COURSE MANUAL

Subject

Fall 2021
(AY 2021-22)

Faculty

M. Mohsin Alam Bhat, Anuj Bhuwania, Moiz Tundawala, Anshuman Shukla,

Satya Prateek, Nidhi Sharma, Shireen Moti, Arijeet Ghosh, Surendra Kumar,
Amit Upadhayay, Ayushi Agarwal, Balu G. Nair, Krusha Bhatt, Aakriti Malhotra
Format approved by the Academic Review Board, JGLS

CONTENTS

PART I
General Information……………………………………………………………………………… 3

PART II

a. Course Description………………………………………………………………………………… 4

b. Course Aims…………………………………………………………………………………….. 4

c. Intended Leaning Outcomes ……………………………………………………........... 4-5

d. Grading of Student Achievement…………………………………………………....... 5-7

PART III
a. Keyword Syllabus…………………………………………………………………………… 7
b. Course Policies……………………………………………………………………………….. 7-9

PART IV

a. Weekly Course Outline …………………………………………………………............. 9-10

b. Readings………………………………………………………………………………………… 10-15

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PART I

General Information

General Information on, Constitutional Law II, offered by Jindal Global Law School

of the AY 2021-22

The information provided herein is by the Course Coordinator. The following information contains the
official record of the details of the course.

This information shall form part of the University database and may be uploaded to the
KOHA Library system and catalogued and may be distributed amongst 2019 and 2020 year
Law students for B.A.LL.B. (Hons), B.B.A.LL.B. (Hons); B.Com. LL.B. (Hons), B.A. (Hons)
Legal Studies, LL.B.; LL.M. courses if necessary.

Course
Title: Constitutional Law II
Course
Code:
Course
Duration: One Semester
No. of Credit
Units: 4
Level: LLB 2020, BA-LLB 2019, BBA-LLB 2019
Medium of
Instruction: English

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Format approved by the Academic Review Board, JGLS

PART II

a. Course Description

This course focuses on the governance dimension of the Indian constitutional

scheme. Specifically, it explores the vertical and horizontal division of political labour.
The first key theme of the course is the federal structure under the Constitution. The
course places the important political and jurisprudential debates on Indian
federalism in their theoretical context. The theme of federalism is developed across
multiple modules, including the division of legislative powers, the constitutional
constraints on states to inhibit inter-state commerce and trade, the power of the
Parliament to alter state boundaries and status, and the power of the Union executive
to impose emergencies and President’s rule. The second intersecting key theme is the
horizontal division of constitutional labour among the institutions under the
constitutional scheme. These institutions include the Parliament, the Executive, and
the Judiciary, as well as the Election Commission of India. The court particularly
focuses on the Executive and the Judiciary, especially from the theoretical prism of
the separation of powers. It introduces the students to the system of political
accountability and constitutional discretion of the Executive. Specifically, it devotes
modules to the Executive’s ordinance making and pardoning powers. It also devotes a
module to the important issue of the Executive’s power to impose emergencies. The
question of justiciability has been an important facet of the constitutional debates in
India. Therefore, the course focuses on the various historically evolving standards of
judicial review for executive discretion. The course also introduces the students to the
debates on the appointment of judges, judicial independence and the jurisdiction of
the higher judiciary. Other aspects of the debates around institutions have been left
optional, to be covered in classroom conversations and student-led presentations.
Finally, the course develops the third theme of sovereignty. In particular, the power of
the Parliament to alter national borders and to amend the Constitution invite the
students to take this question of sovereignty seriously.

b. Course Aims

 Introduce students to the key theoretical concepts of federalism, separation of

powers, executive authority and accountability, emergency powers and
constitutional amendment.
 Explore the historical and political dimensions of the constitutional debates.
 Get familiarized with the key Supreme Court decisions on the field.

c. Intended Learning Outcomes

Course Intended Weightage Teaching and Assessment

Learning Outcomes Learning Activities Tasks/ Activities

By the end of the course, students

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Format approved by the Academic Review Board, JGLS

Course Intended Weightage Teaching and Assessment

Learning Outcomes Learning Activities Tasks/ Activities

should be able to:  End-term

1. Demonstrate analytical 40%  Reading of prescribed assessment
understanding of the literature, judicial (50%)
core constitutional precedents before
concepts and issues,  May consist
scheduled lectures.
including leading legal
of analytical
precedents of the
 Discussion and critical essays, or
Supreme Court of
India. appraisal of the  Response
2. Demonstrate critical 40% prescribed literature paper upon
understanding of during the lecture prescribed
relevant sources, sessions. literature, or
literature, judicial  Set of long
precedents- historical essay
 Reading of
and political questions and
development. recommended
short-notes.
3. Demonstrate 20% introductory materials
fundamental and constitutional
 Internal
understanding of key clauses to familiarize
assessment
terminologies, with basic legal
constitutional clauses (50%)
terminologies, clauses
and doctrines.  To be
and case laws.
determined
by individual
faculty
members in
consultation
with the
batch.

d. Grading of Student Achievement1,2

To pass this course, students must obtain a minimum of 40% in the

1
Under extraordinary circumstances, the JGU Academic Council or the JGU Deans’ Council can suspend
Clause D or make it optional. If Clause D is suspended, the policy which will be framed by the School
based on the decision of the said bodies will supersede Clause D. However, whether a situation is
extraordinary or not will be decided by the said bodies only.
2
Due to the COVID 19 pandemic, the Office of Academic Affairs may suggest changes/amendments or
suspend certain policies relating to the number of assessments and other examination related policies. 

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Format approved by the Academic Review Board, JGLS

cumulative aspects of coursework, e.g. moot, and final examination. End of

semester exam will carry 50 marks out of which students have to obtain a
minimum of 15 marks to fulfil the requirement of passing the course.

The details of the grades as well as the criteria for awarding such grades are provided
below.

Letter Percentage Grade Definitions

Grade Of marks
O 80% and above Outstanding Outstanding work
with strong evidence
of knowledge of the
subject matter,
excellent
organizational
capacity, ability to
synthesize and
critically analyse and
originality in
thinking and
presentation.
A+ 75 to 79.75% Excellent Sound knowledge of
the subject matter,
thorough
understanding of
issues; ability to
synthesize critically
and analyse
A 70 to 74.75% Good Good understanding
of the subject matter,
ability to identify
issues and provide
balanced solutions to
problems and good
critical and
analytical skills.
A- 65 to 69.75% Adequate Adequate knowledge
of the subject matter
to go to the next level
of study and
reasonable critical
and analytical skills.
B+ 60 to 64.75% Marginal Limited knowledge
of the subject matter,
irrelevant use of
materials and poor
critical and
analytical skills.
B 55 to 59.75% Poor Poor comprehension
of the subject
matter; poor critical
and analytical skills
and marginal use of
the relevant

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Format approved by the Academic Review Board, JGLS

materials.
B- 50 to 54.75% Pass “Pass” in a pass-fail
course. “P” indicative
of at least the basic
understanding of the
subject matter.

NEW COURSE LETTER GRADES AND THEIR INTERPRETATION 

Letter Percentage Grade
Interpretation  
Grade of Marks Points
Pass 1: Pass with Basic understanding of the subject
P1 45 - 49 2
matter.
Pass 2: Pass with Rudimentary understanding of the
P2  40 - 44 1
subject matter.
Fail: Poor comprehension of the subject matter; poor
F Below 40 0 critical and analytical skills and marginal use of the
relevant materials. Will require repeating the course.
‘P’ represents the option of choosing between Pass/Fail
grading system over the CGPA grading system in the
COVID 19 semester in Spring 2020. The option is
P Pass  
provided when students attain a minimum of 40
percentage marks under the current grading structure in
a given subject. 
Extenuating circumstances preventing the student from
completing coursework assessment, or taking the
examination; or where the Assessment Panel at its
I Incomplete   discretion assigns this grade. If an "I" grade is
assigned, the Assessment Panel will suggest a schedule
for the completion of work, or a supplementary
examination. 

PART III

a. Keyword Syllabus

Federalism, separation of powers, executive, parliament, emergency, constitutional

amendment.

b. Course/Class Policies

Cell Phones, Laptops and Similar Gadgets

Allowed to the extent necessary for class participation, and facilitating lecture transaction.

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Format approved by the Academic Review Board, JGLS

Academic Integrity and Plagiarism

Learning and knowledge production of any kind is a collaborative process. Collaboration

demands an ethical responsibility to acknowledge who we have learnt from, what we have
learned, and how reading and learning from others have helped us shape our own ideas. Even our
own ideas demand an acknowledgement of the sources and processes through which those ideas
have emerged. Thus, all ideas must be supported by citations. All ideas borrowed from articles,
books, journals, magazines, case laws, statutes, photographs, films, paintings, etc., in print or
online, must be credited with the original source. If the source or inspiration of your idea is a
friend, a casual chat, something that you overheard, or heard being discussed at a conference or
in class, even they must be duly credited. If you paraphrase or directly quote from a web source
in the examination, presentation or essays, the source must be acknowledged. The university has
a framework to deal with cases of plagiarism. All form of plagiarism will be taken seriously by
the University and prescribed sanctions will be imposed on those who commit plagiarism.

Disability Support and Accommodation Requirements

JGU endeavours to make all its courses accessible to students.  The Disability Support

Committee (DSC) has identified conditions that could hinder a student’s overall well-being.
These include physical and mobility related difficulties, visual impairment, hearing impairment,
mental health conditions and intellectual/learning difficulties e.g., dyslexia and dyscalculia.
Students with any known disability needing academic and other support are required to register
with the Disability Support Committee (DSC) by following the procedure specified
at https://jgu.edu.in/disability-support-committee/

Disability Support Committee - JGU

About Us Our Role The Standard Operating procedure of the DSC Dis
Support Committee Volunteer Form About Us JGU Disability Support
Committee Members 1 Dr. Deblina Dey, Associate Professor, JGLS Ch
2 Prof. Pratik Phadkule Member Secretary 3 Dr. Shilpi Bhattacharya, P
JGLS Member 4 Dr. Manisha Mishra, Associate Professor and Assistan
JGBS Member…
jgu.edu.in

 
Students who need support may register any time during the semester up until a month before the
end semester exam begins. Those students who wish to continue receiving support from the
previous semester, must re-register within the first month of a semester. Last minute registrations
and support might not be possible as sufficient time is required to make the arrangements for
support.
 
The DSC maintains strict confidentiality about the identity of the student and the nature of
their disability and the same is requested from faculty members and staff as well. The DSC takes
a strong stance against in-class and out-of-class references made about a

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student’s disability without their consent and disrespectful comments referring to a

student’s disability.
 
All general queries are to be addressed to disabilitysupportcommittee@jgu.edu.in

Safe Space Pledge

This course may discuss a range of issues and events that might result in distress for some
students. Discussions in the course might also provoke strong emotional responses. To make sure
that all students collectively benefit from the course, and do not feel disturbed due to either the
content of the course or the conduct of the discussions. Therefore, it is incumbent upon all within
the classroom to pledge to maintain respect towards our peers. This does not mean that you need
to feel restrained about what you feel and what you want to say. Conversely, this is about
creating a safe space where everyone can speak and learn without inhibitions and fear. This
responsibility lies not only with students, but also with the instructor.

P.S. The course instructor, as part of introducing the course manual, will discuss the scope of the
Safe Space Pledge with the class.

PART IV

a. Weekly Course Outline

Week 1 Module I- Federalism: History and typologies

Week 2 Module II- Territory and Re-organization

Week 3 Module III- Legislative Competence: Territoriality Clause [Art. 245]

Module III- Legislative Competence: Doctrine of Pith and

Week 4 Substance & Doctrine of Harmonious Construction

Module III- Legislative Competence: Residuality Clause [Art.248]

and Repugnancy Clause [Art.254]
Week 5

Module IV- Union & State Executive: Aid & Advice

Week 6

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Format approved by the Academic Review Board, JGLS

Module IV- Union & State Executive: Ordinance Promulgation

Week 7

Module V- Union & State Judiciary- Independence & Appointments

Week 8

-DO- (*Judiciary cont.)

Week 9

Module VI- Constitutional Emergencies

Week 10

-DO- (*Emergency cont.)

Week 11

Module VII- Constitutional Amendment: Doctrine of Basic

Structure
Week 12

-DO- (*Amendment cont.)

Week 13

Module VIII- Trade & Commerce Clauses [Art. 301-304]

Week 14

Revision & Clarification

Week 15

b. Readings

WEEK 1
Module I- Federalism: History & Typologies.
This module introduces the history and nuances of federalism under the Indian Constitution. It
introduces the students to the theoretical contours of federalism. It offers them the various
characteristics of India’s federal model. The Indian Constitution adopts a complex model of
federalism that recognizes a diversity of political arrangements with various states. The module
places the conversation in the following modules in the history, structure and politics of Indian
federalism.

Ghai, Y. P. (2002). Constitutional asymmetries. Communal representation, federalism, and

cultural autonomy. The Architecture of Democracy. Constitutional Design,
Conflict Management, and Democracy. New York, 141-170.

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Alexandrowicz, Charles Henry. "Is India a Federation?." International &

Comparative Law Quarterly 3, no. 3 (1954): 393-403.
Constituent Assembly Debates, vol. VII, dates 4 Nov 1948; 17 Nov 1948; 19 Nov
1948
Tillin, L., 2016. Asymmetric federalism. In The Oxford handbook of the Indian
constitution.
R. C. Poudyal v. Union of India, AIR 1993 SC 1804
Government of NCT of Delhi v. Union of India (2018) 8 SCC 501
Singh, M.P., 2016. The federal scheme. In The Oxford Handbook of the Indian
Constitution.
Thiruvengadam, A. K. (2017). The constitution of India: A contextual analysis.
Bloomsbury Publishing (excerpts)
Singh, Mahendra P., and Douglas V. Verney. "Challenges to India's centralized
parliamentary federalism." Publius: The Journal of Federalism 33, no. 4 (2003): 1-20.
State of Karnataka v. Union of India, AIR 1977 SC 69
S. R. Bommai v. Union of India, AIR 1994 SC 1918
State of West Bengal v. Union of India, AIR 1963 SC 1241

WEEK 2
Module II- Territory & Re-organization
This module focuses on the jurisprudence of articles 1 to 4 of the Constitution, which deals with
the power of Parliament to acquire and cede territory, and create states and alter their boundaries.
These themes have important implications for the understanding of sovereignty and federalism
under the Indian constitutional system. The module will also allow the students to think carefully
about the contemporary debates about federalism and the formation of states and Union
Territories.

Reorganisation

Babulal Parate v. State of Bombay, AIR 1960 SC 51

Singh, Mahendra Prasad. "Reorganisation of States in India." Economic and
Political Weekly (2008): 70-75.
Mohd. Akbar Lone v. Union of India, Writ Petition (Civil), paras. Z-HH

Cession and acquisition of territory

In Re: Berubari Union and Exchange of Enclaves, AIR 1962 SC 845

N. Masthan Sahib v, Chief Commissioner, Pondicherry, AIR 1963 SC 533
Ram Kishore Sen v. Union of India, AIR 1966 SC 644
Maganbhai Ishwarbhai Patel v. Union of India, AIR 1967 SC 783
In Re Mangal Singh, AIR 1967 SC 944

WEEKS 3-5
Module III- Legislative Competence
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Legislative competence review is one of the most important facets of judicial review under the
Indian Constitution. The Indian Constitution lays down a detailed subject-wise division of
legislative powers between the Union and states. Despite this, numerous controversies have
historically arisen about the interpretation of this division with major implications for federalism.
This module focuses on these themes, primarily through Supreme Court’s decisions.

Territoriality Clause [Art.245]

Wallace Brothers v. Comm’r of Income Tax, AIR 1948 PC 118
Poppatlal Shah v. State of Madras, AIR 1953 SC 274
State of Bihar v. Charusila Dasi, AIR 1959 SC 1002
Karulkar v. State of Gujarat, (1994) 5 SCC 459
GVK Industries v. Income Tax Officer, (2011) 4 SCC 36

Doctrine of Pith and Substance

Governor-General in Council v. Province of Madras, AIR 1945 PC 98
Prafulla Kumar Mukherjee v. Bank of Commerce, Khulna, AIR 1947 PC 60
Hoechst Pharmaceuticals v. State of Bihar, AIR 1983 SC 1019
Kartar Singh v. State of Punjab, (1994) 3 SCC 569

Doctrine of Harmonious Construction

Calcutta Gas Company v. State of West Bengal, AIR 1962 SC 1044
ITC Ltd. v. Agricultural Produce Market Committee, AIR 2002 SC 852

Residuality Clause [Art.248]

Naga People’s Movement of Human Rights v. Union of India, AIR 1998 SC 465

Repugnancy Clause [Art. 254]

State of Kerala v. Mar Apparem Kuri Company, AIR 2012 SC 2375

WEEKS 6-7

Module IV- Union & State Executive

This module introduces the students to some key themes and debates on the Executive under the
Indian Constitution. What is the relationship between the Executive and Parliament? How should
we think about parliamentary accountability under the Indian constitutional scheme? What are
some of the limits of executive discretion? This module engages with these questions with a
particular focus on the ordinance making power and pardoning power.

Executive and separation of powers

Jenny S. Martinez, Horizontal Structuring, in The Oxford Handbook of Comparative
Constitutional Law (Edited by Michel Rosenfeld and András Sajó).
Dam, S. (2016). Executive. In The Oxford Handbook of the Indian Constitution (pp. 307-329).

Gubernatorial Aid and Advice Clause

Shamsher Singh v. State of Punjab, AIR 1974 SC 2192
M. P. Special Police Establishment v. State of M.P., AIR 2005 SC 325

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Format approved by the Academic Review Board, JGLS

Gubernatorial Ordinance Making Clause

Dr. D. C. Wadhwa v. State of Bihar, AIR 1987 SC 579
Krishan Kumar Singh v. State of Bihar, (2017) 3 SCC 1
R. K. Garg v. Union of India, AIR 1981 SC 2138
A. K. Roy v. Union of India, AIR 1982 SC 710
Dam, Shubhankar. Presidential legislation in India: The law and practice of ordinances.
Cambridge University Press, 2013.

Pardoning Clause* (optional)

K. M. Nanawati v. State of Bombay, AIR 1961 SC 112
Kehar Singh v. Union of India, AIR 1989 SC 653
Shatrughan Chauhan v. Union of India, (2014) 3 SCC 1
Perry, Adam. "Mercy and caprice under the Indian constitution." Indian Law Review 1, no. 1
(2017): 56-68.

Prime Minister and the Council of Ministers* (optional)

Ram Jawaya Kapoor v. State of Punjab, AIR 1955 SC 549
Har Sharan Verma v. Tribhuvan Narain Singh, AIR 1971 SC 1331
Har Sharan Verma v. State of U.P., AIR 1985 SC 282
S. P. Anand v. H. D. Deve Gowda, AIR 1997 SC 272
S. R. Chadhuri v. State of Bihar, AIR 2001 SC 2707

WEEKS 8-9

Module V- Union & State Judiciary

This module addressed the two themes of judicial appointments in higher judiciary, and the the
different types of jurisdictions that India’s higher judiciary exercises (viz. original, appellate
(civil and criminal), appeal by special leave, advisory, and writ jurisdictions) under the
constitutional scheme.

The First Judges Appointments Case, (1981) Supp. SCC 87 (selected Excerpts from the
opinion of Justice Bhagwati only)
The Second Judges Appointments Case, (1993) 4 SCC 441 (selected excerpts from the
majority opinion)
The Third Judges Appointments Case, (1998) 7 SCC 739 (selected excerpts)
The Fourth Judges Appointments Case, (2016) 5 SCC 1 (selected excerpts from the four
concurring opinions)
Macdonald, Roderick A., and Hoi Kong. "Judicial independence as a constitutional virtue."
In The Oxford handbook of comparative constitutional law. 2012.
Sengupta, Arghya, ed. Appointment of judges to the Supreme Court of India:
Transparency, accountability, and independence. Oxford University Press, 2017.
Rehan Abeyratne, Upholding Judicial Supremacy in India: The NJAC
Judgment in Comparative Perspective, 49 GEO. WASH. INT’L. L. REV. 569 (2017)
Robinson, N., 2013. Structure matters: The impact of court structure on the Indian and US
Supreme Courts. The American Journal of Comparative Law, 61(1), pp.173-208.

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Vakil, Raeesa. "Jurisdiction." In The Oxford handbook of the Indian Constitution.

2016.

WEEKS 10-11

Module VI- Constitutional Emergencies

This important module brings together the themes of federalism and limits of executive
discretion developed in the previous sections of the course. It focuses on the constitutional
aspects of national and regional emergency. The Constitution allows the Union executive
to declare national emergencies that restraint the implementation of certain fundamental
rights. It also permits the Union executive in certain cases to suspend state legislature. This
topic has thrown up some key political controversies of serious historical import.
Can the executive be subject to judicial review in the imposition of emergencies? What are
the boundaries of the power of the Union executive to impose national emergencies or its
rule in the state? What are the implications of federalism and fundamental rights?

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
Alice Jacob and Rajeev Dhavan, The Dissolution Case: Politics at the Bar of the Supreme
Court, Journal of the Indian Law Institute, Vol. 19 (1977), p. 355.
Makhan Singh Tarsikka v. State of Punjab 1964 AIR 1120
The Twilight of Legitimacy: The Supreme Court and the Emergency, in Baxi, U., 1980.
The Indian Supreme Court and Politics. Eastern Book Co.
Additional District Magistrate, Jabalpur v. S. S. Shukla, 1976 AIR 1207
Sarbananda Sonowal v. Union of India, A.I.R. 2005 S.C. 2920

WEEKS 12-13

Module VII- Constitutional Amendment

This module is devoted to the study of the Parliament’s power to amend the Constitution. In the
famous 1973 case of Kesavananda Bharti v. Union of India, the Supreme Court introduced
substantive limits to this power by articulating the doctrine of basic structure. This module
focuses on the historical, conceptual and institutional aspects of the doctrine. It also introduces
the students to the latest decision in the area.

Shankari Prasad v. Union of India, AIR 1951 SC 458

Kesavananda Bharti v. Union of India, AIR 1973 SC 1461 (Justice Khanna and Justice
Matthew only)
Indira Gandhi v. Raj Narain, AIR 1975 SC 2299 (Justice Matthew, Justice Khanna and
Justice Chandrachud only)
M. Nagaraj v. Union of India, AIR 2007 SC 71
I. R. Cohelo v. Union of India, (2007) 2 SCC 1

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Ashoka Kumar Thakur v. Union of India, (2008) 6 SCC 1

Nani Palkhiwala, Fundamental Right Case – Comment, (1973) 4 SCC (J) 57
Baxi, U., 1974. The Constitutional Quicksands of Kesavananda Bharati and the Twenty-
Fifth Amendment. Sup. Ct. Cases. J., 1, p.45.
Baxi, U., 1985. Courage, Craft, and Contention: the Indian Supreme Court in the eighties.
NM Tripathi. [Excerpts]

WEEK 14

Module VIII- Trade & Commerce clauses

The Indian Constitution seeks to create a common market in India. This imperative has run into
interpretive with the federalism. This optional module focuses on the Supreme Court’s
jurisprudence on articles 301-304.

Atiabari Tea Company v. State of Assam, AIR 1961 SC 232

Automobile Transport (Rajasthan) Ltd. v. State of Rajasthan, AIR 1962 SC 1406
State of Punjab v. Devans Modern Breweries, (2004) 11 SCC 26
Jindal Stainless v. State of Haryana, AIR 2006 SC 2550
Jindal Stainless v. State of Haryana, (2017) 12 SCC 1

*Additional areas to be covered at the discretion of the instructors

X Schedule, Constitution of India
The Election Commission of India and the electoral process GST
Council and fiscal federalism
Parliamentary process and privileges

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