U.S. – India Comparative Constitutional 2.0 – Workshop 4

January 28, 2022 | Kalyani Menon

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. 

  

CLPR conducted the final workshop of the U.S.-India Comparative Constitutional Law 2.0 series between January 18th and 21st, 2022 with the students of National Law School of India University, Bengaluru. An absorbing interactive session with the students of Tulane University School of Law, our U.S. based partner university, was part of the final day of the workshop. Spread across three days, the workshop saw the enthusiastic participation of over 30 students from both universities. They were joined by faculty members from the two universities, U.S. Consulate staff, and members of the CLPR team.

 

The CLPR team built the workshop around three sessions that explored the federal distribution of power within a U.S.-India comparative constitutional framework. It gave the students an opportunity to think about critical Constitutional Law issues and engage in a vibrant discussion from the U.S. and Indian contexts.

  

2.45 pm – 4.45 pm – Session I: Constitutional Founding   

 

Part I  

The first session focused on ‘Constitutional Founding’. The CLPR team took the students through the constitution-making process in the U.S. and India. A CLPR-produced video on the making of the Constitution of India gave the students an overview of constitution-making in India. This smoothly transitioned into a student dialogue on whether constitutions must be made democratically. The students then discussed if the American and Indian constitution-making processes were democratic enough.

 

Session Readings: 

 

 

Presentation slides: Session I Part I 

 

Part II 

The CLPR team introduced the students to the twin doctrines of ‘due process’ and ‘procedure established by law’, providing students with a brief overview of how the U.S. and Indian Constitution-framers discussed them at the time of constitution-making.

 

The team then presented the students with a hypothetical situation: they were to gauge the possible responses of U.S constitution framer Alexander Hamilton and Indian constitution framer Alladi Krishnaswamy Ayyar.

 

Session Readings: 

 

Presentation Slides: Session I Part II 

 

Speaker Remarks

 

Dr. Nicholas Cole, Senior Research Fellow, Pembroke College, University of Oxford, guided the students to reflect critically on why it was worth our time to think about our founding constitutional moments. He helped examine this question with an engaging focus on the   and its making. He emphasised the novelty of the U.S. constitutional experiment – it was the first time that members of a political community put pen to paper and wrote down imagined their political future.

 

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11.45 am – 1:45 pm – Session II: Federal Distribution of Legislative Powers 

 

Part I 

The second session concerned the federal distribution of legislative powers in the U.S. and India. Students engaged with constitutional provisions on legislative powers in both the U.S. and India. A presentation further compared the federal balance of legislative powers in the two countries. The discussion that followed the presentation allowed the students to appreciate the reasons for the varying federal distribution of legislative powers in the two countries.

  

Session Readings:   

 

Presentation Slides: Session II Part I 

  

Part II  

Part II started with a CLPR presentation on how the judiciary in both jurisdiction have decided cases involving conflict between Union and State legislative powers. The cases were NFIB v Sebelius, 2012 (U.S.) and Hoechst Pharmaceuticals Ltd. v State of Bihar and Ors., 1983 (India). Students were introduced to the judicial doctrines of ‘Necessary and Proper Clause’ used in America, and the ‘Pith and Substance’ and ‘Incidental and Ancillary Clause’ doctrines used in India.

 

The students participated in an activity in which they applied the above doctrines to a hypothetical case. This helped them better understand the similarities and differences between the doctrines used in India and the U.S.

 

Session Readings:   

 

Presentation Slides: Session II Part II 

  

Speaker Remarks 

 

Professor Louise Tillin, Professor of Politics, King’s College London asked students to consider if the common view that India had a ‘quasi-federal’ structure was hold true. She suggested that the India’s federal system must be considered as a strand of federalism and not as ‘quasi’ federalism.

 

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7.30 pm – 9.30 pm – Session III: Federal Distribution of Executive Powers 

 

Part I 

The final session of the workshop focused on the federal distribution of Executive powers in the U.S. and India. The Indian law students were joined by students and faculty from the Tulane Law School, New Orleans. The CLPR presentation gave the both sets of students an overview of the constitutional provisions pertaining to Executive structure in the U.S. and India. The student discussion that followed revolved around the differences and similarities in the distribution of Executive powers between the Union and the States in the U.S. and India.

 

Session Readings: 

 

Presentation Slides: Session III Part I 

 

Part II 

The CLPR team took the students through the ‘Net Neutrality’ debate in the U.S. and the issue of the expanding jurisdiction of the Border Security Force in India and the federal controversies that arose in these cases. With this background, students participated in an activity where they had to design the Indian and U.S. Supreme Courts’ response to a hypothetical conflict between the State and the Union Executives.

 

Session Readings: 

 

Presentation Slides: Session III Part II 

 

Speaker Remarks

 

Scott Hartmann, Cultural Affairs Officer, United States Consulate General Chennai, introduced the speaker for the session Professor Mark Tushnet, William Nelson Cromwell Professor of Law, Emeritus, Harvard Law School.

 

In his remarks, Professor Tushnet argued against the conventional view that the U.S. did not have a ‘President’s Rule’ type constitutional provision like India does. He then compared U.S. and Indian constitutional law and history to show how the grounds to dismiss a State government varied in the two jurisdictions. Students had a chance to interact with Prof Tushnet and ask questions. With this, the session came to a close.

 

Following the talk, the students were invited to an hour-long essay competition on January 23rd, 2022, on the topic, ‘how should legislative and executive power be distributed between the Centre and the States to respond to a virulent pandemic?’. The top two essayists were invited to the closing ceremony of the workshop series. The CLPR team took feedback from the students and brought the workshop to an end.

 

 

 

 

 

Kalyani Menon

Research Associate

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