 President is elected directly by the people through the electoral college

Merits: Separation of powers, Expert government, Stability, Less influence of party system

Demerits: Less responsible executive, Deadlocks between executive and legislature, Rigid government,
President’s sweeping powers

Parliamentary system

The parliamentary system was developed by England and India adopted this system from the UK with
some changes. In parliamentary system or parliamentary democracy where the executive derives its
democratic legitimacy from its ability to command the confidence of the legislature and is accountable
to the legislature. The head of the state is separate from the head of the government. Parliamentary
form of government is dominant in Europe with 32 of its sovereign states. In the UK parliamentary
system is also known as the Westminster system. It is also dominant in the Caribbean and Oceania.
Countries having parliamentary democracies can be of two kinds- constitutional monarchies and
parliamentary republics. In Constitutional monarchy, the head of the state is the monarch while the
head of the government is generally the parliament with or without a constitution. This system is
prevalent in the UK, Sweden, Japan, and Denmark. The other kind is parliamentary republics in which
usually the head of the state is a ceremonial president and the legislature form the head of the
government (Like India, Ireland, Germany, and Italy).

India chose a Parliamentary System for the governance of the country after independence. It is so
because the constitution-makers in the country were greatly influenced by the parliamentary system
prevalent in the United Kingdom. Also, seeing the diverse and varied groups and their culture, religion
and behavior somewhere forced our founding fathers to accommodate this system keeping in mind the
political setup. The principle of strict separation of power, being one of the key features of the
Presidential System leads to a lot of problems between the legislature and the executive. This hampers
the effectiveness and efficiency in work, which our country was not in a position to afford. The condition
of India at the time of Independence was such that it needed a system that was already tested and
successful, this also led the makers to choose this system. In this kind of system, generally, the
parliament is supreme and the executive is responsible to the legislature. It is also known as ‘Cabinet
form of government’ or ‘Responsible Government’.

Features

 The close relation between executive and legislature

 The executive is responsible to the legislature
 Secrecy of the procedure
 Dual executive
 The leadership of Prime Minister
 No fixed tenure
 Bicameral Legislature

Merits: Better coordination between executive and legislature, Responsible government, represents
diversity, Flexibility, Prevents Authoritarianism

Demerits: No separation of powers, Unqualified legislature, Instability, Failure to taking a prompt

decision, Party Politics

Supreme Court in Shamsher Singh v State of Punjab held- “The President and the Governor is the
constitutional or formal head. He exercises the powers and functions as conferred by the Constitution
on the aid and advice of his council ministers.”

 President is the head of the state and formal executive. All executive action at the centre is
expressed to be taken in his name. Acc. to Art 53(1)” The executive power of the union shall be
vested in the PRESIDENT and shall be exercised by him directly or through officers subordinate to
him in accordance with the constitution.”
 Constitution formally vests many functions in the President but he has no function to discharge in
his discretion or in his individual judgement.
 He acts on ministerial advice and therefore Prime Minister and the Council of Ministers constitute
the real and effective executive.
 The structure and the central executive closely resemble the British model with functions on the
basis of unwritten conventions.
 In India many conventions are written in the constitution.
Parliamentary Supremacy and Judicial Accountability
The Judiciary, Legislature and Executive are the three pillars on which the effective functioning of the
Government rests. A balance as opposed to conflicts is very necessary to achieve the ultimate public
welfare and smooth functioning of the constitutional machinery. India, on the contrary, bears the
supremacy of the Constitution where the powers of the Parliament are circumscribed within the four
walls set by the Constitution and yet provides for striking a balance between the various pillars without
any encroachment on each other’s area and providing effective governance.

Accountability is declared to be the sine qua non of any democratic nation as it secures the rights
provided to the citizens and delivers justice that is meant to be equal for all. It is true that the judiciary is
an independent body and it does have the authority to decide on its own way over a case. But the
decisions that are made subsequently affect the public at large and therefore the judges should be held
accountable for the decisions they make. Therefore, in order to regulate its function and promote
impartiality among the judges while making a decision, the judiciary must strike a balance.

In India, the constitutional supremacy was explicitly reiterated in the Minerva Mills case whereby the
Supreme Court held that “government, legislature, executive and judiciary is all bound by the
Constitution, and nobody, is above or beyond the Constitution.” Every law made by the parliament is
subject to interpretation by supreme court in the light of ideals and objectives of the constitution and if
they go beyond or above that, they can be held null and void. Indian Constitution does not have express
provision of separation of judicial and parliamentary supremacy but it’s not quite unclear also. It is the
prerogative of the parliament to amend the constitution and make the laws; it is the duty of the
judiciary to decide if basic structure of the constitution is transgressed by such laws. Once the
parliament has done its job, its Supreme Court which decides its constitutionality through judicial
review.

There have been conflicts between parliamentary supremacy and judicial supremacy. The best example
is of National Judicial Appointment Commission when Supreme Court pronounced its verdict on the
99th Constitution Amendment Act and the National Judicial Appointments Commission (NJAC), declaring
them to be ultra vires the Constitution. It is true that constitution has given superior powers of review to
judiciary to decide the constitutionality of the acts passed by legislature. Discharge of the judicial
functions should not be seen as against the will of the people for; constitution derives its authority to
give this power to Judiciary.

Judiciary should be free from the influence of the executive so that it could promote the ends of justice.
If the government is one of the parties to a dispute the judges should protect the citizens against
executive encroachment. No executive authority should interfere in or exercise control over the working
of law courts. The judiciary protects the rights of people against the encroachment of the government or
any other association or individual. The superior courts enforce the fundamental rights of the people
through the appropriate writs Judicial order- in the nature of Habeas Corpus, Mandamus, Certiorari,
Quo-Warranto etc. Both parliament and the judiciary should not exceed their limits as defined by the
constitution of India so that harmony can be maintained between the legislature and judiciary.
Participatory democratic system must be made effective and there must be proper check on the active
interaction between the people and their representatives is responsible for the conflict between the
parliament and judicial system in India. Judiciary and the legislature must be strengthened in terms of its
special power of judicial review to check and contain the excesses of other two wings of the
government.
Parliamentary democracy & Constitutionalism
India as a Democratic country ruled by the Parliamentary democracy headed by its prime ministers and
his governments where the Constitution of India become the right equilibrium and balance the checks
and balances between legislature, judicial and executive however, the balance of powers conferred by
constitution tested by the legislatures but however Judiciary has managed to retrieve the conferred
rights of Constitution and repealed the acts, amendments, procedures that violates the rights of the
citizens.

principle of separation of powers establishment in United States and Union of India have similarities,
since both these nations has obtained their Independence from British Monarch either way, neither USA
won Independence by war, nor India won Independence by nonviolence.

Though there are many similarities found in common, they were significant difference between the
countries, where one defined as constitutional federal republic and another defined as Democratic
Republic. Though India has much adopted with the capitalism principles but the fundamental principles
has laid under socialism that make India unique from the rest of the world; where eventually both
socialism & capitalism survived one after another, redefined India Economy in modern era.

India is known for the Parliamentary Democracy, Republicism, Sovereignty, Federalism, and where the
Fundamental Rights conferred by its constitution beyond the scope of legislative and where legislators
have been restrained to do any changes or any modification in basic structures of constitution, such
basic structures built with fundamental rights of Constitution as pillars to hold the nation as democratic
in the principles of separation of powers; free from the clutches of any individual group or person.

The constitution also possesses the unitary features single constitution, integrated judiciary, a strong
central government, a subordinated state governments with a unique combination of quasi-federal
system. The constitution of India has Federalism characteristic but unitary in spirit has features of a
federation, by a three-tier government structure as central, state and local, with a bicameralism system
and Judiciary was kept far independent organ, with its role for justice, equity, and being the protector
the constitution. The constitution of India is much elaborative than any other countries in the world,
such ensures stability of the world's largest democratic country under the unique Constitutional
supremacy.

In 1970, Kesavananda Bharthi V. State of Kerala, The Hon'ble Supreme court of India has given a land
mark judgment and outlined the basic structure doctrine to Indian Constitution. basic power of Indian
judiciary to review and overwrite (override) amendments to the Constitution of India by the parliament.
The parliament can only amend the constitution to certain limit of its basic structure.

Though parliamentary government is truly a democratic, such government has found with history that
they have passed various laws, acts, procedures, rules that infringe the rights of citizen. Indian
Parliament has also found with a history of overrule the Judiciary system for retaining their government
and questioned the rule of law and separation of powers.

However, the rights of the citizen conferred by the Constitution has been protected by Judiciary again
and again; repealed various laws, acts, and amendments that violates the rights of the citizen. The
constitution of India remains the supremacy, then ensure the separation of powers and rule of law and
protect the citizens forever and no wonder it the Jurist and Judicial experts wisely states it Constitutional
Democracy, though it is a parliamentary democracy.
module 3
Constitution and Constitutionalism
The concepts of constitution and constitutionalism refer to the legal framework of a country.While
constitution is often defined as the “supreme law of a country,” constitutionalism is a system of
governance under which the power of the government is limited by the rule of law. Constitutionalism
recognizes the need of limiting concentration of power in order to protect the rights of groups and
individuals. In such system, the power of the government can be limited by the constitution – and by the
provisions and regulations contained in it – but also by other measures and norms.

The definition of constitution is quite complex and has significantly evolved during the last two
centuries. According to the Western conception, constitution is the document that contains the basic
and fundamental law of the nation, setting out the organization of the government and the principles of
the society. Constitution has also been defined as:

 Basic norm (or law) of the state;

 System of integration and organization of norms and laws; and
 Organization of the government.

The constitution provides the foundation of the government, structuring the political organization and
guaranteeing individual and collective rights and freedoms.

Constitutionalism is a system of governance in which the power of the government is limited by laws,
checks and balances, in order to reconcile authority with individual and collective freedoms. The
principle of constitutionalism must be understood in opposition to nonconstitutionalism – a system in
which the government uses its powers in an arbitrary fashion, without respecting the citizens’ rights.

The idea of constitutionalism (and of constitution) is strictly linked with the progress and spread of
democracies. In monarchic, totalitarian and dictatorial systems there is generally no constitution or, if it
exists it is not respected. Individual and collective rights are often disregarded in dictatorial regimes, and
the government cannot be held accountable as there is no legal document that defines its limits. The
concept of constitutionalism has evolved during the last few centuries thanks to political changes and
progress of democratic ideals.

Similarities between Constitution and Constitutionalism

Constitution and constitutionalism are overlapping concepts, although the first refer to a written body
of laws and legislation and the second is a complex principle and system of governance. Some of the
similarities between the two include:

 Both refer to the limits and features of the system of governance of a country. Constitutionalism
would not exist without a constitution, and a constitutional way of governing a country requires
limits and boundaries to the central authority.
 Both influence the actions of both government and population. Besides providing a framework for
political and institutional structure, the constitution sets out the main rules that all citizens should
respect. Furthermore, ruling in a constitutional manner means that the government applies the
regulations outlined in the constitution to limit and manage the citizens’ acts - always respecting
individual and collective rights.
 Both protect and preserve individual and collective rights, preventing the central government from
abusing of its powers and infringing on the citizens’ basic freedoms.
 Both have evolved and significantly changed during the last few centuries, benefiting from the
spread of democratic ideals and becoming key features of the majority of Western countries.

Difference between Constitution and Constitutionalism

The main difference between constitution and constitutionalism lies in the fact that the constitution is
generally a written document, created by the government (often with the participation of the civil
society), while constitutionalism is a principle and a system of governance that respects the rule of law
and limits the power of the government. Most modern constitutions were written years ago, but laws
and norms had already been evolving and mutating for centuries, and continue to do so. The
constitution (and laws in general) is a living entity that should adapt to the changing features of the
modern world and of modern societies. Failing to adapt the constitution – without losing its core
principles and values – may lead to an obsolete and unadapt governance system. Other differences
between the two concepts include:

Constitutionalism is based on the principles outlined in the constitution – or in other core legal
documents – but it is also a principle of its own. The idea of constitutionalism is opposed to the concept
of authoritarian and despotic rule and is based on the belief that the power of the government should
be limited in order to prevent abuses.

The constitution is often a written document, while the principles of constitutionalism are generally
unwritten. Both constitution and constitutionalism evolve with the promulgation of democratic ideals –
although they do not always proceed at the same speed. There can be a constitutional form of
governance – that respects the rights of the citizens and promotes democratic values – even though the
national constitution is outdated. At the same time, an inefficient democratic government may not be
able to rule in a constitutional way, despite the existence of a constitution.

Constitution vs Constitutionalism

The concepts of constitution and constitutionalism are strictly linked, but the second is much more than
just the respect and enforcement of the national constitution. The creation of a constitution is the result
of years of progress and evolution, but, in some cases – like in Japan – the constitution can be imposed
by invading or opposing forces, and may not embody the key values and principles that characterize a
society.

A constitution is an official document that contains provisions that determine the structure of the
government and of the country’s political institutions, and that sets out regulations and limits for
government and citizens. Conversely, constitutionalism is a system of governance defined in opposition
to unconstitutionalism and authoritarianism. Constitutionalism is a principle that recognizes the need to
limit the power of the central government, in order to protect basic right and freedoms of the
population.

Therefore, both concepts are linked to the idea of limiting the power of the government – and somehow
creating boundaries for the acts of the citizens as well – but they are very different in nature.
Constitutions, which are a key feature of today’s western societies, have evolved during centuries and
continue to adapt to the changing nature of societies and political systems. Both constitution and
constitutionalism are tied to the idea of democracy and provide the legal framework for citizens to enjoy
individual and collective rights. The constitution is the basic law and backbone of a country, while
constitutionalism is the system of governance based on the constitution – or on other core documents –
and constitutional principles. In a constitutional system, the authority of the government depends on its
compliance with the limitations under the law, which are often contained in the national constitution.

Types of Constitution

On the basis of On the basis of

On the basis of
amendment division of
form
procedure powers

Written Rigid Federal

Unwritten Flexible Unitary

 Codified constitutions and Uncodified constitutions

 Flexible constitutions and Inflexible constitutions
 Monarchial and republican constitutions
 Presidential and parliamentary constitutions
 Federal and unitary constitutions
 Political and legal constitutions
 Social and welfare constitutions

Written constitution is one that is reduced into a form of a document having special sanctity. The term
written constitution, also designates a rather complete document or instrument in which the framers of
the constitution have attempted to arrange for every foreseeable contingency in its operation.

Example: India (1950), USA (1787), Canada (1867), Australia (1900)

On the other hand, Unwritten constitution is one which has grown up on the basis of custom rather
than of written law. But then, there is a great deal of statute law that could properly fit into the realm of
constitutional law, and much of it treats fundamental political institutions in the same way as written
constitution does. Example: England

On the basis of the amendment procedure of the Constitution, it is often termed as rigid and flexible.

 A written constitution is a standard of reference for classifying constitutions as rigid or flexible as

unwritten or uncodified or non-documentary constitution cannot be other than flexible, and it is
possible for codified or documentary constitution to be either flexible or rigid.
 The rigidity or otherwise flexibility of a constitution hinges on amendment or alteration procedure
of the constitution.
 As Garner says: “Those which possess no higher legal authority than ordinary laws and which may
be altered in the same way as ether laws, whether they are embodied in a single document or
consist largely of conventions, should then be classified as flexible, movable or elastic constitutions.”
 So, Dicey is right in holding that “strictly speaking, there is no constitutional law in Great Britain.”
 Accordingly, if the amendment or alteration procedure of a constitution is not made to depend on
some conditions or special procedures, then it may be called flexible constitution. Example: England
 If some conditions or a special procedure has to be met before the amendment of a constitution,
then it is a rigid constitution. Example: India, USA

Federal and Unitary

 In a federal constitution, powers of governments are divided between government for the whole
and governments for parts of the country in such a way that each government is independent and
none is subordinate to the other, and legislature in both cases have limited powers.
 In a unitary constitution on the other hand, the legislature of the whole country is the supreme law-
making body and it has the mandate to allow other legislatures to exist and exercise their powers
while reserving the right to overrule them as they are subordinate to it.
 A unitary constitution makes the central government strong so that it may meet any critical
situation, but it does not work well in a big country or where there is marked diversity in respect of
religions, cultures, languages and ways of life of the people.
 Whereas, the federal constitution makes the central government weak by dividing the powers
between the centre and the units, but it suits big countries like USA, Russian Federation and Canada
and it is invariably required in countries marked by religions, social and cultural diversities like
Switzerland; India and South Africa.
 The element of centralism has made its place in every federal system of the world. A peculiar
arrangement has been devised in India where the constitution operates as a federal mechanism in
normal times and becomes unitary during times of emergency.

It can be said that the Indian Constitution is neither purely federal nor purely unitary but a unique
combination of both aspects.

Concept of Federalism
Federalism can be simply defined as a form of government where there is interdependence of central
government at the national level with its constituent units at the regional, state, or local levels.
Etymologically, Foedus is the root Latin term from which the term Federalism is derived, which means a
formal agreement or covenant or a treaty. It basically means sharing of decision making authority and
devolution of power between the national and local governmental units, such that each unit is
delegated a sphere of power and authority only it can exercise, while other powers must be shared.
Justice Hugo. L. Black in the case of Younger v. Harris decided by the United States Supreme Court wrote
that Federalism meant “a proper respect for state functions, a recognition of the fact that the entire
country is made up of a Union of separate State governments, and a continuance of the belief that the
National Government will fare best if the States and their institutions are left free to perform their
separate functions in their separate ways.”

Federation should work on a mutually interdependent political leadership where equilibrium is to be

maintained so that neither of the levels of government becomes dominant to an extent that it can
dictate the decision of the other. A federation should be able to influence, but not hegemonies; bargain,
but not stipulate and persuade, but not coerce the other sovereign.

Characteristics of a federal Constitution

 A Written Constitution:- For a federal Constitution it is Mandatory that there should be a written
Constitution.
 Dual Government:- In case of federal constitution, there is system of dual government one at
centre and another at state.
 Supremacy of Constitution:- For a federal Constitution there should be supremacy of the
Constitution. At the time of the exercise of power by three organs of the Govt. i.e. legislative,
executive and Judiciary, all functions are Subordinated and Controlled by the Constitution.
 Distribution of Powers:- Federalism means the distribution of powers of the State among a
Number of Co-ordinate bodies each originating in and controlled by the Constitution
 Rigidity:- Rigidity is one of the Basic essential of a federal Constitution. It highly depends on the
Process of amendment.
 Independent Judiciary:- There should be an independent judiciary having authority on other
organs. In a federal Constitution the courts (judiciary) has the final power to interpret the
Constitution. Finally it should say that the judiciary acts as the Guardian of the Constitution.
 Conclusion-

Unitary and federal - comparative analysis (India, England & U.S.A)

To draw a parallel between systems of government, a federal polity involves a dual system of
government (national government and state government) as compared to a unitary system where a
single-central government is cardinal and ultimate. A classic example of a unitary state is the United
Kingdom wherein Scotland, Wales and Northern Ireland have a degree of autonomous devolved power
delegated by the Parliament of The United Kingdom, which may unilaterally alter or abolish devolution A
Confederation, on the other hand, is a state government, which operates directly upon the people, and
the central government acts through the state governments, unlike federation where both general and
regional governments operate directly upon people.

In a Unitary state, units derive power from central legislature i.e., Union > Units. In Confederation, it is
an alliance between independent states where units can secede i.e., Units > Union and when Union and
Units are co-equal, it is a federation with each unit being sovereign in its own sphere due to division of
legislative powers. Therefore, in federalism, unions and units are indestructible.
These days, with the complex and dynamic socio-economic structure and different circumstances,
environments and history of every nation, not every governmental system can be purely federal or
unitary. There is some color of centralism in a federal state and some federal characteristics in unitary
nations. The idea of federalism has been conceptualized in two different ways. On one hand, federalism
has been conceived as a means to unite people already linked by bonds of nationality through a
distribution of political power among the nation’s constituent units. On the other hand, federalism has
also been conceived as a means to unify diverse people for important but limited purposes, without
disrupting their primary ties to the individual policies that constitute the federal system. Thus, this
mixture of centralizing and decentralizing trend is likely to continue as long as federalism exists.

Looking at the Indian context, there are two levels of government: The central government with sole
authority to coin money, raise an army and declare war, while an intermediate level of government i.e.,
states or provinces who have the sole authority to regulate education, criminal or civil law etc. B.R.
Ambedkar, the architect of the Indian Constitution, said that this union was a federation and called it a
flexible federation, so as not to make it as rigid as the American Federation. The reason why federalism
as a constitutional principle was articulated differently was because of the historical context in which
our constitution was made, as the thought of a more potent federalism would weaken the feelings of
national unity in the country. The constitution of 1950 was to be implemented throughout the length
and breadth of the country with myriad of religions, races, languages and other diversities in our
extremely heterogeneous society. A parliamentary system with federal features was finally adopted on
26th January, 1950 with no formal agreement by the states to join in ‘federation of states’, and thus
Indian Union has been held as ‘quasi federal’ or a ‘co – operative federation’. Dr. B.R. Ambedkar
emphasized that India will be a Union of States and not a Federation. The states would have no right to
secede. He also said: “The Federation is a Union because it is indestructible. Though the country and the
people may be divided into different States for convenience of administration the country is one integral
whole, its people a single people living under a single imperium derived from a single source.”

Approaches of Federalism
THE INSTITUTIONAL APPROACH: The writer who has exerted the greatest influence on the study of
federalism in Britain is undoubtedly K. C. Wheare. His method was to construct a kind of model by
isolating the common features of these systems which led observers to describe them as federations.
These features were defined first in terms of constitutional law and then in terms of the political
relationships which had developed on the basis of the constitutional provisions. He has made a series of
comparisons and contrasts of developments in the history and government of the four countries,
carefully analyzed to illuminate the relationship of these developments to the federal model, as defined.

SOCIOLOGICAL APPROACH: It is not surprising that some writers have attempted to define federalism in
sociological terms. The undisputed leader in this enterprise is W. S. Livingston, published in an article
that federalism is essentially a phenomenon of social diversity rather than one of constitutional
mechanics. ‘The essence of federalism’, he says, ‘lies not in the constitutional or institutional structure
but in the society itself’. Since all countries are characterized by some social diversity, all countries have
some tendency to be federal. ‘There is no point at which it can be said that all societies on one side are
unitary and all those on the other are federal’. These diversities which exist, in differing degrees, in all
societies, are said to be reflected and expressed in political phenomena which Livingston calls federal
instrumentalities. A fair number of these instrumentalities must emerge before it would be reasonable
to describe the political system as a whole as federal, but no definition or classification can be
attempted, for federalism is ‘not an absolute but a relative term’.

FEDERALISM AS A PROCESS: Friedrich describes a federation as ‘a union of groups, united by one or

more common objectives, but retaining their distinctive group character for other purpose. This
description can be applied not only to a federal state but also to an alliance, a functional association of
states, or a union of groups within a state. Federalism is said to be the process of federalizing, that is,
the process of achieving a union of groups which retain their identity. It follows that ‘federalism may be
operating in both the direction of integration and differentiation. For both the transformation of the
British Empire into the Commonwealth of Nations and that of European states into a United States of
Europe (as envisaged and initiated) are federalizing processes. This approach thus directs our attention
to one of the features of postwar politics - the development of a wide variety of political systems and
organizations in which decision-making is divided between a central authority and a number of regional
authorities.

FEDERALISM AS A BARGAIN: Riker defines federalism in a very simple and formal way, saying that a
constitution is federal if it provides for two levels of government, each of which has at least one area of
action in which it is autonomous, and each of which has some of its contained autonomy within its
sphere. He concludes that two conditions should be regarded as necessary conditions for the striking of
a federal bargain. The fist condition is the existence of politicians who wish to expand the area of
territorial control, either ‘to meet an external military or diplomatic threat or to prepare for military or
diplomatic aggression’, but prefer to expand without the use of force. The second condition is the
willingness of the assenting politicians to surrender part of their independence, either because ‘they
desire protection from an external threat’ or because ‘they desire to participate in the potential
aggression of the federation’.

Cooperative Federalism
Cooperative federalism is a model of intergovernmental relations that recognizes the overlapping
functions of the national and state governments. This model can be contrasted with the model of dual
federalism, which maintains that the national and state governments have distinct and separate
government functions.

In general, cooperative federalism asserts that governmental power is not concentrated at any
governmental level or in any agency. Instead, the national and state governments share power. For
instance, bureaucratic agencies at the national and state level normally carry out governmental
programs jointly. Because the governments’ responsibilities are split between many levels of
government, citizens and organized interests have many access points to influence public policy.

The constitutional foundations of the cooperative model of federalism are threefold. First, the
proponents of cooperative federalism rely on a broad interpretation of the Supremacy Clause (Article VI)
of the Constitution. Second, they contend that the Necessary and Proper Clause (Article 1, Section 8),
also known as the Elastic Clause, allows the national government to make laws that are essential to
carrying out the government’s inherent powers. Finally, they hold a narrow interpretation of the Tenth
Amendment.

The model of cooperative federalism was expanded during Franklin D. Roosevelt’s New Deal. The
influence of the national government over social welfare policies continued after World War II and into
the 1960's when Lyndon B. Johnson declared his War on Poverty. Johnson’s efforts to expand this safety
net are often referred to as “creative federalism.”

A “rights revolution” during the late 1960's and 1970's extended the idea of cooperative federalism as
the national government became involved in issues such as the environment, job safety, mental health,
education, and the rights of disabled individuals. As the national government shaped new public policies
to deal with these issues, it relied on the states to implement a wide array of federally imposed
mandates.

The modern view of cooperative federalism is very different than the model used in the nineteenth
century. In the 1970's, federal mandates became more exacting and binding, and no longer emphasize
unconditional assistance to the states. The national government also provided deadlines for compliance
and could penalize the states for failing to meet them.

NITI Aayog has been constituted to actualize the important goal of cooperative federalism and to enable
good governance in India. On the premise that strong states make a strong nation, NITI Aayog acts as
the quintessential platform for the Government of India by bringing States together as ‘Team India’ to
work towards the national development agenda.

In view of this, a number of steps have been taken by NITI Aayog to foster cooperative federalism
through structured support initiatives and engagement with the States/UTs on a continuous basis. These
include meetings between the Prime Minister/Cabinet Ministers and all Chief Ministers; subgroups of
Chief Ministers on subjects of national importance; sharing of best practices; policy support and capacity
development of State/UT functionaries; launching of the Aspirational Districts Programme for
development of backward districts; theme-based extensive engagements in various sectors; framing
model laws for land leasing and agriculture marketing reforms; and area-specific interventions for the
North-Eastern and Himalayan States and island development.
module 4
Concept of Judicial Review
Introduction

Judicial review is recognized as a necessary and a basic requirement for construction of a novel
civilization in order to safeguard the liberty and rights of the individuals. The power of judicial review is
significantly vested upon the High Courts and the Supreme Court of India. Under Article 13 of the Indian
Constitution, the compulsion of judicial review was described in fundamental rights in Part III. It is stated
that the State or the Union shall not make such rules that takes away or abridges the essential rights of
the people. If any law made by the Parliament or the State Legislature contravenes the provisions of this
Article, shall be void.

Meaning of Judicial Review

Judicial Review can be understood as a form of court proceeding, usually in the Administrative Court
where the lawfulness of a decision or action is reviewed by the judge. Where there is no effective means
of challenge, judicial review is available. The concern behind Judicial Review is that whether the law has
been correctly applied with and right procedures have been followed.

Judicial Review is a power of the courts of a country to examine the actions of the legislative, executive,
and administrative arms of the government and to determine whether such actions are consistent with
the constitution. Actions judged inconsistent are declared unconstitutional and, therefore, null and void.
The institution of judicial review in this sense depends upon the existence of a written constitution.

Judicial Review and Constitution of India

In order to scrutinize the legitimacy of administrative action and the statutes, the Constitution of India
has given influences to the Higher courts and the Supreme Court of India. To guard the rights of public
and implement the fundamental rights are the main objects of judicial review. If any difficulty arises
between State and Center relation, then Article 246 and the Schedule 7 of the Constitution has marked
the working zone for the regulation construction between both State and Center.

Judicial review has evolved in three dimensions: To protect the legality of essential rights under Part III
of the Indian Constitution; To authorize the disinterest of organizational achievement; Interrogation of
public interest.

Judicial Review in India

Judicial review plays an important role as a protector when the executive, judiciary and legislature harm
the Constitutional values and deny the rights. The judicial assessment is considered as an indispensable
feature in the country. In India, there is parliamentary form of democracy where every section of people
is involved in decision making and policy making process. It is true that the primary duty of the court to
apply rule of law and is the groundwork of social equality. By exercising new powers of Parliament, rule
of law which is to be applied by the court cannot be modified. All those who are doing public duty, are
accountable. They have to work within the democratic provisions of the Constitution of India.

Mechanisms of Judicial Review

In India, three aspects are covered by judicial review that are as follows:

 Judicial review of legislative action

 Judicial review for judicial decision
 Judicial review of administrative action

These facets of judicial review were pronounced by the Supreme Court of India in case of L. Chandra
Kumar v. Union of India (1997) 3 SCC 261 stating that the judges of higher court have to interpret
legislation up to this end that the Constitutional values are not to be interrupted. To achieve this end,
the judges have to keep in mind that the equilibrium of control, specified in the Constitution is not
disturbed.

Judicial Pronouncements

1. Shankari Prasad v. Union of India AIR 1951 SC 458: It was held by six judge bench, five judges not
agreed to amending the essential rights under the Indian Constitution. However, in case of
Keshavanand Bharti v. state of Kerala where six judges out of seven judges held that Parliament
modifying influence has and at all portion of the Constitution can be amended and over ruled the
Golaknath case. The Supreme Court held that the essential rights cannot be modified in such a
method, which will touch the elementary construction of the Constitution.
2. I. R. Coelho v. State of Tamil Nadu AIR 2007 SC 861: This case was seen from Keshvanand Bharti
case in which the cases like Chandra Kumar v. Union of India and others (1997), Waman Rao and
others v. Union of India and others (1981), Minerva Mills Ltd. and others v. Union of India
(1980), Indira Nehru Gandhi v. Raj Narnia (1975), where judicial review was considered as essential
and integral Part of the Constitution of India.
3. P.U.C.L v. U. O. I. AIR 1997 SC 568: The Indian Supreme Court, in its historical verdict stated that to
disregard or disobey the decision given by the court, the lawmakers of India have no power to ask
for the instrumentality, if the legislature has influence over the subject matter.

Constitutional judicial review exists in several forms. In countries that follow U.S. practice (e.g., Kenya
and New Zealand), judicial review can be exercised only in concrete cases or controversies and only after
the fact—i.e., only laws that are in effect or actions that have already occurred can be found to be
unconstitutional, and then only when they involve a specific dispute between litigants. In France judicial
review must take place in the abstract (i.e., in the absence of an actual case or controversy) and before
promulgation (i.e., before a challenged law has taken effect). In other countries (e.g., Austria,
Germany, South Korea, and Spain) courts can exercise judicial review only after a law has taken effect,
though they can do so either in the abstract or in concrete cases. Systems of constitutional judicial
review also differ in the extent to which they allow courts to exercise it. For example, in the United
States all courts have the power to entertain claims of unconstitutionality, but in some countries (e.g.,
France, Germany, New Zealand, and South Africa) only specialized constitutional courts can hear such
claims.

A number of the constitutions drafted in Europe and Asia after World War II incorporated judicial review
in various forms. For example, in France, where the Cour de Cassation (the highest court of criminal and
civil appeal) has no power of judicial review, a constitutional council (Conseil Constitutionnel) of mixed
judicial-legislative character was established. Germany, Italy, and South Korea created special
constitutional courts and India, Japan, and Pakistan set up supreme courts to exercise judicial review in
the manner generally used in the United States and in the British Commonwealth. Although judicial
review had been relatively uncommon before World War II, by the early 21st century more than 100
countries had specifically incorporated judicial review into their constitutions.
Types of Judicial Review
Importance

 Judicial review is necessary to uphold the principle of supremacy of the constitution.

 The provision of judicial review prevents the misuse of power by the legislature and executive.
 It maintains the equilibrium between the centre and state, thereby maintaining federal equilibrium.
 The provision protects the fundamental rights of the citizens.
 This provision ensures the principle of the independence of the judiciary.

Scope of judicial review

 Judicial review isn’t absolute as some conditions need to be met to challenge any law in the
supreme court or the high courts, i.e., a law can be challenged only if:
o The said law infringes upon the fundamental rights guaranteed by the constitution.
o The said law goes against the provisions listed in the constitution.
o The law that has been enacted goes beyond the competency of the authority that framed it.

Types of judicial review

 Judicial review of constitutional amendments.

 Judicial review of legislation by the parliament and state legislatures expands to subordinate
legislation.
 Judicial review of administrative actions of the union and state expanding up to authorities under
the state.

Types of judicial review

1. Review of administrative acts and secondary legislation

Most modern legal systems allow the courts to review administrative acts. This includes review
of secondary legislation (legally enforceable rules of general applicability adopted by administrative
bodies). Some countries (notably France and Germany) have implemented a system of administrative
courts which are charged with resolving disputes between members of the public and the
administration, regardless these courts are part of administration or judiciary. In other countries
(including the United States and United Kingdom), judicial review is carried out by regular civil courts
although it may be delegated to specialized panels within these courts (such as the Administrative Court
within the High Court of England and Wales). The United States employs a mixed system in which some
administrative decisions are reviewed by the United States district courts (which are the general trial
courts), some are reviewed directly by the United States courts of appeals and others are reviewed by
specialized tribunals such as the United States Court of Appeals for Veterans Claims (which, despite its
name, is not technically part of the federal judicial branch). It is quite common that before a request for
judicial review of an administrative act is filed with a court, certain preliminary conditions (such as a
complaint to the authority itself) must be fulfilled. In most countries, the courts apply special procedures
in administrative cases.

2. Review of primary legislation

There are three broad approaches to judicial review of the constitutionality of primary legislation—that
is, laws passed directly by an elected legislature.
 a. No review by any courts

Some countries do not permit a review of the validity of primary legislation. In the United Kingdom, Acts
of Parliament cannot be set aside under the doctrine of parliamentary sovereignty, whereas Orders in
Council, another type of primary legislation not passed by Parliament ( Council of Civil Service Unions v
Minister for the Civil Service (1985) and Miller/Cherry (2019)). Another example is the Netherlands,
where the constitution expressly forbids the courts to rule on the question of constitutionality of
primary legislation.

b. Review by general courts

In countries which have inherited the English common law system of courts of general jurisdiction,
judicial review is generally done by those courts, rather than specialised courts. Australia, Canada and
the United States are all examples of this approach.

In the United States, federal and state courts (at all levels, both appellate and trial) are able to review
and declare the constitutionality, or agreement with the Constitution of legislation by a process
of judicial interpretation that is relevant to any case properly within their jurisdiction. In American legal
language, "judicial review" refers primarily to the adjudication of the constitutionality of statutes,
especially by the Supreme Court of the United States. Courts in the United States may also invoke
judicial review in order to ensure that a statute is not denying individuals of their constitutional
rights. This is commonly held to have been established in the case of Marbury v. Madison, which was
argued before the Supreme Court in 1803.

c. Review by a specialized court

In 1920, Czechoslovakia adopted a system of judicial review by a specialized court, the Constitutional
Court as written by Hans Kelsen, a leading jurist of the time. This system was later adopted
by Austria and became known as the Austrian System, also under the primary authorship of Hans
Kelsen, being emulated by a number of other countries. In these systems, other courts are not
competent to question the constitutionality of primary legislation. They often may, however, initiate the
process of review by the Constitutional Court.

Russia adopts a mixed model since courts at all levels, both federal and state, are empowered to review
primary legislation and declare its constitutionality; as in the Czech Republic, there is a constitutional
court in charge of reviewing the constitutionality of primary legislation. The difference is that in the first
case, the decision about the law's adequacy to the Russian Constitution only binds the parties to the
lawsuit; in the second, the Court's decision must be followed by judges and government officials at all
levels.
Judicial Review Substantive and procedural review of governmental conduct
Grounds of review – comparative approach (India, England & U.S.A.)
In recent times, many administrative decisions taken by the Government are being struck down either
on avoidable grounds of illegality or procedural irregularity or some other grounds which could have
been validly averted. Judicial review is the basic feature of the Indian Constitution and therefore, cannot
be abrogated even by an amendment of the Constitution. It is incorporated in Articles 226 and 227 of
the Constitution insofar as the High Courts are concerned. In regard to the Supreme Court Articles 32
and 136 of the Constitution embody the principle of judicial review. Judicial review of any administrative
action can be exercised on five grounds viz,

a. Jurisdictional Error
b. Irrationality
c. Procedural impropriety
d. Proportionality

These grounds of judicial review were developed by Lord Diplock in Council of Civil Service Union v.
Minster of Civil Service (1985) AC 410. Though these grounds of judicial review are not exhaustive and
cannot be put in watertight compartments yet these provide sufficient base for the courts to exercise
their review jurisdiction over administrative action in the interest of efficiency, fairness and
accountability.

Jurisdictional Error

The term “jurisdiction” means “power to decide”. The jurisdiction of the administrative authority
depends upon facts the existence of which is necessary to the initiation of proceedings & without which
the act of the Court is a nullity. These are called “jurisdictional facts”. This ground of judicial review is
based on the principle that administrative authorities must correctly understand the law and it limits
before any action is taken. Court may quash an administrative action on the ground of ultra vires in
following situations: -

a) Lack of Jurisdiction
b) Excess of Jurisdiction
c) Abuse of Jurisdiction
d) Improper purpose
e) Error apparent on the face of the record
f) Non-consideration of relevant material
g) In bad faith
h) Fettering discretion

Irrationality (Wednesbury Test)

A general principle which has remained unchanged is that discretionary power conferred on an
administrative authority is required to be exercised reasonably. A person in whom is vested a discretion
must exercise his discretion upon reasonable grounds. A decision of the administrative authority shall be
considered as irrational if it is so outrageous in its defiance to logic or accepted norms of moral standard
that no sensible person, on the given facts and circumstances, could arrive at such a decision.
Irrationality as a ground of judicial review was developed by the Court in Associated Provincial Picture
House v. Wednesbury (1948) 1 KB 223, later came to be known as “Wednesbury test” to determine
‘irrationality’ of administrative action. The local authority had the power to grant licenses for the
opening of cinemas subject to such conditions as the authority ‘thought fit’ to impose. The authority,
when granting a Sunday licence, imposed a condition that no children under the age of 15 years should
be admitted.

The applicants argued that the imposition of the condition was unreasonable and ultra vires the
corporation’s powers. Stating that the Court should not substitute its view for that of the corporation
the court observed: interference would not be permissible unless it is found that the decision was illegal
or suffered from procedural improprieties or was one which no sensible decision maker could, on the
material before him and within the framework of law, have arrived at it. The Court would consider
whether relevant matters were not taken into account or whether the action was not bona fide or
whether the decision was absurd.

A decision by an authority may also be unreasonable if conditions are attached to the decisions which
are difficult or impossible to perform. Where an authority makes a decision which is in part good, but in
part bad the court may either invalidate the entire decision or sever the bad part of the decision from
the good.

Procedural Impropriety

Failure to comply with procedures laid down by statute may invalidate a decision. Procedural
Impropriety is to encompass two areas: failure to observe rules laid down in statute and a failure to
observe the basic common law rule of natural justice. In Bradbury v Enfield London Borough
Council [1967] 3 All ER 434, the Education Act 1944 provided that, if a local education authority intends
to establish new schools or cease to maintain existing schools, notice must be given to the minister,
following which, public notice must be given in order to allow interested parties to comment. The
Council breached the requirement of public notice and the plaintiffs sought an injunction. The Council
claimed that educational chaos would occur if they were required to comply with the procedural
requirements. That plea met with little sympathy in court.

Proportionality

Proportionality means that the administrative action should not be more drastic than it ought to be for
obtaining desired result. Proportionality is sometimes explained by the expression ‘taking a
sledgehammer to crack a nut’. Thus, this doctrine tries to balance means with ends. Proportionality
shares space with ‘reasonableness’ and courts while exercising power of review sees, ‘is it a course of
action that could have been reasonably followed’. Courts in India have been following this doctrine for a
long time but English Courts have started using this doctrine in administrative law after the passing of
the Human Rights Act, 1998. Thus, if an action taken by the authority is grossly disproportionate, the
said decision is not immune from judicial scrutiny. The sentence has to suit the offence & the offender.
It should not be vindictive or unduly harsh.

In Hind Construction Co. vs. Workmen AIR 1965 SC 917, some workers remained absent from duty
treating a particular day as holiday. They were dismissed from service. The industrial tribunal set aside
the action. This court held that the absence could have been treated as leave without pay. The workmen
might have been warned and fined. The Court said that it was impossible to think that any reasonable
employer would have imposed the extreme punishment of dismissal on its entire permanent staff in this
manner. The court explained that the punishment imposed the workmen was not only severe but out of
proportion.
Judicial review – A brief analysis
INTRODUCTION

It is the ultimate power of the judiciary to review and determine the validity of a law or an order may be
described as the powers of “judicial review”. This system in India has been governed by the principal of
‘procedure established by law’ under which it has one test i.e. Whether the law has been made with
procedures of law or not, if not will be declared unconstitutional.

In India there is a rule of law and the constitution is the supreme law. The Indian constitution is the law
of the land and if any law passed violates the basic structure of the constitution the Indian judiciary is
having the power to nullify that law. The term judicial review is actually not there in Indian Constitution
but many articles are there which gives the clear idea of judicial review in it.

The Indian judiciary are having the powers to examine the actions of legislature, executive,
administrative arms of the government and to ensure that such actions should adhere to the provisions
of our constitution. If found unconstitutional, the following provision shall be made void.

Judicial review has two important functions look upon:

 Legitimizing the actions of the government.

 The protection of the constitution if the government tries to encroaches in it.

HISTORICAL VIEW

The most distinctive feature of the United States supreme court is its power of judicial review. As the
guardians of the constitution the judiciary is that they can review the laws which may violate the
constitution of the country. The power of judicial review was first introduced in the supreme court in the
case of Marbury v. Madison (1803) in which the powers of the supreme court was established by
limiting the power of the congressional by declaring the legislation unconstitutional.

In this case the court ruled out that the newly elected president of that time and his secretary of state,
John Madison was wrong to prevent William Marbury from being the justice of the district court as
being appointed by the former president before leaving the office. So, he filed a writ of Mandamus
against the secretary of the state. The judiciary Act of 1789 gave the supreme court jurisdiction, but the
Marshall court ruled the act of 1789 to be an unconstitutional extension of judiciary.

The Constitution of India is more tilted towards the U.S Constitution in the aspect of this prospect of
judicial review than that of Britain. In Britain, no court can declare any law invalid passed by the British
parliament whereas in India parliament is not supreme it cannot make and any laws executed there are
always under the scope of judicial review.

CONSTITUTIONAL PROVISIONS IN INDIA

The India parliament has adopted this system of judicial review system from US Constitution and the
powers of the parliament are not supreme and the power is divided between Centre and the states. The
supreme courts also have powers of reviewing the enactments of both the parliament and state
legislatures. This makes the courts more powerful and grants an instrument of the judicial review.
The various provisions of the system of judicial review has been granted by our Constitution in various
articles. These articles are Article 13, 32, 131-136, 143, 226, 145, 246, 254, 251 and 372. These articles
would be explained in brief below:

 Article 13 declares that any law which contravenes any of the provisions of the part of the
fundamental rights shall be void.
 Article 32 provides the right to constitutional remedies which means that a person has the right to
move to the supreme court for getting his fundamental rights protected.
 Article 226 empowers the high court to issue directions, orders or writs in the nature of habeas
corpus, mandamus, quo warranto and certiorari. Such directions, orders or writs may be issued for
the enforcement of fundamental rights or any other purpose.
 Article 143 confers the power upon the supreme court advisory jurisdiction. The president may seek
the opinion of the supreme court on any question of law or fact of public importance on which he
thinks it expedient to obtain such an opinion.
 Article 372(1) says that all the law in force in the territory of India immediately before the
commencement of the constitution shall be in force therein until altered, repealed or amended by a
competent legislature or an authority.
 Article 131-136 entrusts the courts with the power of adjudicate disputes between individuals, and
the state, between the states and the union; but the court may be required to interpret the
provisions of the constitution and the interpretation given by supreme court becomes the law
honored by all courts of the land.
 Article 245 states that the powers of both parliament and states legislature are subject to the
provisions of the constitutions. Any legitimacy of any legislation can be challenged before the court
of law on that particular subject matter or if the law infringes any of the fundamental right.
 Article 246(3) states that the powers of both parliament and state legislatures are subject to
provisions of the Constitution of India.
 Article 251 and 254 states that in case of inconsistency between union and state laws, the state laws
shall be void.

It must also be kept in mind that there is no express provision in our constitution which empowers the
courts to invalidate laws, they are only entrusted with the task of deciding whether the law which is to
be implemented is not unconstitutional or not. In case if part of a provision becomes non-operative and
other part of that provision continues to be in operation. If the other part in operation cannot be
operated without the other part, then the whole of the law gets rejected.

For declaring any law unconstitutional the supreme courts have to properly mention that which part of
the provision is unconstitutional then that particular part or the whole of the provision would be
repealed from the Indian constitution. When a law is found to be unconstitutional it ceases to operate
from the date of the judgement given by the courts. All the previous decisions which were taken before
the day of declaration, shall continue to remain valid.

CASES OF JUDICIAL REVIEW IN INDIA

Judicial review can be conducted on both states and central existing laws and the ordinances of both
constitutional and executive amendments. Judicial review cannot be conducted on the laws present in
the ninth schedule of the Indian Constitution. The interpretations of the supreme court is honored by
every court on the land and thus there is no appeal against the judgement of the supreme court.
In Shankari Prasad v. Union of India the first amendment act of 1951 was being challenged before the
supreme court on the ground that ‘Right to Property’ was been abridged by the Act and was argued that
it could not be done as the fundamental rights under article 13(2). Supreme court rejected the
contention and said that the terms of Article 368 are perfectly general and empower the parliament to
amend the constitution without any exception.

The landmark case of Golaknath v. State of Punjab three constitutional amendments were challenged
which were 1st, 4th and 17th. The supreme court reversed its decision that parliament under article 368
has no power to amend to take away or abridge the fundamental rights guaranteed under our
constitution. The supreme court observed that:

 Article 368 only provides a procedure to be followed regarding amendments of the constitution.
 Article 368 does not actually contain the power to amend the constitution
 The powers to amend the constitution is derived from article 245, 246, 248 and entry 97 of the
Union list.

In Minerva mills case the supreme court by a majority of decision struck down section 4 of the 42nd
Amendment Act which gave power to the directive principles over article 24, 19, 31 of our constitution.
As it would destroy the harmony of the Indian Constitution and stated that part III &IV of our
constitution are equally important and absolute primacy of one over other is not permissible.

Thus, interpreting the various provisions of the constitution and helps in proper implication of laws in
the country.

CONCLUSION

The system of judicial review is one of the most powerful systems of our Indian Constitution. The
doctrine of judicial review is thus firmly rooted in India, and has explicit sanctions of the Indian
constitution. All the provisions in our Indian clearly mentions the importance of judiciary and helps in
keeping a check over the legislative and executive of the Centre as well as states. The system of judicial
review act as guardians of protection of our constitution and guarantees individual fundamental rights,
divides power between the union and the states and clearly defines the powers of every organ
functioning in the country. Thus, legitimizing the actions of the government and the protection of the
Indian constitution against any undue encroachment by the government.
module 5
Constitutionalism and international legal order
International Constitutionalization presents a challenge to the traditional international legal order and
particularly the role of the state. The state is currently in a period of flux within international law.
Constitutionalization presents one possible future understanding of the role of the state in international
governance. Arguably, for a process of Constitutionalization to occur some core norms of
constitutionalism must be present. Two norms of constitutionalism, the separation of powers and
democratic legitimacy, present particular difficulties for the role of the state in current international law.
As long as state’s actions as part of an international constitutional order remain unresolved, the process
of Constitutionalization itself cannot said to be complete or indeed legitimate.

1. International constitutionalism and the state

The state dominates the historical narrative of modern international law. The traditional account
establishes that from the signing of the Peace of Westphalia to the present, the state, as defined by the
terms of recognition (defined territory, defined population, control over internal and external relations)
and sovereignty are the centrifugal force in international law. In recent years, the advent of multiple
international actors requires a reconsideration of this account of the state’s place in the international
legal order. Regarding the state as the all-encompassing sole subject of international law is no longer
sound. Alongside this evolution, the developing theory of international Constitutionalization requires a
reflection on the operation of the international legal order.

2. The state in international law

The state is at the core of international, regional and domestic law. The differing roles the state plays
within the three legal systems is without compare, and while it fulfills varying roles in each legal order,
the state remains central to understanding how each system works. The impact which the state as a
legal entity has had on international law should not be underestimated.

Yet, from this traditional basis, international law, centered on state consent, is giving way to a more
differentiated legal order. The models of multilateralism, the establishment of doctrines such as jus
cogens, among other changes, produces a network of laws which can no longer be described as purely
consensual. Further, the establishment and proliferation of multilateral organizations change the
features of international law and calls traditional aspects of sovereignty into question. Various theories,
including fragmentation, global legal pluralism, and Constitutionalization seek to rationalize these
changes into a coherent theory to account for this transformation in international law.

3. International Constitutionalization

Constitutionalism, as a theory of governance, requires a system of law to comprise core norms such as
the rule of law, rules which constrain individual freedoms to tests of proportionality and necessity,
separation of powers, rule-oriented settlement of disputes, and inalienable human rights regimes. Yet,
there are competing views of what international constitutionalism entails. For Walker, it is an
indispensable symbolic and normative framework for thinking about the problems of viable and
legitimate regulation of the complexly overlapping political communities of a post-Westphalia
world. Roth argues that a constitution serves to decide whether an enactment is valid law within a
society. Constitutionalism entails a core set of norms, most particularly the rule of law, democratic
legitimacy, and a division of power, which form the basis of a governance order within a constitutional
legal system, these norms form the basis of constitutionalism, no matter the legal order on which it is
situated and thus, must be present.
Constitutionalization, besides the international context, can be described as a process where a legal
system goes from an ad hoc, decentralized, and consent-based order to a system where the law
regulates the exercise of power and governance. Constitutionalization advances the pre-constitutional
legal order as it moves away from a structure where the holders of power are entirely self-regulated,
and beyond review to a system which provides a formulation where review may take place.43 As such,
constitutionalization can be considered to represent both a legal and political process. For the
international legal order, it would require an adoption of the norms of constitutionalism into the system
until, over time, it becomes a fully functional constitutional order. This is not to suggest that
international law will become politicized, but rather, that as a result of constitutionalization law will
regulate most, though not all, holders of constituted power on a more consolidated basis than in a non-
constitutionalized system.

Importance of United Nation in International Legal Order

Role of UN in International legal order
Among the greatest achievements of the United Nations is the development of a body of international
law, which is central to promoting economic and social development, as well as to advancing
international peace and security. The international law is enshrined in conventions, treaties and
standards. Many of the treaties brought about by the United Nations form the basis of the law that
governs relations among nations. While the work of the UN in this area does not always receive
attention, it has a daily impact on the lives of people everywhere.

The Charter of the United Nations specifically calls on the Organization to help in the settlement of
international disputes by peaceful means, including arbitration and judicial settlement (Article 33), and
to encourage the progressive development of international law and its codification (Article 13).

Over the years, more than 500 multilateral treaties have been deposited with the UN Secretary-General.
Many other treaties are deposited with governments or other entities. The treaties cover a broad range
of subject matters such as human rights, disarmament and protection of the environment.

The UN Charter, in its Preamble, set an objective: "to establish conditions under which justice and
respect for the obligations arising from treaties and other sources of international law can be
maintained". Ever since, the development of, and respect for international law has been a key part of
the work of the Organization. This work is carried out in many ways - by courts, tribunals, multilateral
treaties - and by the Security Council, which can approve peacekeeping missions, impose sanctions, or
authorize the use of force when there is a threat to international peace and security, if it deems this
necessary. These powers are given to it by the UN Charter, which is considered an international treaty.
As such, it is an instrument of international law, and UN Member States are bound by it.

The UN Charter codifies the major principles of international relations, from sovereign equality of States
to the prohibition of the use of force in international relations.

Roles and duties:

1. Settling disputes between States in International Court of Justice

The principal judicial organ of the United Nations is the International Court of Justice (ICJ). This main
body of the UN settles legal disputes submitted to it by States in accordance with international law. It
also gives advisory opinions on legal questions referred to it from authorized UN organs and specialized
agencies.

The Court is composed of 15 judges, who are elected for terms of nine years by the General Assembly
and the Security Council.

2. Addressing war crimes, crimes against humanity and genocide in Courts and Tribunals

In addition to the International Court of Justice, a wide variety of international courts, international
tribunals, ad hoc tribunals and UN-assisted tribunals have varying degrees of relation to the United
Nations (such as the tribunals for the former Yugoslavia and Rwanda, the Special Court for Sierra Leone,
the Extraordinary Chambers in the Courts of Cambodia and the Special Tribunal for Lebanon).

The Mechanism for International Criminal Tribunals (the MICT) was established by the United Nations
Security Council on 22 December 2010 to carry out a number of essential functions of the International
Criminal Tribunal for Rwanda (ICTR) and the International Criminal Tribunal for the former Yugoslavia
(ICTY), after the completion of their respective mandates. These are established by (and are Subsidiary
Organs of) the Security Council.

The International Criminal Court (ICC) and International Tribunal for the Law of the Sea (ITLOS), were
established by conventions drafted within the UN, but are now independent entities with special
cooperation agreements.

Main Bodies of UN for International Legal Order

1. Security Council

Some of the action of the Security Council have international law implications, such as those related to
peacekeeping missions, ad hoc tribunals, sanctions, and resolutions adopted under Chapter VII of the
Charter. In accordance with Article 13(b) of the Rome Statute, the Security Council can refer certain
situations to the Prosecutor of the International Criminal Court (ICC), if it appears international crimes
(such as genocide, crimes against humanity, war crimes, the crime of aggression) have been committed.

2. General Assembly

The UN Charter gives the General Assembly the power to initiate studies and make recommendations to
promote the development and codification of international law. Many subsidiary bodies of the General
Assembly consider specific areas of international law and report to the plenary. Most legal matters are
referred the Sixth Committee, which then reports to the plenary. The International Law Commission and
the UN Commission on International Trade Law report to the General Assembly. The General Assembly
also considers topics related to the institutional law of the United Nations, such as the adoption of the
Staff Regulations and the establishment of the system of international justice.