UNIVERSITY OF DELHI 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. Shukla’s 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 India’s 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.

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. Kesavananda Bharati v. State of Kerala, AIR 1973 SC 1461 1
2. S. R. Bommai v. Union of India, AIR 1994 SC 1918 8
3. State of West Bengal v. Union of India, AIR 1963 SC 1241 24
4. Ram Jawaya Kapur v. State of Punjab, AIR 1955 SC 549 39
5. Kuldip Nayar v. Union of India, AIR 2006 SC 3127
6. 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
47
8. Ram Kishore Sen v. Union of India, AIR 1966 SC 644 64
9 Union of India v. Sukumar Sengupa, AIR 1990 SC 1692 64
10. N. Masthan Sahib v. Chief Commissioner Pondicherry,
AIR 1962 SC 797
11. R. C. Poudyal v. Union of India, AIR 1993 SC 1804 64
12. Babulal Parate v. State of Bombay, AIR 1960 SC 51 64

[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)13. U. N. R. Rao v. Indira Gandhi, AIR 1971 SC 1002 65
14 S.P. Anand v. H.D. Deve Gowda, AIR 1997 SC 272 68
15. Samsher Singh v. State of Punjab, AIR 1974 SC 212 74
16. M.P. Special Police Establishment v. State of M.P.,
(2004) 8 SCC 788 88
17. S. P. Gupta v. President of India, AIR 1982 SC 149
18. Epuru Sudhakar v. Govt. of A.P., AIR 2006 SC 338
19. Rameshwar Prasad v. Union of India, AIR 2006 SC 980

Topic 4 – Parliament and State Legislatures
Composition of Parliament and State legislatures; Qualification/Disqualification of
Members; Legislative Procedure, Legislative Privilege (Articles 79 – 122, 168 – 212)
20 B. R. Kapur v. State of Tamil Nadu (2001) 7 SCC 231 :
AIR 2001 SC 3435 98
21. Special Reference No. 1 of 2002 (Re Gujarat Assembly Election
Matter), AIR 2003 SC 87
22. Anil Kumar Jha v. Union of India, 2005 (3) SCALE 52 :
(2005) 3 SCC 150
23. Jaya Bachchan v. Union of India, AIR 2006 SC 2119
24. Rameshwar Prasad v. Union of India, AIR 2006 SC 980
25. In re Keshav Singh, AIR 1965 SC 745
26 Raja Ram Pal v. Hon’ble 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. R. K. Garg v. Union of India, AIR 1981 SC 2138 109
28. D. C. Wadhwa v. State of Bihar, AIR 1987 SC 579 123
29. A. K. Roy v. Union of India, AIR 1982 SC 710
 

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.132-
135); 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 149 129
33. In re Special Reference No. 1 of 1998 (Judges
Appointments case), AIR 1999 SC 1 145
34. Shanti Bhushan v. Union of India (2008) 15 SCALE 647 165
35. L. Chandra Kumar v. Union of India, AIR 1997 SC 1125 173
36. Daryao v. State of U.P., AIR 1961 SC 1457 181
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

Topic 7 – Distribution of Legislative Powers
Articles 245 – 255, Schedule VII
a) Doctrine of Territorial Nexus (Article 245)
42. State of Bihar v. Charushila Dasi, AIR 1959 SC 1002 187
43. State of Bombay v. R. M. D. C., AIR 1957 SC 699
44. 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) Doctrine of Harmonious Construction
45. In Re C P & Berar Sales of Motor Spirit & Lubricants
Taxation Act, 1938, AIR 1939 FC 1 198
46. Gujarat University v. Krishna Ranganath Mudholkar, AIR
1963 SC 703 211
iv) Doctrine of Pith and Substance
47. Prafulla Kumar v. Bank of Commerce, Kulna, AIR 1947 PC 60 219
48. State of Karnataka v. M/s. Drive-in Enterprises,
AIR 2001 SC 1328 226
49. State of Rajasthan v. G. Chawla, AIR 1959 SC 544 231
v) Colourable exercise of Legislative Power
50. K.C. Gajapati Narayan Deo v. State of Orissa,
AIR 1953 SC 375 234
d) Residuary Power of Legislation (Article 248)
51. Union of India v. H. S. Dhillon, AIR 1972 SC 1061 248
e) Parliament’s Power to Legislate in List II (State List) – Articles 246 (4), 247,
249 – 253, 352, 356
f) Doctrine of Repugnancy (Article 254)
vi
52. Hoechst Pharmaceuticals Ltd. v. State of Bihar,
AIR 1983 SC 1019
260
53. Zaverbhai v. State of Bombay, AIR 1954 SC 752 175

Topic 8 – Freedom of Trade, Commerce and Intercourse
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 states-
Powers of Parliament and State Legislatures; State Monopoly (Articles 301 – 307)
54. Automobile Transport (Rajasthan) Ltd. v. State of Rajasthan,
AIR 1962 SC 1406 281
55. Jindal Stainless Ltd. v. State of Haryana,
AIR 2006 SC 2550 294
56. G.K. Krishnan v. State of Tamil Nadu
(1975) 1 SCC 375 306
57. M/s Video Electronics (Pvt) Ltd v. State of Punjab,
AIR 1990 SC 820 312
58. Shree Mahavir Oil Mills v. State of J. & K.
(1996) 11 SCC 39 325
59. Atiabari Tea Co. v. State of Assam, AIR 1961 SC 232

Topic 9 – Emergency Provisions

(a) Proclamation of Emergency on grounds of war, external aggression and armed
rebellion (Articles 352, 358, 359)

(b) 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)

(c) Imposition of President’s Rule in States – Grounds, Limitations, Parliamentary
Control, Judicial Review (Articles 356-357)

(d) Financial Emergency (Article 360)
60. State of Rajasthan v. Union of India, AIR 1977 SC 1361 336

61. S. R. Bommai v. Union of India, AIR 1994 SC 1918 351
62. Rameshwar Prasad v. Union of India, AIR 2006 SC 980 365

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: 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 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.

(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
President’s 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.
* * * * *

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 President’s 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.

3. 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
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.
(b) The proclamation under Article 356 also dissolves the Legislature Assembly.

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) What are different situations when repugnancy can arise under Article 254 of the
Constitution?

(b) 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.

8. Taxes of a compensatory nature and regulatory measures are outside the scope of Article 30of 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 President’s 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.
xiii
(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.