Constitution Law II
• RAUNAQ JAISWAL [HE/HIM]
• NIHARIKA MISHRA [SHE/HER]
2
About this Course
Objectives of this Course Readings. Examinations
3
Policies
Attendance Policy
Class Participation
Office Hours
Grading
Expectations from CR’s.
4
Plagiarism
Not Okay to lift
passages without
citing the authors.
Not okay to use AI
tools or otherwise to
select synonyms. It
is still someone’s
work disguised as
yours and the ideas
are theirs, not yours.
5
Week Topic
1 Introduction to Federalism
2 Territory & Reorganisation
3 Citizenship
4 Legislative Competence
5 Constitutional Amendment
6 Union & State Executive
7 Emergency
8 Judiciary
Features of Essence
Constitutionalism
Popular Sovereignty political power resides with the people, 6
who express their will through mechanisms
like voting and representative governmen
Rule of Law (not by law) ensures that the government operates
within the legal framework
Separation of Powers divides governmental power among
different branches
Independent Judiciary An independent judiciary, free from
political influence, is essential for upholding
A Recap
the rule of law and ensuring that laws are
interpreted and applied fairly
Protection of FR’s Self Explanatory
Accountable holding public officials accountable for
Governance their conduct.
Civilian Supremacy the military is subordinate to the civilian
government
Constitutional Supremacy The constitution is the supreme law of the
land, and all other laws and actions of the
government must be consistent with it.
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Recap:
Methods of
Interpretation
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On Constitutional Interpretation
Six Modalities of Interpretation Schools of Thought
1) Structural; a) Formalist
2) Textual; b) Realist
3) Ethical; c) Critical Legal Studies
4) Prudential; d) Natural Law Theory
5) Historical; and e) Legal Positivism
6) Doctrinal. f) Empiricism
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Expectation from Reading Cases
I. Foundational Case Understanding 3. Constitutional Framework
1. Factual Matrix and Context Which specific constitutional provision(s) or principle(s) are at
issue?
What are the material facts that gave rise to this constitutional
dispute? What is the textual language of the relevant constitutional
provision?
Who are the parties involved and what are their respective
positions? How does this provision fit within the broader constitutional
structure?
What specific actions, laws, or government conduct are being
challenged? Is the constitutional claim based on textual, structural, or
implied provisions?
What historical, social, or political context influenced this case?
II. Judicial Analysis and Reasoning
2. Procedural Foundation
4. The Court's Decision
What is the procedural posture and journey of this case through
the courts? What is the court's holding and specific resolution of the case?
Which court is deciding this case and at what level? Was the decision unanimous, or were there
dissenting/concurring opinions?
What were the holdings and reasoning of the lower courts?
What rule of law does the court announce, and is it narrow or
Who has standing to bring this constitutional claim? broad in scope?
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Expectations from Reading Cases
5. Legal Reasoning and Methodology 7. Alternative Perspectives
What is the court's primary constitutional interpretation What are the arguments in dissenting or concurring opinions?
methodology (originalism, textualism, living constitutionalism)?
How do alternative judicial voices frame the constitutional issue
What are the logical steps the court takes to reach its differently?
conclusion?
What competing interpretations or outcomes do they
What legal tests or analytical frameworks does the court propose?
employ?
III. Institutional and Structural Implications
How does the court apply constitutional provisions to the
specific facts? 8. Separation of Powers and Federalism
6. Precedential Analysis How does this decision affect the relationship between
branches of government?
Which prior cases were cited as controlling or persuasive
authority? What are the federalism implications and effects on state-
federal power distribution?
How does the court distinguish, follow, or overrule existing
precedents? Does the case shift institutional power or maintain existing
balances?
What precedential value does this case establish for future
decisions?
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Expectations from Reading Cases
9. Judicial Role and Democracy IV. Doctrinal Development and Scope
Is the court acting as a counter-majoritarian check or 11. Constitutional Doctrine Evolution
reinforcing majoritarian preferences?
How does this decision fit within the evolving constitutional
How does this decision affect democratic self-governance? jurisprudence?
Is the court expanding or limiting its own institutional power? Does the case expand, limit, clarify, or destabilize existing
doctrine?
10. Rights and Remedies
Is the decision incremental or revolutionary in its doctrinal
Whose constitutional rights are being vindicated or curtailed? impact?
How does the court balance individual rights against collective 12. Broader Constitutional Integration
interests?
How does this case interact with other constitutional doctrines
What remedy does the court provide, and is it adequate and and principles?
practical?
Does the case reflect a shift in the court's overall approach to
constitutional interpretation?
How does this decision affect the interpretation of related
constitutional provisions?
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Expectation from Reading Cases
V. Critical Analysis and Evaluation 15. Normative and Justice Considerations
13. Analytical Rigor Assessment Do you agree with the outcome, and what conception of
justice does it reflect?
Is the court's reasoning logically sound, consistent with
precedent, and persuasive? What vision of the Constitution does this case promote
(minimalist, moralistic, pragmatic, democratic)?
Are there gaps, assumptions, or unresolved questions in the
court's analysis? How does the decision serve or undermine constitutional
governance principles?
What are the strengths and weaknesses of the majority's
constitutional interpretation? VI. Impact and Consequences
14. Alternative Arguments and Approaches 16. Practical Implementation
What were the strongest arguments for the losing side? What are the policy implications and societal consequences of
this decision?
How would you argue the case differently if representing either
party? How will this ruling affect government institutions, individuals,
and civil society?
What alternative constitutional provisions or interpretive
methods could support different outcomes? What challenges might arise in implementing this constitutional
decision?
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Expectation from Reading Cases
17. Future Implications VII. Comparative and Theoretical Perspectives
What unresolved constitutional questions or issues does the 19. Comparative Constitutional Analysis
case raise?
How would this constitutional issue be resolved under different
How might this ruling apply to hypothetical scenarios or legal systems?
emerging legal challenges?
What do comparative constitutional systems reveal about
What potential unintended consequences might flow from this alternative approaches?
decision?
Is the court influenced by transnational or international
18. Contemporary Relevance constitutional jurisprudence?
How has this case been cited, applied, or limited in subsequent 20. Critical Theoretical Perspectives
decisions?
What assumptions about power, identity, and social status are
Has the case been reaffirmed, distinguished, or effectively implicit in the judgment?
overruled over time?
How do different critical perspectives (feminist, critical race,
What is the case's current significance in constitutional economic) illuminate the case?
jurisprudence?
Who is marginalized or rendered invisible in the court's
constitutional reasoning?
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Expectations from Reading A Case
22. Personal Constitutional
Interpretation
What is your own reading and
assessment of the case?
Are you persuaded by the
majority, dissent, or would you
reach a different conclusion?
What would you have written if
you were deciding this
constitutional question?
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Introduction
to
Federalism
WHAT IT IS, HOW IT
WORKS, WHY IT
MATTERS.
Article 1 of the Indian Constitution: “India, that is Bharat,
shall be a Union of States. (2) The States and the territories
thereof shall be as specified in the First Schedule. (3)The
Indian Puzzle
territory of India shall comprise-(a)The territories of the States;
(b) the Union territories specified in the First Schedule; and (c)
such other territories as may be acquired.
India is “Union of States.” Why “Union” and not “Federation”?
What is the significance of the Preamble?
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Conceptual Foundations
Confederation: The key characteristic of a confederation is that the central authority exists at
the pleasure of the constituent units. States can withdraw, ignore central directives, and
maintain their own armies, currencies, and foreign policies. See the American Articles of
Confederation (1781-1789).
Federation: The federal government has enumerated powers (defense, interstate commerce,
foreign relations), states have reserved powers (education, local government, family law), and
both share concurrent powers (taxation, general welfare). See German Federation and the US
after 1789.
Union: A union, in the technical sense, represents a more centralized arrangement. Here, the
central government possesses inherent sovereignty, while regional units exercise delegated
powers. The United Kingdom exemplifies some aspects of this model. Scotland, Wales, and
Northern Ireland have devolved assemblies, but these exist at the pleasure of Westminster.
Republic: A republic simply means that sovereignty ultimately rests with the people rather than
a monarch. One can have a federal republic (USA), a unitary republic (France).
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Comparative Division of Powers
USSR USA Germany
Little devolution of power to Residuary powers are with States, not Residuary powers are with States,
federation; Defense, interstate
State Units. commerce, foreign relations are Federal not federation;
Subjects; education, local government,
family law are State subjects
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Federal Arrangement
Before 1947
“At the time of Independence, there were 565 princely
states and 17 provinces.” What does this mean? Where does
the sovereignty lie? Can the Maharaja of Mysore be as
sovereign as the Governor General of India in 1947?
In its Interpretation Act 1889, the British
Parliament adopted the following definitions: (4.) The
expression “British India” shall mean all territories and
places within Her Majesty's dominions which are for the
time being governed by Her Majesty through the Governor-
General of India or through any governor or other officer
subordinate to the Governor-General of India.
(5.) The expression "India" shall mean British India together
with any territories of any native prince or chief under the
suzerainty of Her Majesty exercised through the Governor-
General of India, or through any governor or other officer
subordinate to the Governor-General of India…
Who is the sovereign in this setup?
Consolidation of States: Excerpts from Privy 20
Purse
1971 AIR 530
On June 3, 1947 the British Government announced their plan of
transfer of power in India…The Act (i.e., India Independence Act,
1947) provided for lapse of sovereignty of the British Crown in India
over the Indian States` and they were free to accede to any of the two
Dominions of India or Pakistan or to continue as independent
sovereigns. [Edit. See Section 6 which details the ‘instrument of
Accession’]. The Ruler of Gwalior, father of the present petitioner,
joined the United State of Madhya Bharat [edit: with Indore and
Malwa. IoA signed on 15th Aug. 1947; On April 22, 1948 the Ruler,
signed a Covenant with other Rulers of this area and the United
States of Madhya Bharat was formed on June 15, 1948; IoA
revised on Nov. 24, 1949]…therefore [we can] study the Instrument of
Accession and the Covenant executed by him as illustrative of the
documents signed by the Rulers… In the Preamble to the
Instrument the Ruler observed that he was executing it in the
exercise of his sovereignty in and over his State…
Instrument
of
Accession
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How was the power 22
architecture of Constitution
Designed?
Checks & Balances
Centre State Relations
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Architecture of the Indian Constitution
Legislative Overrides*
Do note how the ‘federal structure’ is malleable enough to become unitary, thus labelled as “Quasi-federal”
Distribution of Legislative Powers (Art. 246 + 7th Sch.): The division of powers tilts in favour of the Union
than the State(s). In case of conflict, List I overrides Lists II and III; List III overrides List II. State Law must
not contradict Union Law (See. Art. 254).
Residuary Powers: See entry 97 of List 1 r.w. Art. 248. Parliament has the prerogative to legislate on
subjects not enumerated in the lists.
Fiscal Powers: Major sources of taxation are in the control of the Union; major sources of expenditures
is outsourced to the States.
Emergency Powers: See Art. 249-250 (power to legislate on State Subjects), 253 (power to legislate to
implement treaties), 354 (change in revenue allocation), 356 (President’s rule).
Appointment of Governor: See Art. 155-56: Governor appointed by President, holds office during
President's pleasure (cf. President elected by electoral college).
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Architecture of the Indian Constitution
Power Over State Boundaries, Representation, Identity & Justice
Art. 3 provides for creation of new States, reorganize their boundaries or names. State
Legislature have to be referred for their views, but Parliament is not bound by it. (See Babulal
Parate & Pradeep Chaudhary).
Art. 4 provides the Parliament with the power to make "supplemental, incidental, or
consequential" changes without invoking art. 368. E.g., adjusting LS, RS seat as per population,
making changes in the 1st & 4th Sch.; transfer of assets & liabilities, district admin and
judiciary; redrawing of district constituencies.
State Representation: Amended S.3 of Representation of the People Act, 2003 to remove
domicile requirement for Council of States (Rajya Sabha).
HC & SC Judges are appointed by the President.
Single citizenship.
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Architecture of the Indian Constitution
Asymmetric Control
Article 370*: Special status for J&K (showing Union's discretionary
power);
Articles 371, 371-A to 371-J: Special provisions for various
States (Union's choice).
Articles 239-242: Union Territories under direct Union administration
Fifth and Sixth Schedules: Special arrangements for Scheduled/Tribal
Areas
State of West Bengal v. Union of India 26
1963 AIR 1241
Facts: after the independence, all properties of the crown vested in the State of WB (see art. 294). West Bengal passed the Estate
Acquisition Act, 1954 and acquired mines and minerals in the State. Central Government passed the Coal Bearing Areas Act, 1957 and
issued notification to acquire the coal fields.
West Bengal disputes the competency of the Parliament to enact this law and issue notifications to acquire property of a ‘sovereign
authority’.
Five issues are framed by the judges:
1. Whether Parliament has legislative competence to enact a law for compulsory acquisition by the Union of land and other pro perties
vested in or owned by the State? [Majority ruling: yes]
2. Whether the State of West Bengal is a sovereign authority? [Majority ruling “not such as to disentitle the Union Parliamen t to exercise
its legislative power under Entry 42 List III.]
3. Whether assuming that the State of West Bengal is a sovereign authority, Parliament is entitled to enact a law for compulsory acquisition
of its lands and properties ? [covered in Q2]
4. Whether the Act or any of its provisions are ultra vires the legislative competence of Parliament ? [Majority ruling: no]
5. Whether the plaintiff is entitled to any relief and if so, what relief ? [Majority ruling: no]
State of West Bengal v. Union of India 27
1963 AIR 1241
Per BP Sinha CJI:
At para 24 “Legal sovereignty of the Indian nation is vested the people of India who as stated by
the preamble have solemnly resolved to constitute India into a Sovereign Democratic Republic for the
objects specified therein. The Political sovereignty is distributed between, as we will presently
demonstrate, the Union of India and the States with greater weightage in favour of the Union.”
At para 35 “The Parliamentary power of legislation to acquire property is, subject to the express provisions of
the Constitution, unrestricted. To imply limitations on that power on the assumption of that degree of
political sovereignty which makes the States coordinate with and independent of the Union, is to envisage a
Constitutional scheme which does not exist in law or in practice. On a review of the diverse provisions of the
Constitution the inference is inevitable that the distribution of powers - both legislative and executive - does not
support the theory of full sovereignty in the States so as to render it immune from the exercise of legislative
power of the Union Parliament - particularly in relation to acquisition of property of the States.”
At para 75: “It could scarcely be imagined that the Constitution makers while intending to confer an
exclusive power to work mines and minerals under the control of the Union, still prevented effective
exercise of that power by making it impossible compulsorily to acquire the land vested in the States
containing minerals.”
State of West Bengal v. Union of India 28
1963 AIR 1241
Per K. Subba Rao (dissenting)
“The Indian Constitution accepts the federal concept and distributes the sovereign powers between the co-
ordinate constitutional entities, namely, the Union and the States. This concept implies that one cannot
encroach upon the governmental functions or instrumentalities of the other, unless the Constitution
expressly provides for such interference. The legislative fields allotted to the units cover subjects for
legislation and they do not deal with the relationship between the two co-ordinate units functioning in their
allotted fields : this is regulated by other provisions of the Constitution and there is no provision which
enables one unit to take away the property of another except by agreement. The future stability of our vast
country with its unity in diversity depends upon the strict adherence of the federal principle, which the
fathers of our Constitution have so wisely and foresightedly incorporated therein. This Court has the
constitutional power and the correlative duty - a difficult and delicate one - to prevent encroachment, either
overtly or covertly, by the Union of State field or vice versa, and thus maintain the balance of federation.
The present is a typical case where the Court should stop the Union from overstepping its boundary and
trespassing into the State field. I would, therefore, hold that the impugned Act, in so far as it confers a
power on the Union to acquire the lands owned by the State, including coal mines and coal bearing
lands, is ultra vires. I find on issues 1, 2 and 3 against the defendant.”
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Kuldip Nayar v. Union of India
(2006) 7 SCC 1
Facts: Writ petition filed challenging the amendment to section 3 of the
Representation of People (Amendment) Act, 2003. By the said Amendment
Act 2003, the requirement of "domicile" in the State Concerned for getting
elected to the Council of States is deleted which according to the petitioner
violates the principle of Federalism, a basic structure of the Constitution.
Section 3, before the amendment read as “"Qualification for membership of
the Council of States. A person shall not be qualified to be chosen as a
representative of any State or Union territory in the Council of States unless
he is an elector for a Parliamentary Constituency in that State or
territory.”[edit: highlighted parts substituted with ‘in India’].
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Kuldip Nayar v. Union of India
(2006) 7 SCC 1
Sabharwal, CJI: “A lot of energy has been devoted on behalf of the petitioners to build up a case
that the Constitution of India is federal. The nature of Federalism in Indian Constitution is no
longer res integra. There can be no quarrel with the proposition that Indian model is broadly based
on federal form of governance…[edit…to pinpoint the precise nature of Indian federalism, CJI
cited a number of judgments of the Court, including State of West Bengal v Union of India &
Bommai to reach the conclusion that while ‘the federal principle is dominant in our Constitution
and that principle is one of its basic features … it is also equally true that federalism under the
Indian Constitution leans in favour of a strong Centre’]
On the issue of amendment removing the domicile requirement, CJI held “The various constitutions
of other countries show that residence, in the matter of qualifications, becomes a constitutional
requirement only if it is so expressly stated in the Constitution. Residence is not the essence of the
structure of the Upper House. The Upper House will not collapse if residence as an element is
removed. Therefore, it is not a prerequisite of federalism.”
R.C. Poudyal v. Union Of India 31
1993 AIR 1804
Facts: In 1975, Sikkim acceded to the Union of India. As per the
terms, Sikkim Assembly reserved 12 seats out of 32 seats for
Sikkimese of "Bhutia-Lepcha" origin, and 1 seat in favor of the
'Sangha' (Buddhist Lamaic Religious Monastries) community.
Issue: Whether the reservation violates Articles 14, 170(2) and
Clause (f) of Article 371-F and infringe the concept of one person
one vote?; Whether the reservation of one seat in favour of 'Sangha'
(Buddhist Lamaic Religious Monastries) with provision for election
on the basis of separate electoral roll violates Art. 15(1)
R.C. Poudyal v. Union Of India 32
1993 AIR 1804
Held: “Article 2 gives a wide latitude in the matter of prescription
of terms and conditions subject to which a new territory is
admitted. There is no constitutional imperative that those terms
and conditions should ensure that the new State should, in all
respects, be the same as other states of the Indian Union.
However, the terms and conditions should not seek to establish a
form or system of government alien to and fundamentally different
from those the Constitution envisages.”
R.C. Poudyal v. Union Of India 33
1993 AIR 1804
An examination of the constitutional scheme would indicate that the concept of 'one person one
vote' is In its very nature considerably tolerant of imbalances and departures from a very strict
application and enforcement. The provision in the Constitution indicating proportionality of
representation is necessarily a broad, general and logical principle but not intended to be
expressed with arithmetical precision. The inequalities in representation in the present case are
an inheritance and compulsion from the past. Historical considerations have justified a
differential treatment. Article 371F (f) cannot be said to violate any basic feature of the
Constitution such as the democratic principle.
“The contention is that the reservation of one seat in favour of the 'Sangha' which is Bhuddhist
Lamaic religious monasteries, is one purely based on religious considerations and is violative
of Articles 15(1) and 325of the Constitution and offends its secular principles. The reservation
of one seat for the 'Sangha', with a special electorate of its own, might at the first blush appear
to resuscitate ideas of separate electorates considered pernicious for the unity and integrity of
the country.”
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Dr. Ambedkar’s Final Speech
However good a Constitution may be, it is sure to turn out bad because those who are called to
work it, happen to be a bad lot. However bad a Constitution may be, it may turn out to be good
if those who are called to work it, happen to be a good lot…The Constitution can provide only
the organs of State such as the Legislature, the Executive and the Judiciary. The factors on
which the working of those organs of the State depends are the people and the political parties
they will set up as their instruments to carry out their wishes and their politics.
Will history repeat itself? It is this thought which fills me with anxiety. This anxiety is
deepened by the realization of the fact that in addition to our old enemies in the form of castes
and creeds we are going to have many political parties with diverse and opposing political
creeds. Will Indians place the country above their creed or will they place creed above country?
When there was no way left for constitutional methods for achieving economic and social
objectives, there was a great deal of justification for unconstitutional methods. But where
constitutional methods are open, there can be no justification for these unconstitutional
methods. These methods are nothing but the Grammar of Anarchy and the sooner they are
abandoned, the better for us.
35
Sovereignty
The legal sovereignty to vest with the Constitution, political
sovereignty vests with the people*.
Legal sovereignty is vested in the people, the Political sovereignty is
distributed between the Union of India and the States with greater
weightage in favour of the Union*
Why do you think is the court making the distinction between legal and
political sovereignty ?