Comparative Public Law II: Judicial Independence, Activism and Accountability; Systems of Constitutional Review; Constitutional Amendment; the Ombudsman; and Open Government and the Right to Information

This chapter completes Unit X, and the Law syllabus, with five comparative items, each naming the systems to be compared: judicial independence, activism and accountability in India, the UK and the USA; systems of constitutional review in India, the USA, Switzerland and France; amendment of the Constitution in India, the USA and South Africa; the ombudsman in Sweden, the UK and India; and open government and the right to information in the USA, the UK and India. The Lokpal and the RTI Act also appear in NET Public Administration, where they are studied as instruments of accountability; here they are placed in a comparative legal frame beside their foreign counterparts.

1. Independence of the judiciary, judicial activism and accountability

Judicial independence and activism compared
AspectUnited KingdomUnited StatesIndia
Tenure and removalSince the Act of Settlement 1701, superior judges hold office during good behaviour, removable only on an address of both HousesArticle III: federal judges hold office during good behaviour, in practice for life, and their pay cannot be reduced; removal by impeachment in the House and conviction by two-thirds of the SenateFixed retirement ages (65 and 62); removal by an address of both Houses by special majority for proved misbehaviour or incapacity (Article 124(4)); salaries charged on the Consolidated Fund
AppointmentIndependent Judicial Appointments Commission and a selection commission for the Supreme Court, under the Constitutional Reform Act 2005, which also imposes a statutory duty on ministers to uphold judicial independenceNomination by the President with the advice and consent of the SenateThe collegium system evolved in the Second (1993) and Third (1998) Judges cases; the NJAC was struck down in 2015
ActivismLimited by parliamentary sovereignty; under the Human Rights Act 1998 courts may make a declaration of incompatibility but cannot strike down an Act of ParliamentStrong judicial review; landmark rulings such as Brown v Board of Education (1954) against school segregation; Roe v Wade (1973) was overruled by Dobbs v Jackson Women's Health Organization (2022)Public interest litigation with relaxed standing (S.P. Gupta, 1981; Bandhua Mukti Morcha, 1984), epistolary jurisdiction and continuing mandamus; criticised where it becomes overreach into executive functions

Accountability must not compromise independence. In India no judge of a superior court has been removed by Parliament; the motion against Justice V. Ramaswami failed in the Lok Sabha in 1993. The Supreme Court adopted the Restatement of Values of Judicial Life and an in-house procedure for complaints in 1997 and 1999. In Central Public Information Officer, Supreme Court of India v Subhash Chandra Agarwal (2019) a Constitution Bench held that the office of the Chief Justice of India is a public authority under the Right to Information Act, balancing transparency against judicial independence and privacy. The Contempt of Courts Act 1971 protects the authority of courts, and truth is a defence if in the public interest and bona fide.

⚠️ UK courts cannot strike down statutes
A declaration of incompatibility under section 4 of the Human Rights Act 1998 leaves the statute in force; it is for Parliament to act, often through a remedial order. This is the key difference from India and the USA, where courts can declare a statute void for violating the constitution.

2. Systems of constitutional review

Four systems of constitutional review
SystemModelFeatures
USADecentralised (diffuse), concrete and a posterioriAny court may refuse to apply an unconstitutional law in a case before it, subject to appeal to the Supreme Court; the power was asserted in Marbury v Madison (1803), though the Constitution does not state it expressly
IndiaReview by the Supreme Court and High Courts, express in the ConstitutionArticle 13 declares laws inconsistent with fundamental rights void; Articles 32 and 226 give the remedy; review extends to constitutional amendments on the basic structure (Kesavananda Bharati, 1973) and is itself a basic feature (L. Chandra Kumar, 1997)
SwitzerlandLimited review; no review of federal statutesUnder Article 190 of the Federal Constitution (1999), the Federal Supreme Court and other authorities must apply federal acts and international law, so they cannot set aside a federal statute as unconstitutional; cantonal laws can be reviewed; the check on federal legislation is direct democracy, through the optional referendum
FranceCentralised review by a special body, the Conseil constitutionnelOriginally only a priori review of statutes before promulgation (Article 61), on referral by the President, the Prime Minister, the presidents of the two chambers, or since 1974 sixty deputies or senators; since the 2008 reform, in force from 1 March 2010, the question prioritaire de constitutionnalité (Article 61-1) allows a posteriori review of a statute in force, referred by the Conseil d'État or the Cour de cassation
🎯 Why Switzerland and the UK resist strong review
Both rest final authority elsewhere: in the UK in a sovereign Parliament, in Switzerland in the people, who can overturn federal legislation by referendum. Judicial review of statutes is one answer to the question of who guards the constitution; direct democracy and parliamentary sovereignty are others. India and the USA give the answer to the courts.

3. Amendment of the Constitution: India, USA and South Africa

Amending procedures compared
CountryProcedureLimits
IndiaArticle 368: a bill passed in each House by a majority of its total membership and two-thirds of those present and voting; provisions affecting the federal structure (such as the election of the President, the distribution of legislative powers, the Lists, representation of States in Parliament and Article 368 itself) also need ratification by at least half the State legislatures; some provisions (such as Articles 4 and 169) can be changed by simple majority outside Article 368; there is no joint sitting, and the President must assent (Twenty-fourth Amendment, 1971)The basic structure doctrine (Kesavananda Bharati, 1973)
United StatesArticle V: proposal by two-thirds of both Houses of Congress, or by a convention called on the application of two-thirds of the State legislatures; ratification by three-fourths of the States, through their legislatures or conventions; twenty-seven amendments, the first ten being the Bill of Rights (1791)No State may be deprived of its equal suffrage in the Senate without its consent
South AfricaSection 74 of the Constitution of 1996 sets tiers: section 1 (the founding values) and section 74(1) itself need 75 per cent of the National Assembly and six of the nine provinces in the National Council of Provinces; the Bill of Rights needs two-thirds of the Assembly and six provinces; other provisions need two-thirds of the Assembly, with the Council's approval where provincial matters are affectedThe 1996 text itself had to be certified by the Constitutional Court as complying with the Constitutional Principles agreed in 1993
🧠 Rigid, flexible and tiered
The US Constitution is among the most rigid (three-fourths of the States must ratify), which is why it has only twenty-seven amendments. India's is partly flexible and partly rigid, with more than a hundred amendments. South Africa entrenches different parts to different degrees, protecting the founding values most strongly. The Indian framers took the idea of a special procedure for amendment from South Africa's earlier constitution.

4. The ombudsman: Sweden, UK and India

The ombudsman in three systems
CountryInstitutionKey features
SwedenJustitieombudsman (Parliamentary Ombudsman), 1809The first ombudsman: elected by Parliament, independent of the executive, supervising the application of law by courts and officials; citizens may complain directly, and the ombudsman may also act on its own initiative
United KingdomParliamentary Commissioner for Administration, under the Parliamentary Commissioner Act 1967Investigates injustice caused by maladministration in central government; complaints must come through a Member of Parliament (the "MP filter"); recommendations are not binding; now the Parliamentary and Health Service Ombudsman
IndiaLokpal, under the Lokpal and Lokayuktas Act 2013, in force from 16 January 2014Recommended by the first Administrative Reforms Commission (1966); a chairperson and up to eight members, half of them judicial; chosen by a committee of the Prime Minister, the Speaker, the Leader of the Opposition in the Lok Sabha, the Chief Justice of India or a nominated judge, and an eminent jurist; covers the Prime Minister with safeguards; inquires into corruption under the Prevention of Corruption Act 1988; States establish Lokayuktas; the first Lokpal, Justice Pinaki Chandra Ghose, was appointed in March 2019
ℹ️ Maladministration versus corruption
The Scandinavian and British ombudsmen deal mainly with maladministration: delay, rudeness, bias, failure to follow procedure. The Indian Lokpal is designed chiefly as an anti-corruption body with inquiry and prosecution wings. Grievances about ordinary administration in India are handled by other mechanisms, such as departmental grievance cells, the information commissions and the courts.

5. Open government and the right to information: USA, UK and India

Open government rests on the idea that information held by public bodies belongs to the public and that secrecy must be justified. Sweden's Freedom of the Press Act of 1766 is the first access law. The United States enacted the Freedom of Information Act in 1966, giving any person a right to federal agency records subject to nine exemptions, followed by the Privacy Act 1974 and the Government in the Sunshine Act 1976 on open meetings. The United Kingdom's Freedom of Information Act 2000 came fully into force on 1 January 2005; it distinguishes absolute exemptions from qualified exemptions, which apply only if the public interest in withholding outweighs the public interest in disclosure, and is enforced by the Information Commissioner.

India's Right to Information Act 2005
Feature of the Right to Information Act 2005 (India)Content
Constitutional basisThe right to know is part of freedom of speech and expression under Article 19(1)(a) (State of Uttar Pradesh v Raj Narain, 1975; S.P. Gupta v Union of India, 1981); the Act replaced the Freedom of Information Act 2002, which was never brought into force
Coverage and timelinesFully in force from 12 October 2005; public authorities must disclose information proactively (section 4) and answer requests within thirty days, or forty-eight hours where life or liberty is concerned (section 7)
ExemptionsSection 8 lists exempt categories, with a public-interest override in section 8(2); section 24 excludes the intelligence and security organisations in the Second Schedule, except for information on corruption and human rights violations; the Digital Personal Data Protection Act 2023 amended section 8(1)(j) on personal information
Information commissionsThe Central and State Information Commissions hear appeals and complaints; the Right to Information (Amendment) Act 2019 left the term and salaries of commissioners to be prescribed by the Central Government
⚠️ The RTI Act is a statute, the right to know is constitutional
The right to know was recognised by the Supreme Court under Article 19(1)(a) decades before 2005; the Act supplies the machinery. Cases such as CBSE v Aditya Bandopadhyay (2011), holding evaluated answer sheets to be "information", and Subhash Chandra Agarwal (2019) interpret the statute, while its limits must satisfy Article 19(2).

Key takeaways

  • UK judges have tenure under the Act of Settlement 1701 but cannot strike down statutes (Human Rights Act 1998 declarations); US federal judges serve during good behaviour; India combines fixed retirement, special-majority removal and the collegium.
  • Constitutional review: diffuse in the USA (Marbury, 1803); express in India (Articles 13, 32, 226); no review of federal statutes in Switzerland (Article 190); centralised in France, with the QPC since 2010.
  • Amendment: India's Article 368 with special majority and, for federal provisions, State ratification, limited by basic structure; US Article V with three-fourths of States; South Africa's tiered section 74, with 75 per cent for the founding values.
  • Ombudsman: Sweden 1809; UK Parliamentary Commissioner Act 1967 with the MP filter; India's Lokpal and Lokayuktas Act 2013, first Lokpal appointed in 2019.
  • RTI: US FOIA 1966 (nine exemptions), UK FOI Act 2000 (in force 2005), India's RTI Act 2005 (thirty days, forty-eight hours for life or liberty; amended 2019), grounded in Article 19(1)(a) since Raj Narain (1975).

Practice questions (10)

Attempt each one before opening the answer. Every explanation names the tempting wrong option as well as the right one, because that is where marks are lost.

  1. The institution of the ombudsman originated in:

    1. Sweden, in 1809
    2. New Zealand, in 1962
    3. India, in 2013
    4. The United Kingdom, in 1967
    Show answer

    Answer: A — Sweden, in 1809

    Sweden created the Justitieombudsman in 1809. New Zealand's 1962 office was the first in the Commonwealth, the UK followed with the Parliamentary Commissioner Act 1967, and India's Lokpal and Lokayuktas Act was passed in 2013.

  2. Which country's Federal Supreme Court is constitutionally required to apply federal statutes even if they are unconstitutional?

    1. Germany
    2. The United States
    3. India
    4. Switzerland
    Show answer

    Answer: D — Switzerland

    Article 190 of the Swiss Federal Constitution makes federal acts and international law authoritative for the courts, so federal statutes cannot be set aside; the check is the popular referendum. The US, India and Germany all allow judicial invalidation of statutes.

  3. Assertion (A): A court in the United Kingdom cannot strike down an Act of Parliament for incompatibility with Convention rights. Reason (R): Under section 4 of the Human Rights Act 1998, a higher court may only make a declaration of incompatibility, which does not affect the validity of the statute. Choose the correct option.

    1. Both A and R are true, and R is the correct explanation of A
    2. Both A and R are true, but R is not the correct explanation of A
    3. A is true, but R is false
    4. A is false, but R is true
    Show answer

    Answer: A — Both A and R are true, and R is the correct explanation of A

    Both are true and R explains A. The declaration of incompatibility preserves parliamentary sovereignty: the statute remains in force until Parliament amends it, often by a remedial order under section 10.

  4. An amendment to the US Constitution becomes effective when ratified by:

    1. A simple majority of the States
    2. Three-fourths of the States
    3. All the States
    4. Two-thirds of the States
    Show answer

    Answer: B — Three-fourths of the States

    Article V requires ratification by three-fourths of the States, through their legislatures or conventions. Two-thirds is the proportion needed to propose an amendment in Congress or to call a convention.

  5. Which of the following amendments to the Indian Constitution require ratification by at least half the State legislatures under the proviso to Article 368(2)? Select all that apply.

    1. A change in the manner of election of the President
    2. A change in the distribution of legislative powers between the Union and the States
    3. An amendment of Article 368 itself
    4. The creation of a new State under Article 4
    Show answer

    Answer: A — A change in the manner of election of the President; B — A change in the distribution of legislative powers between the Union and the States; C — An amendment of Article 368 itself

    The distribution of legislative powers, the election of the President and Article 368 itself are entrenched provisions needing State ratification. A law forming a new State under Articles 3 and 4 is passed by simple majority and is not treated as an amendment under Article 368.

  6. Under the Right to Information Act 2005, where the information sought concerns the life or liberty of a person, it must be provided within:

    1. Twenty-four hours
    2. Thirty days
    3. Forty-eight hours
    4. Seven days
    Show answer

    Answer: C — Forty-eight hours

    Section 7(1) requires information concerning life or liberty to be supplied within forty-eight hours of the request; the ordinary period is thirty days.

  7. Assertion (A): The Conseil constitutionnel in France can now review a statute that is already in force. Reason (R): The constitutional reform of 2008 introduced the question prioritaire de constitutionnalité, operative from 1 March 2010. Choose the correct option.

    1. Both A and R are true, and R is the correct explanation of A
    2. Both A and R are true, but R is not the correct explanation of A
    3. A is true, but R is false
    4. A is false, but R is true
    Show answer

    Answer: A — Both A and R are true, and R is the correct explanation of A

    Both are true and R explains A. Before 2010 review was only a priori, before promulgation; the QPC under Article 61-1 lets a litigant argue that a statute in force infringes constitutional rights, with the question referred by the Conseil d'État or the Cour de cassation.

  8. Which of the following statements about the Lokpal and Lokayuktas Act 2013 are correct? Select all that apply.

    1. Half the members of the Lokpal must be judicial members
    2. It was a recommendation of the first Administrative Reforms Commission
    3. Complaints must be routed through a Member of Parliament
    4. The Prime Minister is within its jurisdiction, subject to safeguards
    Show answer

    Answer: A — Half the members of the Lokpal must be judicial members; B — It was a recommendation of the first Administrative Reforms Commission; D — The Prime Minister is within its jurisdiction, subject to safeguards

    The Act requires half the members to be judicial, covers the Prime Minister with safeguards, and implements an idea recommended by the first ARC in 1966. The MP filter belongs to the UK Parliamentary Commissioner; complaints to the Lokpal may be made directly.

  9. Which case held that the office of the Chief Justice of India is a public authority under the Right to Information Act 2005?

    1. CPIO, Supreme Court of India v Subhash Chandra Agarwal (2019)
    2. CBSE v Aditya Bandopadhyay (2011)
    3. S.P. Gupta v Union of India (1981)
    4. State of Uttar Pradesh v Raj Narain (1975)
    Show answer

    Answer: A — CPIO, Supreme Court of India v Subhash Chandra Agarwal (2019)

    A Constitution Bench decided Subhash Chandra Agarwal in 2019. Aditya Bandopadhyay concerns evaluated answer sheets, Raj Narain recognised the right to know, and S.P. Gupta dealt with judicial appointments and open government.

  10. In which year did the United States enact the Freedom of Information Act? Type the year.

    Numerical answer — type the value.

    Show answer

    Answer: 1966

    The US Freedom of Information Act was enacted in 1966 and took effect in 1967; it gives any person access to federal agency records subject to nine exemptions. The UK's equivalent dates from 2000 and India's RTI Act from 2005.