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Features of Constitution

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2.
3.
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6.
7.

Parliamentary form
Federalism
Fundamental Right
DPSP
SoP
Judicial Review
Amending Power

Federalism
1. Duchacek - process of combining territorial communities
2. Dicey - distribution of the force
1. Distribuion of power
2. Dual Polity
3. Written Constitution
4. Rigid Constitution
5. Supremacy of Constitution
3. Wheare - method of dividing powers
4. Livington - device by which the federal qualities

Duchaceks 10 Yardsticks
i) Has the central authority exclusive control over diplomacy and defense as befits a
nation-states in relations with other nation states?
(1) US: Article 1, S. 10
(2) India: Art. 246 r/w Entries 1 19 (except 3), 34 and 41. Art. 53, 352, 353 and 355
ii) Is the Federal Union Constituionally immune against dissolution by secession?
(1) US: Article 4, S. 3 r/w Texas v. White
(2) India: Art. 1, 2, 352, 356. 16 Amd (Art. 1992)), 42 Amd (Preamble).
(3) USSR, Burma
iii) Is the exercise of the central authority as it reaches all citizens directly independent of
the individual approval and resources of the component units?
Union to impose tax directly w/o intervention of states
(1) US: Art. 1, S. 8
(2) India: Art 268 281 r/w En. 82 95 (List I)
iv) Who has Ultimate Control Over the Amendments to the federal Constitutions?
(1) US: Art. 5 ratification of of states
(2) Canada: Part V, S. 38 - 49
(a) Can be initiated in House of Commons, Senate or Legislative Assembly

(b) States 2/3 of states with more than 50% of population


(c) All states to provide their opinion w/i 1 year before it could be approved by
President
(d) Amendment would not be applicable on states not ratifying the amendment
wrt privilege of state legislature or rights of states
(e) Ratification required by all states in 5 cases
(i) Queen, GG, Lt. Governor
(ii) House of Commons
(iii)
SC
(iv)Provisions related to amendment
(v) Use of English and French language
(3) Germany: Art. 79
(a) Parliament with 2/3 majority. No role of states.
(b) Art. 1-20 and bed rock princiles cant be amended
(4) South Africa:
(a) National Assembly with 2/3 majority
(b) Art. 1, Bill of Rights, federal structure 75% (3/4) National Assembly,
National Provincial Council and 6 states (2/3)
(c) Amendment wrt state require the consent of that state
(5) Switzerland: Partial and total by people only through referendum.
(6) India:
(a) Simple
(b) Special Majority Art. 368
(c) Special Majority with 1/2 ratification Art. 368 (2)
v) Are the Component Units immune to elimination of their identity and authority?
1. US: Texas v. White
2. India : Art. 2, 3
Bombay state Bill
vi) Is the Collective Sharing in federal rule making adequately secured by equal
representation of unequal units in a bicameral system?
1. US: Equal
2. India: Art. 80 r/w Sch 4
3. Canada: Equal. Nominated by Fed. gov
4. Germany: 3-6 (16 states and 68 seats)
5. Switzerland: Cantons (2) and Half Cantons (1)
6. South Africa: 9 states with 10 seats each amounting to 90
vii) Are there two independent sets of Courts, one interpreting and adjudicating Federal
Laws and the other State Laws?
1. US: SC > 12 Circuit Courts > 95 Federal District Courts
2. India: SC > HC > District Court
3. Canada Separate Hierarchy of courts
4. Germany: Federal Constitutional Court

5. South Africa: Constitutional Court (FR and disputes only) > SC > HC >

viii)

District Court
6. Switzerland:
1. Federal Court can declare a Canton law as invalid but not Federal Law.
2. Federal law only when 8 out of 26 cantons asks or 30,000 voters.
Is there a judicial authority in the central authority but Standing above that

Central Authority and the Components Units to determine their respective rights?
Disputes between States
1. US:
(i) Art. 3 original and appellate
(ii) Mccallah v. Marryland (Tax on Bank)
(iii)
Marbory v. Madison
2. India: Art 131 original
3. Judicial Review: Art. 13(2), 32, 136, 226.
4. Canada:
5. Germany:
6. Switzerland: Federal SC
ix) Have the component units retain all the powers that the constitution has not given to
the central authority?
(1) US: States. Art. 1, S. 8 Only 18 Subject matters with Center
(2) India: Union. Art. 368 and Sch. 7, 3 Lists
(3) Canada: Union
(4) Germany: Union
(5) South Africa: Union
(6) Switzerland: Art. 3 Specific powers to Fed and remaining with States
x) Is the territorial division of authority is clear and unambiguous?
(1) US: Art. 1, S. 8 Only 18 Subject matters with Center
(2) India:
(a) Art. 245 territorial division
(b) Art. 246 Subject matter division r/w Art. 368 and Sch. 7, 3 Lists
(c) Art. 254 Doctrine of Repugnancy
(3) Canada: S. 91 (29 Subjects for Centre), S. 92 (16 subjects local in nature)
(4) Germany: Provincial (4) and Concurrent
(5) South Africa: Sch 4 concurrent power. Sch 5 State power

Canada
1. British North American Act
2. Canada, Nova Scotia and New
Germany

South Africa
Switzerland

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