LL.B.

III Term
Paper LB - 301 Constitutional Law I
[Principles of Federalism, Distribution of Legislative Powers between the Centre and the States, Union and State Executive; Freedom of Trade, Commerce and Intercourse; Parliament and State Legislatures, Judiciary and Emergency provisions]

Prescribed Text: The Constitution of India 1950 Prescribed Books: 1. H.M. Seervai, Constitutional Law of India (4th ed., Vol 1 (1991), Vol. 2 (1993),
Vol. 3 (1996)

2. M.P. Jain, Indian Constitutional Law (5th ed., 2003) 3. Mahendra P. Singh, V. N. Shuklas Constitution of India (11th ed., 2008) 4. D.D. Basu, Shorter Constitution of India (14th ed., 2009) Recommended Books: 1. Granville Austin, The Indian Constitution: Cornerstone of a Nation (1966) 2. Granville Austin, Working a Democratic Constitution - A History of the Indian Experience (1999) 3. B. Shiva Rao, The Framing of Indias Constitution Select Documents (1967) 4. Report of the Commission on Centre State Relation s(Sarkaria Commission) (1987) 5. Report of the National Commission to Review the Working of the Constitution (2002) Objectives The Constitution contains the fundamental law of the land. It is the source of all powers of, and limitations on, the three organs of State, viz. the executive, legislature and judiciary. No action of the state would be valid unless it is permissible under the Constitution. Therefore, it is imperative to have a clear understanding of the nature and working of the Constitution. This course is designed to orient the students towards said understanding and develop an analytical approach through case law.

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Topic 1 General Constitution Fundamental Law of the Land: Making of the Indian Constitution, Aims and Objectives; Essential Features of Constitution; Theory of Basic Structure; Principles of Federalism; Nature of the Indian Constitution Federal, Unitary, Quasi-federal 1. 2. 3. 4. 5. 6. Kesavananda Bharati v. State of Kerala, AIR 1973 SC 1461 S. R. Bommai v. Union of India, AIR 1994 SC 1918 State of West Bengal v. Union of India, AIR 1963 SC 1241 Ram Jawaya Kapur v. State of Punjab, AIR 1955 SC 549 Kuldip Nayar v. Union of India, AIR 2006 SC 3127 State of Haryana v. State of Punjab, AIR 2002 SC 685 Topic 2 The Union and its Territory Power to cede Indian territory to a Foreign Nation; Power to create/extinguish a State; Alteration of name, area and boundary of existing states Procedure (Articles 1 4) 7. In re Berubari Union and Exchange of Enclaves, AIR 1960 SC 845 8. Ram Kishore Sen v. Union of India, AIR 1966 SC 644 9 Union of India v. Sukumar Sengupa, AIR 1990 SC 1692 10. N. Masthan Sahib v. Chief Commissioner Pondicherry, AIR 1962 SC 797 11. R. C. Poudyal v. Union of India, AIR 1993 SC 1804 12. Babulal Parate v. State of Bombay, AIR 1960 SC 51 [Topic 3 The Union and State Executive (a) The President and Vice President Qualifications, Election, Term of Office, Powers, Impeachment (Articles 52-72); Governor Appointment and Powers (Articles 153 161) (b) Nature, Scope and Extent of Executive Power of the Union and States (Article 73 and 162) (c) Union Council of Ministers Powers and Position of the President (Articles 74-75); State Council of Ministers (Articles 163-164); Relationship of the President/Governor with the Council of Ministers; Scope and Extent of Judicial Review of Executive Actions (Articles 74, 75,77,78,111,102, 103(2), 217(3), 163) 47 64 64 1 8 24 39

64 64

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13. 14 15. 16. 17. 18. 19.

U. N. R. Rao v. Indira Gandhi, AIR 1971 SC 1002 S.P. Anand v. H.D. Deve Gowda, AIR 1997 SC 272 Samsher Singh v. State of Punjab, AIR 1974 SC 212 M.P. Special Police Establishment v. State of M.P., (2004) 8 SCC 788 S. P. Gupta v. President of India, AIR 1982 SC 149 Epuru Sudhakar v. Govt. of A.P., AIR 2006 SC 338 Rameshwar Prasad v. Union of India, AIR 2006 SC 980 Topic 4 Parliament and State Legislatures

65 68 74 88

Composition of Parliament and State legislatures; Qualification/Disqualification of Members; Legislative Procedure, Legislative Privilege (Articles 79 122, 168 212) 20 21. 22. 23. 24. 25. 26 B. R. Kapur v. State of Tamil Nadu (2001) 7 SCC 231 : AIR 2001 SC 3435 Special Reference No. 1 of 2002 (Re Gujarat Assembly Election Matter), AIR 2003 SC 87 Anil Kumar Jha v. Union of India, 2005 (3) SCALE 52 : (2005) 3 SCC 150 Jaya Bachchan v. Union of India, AIR 2006 SC 2119 Rameshwar Prasad v. Union of India, AIR 2006 SC 980 In re Keshav Singh, AIR 1965 SC 745 Raja Ram Pal v. Honble Speaker, Lok Sabha (2007) 3 SCC 184 Topic 5 - Legislative Power of the Executive (Ordinances) Essential Conditions for promulgation of an Ordinance: Ordinance under Article 13; Judicial Review; Validity of Successive Promulgation of the same Ordinance ( Articles 123, 213) 27. 28. 29. R. K. Garg v. Union of India, AIR 1981 SC 2138 D. C. Wadhwa v. State of Bihar, AIR 1987 SC 579 A. K. Roy v. Union of India, AIR 1982 SC 710 109 123 98

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Topic 6 Union and State Judiciary a) Union Judiciary; Supreme Court of India (Articles 124-147) Composition, Appointment and Removal of Judges of Supreme court (Articles 124-130, Procedure (Article 145); High Courts in the States (Articles 214-231) b) Jurisdiction of Supreme Court Original Exclusive (Articles 71, 131), Original Concurrent Jurisdiction of Supreme Court and High Courts (Article 32 read with Article 226). c) Appellate Jurisdiction of Supreme Court Civil, Criminal and in other matters(Arts.132135); Statutory Appeals on Enlargement of Jurisdiction (Arts. 138) d) Special Leave to Appeal (Art. 136) e) Power of Review (Art. 137) f) Advisory Jurisdiction (Art. 143) g) Curative Petition 30. Rupa Ashok Hurra v. Ashok Hurra (2002) 4 SCC 388 : AIR 2002 SC 1771 31. Zakarius Lakra v. Union of India (2005) 3 SCC 161 (a) Writs habeas corpus, mandamus, prohibition, quo warranto and certiorari (b) Judicial self-restraint on exercise of Power (i) Locus Standi, Public Interest Litigation (Concept of pro bono publico) (ii) Laches (iii) Res Judicata (iv) Exhaustion of Alternative Remedies (c) Power to issue appropriate orders and directions; Power to award Compensation 32. S.P. Gupta v. President of India, AIR 1982 SC 149 33. In re Special Reference No. 1 of 1998 (Judges Appointments case), AIR 1999 SC 1 34. Shanti Bhushan v. Union of India (2008) 15 SCALE 647 35. L. Chandra Kumar v. Union of India, AIR 1997 SC 1125 36. Daryao v. State of U.P., AIR 1961 SC 1457 37. Asif Hameed v. State of J. & K., AIR 1989 SC 1899 38. Rudul Sah v. State of Bihar, AIR 1983 SC 1086 39. M.C. Mehta v. Union of India, AIR 1987 SC 1086 40. Bandhua Mukti Morcha v. Union of India, AIR 1984 SC 802 41. Bhim Singh v. State of J. & K., AIR 1986 SC 494 129 145 165 173 181

Topic 7 Distribution of Legislative Powers Articles 245 255, Schedule VII a) Doctrine of Territorial Nexus (Article 245) State of Bihar v. Charushila Dasi, AIR 1959 SC 1002 State of Bombay v. R. M. D. C., AIR 1957 SC 699 Tata Iron & Steel Co. Ltd. v. State of Bihar, AIR 1958 SC 452 b) Subject-matter of laws made by Parliament and by the Legislatures of States (Article 246) c) Interpretation of legislative lists. i) Plenary and Ancillary Power of Legislation ii) Effect of Non Obstante Clause iii) 45. 46. Doctrine of Harmonious Construction In Re C P & Berar Sales of Motor Spirit & Lubricants Taxation Act, 1938, AIR 1939 FC 1 Gujarat University v. Krishna Ranganath Mudholkar, AIR 1963 SC 703 198 211 42. 43. 44. 187

iv)

Doctrine of Pith and Substance Prafulla Kumar v. Bank of Commerce, Kulna, AIR 1947 PC 60 State of Karnataka v. M/s. Drive-in Enterprises, AIR 2001 SC 1328 49. State of Rajasthan v. G. Chawla, AIR 1959 SC 544 v) Colourable exercise of Legislative Power 47. 48. 50. d) K.C. Gajapati Narayan Deo v. State of Orissa, AIR 1953 SC 375 Residuary Power of Legislation (Article 248)

219 226 231

234

51. Union of India v. H. S. Dhillon, AIR 1972 SC 1061 248 e) Parliaments Power to Legislate in List II (State List) Articles 246 (4), 247, 249 253, 352, 356 f) Doctrine of Repugnancy (Article 254)

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52. Hoechst Pharmaceuticals Ltd. v. State of Bihar, AIR 1983 SC 1019 53. Zaverbhai v. State of Bombay, AIR 1954 SC 752 Topic 8 Freedom of Trade, Commerce and Intercourse

260 175

Concept of Trade and Commerce: Scope of Freedom of trade, commerce and intercourse; Fiscal measures; Direct and Immediate Restrictions; Regulatory Measures, Compensatory Taxes; Restrictions on trade, commerce and intercourse among statesPowers of Parliament and State Legislatures; State Monopoly (Articles 301 307) 54. Automobile Transport (Rajasthan) Ltd. v. State of Rajasthan, AIR 1962 SC 1406 55. Jindal Stainless Ltd. v. State of Haryana, AIR 2006 SC 2550 56. G.K. Krishnan v. State of Tamil Nadu (1975) 1 SCC 375 57. M/s Video Electronics (Pvt) Ltd v. State of Punjab, AIR 1990 SC 820 58. Shree Mahavir Oil Mills v. State of J. & K. (1996) 11 SCC 39 59. Atiabari Tea Co. v. State of Assam, AIR 1961 SC 232 Topic 9 Emergency Provisions (a) (b) Proclamation of Emergency on grounds of war, external aggression and armed rebellion (Articles 352, 358, 359) Power of Union Executive to issue directions (e.g. Articles 256, 257) and the effect of non-compliance (Article 365); Duty of the Union to protect the States against external aggression and internal disturbance (Article 355) Imposition of Presidents Rule in States Grounds, Limitations, Parliamentary Control, Judicial Review (Articles 356-357) Financial Emergency (Article 360) State of Rajasthan v. Union of India, AIR 1977 SC 1361 S. R. Bommai v. Union of India, AIR 1994 SC 1918 Rameshwar Prasad v. Union of India, AIR 2006 SC 980 336 351 365 281 294 306 312 325

(c) (d) 60. 61. 62.

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IMPORTANT NOTE: 1. The topics and cases given above are not exhaustive. The teachers teaching the course shall be at liberty to add new topics/cases. 2. The students are required to study the Constitution of India as amended up-to-date and consult the latest editions of books. They are required to keep themselves familiar with the latest developments and study the entire course covered in the class. 3. The question paper will include one compulsory question. The question papers set for the examinations held during 2007-08 and 2008-09 are given below for guidance of the students. ***** LL.B. III Term Examinations, December, 2007 Note: 1 Attempt five questions including Question No. 1 which is compulsory. All questions carry equal marks.

Attempt briefly any four of the following: (a) Describe the procedure for creating a new state. (b) Describe some of the circumstances under which the President of India is required to act on the advice of constitutional authorities other than the Union Council of Ministers. (c) What are the grounds on which a proclamation of emergency under Article 352 of the Constitution of India can be issued? (d) Can the fundamental rights be restricted by an Ordinance? What are the limitations for promulgation of an Ordinance? (e) Explain the theory of territorial nexus.

2. What are the essential characteristics which a federal Constitution must contain? To what extent those characteristics are incorporated in the Constitution of India? 3. Is the action of the President of India/Governor valid in the following cases: (i) ING was appointed Prime Minister at a time when the House of the People was dissolved. (ii) Without advice of the Council of Ministers, the President returns a bill passed by both House of Parliament for its re-consideration.

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(iii) DDG was appointed Chief Minister though he was a member of Parliament and had not contested election to the Legislative Assembly of the state concerned. (iv) What would be your answer in (iii) above of DDG was not eligible for contesting the Assembly elections? 4. Describe the concept of collegium and consultation for the appointment of judges of the Supreme Court and the High Courts. Can the appointment of a judge made after consultation be challenged on any ground? 5. Does the Constitution of India contain any provision to indicate clearly the circumstances indicating failure of constitutional machinery in a state paving the way for imposition of Presidents rule in a state? The State government is alleged to have failed to comply with the directions of the Supreme Court in some matter whereupon the Court threatens that it might ask the President to consider action under Article 356 of the Constitution in that state. Is the threatened action of the Court permissible under the Constitution? What would be the consequences of any such action on the part of the President? 6. A State legislature enacts a legislation to regulate the use of loud speakers and other forms of sound amplifiers by exercising powers in State List on the subjects Public health and Public Order which is challenged on the ground that the legislation was covered under the subject broadcasting and other like forms of communication provided in the Union List of the Seventh Schedule of the Constitution of India. Can the question be decided by non obstante clause? What principles of interpretation are to be applied? Decide in the light of various principles. 7. Describe the powers of Parliament to legislate on any subject in the State List. What is the consequence of inconsistency between the laws made by Parliament and those made by the legislatures of State on the same subject of State List? Do the legislations made by Parliament in State List apply indefinitely? 8. Compensatory tax is a compulsory contribution levied broadly in proportion to the special benefits derived to defray the costs of regulation of trade. Critically examine this statement and elucidate the scope of freedom of trade and commerce pointing out the permissible restrictions of that freedom. *****

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LL.B. III Term (Supplementary) Examinations, May-June, 2008 Note: Attempt five questions including Question No. 1 which is compulsory. All questions carry equal marks.

1. Attempt briefly any four of the following: (a) Describe the principle of res judicata as applied to writ petitions. (b) Explain the principle of collective responsibility. Does it apply in a case when the House of the people has been dissolved ? (c) No law made by Parliament shall be deemed to be invalid on the ground that it would have extraterritorial operation. Discuss briefly pointing out territorial limitations on the powers of state legislature. (d) Mention the essentials for promulgation of an Ordinance by the President of India. (e) Discuss the effect of inconsistency between a law made by Parliament in national interest and a State legislature, both on the same subject of State list. 2. What is the extent of independence which the States enjoy under the Constitution of India? Does it extend to restraining the Union of India from acquiring the properties of the States? Can the States question the action of the Union in any such case? 3. The President of India is ordinarily bound by the advice of the Council of Ministers Discuss the situations in which the advice of the Council of Ministers, if any, has to be ignored by the President? 4. Can the Supreme Court enforce the fundamental rights at the instance of a person who has approached it for enforcement of fundamental right of others? Can the power to enforce the fundamental rights be conferred on any other Court also? The Parliament enacts a legislation creating tribunals to enforce fundamental rights of citizens in matters relating to recruitment and conditions of service of public servants to the exclusion of powers of the High Courts. Decide the validity of the legislation. 5. It shall be the duty of the Union to protect every State against external aggression and internal disturbance and to ensure that the Government of every State is carried on in accordance with the provisions of this Constitution. In order to perform this duty, can the powers be exercised under Article 356? To what extent a proclamation under the above provision is subject to judicial review? 6. Is the parliamentary legislation on the following subjects valid:(i) Law prescribing the medium of instructions and examination for LL.B. Degree. (ii) Law relating to capital value of agricultural land.

(iii) Law establishing Municipal Corporation for Delhi. 7. In order to decide whether a state law is unconstitutional on the ground of repugnancy with a parliamentary legislation, the relevant consideration is whether both operate in the same field. If the fields occupied by both are different, there can be no question of repugnancy. Discuss. In order to make a law enacted in List III more effective, the legislature of State X amends the parliamentary legislation enhancing the punishment from three to five years of imprisonment. The state law received the Presidents assent. Subsequently, the Parliament amends the law made by it prescribing the quantum of punishment as four years of imprisonment. Which punishment can be imposed in State X? 8. In addition to imposition of reasonable restrictions in public interest by following appropriate procedure, the state legislature can also impose compensatory taxes and nondiscriminatory taxes. Discuss and elaborate the concept of compensatory tax. ***** LL.B. III Term Examinations, December, 2008 Note: Answer five question including Question No. 1 which is compulsory. All questions carry equal marks.

1. Attempt briefly any four of the following (a) Explain the principle of res judicata in its application to writ petitions. (b) Describe the residuary power of legislation in the Constitution of India. (c) The power of Governors to promulgate Ordinances. (d) Can a person convicted for an offence and disqualified to be a member of the state legislature be appointed as Chief Minister? Refer to a decided case. (e) Examine the doctrine of territorial nexus and its application in the Constitution. (f) Power to cede Indian territory in favour of a foreign country. 2. In the light of decided cases, explain the process of formation of opinion by the Chief Justice of India regarding the appointment of Supreme Court and High Court judges and the process of consultation between the CJI and the President in this regard. The president imposes a financial emergency on the satisfaction that a situation gravely threatening the stability of financial markets has arisen in India. This proclamation of emergency is challenged on the ground that the president did not exercise his personal satisfaction and he acted on the aid and advice of the Council of Ministers. Further, it is argued that the Prime Minister at that time had not been elected to either House of

3.

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Parliament. Decide the validity of the above action of the President. Can a person who is not a member of either House of Parliament render aid and advice to the President? Cite relevant case law. 4. With the help of the decided cases, decide the validity of the following: (a) The President invokes his power under Article 356 in a state following large-scale defection of legislators. The President acts on the recommendation of the Governor who did not call for a floor test to determine the support available to the Chief Minister of the said state. The proclamation under Article 356 also dissolves the Legislature Assembly.

(b) 5.

An industrial dispute arose in the Municipality of town Y which was referred for adjudication under the Industrial Disputes act, 1947. The petitioners challenge the vires of the Act on the grounds that the said Act enacted by Parliament dealt with industrial disputes in Municipalities and thus encroached upon the state subject of Local Government. Decide on the constitutional validity of the impugned Act and explain the principles of constitutional interpretation. Entry 5, List II Local Government, that is to say, the constitution and powers of municipal corporations, improvement trusts, district boards, mining settlement authorities and other local authorities for the purpose of local self government or village administration.

Entry 22, List III Trade unions, industrial and labour disputes. 6. (a) (b) What are different situations when repugnancy can arise under Article 254 of the Constitution? Parliament enacted the Prevention of Food Adulteration Act in 1954 providing for a maximum imprisonment of three years for any person found adulterating food items. The legislature of state X amended the law and increased the imprisonment to 7 years. This amendment received the assent of the President. Subsequently, Parliament amended the Act, and imposed the maximum imprisonment of 5 years. Examine the validity of the state amendment after the subsequent amendment by Parliament.

7.

The legal theory on which the Constitution was based was the withdrawal or resumption of all the powers of sovereignty into the people of this country and the distribution of these powers between the Union and States. The result was a Constitution which was not true to any traditional pattern of federalism. Discuss.

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8.

Taxes of a compensatory nature and regulatory measures are outside the scope of Article 301 of the constitution. Comment critically bringing out the difference between a compensatory tax and a fee. ***** LL.B. III Term (Supplementary) Examinations, May-June, 2009

Note:

Attempt five questions including Question No. 1 which is compulsory. All questions carry equal marks.

1. Attempt briefly any four of the following: (a) The Parliament passed an Act to take away a part of the territory of Delhi and merge that part in an adjoining state. Is this action valid? (b) Explain the concept of curative petition. (c) The Parliament enacts a legislation for a state which was under Presidents rule. What is a validity period for such a legislation? (d) The High court of Delhi dismisses a writ petition on the ground that the petitioner had no locus standi in the matter. Does the order operate as res judicata for filing another writ petition on the same subject matter? (e) Mention the powers of the Union executive to issue directions to a state to protect the means of communication of and railways within the state. What is the consequence of non-compliance of the directions issued by the Union executive? 2. The exercise of powers by the President of India on his satisfaction means the satisfaction arrived at on the basis of aid and advice given by the Union Council of Ministers. Do you agree with this view? Are there any situations in which the President is not bound by the aid and advice of the Union Council of Ministers? 3. Discuss the concept of public interest litigation and elaborate the meaning of appropriate proceedings. 4. Discuss the procedure for appointment of judges in the Supreme Court. A person was appointed as a judge of the Supreme Court after consultation with the collegium. Subsequently, it was found that he was not eligible for appointment as a judge of the Supreme Court. What is the remedy against the appointment? 5. Decide the validity of the following law: (a) A state law imposes tax in respect of all properties of a trust registered within the state and having properties outside the state.

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(b) The President promulgates an Ordinance when House of the People was in session. (c) The Parliament enacts a legislation on a subject excluded from List I of the Seventh Schedule. 6. (a) With a view to help draught-affected people of state R, the Parliament enacted a legislation exempting from all taxes foodgrains brought to that state while retaining the tax for other states. Is the legislation valid? (b) Discuss the principles laid down in M/s. Video Electrinics (Pvt.) Ltd. v. State of Punjab, AIR 1990 SC 820. 7. On account of destruction of some religious places, communal riots spread in a state. Despite help from the Union government, the state fails to curb the riots and control the law and order problem. Do you consider it a fit case for invoking Article 356 of the Constitution of India? Can the action of the President under this provision be subjected to judicial review on any ground? 8. Discuss the following: (a) Interpretation of a non-obstante clause. (b) Principle of harmonious construction.

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LL.B. III Term

Constitutional Law - I

Cases Selected and Edited by

S.N. Singh J.L. Kaul Kamala Sankaran Mahavir Singh Niraj Kumar Ms. Seema Singh

FACULTY OF LAW
UNIVERSITY OF DELHI, DELHI-110007
July, 2009