SEAT NUMBER – 124026

SEAT NUMBER – ONE TWO FOUR ZERO TWO SIX

SEMESTER – IV (FOUR)

NAME OF COURSE – CONSTITUTIONAL LAW II – BA LLB

QUESTION 1

Mr Ramesh, resident of Uttarakhand, owns 95 percent of his land in

Uttarakhand. The remaining 5 percent of land is situated in Uttar Pradesh.
The Uttarakhand government, in order to ensure the compliance to its
Land Ceiling Act, 1960 has taken Mr. Ramesh’s entire land into account
including the one which is outside the territory of Uttarakhand.

Mr. Ramesh wants to challenge the Uttarakhand government action.

Territorial nexus is a concept described in Article 245 of the Constitution

of India that determines how legislative powers are divided. Clause 1
states that subject to the provisions of this Constitution, Parliament may
make laws for the whole or any part of the territory of India, and the
Legislature of a State may make laws for the whole or any part of the
State and Clause 2 states that no law made by Parliament shall be
deemed to be invalid on the ground that it would have extra-territorial
operation.

Thus it can be said that both the union and the state have their own
territorial jurisdiction to make laws. Under article 245(2) of the Indian
constitution, if any law is made by the parliament regarding the
extraterritorial operations, no questions can be raised on its validity. Thus
the validity of a legislation can’t be questioned. In this case, a court is
bound to enforce the laws made with regards to extra-territorial
operations. This legislation can’t be invalidated.

A nexus between the object and the state must be proved in order to give
effect to laws made by a state for extraterritorial purposes. Within its
territorial jurisdiction, the state legislature has the authority to enact
legislation. The territorial nexus exemption allows the state to enact laws
governing extraterritorial operations provided it can demonstrate a link
between the object and the state.

In the case of Wallace Brothers And Co. Ltd. vs The Commissioner Of

Income-Tax, a firm that was registered and incorporated in and did
business in India with the help of a sleeping partner. In that financial
year, the company produced a huge profit. The respondent disputed the
income tax authorities, but the privy council determined that the idea of
territorial connection existed and that the tax was valid. The fact that the
majority of the income came from British India was enough to establish a
territorial link.

The circumstances that are required in order to invoke the jurisdiction of

territorial nexus are if there exist extraterritorial operations in a state and
if there is legitimate nexus between the object and the state. It should be
clear that the object shall be situated outside the territorial limits of the
state but it must have a territorial connection with the state.

In the case of Tata Iron And Steel Company vs. Bihar State Tax Act, The
state of Bihar established a sales tax act to charge a tax on all sales,
whether they took place within the state's territorial bounds or outside of
them. The commodities must also be manufactured in the state. In this
case, it was determined that there was an established link between the
taxed object and the statute. Here we see both required circumstances
are being met.

Finally and most importantly in the case of Shrikant Bhalchandra Karulkar

v. State of Gujarat, the court upheld the Gujarat Land Ceiling Act on the
principle of territorial nexus insofar as the act took into account the
agricultural land held by a person outside the state of Gujarat for the
purpose of determining the ceiling of agricultural land in the State of
Gujarat.

Therefore taking the conditions of the statute and the precedents

discussed, as a lawyer, I would advise Mr. Ramesh not to challenge the
action of the Uttarakhand Government as they have acted in accordance
with established constitutional norms and precedents.

QUESTION 2

The result of Patliputra State Legislature election was such that party X
just crossed the half way mark and had only 3 extra seats. After six
months, ten MLAs of party X meet the Governor of Patliputra and request
him to call upon the leader of party Y to form government and they also
asserted that they will support party Y to form government and other
members of party X will join them. Party Y staked the claim to form
government. Party X claimed before the Speaker of the State Legislature
that the ten MLAs shall stand disqualified under 10th Schedule. Whereas
the party Y claimed before the Speaker that there is proper split in the
party (10 MLAs plus 40 others who are about to join these 10 MLAs) and
the members would join party Y. Rejecting the claim of party X, the
Speaker accepted that 50 MLAs (10 plus 40) of party X have merged with
party Y and therefore they will not be subject to anti-defection law under
10th Schedule. The leader of party X had petitioned to the High Court that
before merger, the fate of winning 10 MLAs from party X should be
decided first before looking into the case of merger. He also argued that
the Speaker has abdicated from his constitutional duty to decide as per
10th Schedule as the act of the MLAs approaching the Governor in favour
of the leader of party Y itself shows they have defected.

The 10th Schedule to the Indian Constitution, that is popularly referred to

as the ‘Anti-Defection Law’. ‘Defection’ has been defined as, “To abandon
a position or association, often to join an opposing group”.Basically,
defection is an act by a member of a particular party of disowning his
loyalty towards that particular party and pledging allegiance to another
party.

In the case of Rajendra Singh Rana v Swami Prasad Maurya and Others
the Supreme Court held that the act of giving a letter requesting the
Governor to call upon the leader of the other side to form a Government,
itself would amount to an act of voluntarily giving up the membership of
the party on whose ticket the said members had got elected. In this case,
in the 2002 Assembly elections in the State of Uttar Pradesh, a coalition
government was formed since none of the parties secured a majority. In
the middle of 2003, a unanimous decision was taken by the Cabinet to
dissolve the Assembly. After the Cabinet’s decision and before the
resignation of the leader of the coalition Government, thirteen members
from the BSP met the Governor and requested him to invite the leader of
the opposite party to form the Government.

The scope of this anti-defection law was examined in detail in Kihoto

Hollohan v Zachillhu , a case that also analyzed various other aspects of
this legislation also. Here, the court, speaking about the necessity of an
anti-defection legislation, said, “The object is to curb the evil of political
defections motivated by lure of office or other similar considerations
which endanger the foundations of our democracy. The remedy proposed
to disqualify the members of either House of Parliament or of the State
Legislature who is found to have defected from continuing as a Member of
the House. The grounds of disqualification are specified in Paragraph 2 of
the Tenth Schedule.”

Thus we can say from these precedents that a case of defection has been
clearly established.

QUESTION 3

Parliament passes a law which is in clear violation of Article 19(1)(a). The

executive action taken under such unconstitutional law shall, naturally,
also be unconstitutional. However, the executive action under the said law
is taken after imposition of Emergency under Article 352 on the ground of
war. A concerned citizen Mr. Ravi tries to challenge the executive action
and the said law in Supreme Court under Art. 32 during the continuance
of the emergency. The Union government takes the ground that the
executive action and the law cannot be challenged in the court because
under Art. 358, Art. 19 is suspended. Mr. Ravi argues that the invalid law
was passed before imposition of emergency and not after imposition of
emergency therefore Article 358 does not apply to the petition.

Article 358 of the Indian Constitution provides for Suspension of

fundamental freedoms guaranteed to the citizens by Article 19 of the
Indian Constitution.

It provides that when an emergency has been proclaimed and is in

operation, the provisions contained in article 19 shall not restrict the
power of the State relating to the making of any law or taking any
executive action which abridges or takes away the rights guaranteed by
Article 19.

It means that the freedom guaranteed by Article 19 automatically stands

suspended once the Proclamation of Emergency is made. Once the
proclamation of emergency ceases to operate, Article 19 which stood
suspended during the emergency automatically comes to life.

In the case of Bennet coleman and co. v. Union of India, where the
petitioners challenged the restrictions on the import of newsprint under
Import Control Order 1955 and on the manner in which this is used by
newspapers under the Newsprint Order 1962 and the respondents argued
that the petitions were not maintainable because companies do not enjoy
fundamental rights, which are available only to natural persons and the
respondents argued that Article 358 the Constitution’s provision for
emergency powers barred any challenge on grounds of fundamental
rights, the Court accepted petitioners’ challenges that certain restrictions
and regulations on newspapers affected the right to freedom of speech
and expression. The Court found that because the freedom of the press
involved both qualitative and quantitative dimensions, the Newsprint
Policy was unconstitutional as its quantitative restrictions were not
justified by a shortage of newsprint; the Newsprint Order and Import
Control Order were not struck down. Most importantly, the Supreme
Court held that the policy which was a continuation of an old policy made
before the proclamation of emergency and was not protected during the
proclamation from attack under article 19. The proclamation of
emergency would not authorise the taking of detrimental executive action
during this period, affecting article 19 without any legislative authority.
Thus, an executive action causing infraction of such a right must have its
basis in such law.

This being established, one must consider that Article 358 does not
operate to validate a legislative provision which was invalid before the
proclamation of emergency. All executive actions which operate to the
prejudice of any person must have the authority of law and the terms of
Article 358 do not detract from that rule. The article merely provides that
so long as the proclamation of emergency subsists, law must be enacted
and executive action may be taken in pursuance of lawful authority,
which, if the provisions of Article 19 were operative, would have been
invalid. A proclamation of emergency would not authorize the taking of
detrimental executive action during that period, affecting Article 19
without any legislative authority, or in exercise of power conferred by any
pre-emergency law which was unconstitutional when it was enacted.

In the light of the above study of the statute and the precedent, we may
conclude that Mr. Ravi would in fact have the standing to challenge the
said executive action and the said law in court.