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CONSTITUTIONAL LAW

PART I
Practical Workshop 1
(1ST day of March 2017)

Question 1
Earlier this year, a students union at the Mahatma Gandhi Law University
(hereinafter referred to as (MGLU) in New Delhi sought to organize a meeting to discuss
recent instances of capital punishments in India and whether Article 370 of the
Constitution of India has become a permanent feature. A few persons shouting slogans
hijacked the discussion and turned it into a controversial event. The police intervened and
arrested the President of the (MGLU) Students Union (A) and two other (MGLU) students
(B) and (C). (A), (B) and (C) were charged with sedition under Section 124A of the Indian
Penal Code 1861, (hereinafter referred to as (IPC1861), which is the ordinary law of the
land. In the interim, (A), (B) and (C) were produced before the Criminal Court at the
Patiala House for remand but the situation near the courtroom turned hostile where (A),
(B), (C) and a group of journalists were beaten by the law enforcement agency and the
lawyers. Subsequently (A), (B) and (C) moved the Criminal Court in the Patiala House for
bail applications and the same were opposed by the Public Prosecutor portraying (A), (B)
and (C) as anti-national sentiments. (A), (B) and (C) were tried immediately in a Special
Court in the Patiala House established to provide for speedy trial for certain class of
offences under the provisions of the Special Court Act 1979 (hereinafter referred to as
SCA1979). (A), (B) and (C) were convicted and sentenced to life imprisonments. Their
conviction and sentence were upheld by the Delhi High Court. (A), (B) and (C) had now
moved the Supreme Court of India for Writs of Habeas Corpus and violation of their
constitutional rights. In their petitions, (A), (B) and (C) alleged that their conviction and
sentence for sedition is simply not sustainable under the existing law which negates the
very idea of learning institutions where freedom, inquiry, questions, dissent and debate
constitute the essential foundations of learning that make for good citizens in a democracy.
They further alleged that Universities are not an extension of the State where students
rehash existing knowledge, thereby reproducing traditional notions of morality, justice
and nationalism but instead are safe houses where some of these fundamental notions are
debated and challenged. The Constitution allows people to hold unpopular views so long
as they dont threaten public order.
Section 124A of the IPC1861-if any action by words, signs or visible representation,
which, brings or attempts to bring into hatred or contempt, or excites or attempts to excite
disaffection towards a government established by law.
From the above proposition given, (a) Establish the Constitutionality of the
Executive and the Legislative acts highlighting the role of the Supreme Court of India in a
federal Constitution?
and (b) Establish what are the fundamentals of a free constitution in a sovereign
democratic republic?
Question 2
To remove causes of tension and conflict and to establish peaceful conditions along
these areas, on the 26/1/2016, the Prime Minister of India has signed a Treaty with the
Prime Minister of Pakistan to cede Pakistan Occupied Kashmir to Pakistan. Meanwhile
the Central Government of India has proposed to trifurcate the State of Jammu and
Kashmir into three sections respectively i. e. State of Jammu and State of Kashmir minus
Pakistan Occupied Kashmir. President of India has forwarded the Jammu and Kashmir
Reorganization Bill 2016 (hereinafter referred to as JAKRB2016) to the Legislatures of
Jammu and Kashmir to ascertain their views on the matter. In the interim, the Chief
Minister of Jammu and Kashmir has met with death and his political party, commanding
the largest number of votes in the Legislative Assembly of Jammu and Kashmir is
presently without a suitable leader. As such the Governors Rule has been imposed in the
State of Jammu and Kashmir pursuant to Section 92 of the Constitution of Jammu and
Kashmir. On the recommendation of the President of India, the JAKRB2016 was recently
introduced in the House of the People. It was approved by both the Houses of the
Parliament and the President of India has accorded his assent to JAKRB2016 and
published as Jammu and Kashmir Reorganization Act 2016 (hereinafter referred to as
JAKRA2016). You have been approached as an amicus curie by the Supreme Court to
decide on the Constitutionality of the JAKRA2016. Simultaneously, the President of India
has sought the opinion of the Supreme Court under its advisory jurisdiction with reference
to the implementation of the aforementioned treaty signed on the 26/1/2016. The
Supreme Court has clubbed these two matters together since it concerns the same subject
matter.
Establish the Constitutionality of JAKRA2016 and the mode to implement the
aforementioned treaty.
Question 3
(D) was convicted and sentenced to death under the Terrorist and Disruptive
Activities Act 1985 (hereinafter referred to as TADA1985) in 2007 for their alleged
involvement in the 1993 Bombay bombings. In 2010, the Supreme Court confirmed (D)s
conviction and death sentence for conspiracy through financing the attacks. Subsequently
(D) moved the Supreme Court seeking review of Supreme Courts judgment confirming his
death sentence. The Supreme Court rejected (D)'s application for oral hearing and
dismissed his review petition by circulation. In 2012, (D) filed a clemency petition before
the President of India. On the 21/6/2012, (D)s clemency petition was rejected by the
President of India. On the same day, to mark the 159TH Anniversary of the Indian Rebellion
of 1857, the President of India granted pardon to 100 prisoners from the Tihar jail. On the
29/2/2013, Maharashtra Government issued a death warrant setting 15/3/2013 as the
date for (D)s execution. Meanwhile, (D) filed a mercy petition before the Governor of
Maharashtra and then moved the Supreme Court of India to stay his execution till the
mercy petition is decided. Both had rejected the same. The only one thing keeping (D)
away from the gallows is the lack of a hangman in Maharashtra. (D) had now consulted you
for a legal opinion on the matter and alleged that the death warrant was illegal; as it had
been issued before he had exhausted all his legal avenues of appeal and that the
Presidential act of grace and compassion pardoning the 100 prisoners from the Tihar jail
and excluding him was arbitrary. He further alleged that the non-execution of his sentence
had caused him mental agony all these years and as such it should be commuted to life
sentence instead. In the interim, the Central Government alleged that the Presidential act
of grace and compassion pardoning the 100 prisoners from the Tihar Jail was contrary to
the advice given by the cabinet ministers.
From the above proposition given, (a) Establish if there is any constitutional
limitations on the Presidential pardon and whether Presidential pardons should be
subjected to the discipline of Article 21 in the Constitution of India?
(b) Also establish if any action can be taken against the President of India for acting
against the will of the Executive?