Nirma University

Institute of Law
End Semester Examination, August 2021

B.A.LL.B./B.Com., LL.B. Semester IV

2BL441: Constitutional Law-II

Roll / Supervisor’s
Exam No. initials with date

Time: 5 Hours Max. Marks: 50

Instructions: 1. All questions and parts thereof are compulsory.

2. Marks and word limit for each question are mentioned right below the question.
3. Answers shall be handwritten on ruled or unruled pages.
4. Put page numbers on all pages of your answer script.
5. Take clear scans of your answer script in proper sequence.
6. Ensure that you upload the correct answer script as pdf file.
7. The name of the file shall be your Roll Number.
8. Any answer or part thereof found to copied from any source or from any other
student shall be considered to be use of unfair means, and shall be penalized
accordingly.
9. Note that Question Number 2 has an internal choice.
10. Write your answers within the prescribed word limit.

Q.1 Constitutions may be Federal or Unitary. To be called a Federal

Constitution, it must have some features, such as written Constitution,
Supremacy of Constitution, Independent Judiciary, Rigid Constitution and
Distribution of Legislative Power between Centre and State. Indian
Constitution has such features as well. The distribution of legislative power
has been stated under Art. 246, which said that Parliament has legislative
power to enact laws on the items given under Union List of Seventh Schedule,
the State Legislative Assembly has the power to enact laws on the items given
under the State List of Seventh Schedule. On matters in the Concurrent list
both have the power to make law and in case of conflict, the law enacted by
Parliament shall prevail over State Legislative Assembly enacted law. If any
conflict arises between a law enacted by Parliament and State Legislative
Assembly, there are Principles of Interpretation, which help to resolve such
conflicts. Indica is also a country that has same provision to the Indian
Constitution. It has 25 States in its territory. Answer the following questions
based on the above statement.

a) Why in a Federal Constitution, a written Constitution and Independent

Judiciary is required? Give its justification.

[Maximum Marks: 5; Maximum Word Limit: 300 words]

b) 0n 26.05.2018 an assembly of people was organised to protest against

privatization of public companies. In that assembly, few people made
speeches against Government. It provoked a few people due to which they did
violent action. The whole incident took place in the Badlapur State of Indica.
Against these people, FIR was lodged under the Unlawful Activities
(Prevention) Act (hereinafter called UAPA) by the Badlapur State. The UAPA
was enacted with the purpose of prevention of certain unlawful activities of
individuals and associations. The UAPA is a scheduled offense under the
National Investigation Agency (Hereinafter called NIA) Act, 2008. As per NIA
Act, 2008 once any FIR is registered under schedule offense of NIA Act, 2008,
the State Government has to forward it expeditiously to the Central
Government within 15 days. The Central Government on the basis of
information received may start an investigation through NIA. One of the
people Mr. ‘X’ has against whom the FIR was registered, has challenged the
NIA Act, 2008 as Un-constitutional before the Supreme Court as it violates
the Federal structure of the Constitution, where the law enacted by
Parliament is encroaching upon the power of State Legislative Assembly as
the State Government is entitled to maintain public order.

Mr. ‘X’ has approached you for your legal advice on the constitutionality of
the NIA Act, 2008. Give your answer with the help of relevant constitutional
provisions and relevant entries of Union List, State List, and Concurrent List
of Seventh Schedule. [Note: The Constitution of India and Laws of India is
same to Indica.]

[Maximum Marks: 7.5; Maximum Word Limit: 600 words]

c) The Parliament of Indica has enacted a law The Disaster Management Act
2005, for the “effective management of disaster and for matters connected
therewith or incidental thereto” under residuary power. In the year 2020, a
pandemic called Corona virus spread in Indica. It was very deadly and
infectious. It took the lives of many people in Indica. The Corona Virus was
affecting the respiratory system of human beings. Due to this people were
dying due to low oxygen levels in the body. All the States of Indica were
affected very badly. There were some States who had hoarding of oxygen
cylinders for people of their States. The Ministry of Home Affairs [Hereinafter
Called as MHA] issued a notification under the Disaster Management Act,
2005 directing all the States to ensure that there will be no hoarding of oxygen
cylinders and they will ensure that extra oxygen cylinders will be given to
other States who are in need. In order to ensure compliance, MHA gave order
under Disaster Management Act, 2005 that the State must take action against
those officers who are obstructing the inter-state movement of supply of
oxygen cylinder. Another notification was also issued by the MHA that All-
State will divide their State into two Zone that is Red Zone and Green Zone.
In Red Zone there will be complete lockdown and no State will allow movement
of any person in that zone. These notifications were issued on the ground of
‘Public Health’.

These notifications issued under Disaster Management Act, 2005 were

challenged on the ground that it encroached upon the power of the State
Government, with respect to public health. A petition was filed before the
Supreme Court to declare these notifications as unconstitutional because
they took over the domain of State Government.

Discuss the constitutionality of these notifications with the help of

Constitutional Provisions and relevant entries of Seventh Schedule of
Constitution. [Note: The Constitution of India and Laws of India is same to
Indica.]

[Maximum Marks: 7.5; Maximum Word Limit: 600 words]

Q.2 The judgments of Supreme Court Advocates on Record Association v.

Union of India, (1993) 4 SCC 441, Special Reference No. 1 of 1998, re, (1998)
7 SCC 739 and Supreme Court Advocates on Record Association v. Union of
India, (2016) 5 SCC 1 have established that primacy in the matters of
appointment of judges of Supreme Court and High Courts rests with the CJI
and his collegium. With the primacy vested in the judicial organ, it is the Chief
Justice who initiates the process of appointment, and it is the collegium that
would have the final say in matters of appointment of judges.

The primacy has been given to the judiciary in order to protect its institutional
independence. However, the collegium system is heavily criticised on the
grounds of its lack of transparency, absence of any formal criteria for
appointment and lack of reasons for decisions made by it.

In the light of the aforementioned position, according to you, whether it will

be advisable to shift primacy back to the Union Executive? What steps (at
least 3 steps) could be taken to ensure independence of judiciary in case
primacy is transferred to the Union Executive? Substantiate your answer with
proper legal principles and case laws.

OR

Article 75 forms the basis of Parliamentary form of government in India.

Though non-members of the Parliament may be initially appointed as
Ministers, no such person can continue for more than 6 months without
becoming a member of either House of Parliament (Article 75(5)). Hence, the
Executive is formed from amongst members of the Legislature.

This creates the scope for a person to be appointed as the Prime Minister or
in the Council of Ministers even after suffering defeat in general elections, or
without contesting a direct election, by securing a seat in the Upper House.
Discuss three advantages or disadvantages of this constitutional scope for
allowing defeated or indirectly elected candidates to become members of the
Executive. Substantiate your answer with proper legal principles,
constitutional provisions and case laws.

[Maximum Marks: 10; Maximum Word Limit: 600 words]

Q.3. During a pandemic crisis, it was found that the Panchayats in multiple
states were about to complete their tenure. The State Governments were
worried about conducing elections in such a situation.

The Constitution, by Article 243E (1), explicitly mandates that ‘every

Panchayat… shall continue for five years from the date appointed for its first
meeting and no longer.’ Further, Article 243E (2)(a) provides that an election
to constitute a Panchayat shall be completed before the expiry of its duration
of 5 years.

This created a confusion whether the constitution allowed any relaxation for
the extension of the term of Panchayats or for delaying the elections till after
the pandemic ends.

Before the panchayat elections could be held or notification for the same could
be issued, the President of India, taking precautionary action, referred the
question to the Supreme Court for its advisory opinion under Article 143.

In the light of the above, answer the questions given below: (Answer both the
questions)

a) Identify the correct clause of Article 143 that governs the said exercise
of power by the President. Examine whether all necessary pre-requisites
were fulfilled for the exercise of power by the President, in the light of
the requisites necessary for the applicable clause of Article 143.
Substantiate your answer with appropriate case laws and
constitutional provisions.
[Maximum Marks: 15; Maximum Word Limit: 700 Words]
b) The certificates for appeal under Articles 132 and 133 require a
substantial question of law as to interpretation of constitution, and a
substantial question of law of general importance respectively.
However, the certificate for appeal under Article 134 makes no such
requirement for a substantial question of law. When it does require a
certificate for appeal, it merely requires the High Court to have certified
that the case is a fit one for appeal to the Supreme Court. Why has
Article 134 made no such requirement for existence of a substantial
question of law? Substantiate with proper legal principles and
constitutional provisions.
[Maximum Marks: 5; Maximum Word Limit: 200 words]