1ST day of May

2020

ASSIGNMENT V ON CONSTITUTIONAL LAW PART I

Time-3 hours
Closing date for submission-15TH day of May 2020

Instructions:-Identify Constitutional issues in all Questions, state your

legal reasoning, state the relevant constitutional provisions and apply
the principles of law pronounced by the Supreme Court of India that
has given shape and characteristics to the relevant constitutional
provision. Questions [2-6] have to be answered based on the following
proposition given.

PROPOSITION

A large group of young individuals aspiring to bring the much awaited

change in the country prompted a debate on the Parliamentary form of
democracy in India and how over the years the representatives of such a system
has abused their political powers not representing the general will of the masses.
Any system of Parliamentary democracy in the world today rests on the
assumption of popular sovereignty. India somehow is lagging on this. This
debate went viral on the internet. Recently these large groups of individuals
received a massive positive response from the public and decided to form a
political party called the Democratic Action Party (DAP) and fight the elections
against the corrupt political parties. The DAP aims to get rid of political leaders
who work for their selfish interest and are corrupt.
The DAP was further prompted into action after hearing about the recent
Panama Papers leak. The Panama Papers leaked a set of
11.5 million confidential documents (the biggest leak in history dwarfing the
data released by Wikileaks) that provided detailed information about more than
214,000 offshore companies listed by the Panamanian corporate service
provider Mossack Fonseca, including the identities of wealthy individual Indian
politicians who hid their assets from public scrutiny. An anonymous source
using the pseudonym "John Doe", an unremunerated whistleblower made the
documents available in batches to German newspaper Süddeutsche Zeitung.
The newspaper enlisted the help of the International Consortium of
Investigative Journalists (ICIJ), which distributed the documents for
investigation and analysis to some 400 journalists at 107 media organizations in
76 countries. The first news reports based on the papers, and 149 of the
documents themselves, were published on April 3, 2016 by the UK newspaper
The Guardian. The files show how Mossack Fonseca clients were able to
launder money, dodge sanctions and avoid tax. Non-disclosure of an overseas
asset will be of interest to authorities and regulators in India as they violate the
Foreign Exchange Management Act (FEMA1999), the Prevention of Money
Laundering Act (POMLA2002), the Black Money (Undisclosed Foreign
Income and Assets) and Imposition of Tax Act (BlackMoneyAct2015), the
Prevention of Corruption Act (PCA1988) and the Income-Tax Act (ITA1961).
People throughout India gathered to organize a peaceful march at the
India Gate to protest against the corrupt politicians. A group of protesters
belonging to an NGO Voices for freedom shouted anti-national slogans against
the government and the march suddenly turned into a violent protestation with
the police resorting to lathi charge. Members of the said NGO were arrested by
the special cell police and put behind the bars.
The President of India promulgated an Ordinance under the National
Security Act 1980 introducing stringent procedures for arrest under the
preventive detention laws. The Ordinance was repromulgated by the President
of India subsequently. To calm the pending situation, a Commission of inquiry
was set up (Panama Commission) by the Narendra Modi government who
would alias with the Federal Bureau of Investigation (FBI) and the Reserve
Bank of India (RBI). The media highlighted the Commission as defective and
bias and cobbled with mala fide intentions. The government was sheltering the
corrupt ministers and tax evaders.
A motion of no confidence was introduced in the Lok Sabha recently that
the government of India is no longer deemed fit to hold that position because
they are inadequate in some respect, are failing to carry out obligations and are
making decisions that other members feel are detrimental. It demonstrates to
the head of state that the elected Parliament no longer has confidence in the
appointed government. The Motion for No Confidence was taken up for
discussion in the Lok Sabha and the debate continued for few days. The motion
was thereafter put to vote. A member of the Congress party filed a complaint
that a criminal conspiracy was hatched by the Narendra Modi government to
prove the majority of the government on the floor of the House by bribing
Members of Parliament of different political groups, individuals and groups to
an amount of Rupees 6 Crores. The press released a sting video on the
television broadcasting the whole act of the criminal conspiracy. A question of
privilege was sought to be raised in the House regarding the alleged pay off and
inducements to members for not voting in favour of the No Confidence Motion.
The media and the press were reprimanded by the House for Contempt of the
House. The Media and the press claimed freedom of the press under Article 19
(1) (a) of the Constitution of India. FIR was lodged against the government for
indictment under the Prevention of Corruption Act 1988. The government could
not get the requisite vote and had to vacate the office and the Lok Sabha was
dissolved. A fresh election was announced and brought the DAP to a swift
victory in the House of People.
 The DAP alleged that corruption and reservation had destroyed the
country and has not allowed the country to progress in the right direction. The
DAP in the Lok Sabha introduced the 125TH Constitutional Amendment Bill
2016 to amend Articles 15 and 16 of the Constitution of India abolishing caste
reservations. After 65 years of independence caste reservation has played the
role of an amoeboid monster sowing seeds of discord amongst the people and
the importance of merit in any society cannot be understated. A party whip was
issued by Congress and the BJP not favouring a vote for the said constitutional
amendment. On the day of the vote, there was crossing of floor, the voting in
the Parliament went against the approved party lines and many members of the
Congress and the BJP joined the DAP. The Speaker and the Chairman of the
respective Houses of Parliament disqualified the said Members of Parliament on
grounds of defection pursuant to the constitutional provisions.
The President of India issued an order withdrawing his pleasure removing
several Governors of various States that were previously appointed by the
Narendra Modi Government despite the fact that their tenureships have not
expired on the ground that they no longer sync with the political ideologies of
the new government DAP. You have been invited by the Supreme Court of
India as an amicus curie to submit your legal arguments based on Constitutional
Law.

Question 2
The DAP government introduced the Constitution (125TH Amendment)
Bill 2016 in the Lok Sabha. The main object of this Bill are accordingly to
repeal Clauses (4) and (5) of Article 15 and Clauses (4A) and (4B) of Article 16
of the Constitution of India. The Statement of Objects and Reasons:-The
reservation is an idea that was ignited in the minds of our forefathers and the
wise people who wrote our constitution. The ideology behind this was to give
an added benefit to the deprived classes of the society (backward class of
citizens) and help them to join the main stream crowd of the nation. Caste
reservations were against the philosophy of the Constitution of India. During the
last 65 years of the working of the Constitution the politicians brought this to
the world of the politics, the whole meaning has changed. The reservation,
today, is not just a perk for the deprived classes but it has been something that
mars the rights of the deserved people more than anything.
Constitution (125TH Amendment) Act 2016 repealing:-
Article 15(4)-is an enabling provision that empowers the State to make
reservations for the advancement of any socially and educationally backward
classes of citizens or for the Scheduled Castes (SC) and the Scheduled Tribes
(ST). (Inserted after the Constitution (1ST Amendment) Act 1951)
Article 15(5)-is an enabling provision that empowers the State to make
reservations for admission to educational institutions (public and (private-aided
or unaided by State)) for the advancement of any socially and educationally
backward classes of citizens or for the SC and the ST. (Excluding minority)
(Inserted after the Constitution (93RD Amendment) Act 2005)
Article 16(4A)-is an enabling provision that empowers the State to make
reservation in matters of promotion with consequential seniority in public
employment in favour of the SC and the S T which, in the opinion of the State,
are not adequately represented. (Inserted after the Constitution (77 TH
Amendment) Act 1995 and Constitution (85TH Amendment) Act 2001)
Article 16(4B)-is an enabling provision that empowers the State to
consider any unfilled vacancies of a year (carry forward rule) which are
reserved in accordance to the provision under Clause (4) or Clause (4) (A) as a
separate class of vacancies. (Inserted after the Constitution (81 ST Amendment)
Act 2000.
Peoples Action Group-an NGO moved the Supreme Court of India for
Judicial Review of the Constitutional validity of the Constitution (125TH
Amendment) Act 2016. The Attorney-General of India appearing on behalf of
the DAP Government contended that the Constitution of India as framed by the
makers is based on the colour blind theory and not the group subordination
theory and 65 years of independence was sufficient to address this historical
discrimination. Establish if the Constitution (125TH Amendment) Act 2016
violates the basic structure of the Constitution of India? (10 Marks)

Question 3
Members of the Parliament who were charged for criminal conspiracy
and corruption under the Prevention of Corruption Act 1988 claimed that taking
bribes to abstain from voting for the No Confidence Motion is a privilege of the
House. Establish if such a privilege is enjoyed by the House of People in India?
(4 Marks)
The press and the media were reprimanded and charged for Contempt of
the House by the Parliament for broadcasting the sting video showing the
criminal conspiracy committed by the Government. The Petitioners had moved
the Supreme Court of India under Article 32 of the Constitution of India for
violation of the freedom of the press as guaranteed under Part III of the
Constitution of India. Establish if breach of a Parliamentary Privilege has been
committed by the press and the media in this case and establish the jurisdiction
of the Supreme Court to intervene on matters of Parliamentary Privileges? (4
Marks)
The Members of the Parliament who were charged for defection had
moved the Delhi High Court for judicial review of the decision of the Speaker
and the Chairman of the Houses of Parliament. To what extent can the judiciary
intervene in the aforesaid matter? (2 Marks)

Question 4
 Establish what are the constitutional limitations and constitutional
safeguards with reference to the promulgation and repromulgation of
Ordinances by the President of India? The Petitioners (Voices for freedom) who
were arrested moved the Supreme Court of India under Article 32 of the
Constitution of India for the issuance of the Writ of Habeas Corpus and
contended that the Ordinance promulgated by the President of India under the
National Security Act 1980 to deprive them of their right to life and personal
liberty under the Constitution of India is cobbled with mala fide intentions.
Establish if such a contention will hold water in a Court of Law against the
President of India? (10 Marks)

Question 5
The Governors of the various states on whom the Presidential Order was
served withdrawing the pleasure of the President moved the Supreme Court of
India under Article 32 of the Constitution of India. Establish what are the
constitutional safeguards with reference to the removal of Governors? How is it
different from a democracy that is governed by the rule of law? (10 Marks)

Question 6
The Supreme Court of India had dismissed the petition moved by Voices
for freedom for the issuance of the writ of habeas corpus against the detenues
after hearing the case on the merits. The Petitioners had now moved the
Supreme Court of India under Article 136 of the Constitution of India for a
special leave petition. Advise the detenues if there are any extraordinary facts in
this case which warrants a special leave petition under the Constitution of India.
What other mode of action is accessible to the litigants in this case in the
original and appellate jurisdiction of the Supreme Court of India under the
Constitution of India. Discuss. (10 Marks)

Question 7
Justice Pandian wrote for the Supreme Court of India in the much
celebrated case Supreme Court Advocates on Record Association vs Union
of India (1993) also popularly known as the Second Judges case that judicial
primacy in appointment of judges to the higher judiciary is one facet that goes
on to guarantee the independence of the Judiciary. It was also necessary to
eliminate political influence even at the stage of the initial appointment of a
judge. The opinion of the Chief Justice of India should have the greatest weight;
the selection should be made as a result of a participatory consultative process
in which the executive should have power to act as a mere check on the exercise
of power by the Chief Justice of India, to achieve the constitutional purpose.
Thus, the executive element in the appointment process is reduced to the
minimum and any political influence is eliminated. Justice Kurian Joseph in
Supreme Court Advocates on Record Association and Another Vs Union of
India (2015) (Fourth Judges Case) had reiterated this as an established principle
of the law that judicial primacy in judicial appointments that goes on to
guarantee the independence of the judiciary is the basic structure of the
Constitution of India. To what extent does the collegium system which is a self
appointed institution unique in the entire world can guarantee the independence
of the Judiciary? Discuss. (10 Marks)