National Law Institute University

Kerwa Dam Road, Bhopal

State of Madhya Pradesh 462 044
India
Year 2020

Subject: Constitutional Law-II

Faculty in Charge: Ms. Kuldeep Kaur

[Visiting Faculty][Bar Finals [Lincoln’s Inn] Barrister-at-Law]
[Office-New Academic Block II]
[E-Mail: kuldeeplawofficer@gmail.com]
[Contact: 091-7509191746]

The theme of the Constitution of India: “The People made the Constitution and the people
can unmake it. It is the creature of their own will and lives only by their will”.

[1] Introduction:-

The Course analyses the Fundamental rights, Fundamental Duties and Directive
Principles of State Policy enshrined in the Indian Constitution. The central thrust of the
Course is to deal with the responses to socio-economic demands made upon the constitutional
order in a developing Indian society from independence to present time. It explores the
concurrent original jurisdictions of the Supreme Court of India and the State High Courts. It
examines the concept of State and State Action, the new dimensions of the right to equality,
affirmative actions by the State, fundamental freedoms in an information age, the right to
protest and civil-disobedience, the right to life and personal liberty and its expanding
contours, rights of detenues-both punitive and preventive, right to religion, rights of
minorities along with Fundamental duties. It examines the role of the Judiciary in doing away
with Anglo-Saxon Jurisdiction, introducing epistolary jurisdiction to protect fundamental
rights of the citizens, judicial review of violation of fundamental rights, constitutional
remedies [writs] and also the principles of law regulating the writ jurisdiction. It further
examines judicial review as a device to ensure constitutionally correct governance. It
explores on the changing relations between Fundamental Rights and Directive Principles of
State Policy, maintaining the unity of the nation, strengthening the foundations of democratic
values in India.

The Course will also examine the Concept of Federalism and its practice in India. It
explores on the relationship between the Centre and State dealing with Legislative,
Administrative and Financial relations in a federal Constitution. It explores on freedom to
trade, commerce and intercourse as envisaged in the Constitution of India and constitutional
constraints and limitations on freedom to trade and commerce. It deals with the use of
emergency powers of the President of India. It focuses on the impact on federal relations.

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[2] Objectives:-
 The main objective of the Course is to develop advanced understanding of
methodology and practice of protection of fundamental rights in the Indian Constitution.
Within this general objective student will learn about the theoretical foundation of
fundamental rights, their normative ordering and how they have been incorporated in the
Indian Constitution. The Course will present an evolution of judicial protection of
fundamental rights by the Supreme Court of India. The Course will explore the tension
between Fundamental Rights and market freedoms and how it is resolved by the Judiciary
particularly through development and application of judicial doctrines of proportionality and
margin of appreciation. The Course will also present an evolution of judicial protection of
fundamental rights by the European Court of Justice, how they are crystallized in its case law
and codified by the founding treaties and secondary legislation by way of comparative study.

And the other main objective of the Course is to develop advanced understanding on
the Indian Constitution which is based on the principle of federalism with a strong and
indestructible Union. The Course will present a scheme of distribution of legislative,
administrative and financial powers designed to blend the imperatives of diversity with the
drive of a common national endeavour. This Course intends to give the students an overview
of our Constitutional theory as well as practice that have kept pace with contemporary
developments. The Course emphasizes on current trends of cooperation and coordination
rather than demarcation of powers between different levels of government. The basic theme
is inter-dependence in orchestrating the balance between autonomy of the states and their
inner logic of the Union.

[3] Coverage:-

Unit-I

1. Concept of Judicial Review

2. The principles of Marbury vs Madison-the origin of the concept of Judicial
Review in America
3. Concurrent Jurisdictions of the Supreme Court and High Court
4. Right to Constitutional Remedies under the Constitution
[Writ of Habeas Corpus, Writ of Mandamus, Writ of Prohibition, Writ of
Certiorari & Writ of Quo Warranto]

Unit-II

Fundamental Rights and Directives Principles of State Policy

1. Meaning and Importance of Fundamental Rights

2. Concept of State and State Action
3. Right to Equality and Affirmative Action

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4. Right to Freedom
5. Right against Exploitation
6. Freedom of Religion
7. Cultural and Educational Rights
8. Directive Principles of State Policy

Unit-III

Relationship between Fundamental Rights and Directive Principles of State Policy

Unit-IV

Fundamental Duties

Unit-V

1. Public Interest Litigation

2. Epistolary Jurisdiction of the Supreme Court
3. Judicial Activism in India

MID-TERM EXAMINATION

Unit-VI

Concept of Federalism

1. Concept of federalism
2. Comparative study on USA, India, Australia, Canada and West Germany
3. Indian Federalism

Unit-VII

Distribution of legislative powers between the Union and States

1. Legislative, administration and financial distribution of powers

2. Relationship between the Union and State
3. Doctrine of territorial nexus and Extra-Territorial Operation
4. Powers of the Parliament and State Legislative Assembly to legislate on
matters listed in their respective lists [Union list, State list and Concurrent list]
5. Plenary powers of legislation
6. Retrospective and prospective overruling
7. Predominance of the Union power
8. Avoidance of conflict-harmonious construction

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[The doctrine of pith and substance, Ancillary legislation and Colourable

legislation]
9. Residuary power of legislation
 10. Power of the Parliament to legislate on matters in the state list in the national
interest
11. Power of the Parliament to legislate on matters in the state list during
Proclamation of Emergency
12. Inconsistency between laws made by Parliament under Articles 249 and 250
and state legislation
13. Inconsistency between laws made by Parliament and laws made by state
[saving of existing laws] [The doctrine of Repugnancy]

Unit-VIII

Trade Commerce and Intercourse within the territory of India

1. Object and basis of such legislation

2. Power of the Parliament to make a law on restriction of Trade, Commerce and
Intercourse
3. Restriction on the legislative powers of the Parliament and State to legislate on
Trade, Commerce and Intercourse
4. Restriction of Trade, Commerce and Intercourse among states
5. Saving of existing laws providing for state monopolies
6. Scope of Articles 301 and 304 [Discriminatory and Compensatory taxes]
7. American theory on compensation and Australian theory on compensation

Unit-IX

Emergency Provisions

1. National Emergency
2. Proclamation of Emergency
3. Procedure for Declaration of Emergency and Revocation
4. The effects of National emergency
5. Suspension of fundamental rights during Proclamation of Emergency under
Articles 358 and 359
6. Presidential Order and Judicial review of Presidential Order

Unit-X
1. State Emergency
2. President’s Rule under Article 356
3. Duty of the Union to protect the states [Article 355]
4. 42ND and 44TH amendments with regard to emergency provisions
5. The effects of the A.D.M. Jabalpur case [habeas corpus case]
6. The Sarkaria Commission report and its recommendations
7. The significance of S. R. Bommai v Union of India

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[4] Teaching Methodology:-

 Short works that provide an overview of Fundamental Rights, illustrating the themes
of the Course, illustrating a variety of Constitutional issues pertaining to Fundamental Rights,
Doctrinal analysis and analogical reasoning, Constitutional analysis of Fundamental Rights,
explanation on Concepts of Rights as envisaged in the Constitution of India and their
importance and application in social, economic and political justice. Short works that provide
an overview on concept of federalism and Centre and State relations, illustrating the themes
of the Course , illustrating a variety of Constitutional issues pertaining to Centre and State
relations, Doctrinal analysis and analogical reasoning, Constitutional analysis on concept of
federalism, an overview on Concept of Federalism and Comparative study. Case analysis on
Supreme Court judicial pronouncements as guardian of the Constitution of India, the Indian
Constitution [Bare Act], and Legal Propositions and application of the law and legal
principles [Discussion and Interaction with students] to get feedback.

[5] Readings

[a] Essential readings in addition to reading material:-

[i] Constituent Assembly Debates on incorporation of Fundamental

Rights in the Constitution of India.

[ii] Supreme Court Landmark Judgments on Fundamental Rights

[iii] Constituent Assembly Debates on Concept of Federalism

[iv] Legal Articles on Concept of Federalism by M. P. Jain

[b] Recommended Readings:-Books/Reports/Articles

[i] Constituent Assembly Debates

[ii] Indian Constitution Law [Dr. Kailash Rai]

[iii] Indian Constitutional Law [Dr. Durga Das Basu]

[iv] Fundamental Rights and Their Enforcement [Udai Raj Rai]

[v] Human Rights and Social Justice [Shri H. M. Seervai]

[vi] Globalization, Federalism and Decentralization-Implications in India

[Arora]

[vii] B. R. Ambedkar on federalism, ethnicity and gender justice [edited

By Nazeer H. Khan]