U.S. – India Comparative Constitutional Law 2.0
The Centre for Law and Policy Research (CLPR) in collaboration with its partnered Indian and American universities organised a series of workshops on U.S.- India Comparative Constitutional law in October, November 2021 and January 2022. The partnered Indian and American law universities were paired for an interactive session. These workshops were supported by the U.S. Consulate General, Chennai.
On November 13th and 14th, 2021, CLPR conducted the third virtual workshop of this series. This time around, our partner was the Tamil Nadu National Law University, Trichy (TNNLU). The workshop was attended by over 50 students from various universities, including TNNLU, St. Joseph’s College of Law, Bengaluru, School of Law, Christ University, Bengaluru, Karnataka State Law University, Symbiosis International University, Hyderabad, and National Law University, Delhi. 10 other persons were present, including faculty members, U.S. Consulate staff, and the CLPR team. Due to COVID-19-related circumstances, the U.S. partner law university had to pull out of the workshop.
The workshop was structured around four sessions that would help students explore critical Constitutional Law issues grounded in a US-India comparative framework. It gave the students an opportunity to analyse, compare, and discuss in-depth issues related to personal liberty, freedom of choice, reproductive rights, and personal autonomy.
9:30 am – 11:30 am – Session I: Constitutional Founding
Part I
The first session covered the constitution-making process in the U.S. and India. The students were then posed with the questions: ‘should Constitutions be written democratically?’ and ‘were the American and Indian constitution-making processes democratic enough?’ The discussions revolved around themes related to constitution-making, such as election processes, diversity, and representation. This helped students comparatively evaluate the democratic legitimacy of the U.S. and India’s constitutional founding.
Session Readings:
- Making of the U.S. Constitution compiled by CLPR
- Constitution Making in India: A Primer by Sudhir Krishnaswamy and Vineeth Krishna
- Excerpts from The Indian Constitution: Cornerstone of A Nation by Granville Austin (Oxford India Paperbacks, 1999)
- Excerpts from The Federalist by Jack N. Rakove (Palgrave Macmillan, 2003)
- The Making of India’s Constitution, YouTube, CLPR Trust
Presentation Slides: Session I Part I
Part II
CLPR resource persons introduced students to ‘due process’ and ‘procedure established by law’—two important concepts relating to the constitutional protection of liberty. Students were provided with a summary of how U.S. and Indian Constitution framers engaged with these concepts. This was followed by an activity where students engaged with a hypothetical case designed by CLPR that involved questions of liberty as seen through the eyes of U.S. and Indian Constitution framers.
Session Readings:
- Excerpts from Indian Constituent Assembly debates on Due Process
- A Letter from Phocion to the Considerate Citizens of New York by Alexander Hamilton [1–27 January 1784]
Presentation Slides: Session I Part II
Speaker Remarks
Dr. Amal Sethi, Senior Fellow, University of Hamburg, closed the session with his remarks. Dr. Sethi suggested that the primary conceptual prism through which one must evaluate the U.S. and Indian Constitutions is ‘constitutional endurance’. The fundamental commonality between the two constitutions, Sethi argued, was that they survived the test of time. He proceeded to discuss why some constitutions endure while others collapse. A student Question and Answer Session followed.
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11.45 am – 1:45 pm – Session II: Personal Liberty and Freedom of Choice
Part I
CLPR resource persons provided an overview of the constitutional and legal architecture that governed personal liberty and freedom of choice in the U.S. and India. In the discussion that followed, students aimed to understand if and how the U.S and India Supreme Courts expanded personality liberty while deciding cases. Students then located the Right to Marry and Right to Choice within the two constitutional regimes.
Session Readings:
- Article 21 of the Constitution of India, 1950 and Fifth and Fourteenth Amendment of the Constitution of United States
- The Origins of Due Process in India: The Role of Borrowing in Personal Liberty and Preventive Detention Cases’ by Manoj Mate (Berkeley Journal of International Law, 2010)
- Substantive Due Process: A History of Liberty in the Due Process Clause by William R. Musgrove (University of St. Thomas Journal of Law and Public Policy, 2008)
Presentation Slides: Session II Part I
Part II
Students were introduced to two cases relating to the right to marry: Loving v Virginia, 1967 (U.S.) and Shafin Jahan v Ashokan, 2018 (India). Students engaged with both the cases, paying particular attention to how the Indian and U.S. Courts applied (or didn’t apply) the Right to Liberty and Freedom in these cases. This was followed by a discussion on religious conversion laws and inter-racial marriages.
Session Readings:
Presentation slides: Session II Part II
Speaker Remarks
Senior Advocate Jayna Kothari, Executive Director of CLPR, concluded the session by closely tracking the Courts’ reasoning in Loving v Virginia, 1967 and Shafin Jahan v Ashokan, 2018. Ms. Kothari suggested to students that the Right to Marry was not just a matter of freedom but also equality.
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3.00 pm – 4.30 pm – Session III: Reproductive Rights and Personal Autonomy (Abortion)
Part I
CLPR introduced the idea of personal autonomy in the context of reproductive rights, as well as the constitutional provisions and case law that governs abortion laws in the U.S. and India. Students compared the two constitutional regimes in an hour-long discussion.
Session Readings:
- Excerpts from The Right to Privacy and Access to Abortion in a Post Puttaswamy World by Severyna Magill (University of Oxford Human Rights Hub Journal, 2020)
- An Overview of Abortion Laws by Guttmacher Institute (2021)
- Article 21 the Constitution of India, 1950 and Fifth and Fourteenth Amendment of the Constitution of the United States.
Presentation Slides: Session III Part I
Part II
The CLPR team introduced students to two important cases related to abortion rights: Suchita Srivastava & Anr. v Chandigarh Administration (2009) and Roe v Wade (1973). Students used these cases to engage in an activity: they were asked to determine if certain provisions of India’s Medical Termination of Pregnancy (Amendment) Act, 2021 and the U.S. Texas Abortion Law, SB8, 2021, would stand the test of constitutionality in the two countries. Through this activity the students were able to discern how the two countries viewed the agency of women to make reproductive choices.
Session Readings:
- Excerpts from Suchita Srivastava & Anr. vs Chandigarh Administration (2009) 14 SCR 989
- Excerpts from Roe v. Wade 410 US 113 (1973)
Presentation Slides: Session III Part II
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9.00 am – 11.00 am – Session IV: Reflections, Feedback, Going Forward and Essay Competition
CLPR resource persons reviewed what was discussed in the preceding sessions and answered student questions. Students provided feedback on the sessions and then wrote their essays for the essay competition. The essay prompt was: ‘is studying U.S. constitutional history and practice useful in understanding contemporary Constitutional developments in India?’
Presentation Slides: Session IV
Speaker Remarks
The workshop closed with some final remarks from Dr. Vishnuprasad, Assistant Professor, TNNLU. His remarks touched upon the themes discussed in the workshop and and brought the workshop to a close.
