The Constitutional value of the guarantee clause

Jaiswal, Raunaq (2023) The Constitutional value of the guarantee clause. In: The Indian Yearbook of Comparative Law 2020. The Indian Yearbook of Comparative Law . Springer, Singapore, pp. 85-111. ISBN 978-981-99-5469-8

[thumbnail of Ch5.pdf] Text
Ch5.pdf - Published Version
Restricted to Repository staff only

Download (278kB) | Request a copy


The Constitutions of the United States, Australia, and India were drafted after a period of internal violence. From a historical perspective, the drafters of the constitutions in the United States, Australia, and India included this provision right in the aftermath of the Shays Rebellion, the Shearers Strike and the violence after the Partition of India. With a view to preserve the federal government, and to safeguard to prevent any future governments from resorting to tyrannical rule, the drafters included the Guarantee Clause. Conceptually, this provision confers a constitutional obligation on the Federal Union to, firstly, protect the States from external and internal dangers, and secondly, ensure that States govern according to the Constitution. The Clause, studied from a comparative perspective, reveals contradictions between the historic purpose for which it was included in the first place, and its normative utility. From a normative perspective, the Guarantee Clause has been utilized by some Executives as an enabling clause to authorize the domestic deployment of the armed force, often indefinitely and without any legislative review. This conflict between the historical and normative values cloaks the original intent of the Guarantee Clause in the Constitution—i.e., a provision meant to strengthen the institutions of the democracy, vertically and horizontally, in order to prevent their abuse at the hands of a tyrannical Government. Comparative historical and normative values of the Guarantee Clause illuminate inconsistencies in the application, and a divergence in the conceptual understanding and the contemporary utility of the Guarantee Clause, especially in the Indian context, where the armed forces have been deployed in some regions indefinitely. This indefinite deployment of armed forces domestically is inconsistent with the original intent of the Clause. Based on this, this paper argues that any deployment of armed forces for “domestic violence” and “internal disturbance” under the Guarantee Clause should be firstly, temporary in nature, and secondly open to periodic parliamentary review

Item Type: Book Section
Subjects: Social Sciences and humanities > Social Sciences > Social Sciences (General)
Social Sciences and humanities > Social Sciences > Law and Legal Studies
JGU School/Centre: Jindal Global Law School
Depositing User: Subhajit Bhattacharjee
Date Deposited: 05 Dec 2023 09:44
Last Modified: 05 Dec 2023 10:43
Official URL:


Downloads per month over past year

Actions (login required)

View Item
View Item