Indian Journal of Integrated Research in Law Volume II Issue III | ISSN: 2583-0538

CONSTITUTION AND CONSTITUTIONALISM: CONCEPT,

DISTINCTION, AND SALIENT FEATURES

Shaurya Saxena & Raneeta Pal, Assistant Professor Of Law, Manipal University Jaipur

ABSTRACT

In the 19th century what was meant by the term “constitution” was
reasonably definite and clear. Paradoxically enough, if the word retained
some ambiguity, this was because of the British constitution; that is, because
the mother country of modern constitutionalism appeared to have an obscure
constitution, or even—according to some of the standards that seemed very
important elsewhere—no constitution at all.Constitutional provisions are
fundamental law. Constitutional law is supreme law in our country. If the
constitutional law itself is inadequate, then the rule of law and democracy of
the country will be affected. The modern structure of India is divided into
three organs i.e., Legislation, Executive & Judiciary. Constitutionalism is the
idea of limiting the powers of the government and its authority depends upon
its observations of these limitations. A constitution is a written document in
which a legal and moral framework is done for setting out the powers and
limitations of the government. In literal terms ‘Constitutionalism’ means
‘limiting the government or limitation on the government’. Thus, to preserve
the basic freedoms of the individual and to maintain the dignity and
personality, the constitution must have constitutionalism.

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CONCEPT

The concept of constitutionalism, like almost all other social sciences concepts, has always
been subject to or part of an evolutionary process. Therefore, we cannot point out any specific
time or event that led to its creation or emergence, though a succession of such events may
have led to shaping and acquisition of an image as an outcome of the totality of those events
or processes. Generally, they are shaped in the context of paradigm shifts in social and political
structures. It was some such shift that took place in the form of Russian Revolution of 1917
and its impact on other societies and political formations that the need to closely examine this
vision of society and counter it for its weaknesses and drawbacks arose. It is as part of that
process that two professors at the Harvard Law School individually engaged themselves in
investigating and presenting a different version of the social and political vision of society
through constitutional structures that prevailed in the United States and most other parts of the
West. Between the two, while one was confined specifically to exploring the concept of
constitutionalism, the other one discussed constitutionalism as part of a bigger constitutional
and political design of society. Constitution consists of arrangements that determine the
political, legal, and social structures by which the society is to be governed. Constitutional
provisions are fundamental law. Constitutional law is supreme law in our country. If the
constitutional law itself is inadequate, then the rule of law and democracy of the country will
be affected. The modern structure of India is divided into three organs i.e., Legislation,
Executive & Judiciary.

There should be Independence of Judiciary in the democratic country. Judiciary should not be
answerable to the Parliament as there is a separation of powers. In India, if any law comes in
the path to maintain constitutionalism, it will be declared invalid and unconstitutional. The
intention behind this division of the bodies is to separate their powers, here separation of
powers means working independently by maintaining their autonomy. Together, this is termed
as the concept of constitutionalism. In India, there is a parliamentary form of governance, the
efforts have been made to make the powers separate in the constitution, but a lot of overlapping
power has been granted to each of the organs. All three organs maintain a check and balance
system to work with co-ordination and co-operation. The Supreme Court and the High Courts
have the power of judicial review which empowers them to declare the law invalid and
unconstitutional which is passed by the Parliament.

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Constitutionalism is the idea of limiting the powers of the government and its authority
depends upon its observations of these limitations. A constitution is a written document in
which a legal and moral framework is done for setting out the powers and limitations of the
government. In literal terms ‘Constitutionalism’ means ‘limiting the government or limitation
on the government’.

Constitutionalism recognizes the need of the government but also takes care that the power
should be limited. If any government goes beyond its limit and jurisdiction it loses its authority
and legitimacy. A scholar David Fellman describes that the touch of constitutionalism is the
concept of limited government under the higher law.

Thus, to preserve the basic freedoms of the individual and to maintain the dignity and
personality, the constitution must have constitutionalism. It must have the inbuilt restrictions
on the powers conferred by the constitution to the organs of the government. Constitutionalism
is a modern concept which stands only for supremacy of law but not for the individuals.

The presence of Constitutionalism can be analysed with the help of various provisions of the
constitution that are:

• Preamble

• Judicial Review

• Rule of Law

• Separation of Power

• Check and Balance System etc.

There is no list which shows the presence of constitutionalism but every feature which limits
the government and establish a position of sovereignty under fundamental principles of
constitutional jurisprudence may be the notable points for constitutionalism.

According to Justice Subba Rao, Preamble is the soul of the constitution without which a body
in the form of states cannot survive. In 1973 in Kesavananda Bharati case,1 It was held that
Parliament cannot amend the basic structure of the constitution by the power granted under

1
(1983) 4 SCC 225; AIR 1973 SC 146

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Article 368 of the constitution and “Preamble is a part of Constitution”. The separation of
power doctrine was included in the basic structure.

In A.K. Gopalan case,2 It was held that the “Procedure established by Law” is not the same as
the “Due Process of Law”, the Legislature has the power to determine the law. Thus, the
reasonableness cannot be questioned on substantive grounds by the Supreme Court. It was also
held that it is difficult to restrict the legislative power with judicial interference except the
provisions are expressed in the constitution. It shows that in the absence of power of judicial
review in the hands of Judiciary, judiciary is merely a puppet of legislators.

In India there is a “Procedure established by Law” doctrine prevails which is adopted from the
Constitution of Japan. It is enshrined in Article 21 of the constitution. It shows the sovereignty
of Parliament because the law is made by Legislature in India. It restricts the Judicial
Supremacy and right to do Literal Interpretation not statutory construction of laws.
Constitutionalism is that character which controls the misuse of powers by an authority of the
state. Judiciary plays an important role to maintain the balance between the organs of the
government. The organs of the government can exercise their powers within their boundaries
results in that they were unable to entertain arbitrary powers. The main aim is to protect the
individuals of the country. Constitutionalism is present in India but in the form of natural justice
principle to govern the administrative functions.

If there will be Rule of Law and Judicial review in the same system, then the conflict between
the Parliament and the Judiciary (Guardian of the Constitution) arises. Every provision has its
importance but if it is implicitly present in a constitution, but its reflection is found in some
clauses of the laws, then it will be sufficient to promote the spirit of constitutionalism.
constitutionalism has a variety of meanings. Most generally, it is "a complex of ideas, attitudes,
and patterns of behaviour elaborating the principle that the authority of government derives
from and is limited by a body of fundamental law". A political organization is constitutional to
the extent that it "contains institutionalized mechanisms of power control for the protection of
the interests and liberties of the citizenry, including those that may be in the minority". As

2
AIR 1950 SC 27

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described by political scientist and constitutional scholar David Fellman: It may be said that
the touchstone of constitutionalism is the concept of limited government under a higher law.

Constitutionalism’ means limited government or limitation on government. It is antithesis of

arbitrary powers. Constitutionalism recognizes the need for government with powers but at the
same time insists that limitation be placed on those powers. The antithesis of constitutionalism
is despotism. A government which goes beyond its limits loses its authority and legitimacy.
Therefore, to preserve the basic freedoms of the individual, and to maintain his dignity and
personality, the Constitution should be permeated with ‘Constitutionalism’; it should have
some inbuilt restrictions on the powers conferred by it on governmental organs.

Constitutionalism-In Minimal and In Richer Sense

In some minimal sense of the term, a "constitution" consists of a set of rules or norms creating,
structuring, and defining the limits of, government power or authority. Take the extreme case
of an absolute monarchy, Rex, who combines unlimited power in all three domains. If it is
widely acknowledged that Rex has these powers, as well as the authority to exercise them at
his pleasure, then the constitution of this state could be said to contain only one rule, which
grants unlimited power to Rex. Whatever he decrees is constitutionally valid. When scholars
talk of constitutionalism, however, they normally mean something that rules out Rex's case3.
They mean not only that there are rules creating legislative, executive, and judicial powers, but
that these rules impose limits on those powers. Constitutionalism in this richer sense of the
term is the idea that government can/should be limited in its powers and that its authority
depends on it observing these limitations. In this richer sense of the term, Rex's society has not
embraced constitutionalism because the rules defining his authority impose no constitutional
limits.

Usage of Constitutionalism

Constitutionalism has prescriptive and descriptive uses. Law professor Gerhard Casper
captured this aspect of the term. Used descriptively, it refers chiefly to the historical struggle
for constitutional recognition of the people's right to 'consent' and certain other rights,

3
Rex vs Matoley And Ors, 1949 CriLJ 59

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freedoms, and privileges Used prescriptively its meaning incorporates those features of
government seen as the essential elements of the Constitution.

Descriptive use

One example of constitutionalism's descriptive use is law professor Bernard Schwartz's seeks
to trace the origins of the U.S. Bill of Rights. While hardly presenting a "straight-line," the
account illustrates the historical struggle to recognize and enshrine constitutional rights and
principles in a constitutional order.

Prescriptive use

In contrast to describing what constitutions are, a prescriptive approach addresses what a

constitution should be. As presented by Canadian philosopher Wil Waluchow,
constitutionalism embodies "the idea … that government can and should be legally limited in
its powers, and that its authority depends on it observing these limitations”

Important Features of Constitutionalism

Entrenchment:

According to most theorists, one of the important features of constitutionalism is that the norms
imposing limits upon government power must be in some way be entrenched, either by law or
by way of constitutional convention. Entrenchment not only facilitates a degree of stability
over time, but it is also arguably a requirement of the very possibility of constitutionally limited
government. Were a government institution entitled, at its pleasure, to change the very terms
of its constitutional limitations, we might begin to question whether there would be any such
limitations.

Writtenness:

Some scholars believe that constitutional rules do not exist unless they are in some way
enshrined in a written document. Others argue that constitutions can be unwritten, and cite, as
an obvious example of this possibility, the constitution of the United Kingdom. Though the

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UK has nothing resembling the American Constitution and its Bill of Rights, it nevertheless
contains several written instruments which arguably form a central element of its constitution.
Magna Carta4is perhaps the earliest document of the British constitution, while others include
The Petition of Right (1628) and the Bill of Rights (1689).

Elements of Constitutionalism

Written constraints in the constitution, however, are not constraining by themselves. Tyrants
will not become benevolent rulers simply because the constitution tells them to. To guard
against violations against the letter and spirit of the constitution, there needs to be a set of
institutional arrangements. Louis Henkin defines constitutionalism as constituting the
following elements: (1) government according to the constitution; (2) separation of power; (3)
sovereignty of the people and democratic government; (4) constitutional review; (5)
independent judiciary; (6) limited government subject to a bill of individual rights; (7)
controlling the police; (8) civilian control of the military; and (9) no state power, or very
limited and strictly circumscribed state power, to suspend the operation of some parts of, or
the entire, constitution. Broadly speaking, Henkin's nine elements of constitutionalism can be
divided into two groups, one concerns power construction and power lodging; and the other
deals with rights protection. These two groups of institutional arrangements work together to
ensure the supremacy of the constitution, the existence of limited yet strong government, and
the protection of basic freedom.

Constitutionalism and Democracy

Authoritarian governments are by their very nature unconstitutional. Such governments think
of themselves as above the law, and therefore see no necessity for the separation of powers or
representative governance. Constitutionalism, however, is primarily based on the notion of
people's sovereignty, which is to be exercised--in a limited manner--by a representative
government. The only consensual and representative form of governance in existence today, is
democratic government. In this way, there is an especially important and basic link between
democracy and constitutionalism. Just as mere constitutions do not make countries
constitutional, political parties and elections do not make governments democratic. Genuine

4
(1215 A.D.)

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democracies rest on the sovereignty of the people, not the rulers. Elected representatives are to
exercise authority on behalf of the people, based on the will of the people. Without genuine
democracy, there can be no constitutionalism.

Constitutionalism and Rule of Law

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.

Constitutionalism and Constitutional Convention

The idea of constitutionalism is usually thought to require legal limitation on government

power and authority. But according to most constitutional scholars, there is more to a
constitution than constitutional law. But there is a long-standing tradition of conceiving of
constitutions as containing much more than constitutional law. Dicey is famous for proposing
that, in addition to constitutional law, the British constitutional system contains a number of
"constitutional conventions" which effectively limit government in the absence of legal
limitation. These are, in effect, social rules arising within the practices of the political
community and which impose important, but non-legal, limits on government powers.

Constitutionalism in Different Countries

United States

American constitutionalism has been defined as a complex of ideas, attitudes, and patterns of
behaviour elaborating the principle that the authority of government derives from the people
and is limited by a body of fundamental law. These ideas, attitudes, and patterns of behaviour,

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according to one analyst, derive from "a dynamic political and historical process rather than
from a static body of thought laid down in the eighteenth century". In U.S. history,
constitutionalism—in both its descriptive and prescriptive sense—has traditionally focused on
the federal Constitution. Indeed, a routine assumption of many scholars has been that
understanding "American constitutionalism" necessarily entails the thought that went into the
drafting of the federal Constitution and the American experience with that constitution since
its ratification in 1789. There is a rich tradition of state constitutionalism that offers broader
insight into constitutionalism in the United States.

United Kingdom

The United Kingdom is perhaps the best instance of constitutionalism in a country that has an
uncodified constitution. A variety of developments in seventeenth-century England, including
"the protracted struggle for power between king and Parliament was accompanied by an
efflorescence of political ideas in which the concept of countervailing powers was clearly
defined," led to a well-developed polity with multiple governmental and private institutions
that counter the power of the state.

Polish–Lithuanian Commonwealth

From the mid-sixteenth to the late eighteenth century, the Polish–Lithuanian Commonwealth
utilized the liberum veto, a form of unanimity voting rule, in its parliamentary deliberations.
The "principle of liberum veto played an important role in the emergence of the unique Polish
form of constitutionalism." This constraint on the powers of the monarch were significant in
making the "rule of law, religious tolerance and limited constitutional government the norm in
Poland in times when the rest of Europe was being devastated by religious hatred and
despotism." The constitution of n

Constitutionalism in India

India is a democratic country with a written Constitution. Rule of Law is the basis for
governance of the country and all the administrative structures are expected to follow it in both
letter and spirit. It is expected that Constitutionalism is a natural corollary to governance in
India. But the experience with the process of governance in India in the last six decades is a

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mixed one. On the one hand, we have excellent administrative structures put in place to oversee
even the minutest of details related to welfare maximization but crucially on the other it has
only resulted in excessive bureaucratization and eventual alienation of the rulers from the ruled.
Since independence, those regions which were backward remained the same, the gap between
the rich and poor has widened, people at the bottom level of the pyramid remained at the
periphery of developmental process, bureaucracy retained colonial characters and overall
development remained much below the expectations of the people.

Case Laws where principle of ‘Constitutionalism’ is legally recognized by Supreme Court

In I.R. Coelho (Dead) By LRs. vs. State of Tamil Nadu and Ors 5view 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
centres of decision making. The protection of fundamental constitutional rights through the
common law is main feature of common law constitutionalism.

In Rameshwar Prasad and Ors. Vs. Union of India (UOI) and Anr.6 “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. 7– “The Constitution is a precious

heritage and, therefore, you cannot destroy its identity'”

On one hand, our judiciary elicit such intellectual responses that “Faith in the judiciary is of
prime importance. Ours is a free nation. Among such people respect for law and belief in its
constitutional interpretation by courts require an extraordinary degree of tolerance and

5
1999 7 SCC 580
6
24 January, 2006
7
AIR 1980 SC 1789

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cooperation for the value of democracy and survival of constitutionalism” said in Indra
Sawhney and Ors. vs.Union of India (UOI) and Ors.

CRITICISMS
Constitutionalism has been the subject of criticism by numerous anarchist thinkers. For
example, Murray Rothbard, who coined the term "anarcho-capitalism", attacked
constitutionalism, arguing that constitutions are incapable of restraining governments and do
not protect the rights of citizens from their governments. Legal scholar Jeremy Waldron
contends that constitutionalism is often undemocratic: Constitutions are not just about
retraining and limiting power; they are about the empowerment of ordinary people in a
democracy and allowing them to control the sources of law and harness the apparatus of
government to their aspirations. Of course, it is always possible to present an alternative to
constitutionalism as an alternative form of constitutionalism: scholars talk of "popular
constitutionalism" or "democratic constitutionalism." But I think it is worth setting out a stark
version of the antipathy between constitutionalism and democratic or popular self-government,
if only because that will help us to measure more clearly the extent to which a new and mature
theory of constitutional law takes proper account of the constitutional burden of ensuring that
the people are not disenfranchised by the very document that is supposed to give them their
power.

CONSTITUTIONALISM, INDIAN PERSPECTIVE

What made Indian constitutionalism distinctive was its self-consciously cosmopolitan

character. Secondly, we turn to some of the major substantive tensions that have defined the
contours of constitutionalism in India, Constitutional Morality: Constitutionalism at its core
signifies a politics of restraints. To understand the nature of the commitment to
constitutionalism, one might turn to Ambedkar's discussion of the idea of constitutional
morality, a set of adverbial conditions to which agents in a constitutional setting must
subscribe.

Ambedkar invoked the phrase constitutional morality in a famous speech delivered on 4

November 1948. In the context of defending the decision to include the structure of the
administration in the Constitution, he quoted at great length the classicist, George Grote. For
Grote, the prevalence of constitutional morality was ‘the indispensable condition of a

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government at once free and peaceable'. For Grote, ‘constitutional morality' was not simply the
substantive morality of a constitution, a meaning that is often attributed' to the phrase today.

It also did not imply the familiar nineteenth-century usage, where constitutional morality refers
to the conventions and protocols that govern decision making where the constitution vests
discretionary power or is silent. The most important goal of constitutional morality was to avoid
revolution, to turn to constitutional methods for the resolution of claims. The forms of political
action that had become so famous during the nationalist movement satyagraha, non-
cooperation, civil disobedience were all at odds with the idea of constitutional morality. The
turn to process meant that constitutional morality recognised pluralism in the deepest possible
way.

A related element of constitutional morality is the suspicion of dispositive singular claims to

represent the will of the people. Any claim to hero worship or personification was a claim to
embody popular sovereignty; it was to reject the argumentative sensibility that constitutional
morality demanded. For the Constituent Assembly, any claim to speak on behalf of popular
sovereignty, to represent sovereignty, was a claim to usurp it. No such claim could be
permissible, for the chief aim of constitutional morality was to prevent any branch of
government from declaring that it could uniquely represent the people. In any constitutional
tradition there is a tension between the backward- and forward- looking aspects of
constitutional law. The backward-looking aspects refer to constitutional texts, founders, and
intentions. The forward-looking aspects refer to an ongoing conversation on the nature of social
contract and the nature of social justice.

CONSTITUTIONAL TENSIONS

In its very design, many of the major tensions that have characterised Indian politics and the
formation of the Indian State have actually been codified into law. Some of these tensions are
familiar in constitutional law, such as the tension posed by the separation of powers. The formal
amendment process, by which Parliament was empowered to amend the text in most instances,
coupled with the recognition of judicial review, meant that the Constitution pulled itself in both
the direction of written constitutionalism and parliamentary sovereignty.
The recognition of the right to property but also the States responsibility for land redistribution,
for example, placed the tension between means and ends in law. The debate between

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centralisation and decentralisation was another source of friction. Several constitutional

devices, from regional emergency powers to the concurrent list, meant that the tensions
between functionalism and participation found constitutional manifestation.
Constitution was a charter of individual liberty. It promised freedom for individuals, but it also
recognised the salience of community identities, both to redress historical injustices and to
protect minorities. This inherently set up a tension in the constitutional project, on matters
ranging from affirmative action and reservations to minority education institutions.

The Character of Indian Constitutionalism may be discussed under following cases:

1. State Failure:

The expanding scope of constitutionalism merits some reflection and provides an interesting
window on to the setting of Indian constitutional law. For one thing, the Indian Constitution is
itself one of the longest constitutions in the world. A striking feature of the founding
imagination was a penchant for codification. The Constitution itself was not just concerned
with the rights of citizens, the limits of government power, democracy, or social justice.

It was also very much part of a State building project, where the framers wanted to protect
many institutions of the State from the vagaries of ordinary politics. This attempt to use
constitutional law to compensate for massive State failure is not without its costs. Some argue
that it is somewhat paradoxical that an already overburdened Supreme Court would choose to
take on greater burdens by stretching constitutional law in this way.

2. Design and Structure:

The coherence and stability of a body of constitutional law also depends on the character of die
institution from which it emanates. In countries like India, with a written constitution that
provides for judicial review, that institution is the judiciary. We can expect political cleavages
or political philosophies to be very clearly expressed. We can also expect them to be articulated
in strikingly consistent terms over the lifetime of decisions.

3. Law and Democracy:

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One standard way of describing the evolution of Indian constitutional law is as a transition
from black letter law to a more structural reading of legal material. A second way has been to
see it as a product of political compromise and negotiation. In such a context, one aspect that
shapes constitutional doctrine is the idea of compromise. A constitutional culture can be subject
to two kinds of compromises. The first is a compromise between norms and social forces. The
second kind of compromise can be a compromise between competing and sometimes in
commensurable values.

INDIAN CONSTITUTION FEDERAL OR UNITARY?

The constitution of country may be federal or unitary in nature. In a federal constitution there
is a central Government having certain powers which it exercises over the entire country. Then
there are regional governments and each of such governments has jurisdiction within a region.
All kinds of relations arise between the Central government and the Regional Government.
India is an example of a federal Constitution. Some other federal Constitutions are: U.S.A.
Canada, Australia Malaysia, Germany, etc. A federal Constitution is a much more complicated
and legalistic document than a unitary constitution which has one Central Government in which
all powers of government are concentrated, and which can delegate such of its powers to such
of its agencies as it likes. A federal constitution must settle many details (like distribution of
powers between the Central government and the regional governments) which a unitary
Constitution is not concerned with. Britain, Sri-Lanka, Singapore have unitary Constitutions.
The Emergency and its aftermath have brought the question of Federalism into prominence.

During the Emergency, Congress Ministries abdicated their duties to the Centre responsible
State Ministries could never have advised ratification of the 39th Amendment at one- or two-
days’ notice. The existence of the Congress governments at the Centre and in a large number
of States for over 25 years prevented problems of Federal Government from coming to the fore.
However, when the Janata Party came to power at the Centre and in a large number of States,
after the Parliamentary and State elections held in 1977, the few States in which Congress
Ministries continued to function suddenly became aware that our Constitution was a federal
one; that the States had rights of their own which could be enforced against the Centre. Recent
decisions of the Supreme Court have brought to the fore the question whether our Constitution

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is federal. Ever- since the decision in W.B. v. Union of India8 it has been the doctrine of our
Supreme Court that the unitary features in our Constitution are so many that the Federal
features almost disappear. In Rajasthan v. Union9, Beg C.J. said: In a sense, therefore, the
Indian Union is federal. But, the extent of federalism in it is largely watered down by the needs
of progress and development of a country which has to be nationally integrated, politically and
economically co-ordinated, and socially, intellectually, and spiritually uplifted.
It is submitted that this view is based on an imperfect study of our own and other Federal
constitutions. It will be shown in this Chapter that almost all the features on which the Supreme
Court has relied to support its doctrine, will be found on examination to be features present in
constitutions which are indisputably federal. In W.B. v. Union of India the majority judgment
of the Supreme Court held that the Union was entitled to the coal mines vested in the State of
West Bengal. The discussion on Federalism and Sovereignty in the majority judgment is very
unsatisfactory, and instead of considering it in detail, if would lead to a briefer and clearer
discussion of Federalism if the so-called unitary features are considered independently and
shown to be present in admittedly federal constitutions. This observation also applies to the
views expressed by Beg. C.J. in Rajasthan v. Union set out above.
A theoretical discussion of Federalism is not necessary. The test laid down by Prof. Where in
his classic work has been generally applied to our Constitution and, broadly speaking, that test
can be accepted, subject to its being supplemented by the illuminating discussion of Prof.
Sawer in which he rightly said that it is necessary to inquire whether a federal situation existed
in a country before it adopted a federal constitution. Writing of India, he said:
The sub-continent of India was another area which by reason of size, population, regional
(including linguistic) differences and communication problems presented an obvious federal
situation, if not the possibility of several distinct Nations. The following historical account of
how our Constitution adopted the federal solution amply supports Prof. Sawer's conclusion that
a federal situation clearly existed in India.

8 1964 SCR (1) 371

9 1977 INSC 145

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