COURSE MANUAL

CONSTITUTIONAL LAW – II

Fall 2022

(AY 2022-23)

Faculty

Moiz Tundawala, Anshuman Shukla, Satya Prateek, Nidhi Sharma, Shireen Moti, Arijeet
Ghosh, Surendra Kumar, Aakriti Malhotra, Sayan Mukherjee, Jayanti Singh, Shivaraj
Huchhanavar
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 Learning Outcomes ……………………………………………………..…........... 4-5

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

PART III

a. Keyword Syllabus……………………………………………………………………………… 8
b. Course Policies……………………………………………………………………………….. 7-9

PART IV
a. Weekly Course Outline …………………………………………………………..…........... 10-11
b. Readings……………………………………………………………………………………… 11-16

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Format approved by the Academic Review Board, JGLS

PART I

General Information

General Information on, Constitutional Law II, offered by Jindal Global Law School
for the AY 2022-23

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: B.A. LL.B. (Hons.) 2020, B.B.A. LL.B.(Hons.) 2020, LL.B. 2021
Medium of Instruction: English

Note: This course manual is indicative and not exhaustive in nature. The course instructors have
the discretion and freedom to modify it according to their teaching style. They may also add to or
delete from the list of readings mentioned in the course manual whenever necessary.

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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 powers 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.

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 in the field.

c. Intended Learning Outcomes

Course Intended Learning Weightage Teaching and Learning Assessment Tasks/

Outcomes Activities Activities

By the end of the course, students

should be able to:

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Format approved by the Academic Review Board, JGLS

Course Intended Learning Weightage Teaching and Learning Assessment Tasks/

Outcomes Activities Activities

1. Demonstrate analytical 40% • Reading of prescribed • End-term

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

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

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

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Format approved by the Academic Review Board, JGLS

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 materials.
B- 50 to 54.75% Pass “Pass” in a pass-
fail course. “P” is
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 a Basic understanding of the
P1 45 - 49 2
subject matter.
Pass 2: Pass with a Rudimentary
P2 40 - 44 1
understanding of the subject matter.
Fail: Poor comprehension of the subject matter;
poor critical and analytical skills and marginal use
F Below 40 0
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.
P Pass
The option is 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
I Incomplete Panel at its 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.

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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 transactions.

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 forms 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/

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Format approved by the Academic Review Board, JGLS

Disability Support Committee - JGU

About Us Our Role The Standard Operating
procedure of the DSC Disability Support
Committee Volunteer Form About Us JGU
Disability Support Committee Members 1 Dr.
Deblina Dey, Associate Professor, JGLS
Chairperson 2 Prof. Pratik Phadkule Member
Secretary 3 Dr. Shilpi Bhattacharya, Professor,
JGLS Member 4 Dr. Manisha Mishra, Associate
Professor and Assistant Dean, 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
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. All students should
collectively benefit from the course and should 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.

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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 Substance &

Week 4 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

Module IV- Union & State Executive: Ordinance Promulgation

Module IV – Anti-Defection Laws

Week 7

Module V- Union & State Judiciary- Independence & Appointments

Week 8

Module V- Union & State Judiciary- Independence & Appointments

Week 9

Module VI- Constitutional Emergencies

Week 10

Module VI- Constitutional Emergencies

Week 11

Week 12 Module VII- Constitutional Amendment: Doctrine of Basic Structure

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Format approved by the Academic Review Board, JGLS

Module VII- Constitutional Amendment: Doctrine of Basic Structure

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 on the history, structure and politics of Indian
federalism.
State of West Bengal v. Union of India, AIR 1963 SC 1241
State of Karnataka v. Union of India, AIR 1977 SC 69
R. C. Poudyal v. Union of India, AIR 1993 SC 1804
S. R. Bommai v. Union of India, AIR 1994 SC 1918
Government of NCT of Delhi v. Union of India (2018) 8 SCC 501
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.
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.
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

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WEEK 2
Module II- Territory & Re-organization

This module focuses on the jurisprudence of articles 1 to 4 of the Constitution, which deal with
the power of the 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

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

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

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

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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

Gubernatorial Ordinance Making Clause

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

Anti-Defection Laws
Darsan Guruvayurappan, Rethinking Defection: An Analysis of Anti-Defection Laws in India,
Parliamentary Affairs 1 (2021)
Kihoto Hollohan v. Zachillhu, AIR 1993 SC 412
Rajendra Singh Rana v. Swami Prasad Maurya and Others, (2007) 4 SCC 270
Kesham Meghachandra Singh v. Hon’ble Speaker Manipur, MANU/SC/0062/2020

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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
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)
Nick Robison, Structure Matters: The Impact of Court Structure on the Indian and US
Supreme Courts, 61(1) Am. J. Comp. Law 173 (2013).
Vakil, Raeesa. "Jurisdiction." In The Oxford handbook of the Indian Constitution. 2016.
Further readings:
Shivaraj Huchhanavar, Judicial conduct regulation: do in-house mechanisms in India uphold
judicial Independence and effectively enforce judicial accountability? ILR 1 (2022).

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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 restrain 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?
Makhan Singh Tarsikka v. State of Punjab, AIR1964 SC 381
Makhan Singh Tarsikka v. State of Punjab, 1964 AIR 1120
Additional District Magistrate, Jabalpur v. S. S. Shukla, 1976 AIR 1207
Sate of Rajasthan v. Union of India, AIR 1977 SC 1361
S. R. Bommai v. Union of India, AIR 1994 SC 1918
Sarbananda Sonowal v. Union of India, A.I.R. 2005 S.C. 2920
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.
The Twilight of Legitimacy: The Supreme Court and the Emergency, in Baxi, U., 1980. The Indian
Supreme Court and Politics. Eastern Book Co.

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)
Minerva Mills v. Union of India, AIR 1980 SC 1789
M. Nagaraj v. Union of India, AIR 2007 SC 71

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I. R. Cohelo v. Union of India, (2007) 2 SCC 1

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* (optional)

The Indian Constitution seeks to create a common market in India. This optional module focuses
on the Supreme Court’s jurisprudence on articles 301-304 of the Constitution.

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

The Election Commission of India and the electoral process GST.
Council and fiscal federalism.
Parliamentary process and privileges.

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