Comparative Constitutionalism – UPSC Notes
Definition & Scope
Comparative constitutionalism refers to studying and comparing constitutions of different countries
to understand how they organize government, protect rights, and limit power. It helps identify best
practices, pitfalls, and global constitutional trends. It aids constitutional interpretation, reforms, and
democratic strengthening.
Key Concepts
Concept Explanation
Constitutionalism Government power is limited by law and must operate within constitutional boundaries.
Rule of Law All individuals and authorities are subject to and accountable under the law.
Separation of Powers Division of legislative, executive, and judicial functions to prevent concentration of power.
Federalism Division of power between central and regional governments.
Judicial Review Courts can invalidate laws or actions violating the constitution.
Amendment Procedure Specifies how the constitution can be changed; indicates rigidity or flexibility.
Basic Structure Doctrine Certain core features of the Constitution cannot be amended away.
Comparative Dimensions: India vs Other Systems
Feature India Other Countries (Examples)
Written Constitution Detailed and comprehensive. USA: Short; UK: Unwritten.
System of Government Parliamentary – PM accountable to Parliament.
USA: Presidential – separation of powers.
Federal Structure Quasi-federal; strong centre. USA: Dual federalism; UK: Unitary.
Judicial Review Supreme Court with Basic Structure doctrine.
USA: Strong review (Marbury v. Madison) but no basic
Rights Framework Fundamental Rights enforceable; Directive
USA:
Principles
Judicially
non-justiciable.
enforceable rights; South Africa: enfor
Amendment Process Flexible–Special majority, state ratification.
USA: Rigid–Requires state ratification; UK: Flexible.
Challenges in Comparative Constitutionalism (India)
• Judicial overreach vs restraint.
• Centre–State tensions and misuse of emergency provisions.
• Ambiguity in defining the ‘basic structure’.
• Difficulty adapting foreign constitutional models to Indian socio-political context.
• Gap between constitutional ideals and implementation.
Landmark Indian Cases
• Kesavananda Bharati v. State of Kerala (1973) – Basic Structure Doctrine.
• S.R. Bommai v. Union of India (1994) – Federalism and state autonomy.
Global Examples
• USA – Rigid Constitution; strong presidential and judicial system.
• UK – Unwritten constitution; parliamentary sovereignty.
• South Africa – Enforceable socio-economic rights.
• Ireland – Directive Principles inspired India’s model.
Comparative constitutionalism enhances our understanding of governance and rights protection
across systems. India’s Constitution reflects a synthesis of global best practices, adapted to its
unique socio-political context.
