National Law University Odisha

COURSE OUTLINE

CONSTITUTIONAL GOVERNANCE

SEMESTER – II

COURSE: B.A.LL.B./ B.B.A.LL.B.

January 2023 to May 2023

Course Credit: 4

Course Instructors:

Rishika Khare
Assistant Professor of Law
(rishika.khare@nluo.ac.in)

Mr. Animesh Jena

Research-cum-Teaching Assistant
(animesh.jena@nluo.ac.in)

Ms. Athena Solomon K.

Research-cum-Teaching Assistant
(athena@nluo.ac.in)

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COURSE DESCRIPTION:

Constitutional Law is taught through two core papers - Constitutional Law I –

Constitutional Governance offered in Semester II and Constitutional Law II – Civil Liberties

offered in Semester III. This course is the first of the two core papers. The course seeks to

introduce students to the constitutional framework of constitutional governance and a

critical appraisal of how this framework has been in operation for the last 70 years. The

course will trace through various judgements by the constitutional courts in India to assess

the difference between the constitutional mandate and the actual practice. The

jurisprudential development around limitations on state power will be particularly in focus

throughout the course. Discussions on the listed topics will also be shaped by the political,

economic and social developments that have or are taking place in the country.

The teaching methodology in this course is premised upon the participatory involvement of

the students. Readings have been assigned for all the classes. The reading list is dynamic and

is subject to change during the semester. Students are expected to complete the readings in

advance and have a reasonable sense of the main points discussed in each of the readings.

COURSE LEARNING OBJECTIVES:

1. To acquaint students with the governance structure of the country as

provided in the Indian Constitution.

2. To enable students to interpret the interdependence and independence of the

State organs, their limitations and the excess of power.

3. To equip students for assessing how the country's governance complements

constitutional ideals.

4. To make students evaluate the role of public opinion, interest groups, political

parties, campaigns and elections in a democracy.

5. To be able to appreciate civil engagement in Indian politics and governance.

6. To enable students to read the Constitution in a way that moves away from

the elitist concerns and to protect the interests of the vulnerable sections of the

Indian society.

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EXPECTED LEARNING OUTCOMES

At the end of the course the students will be able to:

1. Assess the significance of the division of powers amongst the different State

organs and at different levels of political authorities

2. Deconstruct the social and political context in relation to which the powers and

related procedures of the organs have been conceptualized

3. Determine the scope and nature of the governance mechanism laid down in the

Constitution

4. Identify possible violations of limitations provided in the constitution during the

exercise of legal and political powers by state organs in various factual contexts.

5. Identify possible misuse of constitutional powers to satisfy the political agendas.

COURSE STRUCTURE
Module No. Module title Hours
Module I Introduction to Constitution and Constitutional Law 4
Module II Union and State Executive 10

Module III Union and State Legislature 12

Module IV Union and State Judiciary 14
Module V Centre-State Legislative Relations 6
Module VI Centre-State Administrative and Financial Relations 8
Module VII Trade, Commerce and Intercourse 6
Module VIII Election Commission of India 6
Total Hours 64

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 TEACHING PLAN

Module I – Introduction to Constitution and Constitutional Law

This module will introduce the students to the history of the Constitution and some key
Constitutional concepts to examine the process of the creation of the Constitution. The
module will lay down the fundamentals on ‘how to read the Constitution’ by introducing the
concepts like separation of powers, rule of law, constitutionalism and others. The module
also looks at the transition from a pre-constitutional to post-constitutional era and the
resultant change in rights of the Indian citizens. The aim is to move away from the elitist
reading of the Constitution and to interpret it for addressing the interests of the vulnerable
sections of the society.

LECTURE No. 1 – Constitution, Constitutional Law, Constitutionalism and Transformative

Constitutionalism, Basic Constitutional Principles - Federalism, Rule of Law, Separation of
Powers, Checks and Balances and Preamble
Readings
● Gautam Bhatia, Transformative Constitutionalism (Harper Collings, 2019) Prologue.
(Refer to Reading Material)
● Akash Singh Rathore, ‘Who wrote the Indian Preamble to the Indian Constitution?
This is one of the secrets that this book probes’, The Scroll (December 23, 2019)
(Download)

LECTURE no. 2 – Indian Constitutional History – Contributions of the Government of India

Act, 1919 and Government of India Act, 1935 in shaping of the Indian Constitution;
Constituent Assembly and Framing of the Indian Constitution
Readings
● Yale University, ‘Rohit De: Law and Life in India’ (Download)
● D.D. Basu, Introduction to the Indian Constitution (Lexis Nexis, 2011) Chapter 1 &
Chapter 2 (Refer to Reading Material)

Module II – Union and State Executive

This module focuses on the structure, power and duties of the union and state executive.
While the Constitution does not mention the type of government India is to follow, the
structure reflects the Parliamentary form of government. Thus, this module focuses on the
question of what kind of executive system of governance India follows and how that

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contributes in limiting the power of the sovereign and the realisation of the democratic rights
of the Indian people. Given the vast political influence and participation in the executive, it is
essential to check the assumption and execution of unfettered power, therefore this module
also looks at the limits on the executive power.

LECTURE on. 3 - Structure of the Union and State Executive, Presidential and
Parliamentary Forms of Government, Appointment and Removal Process

Reading
● Gonzalo Villalta Puiz, ‘Parliamentary versus Presidential Government’ (2002) 74(5)
Australian Quarterly 9 (Download)

LECTURE no. 4 - Domain of Executive Power, Relationship between President and Council
of Ministers, Judicial Review of Ministerial Advice
Readings
● Ram Jawaya Kapur v. State of Punjab, AIR 1955 SC 549 (Download)
● Shamsher Singh v. State of Punjab, AIR 1974 SC 2192 (Download)
● UNR Rao v. Indira Nehru Gandhi, (1971) 2 SCC118 (Download)

LECTURE no. 5 - Legislative and Pardoning Powers of the Executive

Readings
● K.M. Nanavati v. State of Bombay, 1961 AIR 112 (Download)
● State of Orissa v Bhupendra Kumar Bose, 1962 AIR 945 (Download)

LECTURE no. 6 – Role of Governor in Indian Polity

Readings
● Nabam Rebia and Bamang Felix v. Deputy Speaker, Arunachal Pradesh Legislative
Assembly and Ors, 2016 SCC OnLine SC 694 (Download)
● Shivraj Singh Chauhan v MP Assembly Speaker, B.P. Singhal v Union of India,
(2016) 6 SCC 635 (Download)

LECTURE no. 7 – Rethinking the Executive

Reading
● Madan Murari Verma v Chaudhary Charan Singh AIR1980 Cal. 95 (Download)

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 Module III – Union and State Legislature

This module aims at familiarizing the students with the legislative process in the country. The
module will introduce to the students the concepts of different bills, powers of assent, votings,
and brief brush upon the electoral process. The main pillars of the module are the
anti-defection law and powers of the speaker which has seen high possibility of abuse of
power in the Indian political regime. The module will highlight the betterment brought about
by the anti-defection and also the parallel challenges created by it. Further, the module looks
at the powers of the speaker or the chairman in great detail through decided cases to study
the possible derailment of Constitutional values while deciding questions of defection,
casting vote or while determining the nature of the bills.

LECTURE no. 8 - Legislative Function, Composition of the Houses, Electoral Process

LECTURE no. 9 – Overall Scheme of Qualifications and Disqualifications: Constitutional

and Statutory
Readings
● Chief Election Commissioner v. Jan Chaukidar, 2013(8) SCALE487 (Download)

LECTURE no. 10 – Anti-Defection Law

Reading
● Shri Kihota Hollohon v. Mr. Zachilhu and Ors, 1992 SCR (1) 686 (Download)

LECTURE no. 11 – Anti-Defection Law

Readings
● Keisham Meghachandra Singh v. Speaker Manipur Assembly, (2020) SCC OnLine
SC 55 (Download)
● Shrimanth Balasaheb v. Speaker Karnataka Assembly, 2019 SCC OnLine SC 1454
(Download)

LECTURE no. 12 - Legislative Privileges and their relationship with Fundamental Rights
Readings
● Gunupati Keshavaram Reddy v. Nafisul Hasan & the State of UP, AIR 1952 SC 636
(Download)
● MSM Sharma v. Shri Krishna Sinha, AIR 1959 SC 395 (Download)
● Raja Ram Pal v The Hon’ble Speaker, (2007) 3 SCC 184 (Download)
● P.V. Narsimha Rao v State, (1998) 4 SCC 626 (Download)

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LECTURE no. 13 – Legislative Procedure, Money Bill
Readings
● Shivam Shankar Singh, ‘Is Parliament’s Question System Broken? - Here’s How to
fix it! (Download)

Module IV – Union and State Judiciary

This module discusses the structure and functioning of the judiciary. The constituent assembly
decided to retain the same judicial system as the British system for post-colonial India as
well. The particular topics in focus will be the appointments, transfers of judges including the
collegium system; the removal of judges and the jurisdictions of the constitutional courts; the
working of the lower judiciary in India; and the independence of judiciary. Emphasis during
the discussion will be on the current debate on the correctness of the collegium system, the
lack of transparency in the Judiciary and the possible political influence.

LECTURE no. 14 – Appointment of Judges – Part I

Readings
● Rangin Tripathy & Soumendra Dhanee, ‘An Empirical Assessment of the Collegium's
Impact on the Composition of the Indian Supreme Court’ (2020) 32 NLS. Rev. 118
(Download)

LECTURE no. 15 – Appointment of Judges – Part II

Reading
● Rangin Pallav Tripathy, ‘Supreme Court Collegium and Transparency: An Empirical
Inquiry’ (2021) 56(22) Economic and Political Weekly (Download)
● Recommended – P.L. Lakhanpal v. A.N. Ray and Ors., AIR 1975 Del 66 (Download)

LECTURE no. 16 – Removal of Judges – Part I

Reading
● Recommended – Sub-Committee on Judicial Accountability v. Union of India, AIR
1992 SC 320 (Download)

LECTURE no. 17 – Removal of Judges – Part II

Readings
● Dr. Rangin Pallav Tripathy, ‘Standard of Proof Against Judges: A Case for a Lower
Threshold’ (2018) 5(2) NLUJ Law Rev. 85. (Download)

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LECTURE no. 18 – Transfer of Judges and Judicial Independence
Reading
● Rangin Pallav Tripathy, ‘Tahilramani’s resignation: Mysterious ‘public interest’’
Deccan Herald (September 11, 2019) (Download)

LECTURE no. 19 - Original Jurisdiction, Appellate Jurisdiction, Special Jurisdiction

LECTURE no. 20 – Advisory Jurisdiction and Subordinate Judiciary

Readings
● Rangin Pallav Tripathy, ‘All India Judicial Service won’t solve pendency. And no, the
IAS, IPS parallel doesn’t work’ The Print (November 16, 2021) (Download)

Module V – Centre-State Legislative Relations

This module will expand on the concept of federalism introduced to the students in the first
module. Defined powers, jurisdictions and spheres of the Centre and the State organs are the
stem of any federal structure. The Indian Constitution divides the powers between the centre
and the states in the spheres of legislature, administration and finance, but follows a unified
judiciary. This module focuses on the legislative relations between the centre and the states.
Remedies to the encroachment of legislative powers, or possible conflicts will be discussed
through cases laws as examples and the doctrines related to the interpretation of boundaries
of law marking powers of the Union and the States.

LECTURE no. 21 – Distribution of Legislative Powers

Reading
● Moushumi Das Gupta, ‘How rising Centre-state friction is chipping away at Modi’s
‘cooperative federalism’ mantra’ The Print (November 19, 2020) (Download)

LECTURE no. 22 – Ancillary and incidental powers, Doctrine of Pith and substance;
legislative conflict and repugnancy
Readings
● Vijay Kumar Sharma v. State of Karnataka, 1990 AIR 2072 (Download)

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LECTURE no. 23 – Doctrine of harmonious construction, doctrine of colourable legislation,
Revocation of Special Status of J&K

Module VI – Centre State Administrative & Financial Relations

This module on Centre-State relations is in furtherance to the previous module and focuses
on the federal structure of the Constitution with an unitary bias with respect to administrative
and financial powers. As a part of the administrative relations, the module will also discuss
the emergency powers. Focus will be on assessing the excess of powers and limitation of
liberties that has happened historically in case of application emergency laws. Individual
liberties will again be a focus when discussion relating to COVID pandemic and the division
of power therein is undertaken. A lecture will be devoted to discussing the status of removal
of the Special Status of J&K.

LECTURE no. 24 - Centre's Control over states, Intergovernmental delegation and

cooperation
Reading
● ‘Covid -19 Crisis and the Centre-State Relations’ (2021) 56(17) Economic and
Political Weekly (Download)
● Recommended – Pankhuri Agarwal, ‘Covid-19 and Dwindling Indian Federalism’
55(26-27) Eco. & Pol. Wkly (Download)

LECTURE no. 25 – National Emergency

Readings
● ADM Jabalpur v. Shivkant Shukla, (1976) 2 SCC 521 (Download)

LECTURE no. 26 – President’s Rule in States

Reading
● S.R. Bommai v. Union of India, AIR 1994 SC 1918 (Download)

LECTURE no. 27 - Financial Relations between the Centre and the States – Classification of
Taxes, Scheme of Distribution, Finance Commission
Reading
● PRS India, ‘Report on the 15th Finance Commission for 2021-26’ (Download)

Module VII – Inter-State Trade, Commerce and Intercourse

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This module will analyse the interaction of states among themselves and the centre for trade
and commerce and the fiscal powers and boundaries of the states and the centre. The module
will read the trade and commerce freedoms in comparison with the individual civil liberties of
trade and commerce. The students will be familiarised with the regulatory and restrictive
measures that are allowed to be taken by the state against the freedom of trade and commerce
which may not in itself constitute as a restriction.

LECTURE no. 28 - Meaning of Trade, Commerce and Intercourse; Issues of freedom of

trade and commerce and its Fiscal measures
Readings
● EPG Pathshala – Module 28: Interstate Trade and Commerce (Download)

LECTURE no. 29 - Direct and Immediate Restrictions; Regulatory Measures, Compensatory

Taxes; Restrictions on trade, commerce and intercourse among states, Powers of Parliament
and State Legislatures; State Monopoly
Readings
● Jindal Steel v. State of Haryana, 2016 SCC OnLine 1260 (Download)
● Mekhla Anand, ‘Entry Tax – The Quandary Continues …’ Mondaq (August 30, 2017)
(Download)

Module VIII – Election Commission of India

Elections in a country determine the execution of the democratic choices of its people.
Therefore, in India, the role of the election commission becomes important. This module will
build on the discussions of the electoral process undertaken in Module III to briefly introduce
to the students the powers and functions of the Election Commission of India and particularly
on its role in preserving the democratic values in the Indian elections and political tussle in
conducting free and fair elections.

LECTURE no. 30 – Composition, Powers, Functions and Independence

Readings
● T.N. Seshan, Chief CEC v. Union of India, 1995 (4) SCC 611 (Download)

LECTURE 31 – Review of the Course

LECTURE 32 – Review of the Course

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