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THE NATIONAL LAW INSTITUTE UNIVERSITY, BHOPAL
END TERM EXAMINATION: MAY 2023
B.A. LL. B. (Hons.)
SEMESTER: IV
SUBJECT: CONSTITUTIONAL LAW II

DURATION: 3 HOURS MAXIMUM MARKS: 50

1. Answer any five questions.

2. All questions carry equal marks.
3. Support your answer with relevant constitutional provisions, judicial decisions, and
reasons wherever necessary.
4. A copy of the text of the Constitution of India will be provided by the Examination
Department.
5. Due credit will be given to brevity, coherence and style of presentation.
6. No request for clarification regarding the questions will be entertained during the
examination.

1. The State Government of Punjab set up a Commission called the Justice Ranjit Singh
Commission to investigate various incidents of sacrilege of the holy Guru Granth Sahib and
other religious texts. The Commission recommended amendments to laws that criminalises
blasphemy as a major step towards curbing such incidents of sacrilege and maintaining
communal harmony in the State. A Bill was introduced after several incidents related to the
desecration of the holy book in various parts of the State were reported. The Indian Penal
Code (Punjab Amendment) Bill 2023 [Entry 1 List III-Criminal Law] includes insertion
of Section 295AA into the Indian Penal Code 1860 to provide that “whoever caused
injury, damage or sacrilege to Sri Guru Granth Sahib, Srimad Bhagavad Geeta, Holy
Quran and the Holy Bible with the intention to hurt the religious feelings of the people
shall be punished with imprisonment of life (now Indian Penal Code (Punjab
Amendment) Act 2023) hereby referred to as State law. Section 295A of IPC1860 [Entry
1 List III-Criminal Law] provides that deliberate and malicious acts intended to outrage
religious feelings of any class by insulting its religion or religious beliefs shall be punished
with imprisonment of either description for a term which may extend to three years or with
fine or with both hereby referred to as Union Law. Aagney and 2 others were recently
prosecuted under the Indian Penal Code (Punjab Amendment) Act 2023 in the State of
Punjab. The trial court in Punjab convicted and sentenced Aagney and 2 others with
imprisonment for life under the State law. They impugned the law on the basis that Section
295A of IPC 1860 and Section 295AA of IPC (Punjab Amendment) Act 2023 are directly in
conflict with each other and the amendment is regressive, politically motivated and a threat to
free speech and expression. What doctrinal analysis would the Court employ to resolve the
inconsistencies between the provision of the Union law and the provision of the State law
under the Constitution of India to safeguard the interest of the federation as a whole. (10
marks)

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Model Answer

Introduction
Under the Constitution of India, we have 3 organs of government the Executive,
Legislature and the Judiciary. All have separate functions to perform. India has a federal
structure of government in which there is distribution of legislative, executive and judicial
powers between the Centre and the states. The Constitution imposes limitation on the
legislative body’s law-making powers. The Constitution imparts validity to all laws made by
the Parliament and the state legislatures. Article 245 gives the legislative bodies the plenary
powers to legislate while Article 246 demarcates the fields of legislation. In the 7 TH Schedule
to the Constitution, List I have 97 entries which concerns matter of national interest on which
only the Parliament can legislate. List II has 66 entries which concerns matters relating to the
local interest of the states on which only the state legislatures can legislate. The Concurrent
List III has altogether 47 subject matters which are of common interest to the centre and the
states on which both can legislate.

Relevant Constitutional Provisions

The constituent units which form the federation have both the state laws and the union
laws operating side by side. However, when laws are made by both from the same entry in
the Concurrent List, they may conflict with each other. The question of legislative
competency does not arise in the Concurrent List since both are competent to make the laws
from the Concurrent List. The framers of the Constitution had designed a constitutional
mechanism to resolve this conflict enshrined in Article 254. In case of conflict the Union law
will prevail over the state law but if the state law has received the Presidential assent it will
operate in the state and not the Union law. Nothing can stop the Parliament in the future to
amend or repeal the law from the same entry in the Concurrent List in which case the Union
law will prevail over the state law.

Relevant case law

In M. Karunanidhi vs UOI the Supreme Court of India has evolved a constitutional
test to determine which law should prevail in the state if there is conflict between them: -
Doctrine of Repugnancy-
1/ the 2 laws are directly in conflict with each other.
2/the conflict is leading to some inconsistencies.
3/the inconsistencies are such that they cannot be reconciled at any cost.
4/the end result would be if we obey one law, we have to disobey the other law.
Doctrine of occupied field-
1/laws made from the same entry sometimes occupy different fields of legislation, hence they
do not collide with each other and can still run pari pasu with each other.
2/laws made from the same entry sometimes may occupy same fields of legislation but they
can create distinct and separate offences. In such a situation they have room and space to
operate side by side without colliding with each other like in the case of M. Karunanidhi
itself.
The Supreme Court of India in Vijay Kumar Sharma vs State of Karnataka opined
that if laws are made from different entries in the Concurrent List the chances of them
colliding with each other is minimum as they may not be dealing with the same subject
matter. However, in such a situation one can look into the pith and substance of the acts to
determine whether the laws fall within the scope and ambit of the respective entries or not to
avoid collision.

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Legal reasoning
Both laws are made from the same entry in the Concurrent List. Hence Article 254 is
applicable here. Section 295A of IPC1860 covers a broader and general area of blasphemy
laws and contain ingredients like-
-deliberately and maliciously intending to outrage religious feelings of any class.
-by insulting its religion or religious beliefs.
-and shall be punished with imprisonment of either description for a term which may extend
to three years or with fine or with both.
Where else Section 295AA of IPC1860 dealt with more specific blasphemy laws like
whoever caused injury, damage or sacrilege to Sri Guru Granth Sahib, Srimad Bhagavad
Geeta, Holy Quran and the Holy Bible with the intention to hurt the religious feelings of the
people shall be punished with imprisonment of life.
Though both the laws are made from the same entry in the Concurrent List and in fact they
occupy the same field of legislation that is blasphemy but they tend to create separate and
distinct offences. In the state of Punjab, there are more reported incidents of sacrilege of the
holy book of Guru Granth Sahib and other religious text and the purpose of the amendments
were to curb such incidents of sacrilege and maintaining communal harmony was the main
objective of the law. Hence, this amendment was introduced in the IPC to deliver harsher
punishment to those who indulge in them in the state of Punjab. The scope and ambit of
Section 295A of IPC1860 is wider and may also include the ingredients of Section 295AA of
IPC1860 but Section 295AA of the state law make it more specific related to matters
mentioned therein and makes the punishment more severe to deal with such situations
recurring in the state of Punjab as the provision is handing out life imprisonment if found
guilty. Even the mens rea is not the same-one is deliberately and maliciously intending to
commit those specific acts mentioned therein where else in the other is causing injury,
damage or sacrilege to the religious texts mentioned therein. If the counter argument holds
true that the state law is repugnant to the Union law it will lead to bizarre situation where for
example if someone insults Nabi Muhammad and not the Holy Quran, there will be no law to
prosecute him/her whose intention was to hurt the religious sentiments of a class or group of
people since the Union law is no longer operative in that state after repugnancy. The State
law includes causing injury, damage or sacrilege to the religious text which is mentioned
therein. But what about causing injury, damage or sacrilege to other religious texts which are
not mentioned in Section 295AA or what about insulting religious gurus like Nabi
Muhammad, Jesus Christ, Guru Nanak Devji or Ram for that matter or hurting the religion
itself? All these do not fall within the scope and ambit of Section 295AA. Hence, the Union
law covers a larger ambit of blasphemy and the state law with specific incidents of sacrilege
to the religious texts.

Conclusion
Therefore, even though the punishments are not the same but the purpose of the state
law was to deal with specific incidents that had occurred in the state in the past. In fact, the
state law is complimentary to the union law just like in the case of M. Karunanidhi vs UOI.
Hence, there is room and space for both the statutes to operate side by side without colliding
with each other and run pari pasu in the state of Punjab. Hence, Aagney and the 2 others can
file a suit under Article 226 of the Constitution of India for judicial review of the impugned
enactment in the Punjab and Haryana High Court in which case the Court is likely to observe
that the state law can run pari pasu with the union law since they are not in conflict with each
other. If Aagney and the 2 others have caused injury, damage or sacrilege to any of the
religious texts mentioned therein, then they should be prosecuted, convicted and sentenced
under the State law and not the Union Law as the purpose of the State Law was to deal with

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 such specific incidents. Free speech and expression as enshrined in Article 19 [1] [a] of the
Constitution of India is not an absolute fundamental right and the state has an overriding
power to regulate the exercise or enjoyment of such right according to the restrictions
mentioned in Article 19 [2]. Section 295AA of IPC1860 regulates that right. Public order is a
reasonable restriction.

2. The Law Commission of India 262nd report of 2015 recommended that death penalty be
abolished for all crimes other than terrorism related offences and waging war. The
Commission is informed by the expanded and deepened contents and horizons of right to life
and strengthened due process requirements in the interaction between the State and the
individual, prevailing standard of constitutional morality and human dignity, the Commission
felt that time has come for India towards abolition of the death penalty. On the 9/1/2023 the
President of India promulgated an Ordinance (Ordinance 6 of 2023) to abolish death penalty
for all crimes other than terrorism related offences and waging war. The trial court in New
Delhi has convicted Aamod for the brutal rape and murder of his fiancé and sentenced him to
life imprisonment on 9/2/2023. It was a rarest of rare crime which did not warrant a death
penalty due to its abolition. The Ordinance was disapproved by Resolutions passed by
Parliament on the 16/3/2023 as it was not able to garner any support from the Houses to
become an Act of Parliament. Subsequently, the High Court has upheld Aamod’s conviction
and increased his punishment to death penalty looking into the serious and grievous nature of
the crime. Aamod alleges that the High Court has no jurisdiction to increase his punishment
on the ground that when he was sentenced by the trial court, death penalty wasn’t an
alternative punishment in the statute book. Aamod wishes to appeal against his conviction
and sentence to the Supreme Court of India. Advise Aamod whether the Supreme Court of
India is empowered to hear his matter in the appellate jurisdiction? What are the implications
of an Ordinance that was disapproved by Parliament in respect of things done or omitted to
be done before the Ordinance so ceases to have effect in this case? Advise Aamod whether he
can file for Presidential pardon while his appeal is pending in the Supreme Court of India?
(10 marks)

Model Answer
Relevant Constitutional Provision.
Appellate jurisdiction of the Supreme Court of India in regard to criminal matters.
An appeal shall lie to the Supreme Court from any judgment, final order or sentence
in a criminal proceeding of a High Court in the territory of India if the High Court in clause
[c] certifies under Article 134A that the case is a fit one for appeal to the Supreme Court.
However, this right is not absolute as the proviso in the Article made it subjected to such
provisions as may be made in that behalf under clause [1] of Article 145 and to such
conditions as the High Court may establish or require.
And this right is further curtailed in clause [2] where Parliament can make a law and
confer on Supreme Court such further powers to entertain and hear appeals from any
judgment, final order or sentence in a criminal proceeding of a High Court in the territory of
India subject to such conditions and limitations as may be specified in such law.
Every High Court, passing or making a judgment, decree, final order or sentence,
referred to in clause [1] of Article 134, may if it deems fit to do so, on its own motion and
shall if an oral application is made by or on behalf of the party aggrieved, immediately after
the passing or making of such judgment, decree, final order or sentence, determine as soon as
may be after such passing or making, the question whether a certificate of the nature referred
to in clause [1] of Article 134 may be given in respect of that case.

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 Hence, Aamod can file an appeal to the Supreme Court of India under Article 134
against his conviction and sentence provided the matter falls within the scope and ambit of
Article 134 [c] and the High Court is willing to issue a Certificate under Article 134A if it
deems the matter to be fit.

Relevant Constitutional provisions

The President of India is empowered to promulgate an ordinance under Article 123 of
the Constitution if either of the Houses of Parliament is not in session provided, he is
satisfied, that circumstances exist which render it necessary for him to take immediate action.
This power is exercised with the aid and advice of the council of ministers. The ordinance
shall be laid down before both the Houses of Parliament and shall cease to operate at the
expiration of 6 weeks from the reassembly of Parlaiment. It was observed by Justice
Chandrachud in Krishna Kumar Singh vs State of Bihar that laying down the ordinances
before the Parliament after it’s reassemble is mandatory. However, Justice Madan Lokur
was of the opinion that laying down is not mandatory but rather obligatory since upon
promulgation, the ordinance has the same effects as a law would under Article 13 [3] and
Article 123 of the Constitution of India.

Relevant case law

What are the implications of an Ordinance that was disapproved by Parliament in respect
of things done or omitted to be done before the Ordinance so ceases to have effect in this
case?
In Krishna Kumar Singh vs State of Bihar, it was observed by the Judges that the
Constitution has used different expressions such as repeal (Articles 252, 254, 357, 372 and
395); void (Articles 13, 245, 255 and 276); cease to have effect (Articles 358 and 372); and
cease to operate (Articles 123, 213 and 352). Each of these expressions has a distinct
connotation. The expression ceases to operate in Articles 123 and 213 does not mean that
upon the expiry of a period of six weeks of the reassembling of the legislature or upon a
resolution of disapproval being passed, the ordinance is rendered void ab initio. Both Articles
123 and 213 contain a distinct provision setting out the circumstances in which an Ordinance
shall be void. An Ordinance is void in a situation where it makes a provision which
Parliament would not be competent to enact (Article 123(3)) or which makes a provision
which would not be a valid if enacted in an act of the legislature of the state assented to by
the Governor. The framers having used the expressions ceased to operate and void separately
in the same provisions; they cannot convey the same meaning.
The theory of enduring right that was laid in the judgment in State of Orissa v.
Bhupendra Kumar Bose and followed in T. Venkata Reddy and Others. v. State of
Andhra Pradesh by the Constitution Bench is based on the analogy of a temporary
enactment. The judgments are no longer good law in view. No express provision has been
made in Article 123 and Article 213 for saving of rights, privileges, obligations and liabilities
which have arisen under an Ordinance which has ceased to operate. Such provisions are
however specifically contained in other Articles of the Constitution such as Articles 249(3),
250(2), 357(2), 358 and 359(1A). This is, however, not conclusive and the issue is essentially
one of construction; of giving content to the force and effect clause while prescribing
legislative supremacy and the rule of law.
According to Hon'ble Justice Chandrachud and other judges, the question as to whether
rights, privileges, obligations and liabilities would survive an Ordinance which has ceased to
operate must be determined as a matter of construction. The appropriate test to be applied is
the test of public interests and constitutional necessity. This would include the issue as to

5
whether the consequences which have taken place under the Ordinance has assumed an
irreversible character. In a suitable case, it would be open to the Court to mould the relief.

Legal Reasoning
In this case when the trial court in New Delhi heard Aamod’s matter, while convicting
him for rape and murder under the IPC1860 did not sentence him to death penalty as it wasn’t
an alternative punishment in the statute book due to the Ordinance which was promulgated by
the President of India. Once the ordinance was disapproved by both the Houses of Parlaiment
it ceased to operate and when the matter was heard by the High Court in the appellate
jurisdiction it upheld the conviction but decided to increase the punishment to death penalty.
Article 123 has no express provision for saving of rights, privileges, obligations and liabilities
which have arisen under an ordinance which has ceased to operate since if it was the intention
of the framers of the Constitution they would have explicitly mentioned therein like the other
Articles. But the Court in Krishna Kumar Singh vs State of Bihar opined it is essentially a
matter of construction and giving content to the force and effect clause while prescribing to
legislative supremacy and the rule of law. Justice Chandrachud observed that the appropriate
test is the test of public interest and constitutional necessity. It can be stated with certainty
that death penalty is the harshest form of punishment under the IPC and during the time of
sentencing it was already abolished by way of an ordinance. Hence, it would be against
public interest now to impose death penalty on Aamod by the appellate jurisdiction since this
court was deprived of the demeanor of the accused while he testified in the trial court and
also the original jurisdiction of the criminal trial had no power to impose death penalty as a
result of the ordinance. Ordinance has the force of law under Article 123 of the Constitution
of India. As per Hon’ble Justice Chandrachud the challenge of whether liberties, entitlements,
commitments, and obligations would thrive an Ordinance that no longer exists must be
defined as an issue of development. The procedure of interests of the public and
constitutional requirement is the suitable one to use. This would include the question of
whether the repercussions of the Ordinance have carried on an irrevocable identity. It would
be up to the court in an appropriate case to shape the relaxation.

Presidential Pardon
Relevant Constitutional provisions
The President of India is empowered under Article 72 of the Constitution to grant
pardon, reprieve, respite or remissions of punishment or to suspend, remit or commute
sentences in certain cases of any person convicted of any offence in all cases where the
punishment or sentence is for an offence against any law relating to a matter to which the
executive power of the union extends. Pardon– A pardon completely absolves the
offender from all sentences and punishment and disqualifications and places him in
the same position as if he had never committed the offence.
Commutation– Commutation means exchange of one thing for another. In simple
words to replace the punishment with less severe punishment. Reprieve– Reprieve
means temporary suspension of death sentence. Respite– Respite means awarding a
lesser punishment on some special grounds. Remissions– Remission means the
reduction of the amount of sentence without changing its character.
Relevant case law
In K. M. Nanavati vs State of Bombay the Supreme Court observed that the
Governor had no power to grant the suspension of sentence for the period during which the
matter was sub-judice in the Court. Though Article 72 empowers the President of India to
grant pardon after conviction but the operation of this Article was made subjected to rules

6
 made by Supreme Court under Article 145 where Order XXI Rule 5 makes the matter sub-
judice pending the disposal of the appeal.
However, Justice Kapur in his dissenting opinion observed that the language of
Article 161 is of the widest amplitude. It is plenary and an act of grace and clemency and
may be termed as benign prerogative of mercy. The power of pardon is absolute and
exercisable at any time. Rules framed under Art. 145 are subordinate legislation and cannot
override the provisions of Article 161 of the Constitution itself. While the Governor's power
to grant pardon is a power specially conferred upon him as was vested in the British
Governor in British days, the power given to the Court under Art. 142(1) is a general power
exercisable for doing complete justice in any cause or matter, and if they deal with the same
matter then Article 161 must prevail over Article 142(1). The two powers may have the same
effect but they operate in distinct fields on different principles taking wholly irreconcilable
factors into consideration. The action taken by the executive being the exercise of overriding
power is not subject to judicial review. It could not have been the intention of the framers of
the Constitution that the amplitude of executive power should be restricted as to become
suspended for the period of pendency of an appeal in the Supreme Court.

3. Rajasthan, Uttar Pradesh, Madhya Pradesh, Gujarat and Andhra Pradesh are the top 5 largest producer
of milk in India. The State of Gujarat contributes 18% of the total milk produced in India. The
State of Gujarat recently enacted the Control, Inspection and Safety of Milk and Milk
Products Act 2023 (Non-taxing legislation). The law focuses on consumer protection such as
requiring the sanitary inspection of imported milk and banning the import of contaminated
milk [List II Entry 6-Public health and sanitation] . Mother Dairy is the largest producer
and supplier of milk to the State of Gujarat. The company impugned the State Law on the
basis that it does not have the legislative competency to make the law and the milk industry is
controlled and regulated by the Government of India. Under the Essential Commodities Act
1955 (Union Law), the Union Government has introduced the Milk and Milk Product Order
1992 which controls the production, supply and distribution of milk and milk products [List
III Entry 33-Trade and Commerce in, and the production, supply and distribution of
(a) the products of any industry where the control of such industry by the Union is
declared by Parliament by law to be expedient in the public interest and imported goods
of the same kind as such products] and the Food Safety and Standard Act 2006 (Union law)
[List III Entry 18-Adulteration of foodstuffs and other goods] which controls the quality
of milk. Mother dairy contended that the legislation is discriminatory in nature as it allows
Amul (Gujarat based company) to supply milk in the State of Gujarat without any sanitary
inspection. The defence of the State Government is that they have the right to regulate any
activity that poses a threat to the public health and safety of its citizens. Amul is an
established brand in Gujarat that supply milk in tetra packets which have a shelf life of 6
months and the milk can be consumed raw without any health issues as Amul milk goes
through several stages of inspection after purchasing the milk from Gujarati dairy farmers to
ensure quality of milk. Establish the legislative competency of the impugned enactment?
Establish whether the impugned enactment offends free flow of trade and commerce under
the Constitution of India and is hit by Article 301 of the Constitution of India? Establish
whether the impugned enactment can be enforced against Mother Dairy which is a company
hailing from Uttar Pradesh? [10 marks]

Model answer
Introduction
Under the Constitution of India, we have 3 organs of government the Executive,
Legislature and the Judiciary. All have separate functions to perform. India has a federal

7
structure of government in which there is distribution of legislative, executive and judicial
powers between the Centre and the states. The Constitution imposes limitation on the
legislative body’s law-making powers. The Constitution imparts validity to all laws made by
the Parliament and the state legislatures. Article 245 gives the legislative bodies the plenary
powers to legislate while Article 246 demarcates the fields of legislation. In the 7 TH Schedule
to the Constitution, List I have 97 entries which concerns matter of national interest on which
only the Parliament can legislate. List II has 66 entries which concerns matters relating to the
local interest of the states on which only the state legislatures can legislate. The Concurrent
List III has altogether 47 subject matters which are of common interest to the centre and the
states on which both can legislate.

Relevant case law

There is no constitutional mechanism to resolve encroachments on unauthorized fields
of legislation. The Canadian Courts have evolved the doctrine of pith and substance in
Cushing vs Dupey case to establish the legislative competency of an enactment. Since the
nature of our federation resembles that of the Canadian Constitution, the Privy Council in
Prafulla Kumar vs Bank of Commerce evolved a 3-pronged test to establish the legislative
competency of an enactment. 1/what is the pith and substance of the enactment? 2/Is there
any incidental encroachment on unauthorized fields of legislation? 3/ What is the extent of
that encroachment?

Legal reasoning
The pith and substance of the impugned enactment is sanitary inspection of imported
milk and banning the import of contaminated milk. The law focusses on consumer protection
and the objective of the law was to safeguard public health. It falls within the scope and ambit
of Entry 6 of List II. It has incidentally encroached on Entry 33 of list III which allows the
Parliament to make a law in the public interest to control such industries with respect to the
production, supply and distribution of products. So, there is one union law the Essential
Commodities Act 1955 [ECA1955] under which the Milk and Milk Product Order of 1992
was introduced the purpose of which was to control and regulate the production, supply and
distribution of milk and milk products and the other Union law Food Safety and Standards
Act 2006 [FSSA2006] which was made from Entry 18 of List III was to prevent adulteration
of food. The pith and substance of ECA1955 was to establish an industry to control and
regulate the production, supply and distribution of milk as a product which is different from
controlling the quality of the milk by inspecting the product. FSSA2006 prevents adulteration
in food which is again different from contamination of milk. Therefore, the pith and
substance of all the 3 laws are different. The encroachment is only incidental. Every entry in
the list must be given its widest import so as to save the law. Hence, the state of Gujarat has
the legislative competency to enact the law.

Trade and Commerce

Introduction
The Constitution protects free flow of trade and commerce under Article 301 for
economic unity of the country as a whole. There are constitutional limitations enshrined in
Article 302 in which Parliament has the power to restrict trade and commerce in public
interest. Article 302 is made subjected to Article 303 [1] in which both the Parliament and
state legislatures cannot make laws to give preference or discriminate one state over the other.
This rule is relaxed in Article 303 [2] in which Parliament and not the state legislatures can

8
 make laws to give preference or discriminates one state over the other if there is scarcity of
goods. Article 304 [a] protects anti-discriminatory legislation which treats similar goods
similarly. Article 304 [b] has no such prohibition because of the non-obstante clause which
means no matter what is stated in Articles 301 and 303, state legislatures can make such laws
but they have to comply with 3 constitutional requirements-1/previous sanction of the
President of India. 2/Reasonable Restriction. 3/Public Interest.

Relevant Constitutional provision.

The impugned enactment falls within the scope and ambit of Article 304 (b) as it is a
non-taxing legislation which treats similar good differently.

Legal Reasoning
Whether the local dairies in the State of Gujarat are also subjected to the same
inspection. if yes, then the legislation is not discriminatory.
The law requires sanitary inspection of imported milk and ban imported milk which is
contaminated. If local dairies in the state of Gujarat who supplies milk in the state are also
made subjected to such sanitary inspection and prevent them from selling contaminated milk,
then the law is not discriminatory in nature because it treats similar goods in the same way.
Hence, it can be argued that the law is a reasonable restriction and made in the public interest
since it focusses on consumer protection and public health. Established brands like Amul
within the state are given exemptions under the law. Hence, within the state there exist
discrimination as well between the local dairies and established brands like Amul. If other
established brands like Amul entering into the state of Gujarat are also not made subjected to
such inspection, then the law isn’t discriminating at all. If the bill had received the previous
sanction of the President of India before it was introduced in the state legislature, then the
legislation can be saved under Article 304 [b]. However, if no such sanction was obtained
from the requisite authority, it may come across as a mere procedural irregularity which can
be rectified under Article 255. Mother Dairy can file a case under Article 226 of the
Constitution for judicial review of the impugned enactment challenging the legislative
competency and that the legislation offends free flow of trade and commerce under the
Constitution of India. However, the law does not offend free flow of trade and commerce and
is not hit by Article 301.

Doctrine of Territorial Nexus

The Supreme Court of India in RMDC vs State of Bombay and Tata Iron Steel vs.
State of Bihar had laid down a test to establish territorial nexus. Since Mother Dairy was
supplying milk into the state of Gujarat and they were subjected to the sanitary inspection of
the milk and the state can ban the milk if it was contaminated. Hence, there is sufficiency of
nexus between the subject and the object. And it is real and not illusory in nature.

4. There is a current outbreak of a viral infection H7N9 Avian influenza throughout the world
and is spreading in India on a large scale. It is a rare infection and can be defined as an
outbreak. A revisit through history discloses that such outbreaks were vast, deadly and
basically changed the course of human history. H7N9 Avian influenza virus are the most
potential pathogens to cause mass destruction in the world. Disaster Management Act 2005
[DMA2005] offers an array of weapons and combat disasters, establishing a multinational
system with government and authority constituted under and brought within the provisions of
DMA2005 operational at the national, state, district and local levels. Currently India doesn’t
have a good and reliable medical support to tackle the disaster. Adopting the policy

9
prevention is better than cure, the President of India issued a Proclamation of Emergency
(PoE). Notification was issued under the DMA2005 to suspend Article 19 and a Presidential
Order was issued suspending the right to move the Courts to enforce Articles 14 and 22 of the
Constitution of India under the DMA2005. Section 51 of the DMA2005 punishes anyone
who refuses to comply with the orders of the Union Government for a maximum period of 1
year or fine or both. Many states in India contended that federal political systems combine
principles of shared rule with self-rule in their territorial designs but the Constitution of India
fosters a system of co-operative federalism and the imposition of PoE was non-consultative.
The defence of the Union Government was that internal disturbance may even be nature-
made and would include epidemics, earthquakes, cyclones, etc. which may paralyse the
government of the state and put its security in jeopardy . The States in India invoked the
original jurisdiction of the Supreme Court of India under Article 131 contesting that the
imposition of the PoE was not within the scope and ambit of Article 352 of the Constitution.
A huge number of individuals who failed to comply with the DMA2005 were arrested by the
police. A writ petition was filed by the detenues under Article 32 of the Constitution alleging
that public health and safety is a state matter and the Union Government has no power to
detain them under the DMA2005. Establish the maintainability of the suit under Article 131
of the Constitution when there is a dispute between the Centre and the States? Establish
whether the contentions raised by the detenues fall within the mischief of the Presidential
Order issued under Article 359 and whether a writ of habeas corpus would lie? [10 marks]

Model answer
Introduction
The emergency provisions are enshrined in Part XVIII of the Constitution. When
there is an emergency, the structure of the Constitution which is federal in nature changes
into unitary and there is constitutional enhancement of powers. Article 352 empowers the
President of India to issue PoE when he is satisfied that there exists a grave emergency
whereby the security of India or of any part of the territory of India is threatened whether by
war, external aggression or armed rebellion. The PoE must be approved by both the Houses
of Parliament within a period of 1 month and it is valid for 6 months only. Whereas, Articles
353 deals with the rearrangements of the legislative and executive powers between the centre
and the states, the Parliament under Article 250 can make laws on the state list and in Article
354 there is redistribution of revenues between the centre and the states. Under Article 358, a
law can suspend the operation of Article 19 and the President under Article 359 can issue a
Presidential order suspending the right to move the Courts for the enforcement of any of the
fundamental rights enshrined in Part III of the Constitution. In Article 358 the right is
suspended where else in Article 359 the remedy is suspended.

Relevant constitutional provision

Article 131-the Supreme Court has original jurisdiction in any dispute between the
centre and the states where the dispute involves any question of law or fact on which the
existence or extent of a legal right depends.
In the case of State of West Bengal v. Union of India   (1963), the Parliament passed
the Acquisition and Development Act, 1957, which gave the Central Government the power
to acquire land vested with the state government. This was the first case when Article 131
was invoked by the state government against the central government. The Supreme Court
stated in this case that our Indian Constitution is not entirely federal, and no compensation
was given to the West Bengal government. However, it did not discuss the maintainability of
a suit under Article 131. 

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 In State of Rajasthan vs UOI a number of states filed a suit in the original
jurisdiction of the Supreme Court under Article challenging the constitutional validity of the
imposition of the President’s Rule. The states argued that the directive which came from the
Union Home Minister requesting them to dissolve the legislative assembly because the
previous ruling party has lost the election in the centre and the will of the assembly having
the same ruling party must be ascertained, is constitutionally invalid. The majority gave the
view that where the dispute has a political complexion and it deals with matters of political
expediency, the suit is not maintainable under Article 131 as it does not involve a question of
fact or law which requires the Court to determine the existence of a legal right since there is
no opposing claims and the states couldn’t be consulted before imposing the President’s Rule.
The Court further observed that the assessment of the situation under Article 356 whether the
PR should be imposed or not is a matter of policy into which the Courts cannot enquire.
However, Justice Chandrachud who was part of the majority opinion did not concur with the
judges on this opinion. He observed that there is in fact a dispute between the states and the
centre here as the states disputed the ground on which the PR was imposed. Hence, there was
an opposing claim which involves a question of both fact and law. This requires the
determination of an existence of a legal right. Hence the suit was maintainable under Article
131.
Most commonly, such disputes arise when the centre encroaches upon the powers of a
state by enacting legislation on matters that fall on the state’s list or when the centre enacts
other laws that affect the state’s statutory or constitutional rights. The matter at hand of the
centre and state dispute is the Disaster Management Act of 2005, which was implemented
due to H7N9 Avian Influenza. The Act has drawn discontent among states because central
guidelines are binding on them, even though public health is a state department. The drive to
pass central laws that interfere with state rights stems from the ambiguity of Article 131,
which gives Parliament the freedom to change or pass laws without fear of consequences.
The purpose of Article 131 of the Indian Constitution is to preserve the spirit of cooperative
federalism. Under this provision, the Supreme Court has initial jurisdiction over disputes
between states or between the centre and state.

Legal reasoning
Since the dispute here was on the ground on which the PoE is imposed and thereby
not falling within the scope and ambit of Article 352, there is an opposing claim which
requires the determination of an existence of a legal right. Therefore, the observation made by
Justice Chandrachud in State of Rajasthan vs UOI is appealing and can be used in the
present case and argued that the suit is maintainable under Article 131 of the Constitution.
Whether the imposition of PoE is constitutionally valid or not will be decided on the merits of
the case by the Court. In the interim, the preliminary objection should be sustained in favour
of the states.

Writ of habeas corpus.

The Presidential Order issued under Article 359 bars the jurisdiction of the Courts to
enforce Articles 14 and 22 under the DMA2005. In Makhan Singh vs State of Punjab and
ADM Jabalpur case the Supreme Court observed that the Presidential Order is a complete
bar on the jurisdictions of the Courts and all matters that fall within the purview of the PO is
immune from judicial review during the pendency of the PoE. However, Justice Subha Rao
in Makhan Singh vs State of Punjab gave a dissenting opinion that the detenues have a
locus standi under Section 491 (b) of the Criminal Procedure Code 1973 to challenge the
detention order as being invalid since it was violating their fundamental rights as the

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 procedures mentioned in Article 22 were not complied with by the impugned law. Section
491 [b] was incorporated in the Criminal Procedure Code pre-commencement of the
Constitution and the jurisdiction of the High Court under this section is guaranteed by way of
continuation in the Constitution. It therefore creates an independent right irrespective of the
jurisdictions of the High Court under Article 226 and the Supreme Court under Article 32.
Hence, a writ of habeas corpus would lie if the law is void. Both the majority and the
minority in Makhan Singh agreed that matters which fall outside the mischief of Article 359
can be challenged on their merits even during the PoE like excessive delegation and mala fide
intention. However, it can be argued in favour of the detenues that the contentions raised by
them in that public health and safety is a state matter and the union government has no
authority to detain them under the DMA2005 is a matter which falls outside the mischief of
the PO. If DMA2005 is encroaching on state liberty, then there is a question of legislative
competency which may fall outside the mischief of PO but if the challenge is on the detention
order being illegal then the arguments are to revolve around Article 21 that the detention was
not in accordance to PEBL. In Maneka Gandhi vs UOI the majority observed that PEBL must
comply with SDPL. Hence, the legislation which is challenged must take a journey from 22
into 21, 19 and 14 which are all in the PO except 21. In times of emergency the state has an
overriding power to protect the interest of the country as a whole. And under Article 257, the
union government can issue directions and the state has to comply and failure of which has a
constitutional sanction under Article 365 which can lead to imposition of PR since there is a
constitutional obligation on the part of the union government to ensure that all state
governments function in accordance to the provisions of the Constitution to avoid
constitutional breakdown of state machinery.

5. Recently the State of Madhya Pradesh conducted the Legislative Assembly elections. There
are 230 contested seats in the Legislative Assembly but not a single political party was able to
garner sufficient seats to form the government. It resulted in a hung Assembly. However, BJP
has won 92 seats the highest in the election results. BJP was successful to invite BSP and
other independent candidates to form a coalition government. Hindustan Times published an
article the next day titled “A dead democracy in modern India” in which the editor of the
newspaper narrated accusing the BJP of corruption and horse trading. The next day the State
witnessed a large protest by supporters of democracy just in front of the Vidhan Sabha
shouting slogans at the newly formed government and demanding its immediate resignation
and fresh elections. The public expression of objection soon turned into a violent protest and
the police were not able to contain the situation any longer. What role can the Governor of
the State play in such a situation being the vital link between the Centre and the State under
the Constitution of India? And what techniques are designed by the framers of the
Constitution for Union control over States? [10 marks]

Model answer
Introduction
The Governor of the States are appointed by the President of India under Articles 155
and 156. The Governor of a state holds office during the pleasure of the President. In B. P.
Singhal vs UOI the Supreme Court of India observed that the doctrine of pleasure in India is
not an absolute one but is subjected to the constitutional limitations. The Governor is the
agent of the federal government and he serves as the vital link between the centre and the
states. The framers of the Constitution have designed techniques for union control over the
states. In times of emergency, when the state government cannot function in accordance to
the provisions of the Constitution, the Union government can impose PR in that state.

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 Relevant constitutional provisions
Article 356 of the Constitution empowers the President of India to impose the PR
when the state machinery has broken down. The PR must be approved by both Houses of
Parliament within a period of 2 months. The PR is only valid for 6 months and can be
continued in force for a maximum period of 3 years. The PR can be extended for a period of
1 year provided it can be certified by the Election Commission that it is not feasible to
conduct elections in the near future or there is already a PoE in operation. The President of
India assumes all executive powers of the Governor and the other authority in the State under
Article 356. The President of India also assumes legislative powers through the Parliament
under Article 356 but he cannot assume the powers of the High Court of the State. Under
Article 357 the President of India can modify all Articles relating to distribution of revenues
between the centre and the states and extend its application to the states accordingly.

Role of the Governor.

Techniques of union control over the states
There is a constitutional obligation on the part of the Union Government to protect the
states against external aggression and internal disturbances under Article 355. It was
observed by the majority in S. R. Bommai vs UOI that if there are internal disturbances in
the state, the Union government can give warning to the erring state. If the internal
disturbances cannot be contained any longer, then the Governor of the State can send a report
assessing the situation under Article 356 to the Union Government. The union government
can under Article 257 give directions to the state and failure to comply with the same carries
a sanction under Article 365 which will be considered as state machinery cannot be carried
out in accordance to the provisions of the Constitution.
If the President of India is satisfied that the constitutional machinery of the state has
broken down, he can suspend the assembly first. But first, the Governor must prepare a report
and submit the same to the Centre. However, internal disturbances by itself cannot be a
ground to impose the PR after S. R. Bommai case and neither can corruption and
maladministration can be grounds to impose the PR. The PR must first be approved by both
the Houses of the Parliament before dissolving the legislative Assembly. After approval the
President of India can impose the PR. The Supreme Court has adopted the recommendations
made by the Sarkaria Commission which was constituted to study the centre state relations.
After its maximum abuse by all political parties at the centre it became a death letter instead
of a dead letter as suggested by DR. B. R. Ambedkar in the Constituent Assembly debates.
The Supreme Court of India in S. R. Bommai vs UOI observed that PR can only imposed if
there is political crisis, internal subversion and failure to comply with directions of the Union
Government.

6. Centre and states are seen to exist on the basis of equality, neither has the power to make
inroads into the defined authority and functions of the other unilaterally. However, such
purist view of federalism is rarely, if at all, seen in practice. Asymmetrical federalism is
understood to mean federalism based on unequal powers and relationships in political,
administrative and fiscal arrangements of spheres between the units constituting a federation.
The framers of the Constitution of India had designed temporary, transitional and special
provisions for the same but due to administrative and political exigencies what we have is a
centrally managed asymmetrical federalism which holds true for Indian federalism as a
holding together federalism rather than coming together federalism. Discuss. [10 marks]

Key answer

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 1/Explain distribution of powers in a federal Constitution.
2/Explain Asymmetrical federalism.
3/Explain temporary, transitional and special powers under the Constitution of India.
4/Briefly explain the provisions of Article 370.
5/Presidential Orders issued under Article 370 after dissolution of CA of Jammu and Kashmir
and why it is unconstitutional. The arrangement was only temporary until the state of Jammu
and Kashmir drafted their own Constitution.
6/Explain briefly Article 371-A to 371-J.
7/Give examples of Nagaland, Assam and Manipur as to how these provisions give more
powers to the Union government when there is a law-and-order situations in these states.
Establish how all these provisions show that the states are centrally managed by the union
government even though they have special status under the Constitution.
Conclusion-Although some states are granted special provisions to administer their own
affairs while others are not, the asymmetrical arrangement best suits the administrative and
political exigencies designed by the Constitution to centrally manage them. Hence, the
argument that asymmetrical federalism is centrally managed because the nature of the
federation was such. It wasn’t where the constituent parts came together to form the
federation due to some common goals but it was brought together due to some prevailing
circumstances where many of the 600 or so princely states surrendered the British Suzerainty.
The Constitution has many unitary features showing that the centre is strong and the states
are weak. The federation has to hold together all the states in fear of them seceding from the
union.

7. Answer any two of the following questions: -

[a] Techniques of Union control over states.

Normal Times-directions to the state governments/delegation of union functions/All-
India services/grants-in-aid/inter-state councils/interstate commerce.
Emergency-imposition of PoE and PR

[b] Constitutional limitations on the taxing powers of state legislatures and underlying
principles of distribution of tax revenues between centre and states.
[Follow the chart given on the board]
You must not include distribution of non-state revenues between the centre and the
states and finance commission and the 3 different funds constituted but the other
remaining part of the chart would be your answer.

[c] Collegium system.

1/Explain Article 124, 217 and 222.
2/First, Second and Third Judges case.
3/collegium system.
4/NJAC.
5/Forth Judges case

[d] Residuary powers. [2 x 5=10 marks]

1/Article 248 read with List I Entry 97.
2/law pronounced by the Court in UOI vs H. S. Dhillon and International Tourist
Corporation vs State of Haryana.

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