National Law University Odisha

READING MATERIAL

CONSTITUTIONAL GOVERNANCE

SEMESTER – II

COURSE: B.A.LL.B./ B.B.A.LL.B.

January 2023 to May 2023

Course Credit: 4

Course Instructors:

Rishika Khare
Assistant Professor of Law
([email protected])

Ms. Athena Solomon K.

Research-cum-Teaching Assistant
([email protected])

Ms. Kriti Srivastava

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COURSE DESCRIPTION:

Constitutional Law is taught through two core papers - Constitutional Law I – Constitutional

Governance offered in Semester II and Constitutional Law II – Civil Liberties offered in

Semester III. This course is the first of the two core papers. The course seeks to introduce

students to the constitutional framework of constitutional governance and a critical appraisal

of how this framework has been in operation for the last 70 years. The course will trace

through various judgements by the constitutional courts in India to assess the difference

between the constitutional mandate and the actual practice. The jurisprudential development

around limitations on state power will be particularly in focus throughout the course.

Discussions on the listed topics will also be shaped by the political, economic and social

developments that have or are taking place in the country.

The teaching methodology in this course is premised upon the participatory involvement of

the students. Readings have been assigned for all the classes. The reading list is dynamic and

is subject to change during the semester. Students are expected to complete the readings in
advance and have a reasonable sense of the main points discussed in each of the readings.

COURSE LEARNING OBJECTIVES:

1. To acquaint students with the governance structure of the country as provided

in the Indian Constitution.

2. To enable students to interpret the interdependence and independence of the

State organs, their limitations and the excess of power.

3. To equip students for assessing how the country's governance complements

constitutional ideals.

4. To make students evaluate the role of public opinion, interest groups, political

parties, campaigns and elections in a democracy.

5. To be able to appreciate civil engagement in Indian politics and governance.

6. To enable students to read the Constitution in a way that moves away from the

elitist concerns and to protect the interests of the vulnerable sections of the

Indian society.

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EXPECTED LEARNING OUTCOMES

At the end of the course the students will be able to:

1. Assess the significance of the division of powers amongst the different State organs

and at different levels of political authorities

2. Deconstruct the social and political context in relation to which the powers and

related procedures of the organs have been conceptualized

3. Determine the scope and nature of the governance mechanism laid down in the

Constitution

4. Identify possible violations of limitations provided in the constitution during the

exercise of legal and political powers by state organs in various factual contexts.

5. Identify possible misuse of constitutional powers to satisfy the political agendas.

COURSE STRUCTURE
Module No. Module title Hours
Module I Introduction to Constitution and Constitutional Law 4
Module II Union and State Executive 10

Module III Union and State Legislature 12

Module IV Union and State Judiciary 14
Module V Centre-State Legislative Relations 6
Module VI Centre-State Administrative and Financial Relations 8
Module VII Trade, Commerce and Intercourse 6
Module VIII Election Commission of India 6
Total Hours 64

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 TEACHING PLAN

Module I – Introduction to Constitution and Constitutional Law

This module will introduce the students to the history of the Constitution and some key
Constitutional concepts to examine the process of the creation of the Constitution. The module
will lay down the fundamentals on ‘how to read the Constitution’ by introducing the concepts
like separation of powers, rule of law, constitutionalism and others. The module also looks at
the transition from a pre-constitutional to post-constitutional era and the resultant change in
rights of the Indian citizens. The aim is to move away from the elitist reading of the Constitution
and to interpret it for addressing the interests of the vulnerable sections of the society.

LECTURE No. 1 – Constitution, Constitutional Law, Constitutionalism and Transformative

Constitutionalism, Basic Constitutional Principles - Federalism, Rule of Law, Separation of
Powers, Checks and Balances and Preamble
Readings
● Gautam Bhatia, Transformative Constitutionalism (Harper Collings, 2019) Prologue.
(Refer to Reading Material)
● Akash Singh Rathore, ‘Who wrote the Indian Preamble to the Indian Constitution? This
is one of the secrets that this book probes’, The Scroll (December 23, 2019) (Download)

LECTURE no. 2 – Indian Constitutional History – Contributions of the Government of India

Act, 1919 and Government of India Act, 1935 in shaping of the Indian Constitution;
Constituent Assembly and Framing of the Indian Constitution
Readings
● Yale University, ‘Rohit De: Law and Life in India’ (Download)
● D.D. Basu, Introduction to the Indian Constitution (Lexis Nexis, 2011) Chapter 1 &
Chapter 2 (Refer to Reading Material)

Module II – Union and State Executive

This module focuses on the structure, power and duties of the union and state executive. While
the Constitution does not mention the type of government India is to follow, the structure
reflects the Parliamentary form of government. Thus, this module focuses on the question of
what kind of executive system of governance India follows and how that contributes in limiting
the power of the sovereign and the realisation of the democratic rights of the Indian people.

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Given the vast political influence and participation in the executive, it is essential to check the
assumption and execution of unfettered power, therefore this module also looks at the limits on
the executive power.

LECTURE on. 3 - Structure of the Union and State Executive, Presidential and Parliamentary
Forms of Government, Appointment and Removal Process

Reading
● Gonzalo Villalta Puiz, ‘Parliamentary versus Presidential Government’ (2002) 74(5)
Australian Quarterly 9 (Download)

LECTURE no. 4 - Domain of Executive Power, Relationship between President and Council
of Ministers, Judicial Review of Ministerial Advice
Readings
● Ram Jawaya Kapur v. State of Punjab, AIR 1955 SC 549 (Download)
● Shamsher Singh v. State of Punjab, AIR 1974 SC 2192 (Download)
● UNR Rao v. Indira Nehru Gandhi, (1971) 2 SCC118 (Download)

LECTURE no. 5 - Legislative and Pardoning Powers of the Executive

Readings
● K.M. Nanavati v. State of Bombay, 1961 AIR 112 (Download)
● State of Orissa v Bhupendra Kumar Bose, 1962 AIR 945 (Download)

LECTURE no. 6 – Role of Governor in Indian Polity

Readings
● Nabam Rebia and Bamang Felix v. Deputy Speaker, Arunachal Pradesh Legislative
Assembly and Ors, 2016 SCC OnLine SC 694 (Download)
● Shivraj Singh Chauhan v MP Assembly Speaker, B.P. Singhal v Union of India, (2016)
6 SCC 635 (Download)

LECTURE no. 7 – Rethinking the Executive

Reading
● Madan Murari Verma v Chaudhary Charan Singh AIR1980 Cal. 95 (Download)

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 Module III – Union and State Legislature

This module aims at familiarizing the students with the legislative process in the country. The
module will introduce to the students the concepts of different bills, powers of assent, votings,
and brief brush upon the electoral process. The main pillars of the module are the anti-
defection law and powers of the speaker which has seen high possibility of abuse of power in
the Indian political regime. The module will highlight the betterment brought about by the anti-
defection and also the parallel challenges created by it. Further, the module looks at the powers
of the speaker or the chairman in great detail through decided cases to study the possible
derailment of Constitutional values while deciding questions of defection, casting vote or while
determining the nature of the bills.

LECTURE no. 8 - Legislative Function, Composition of the Houses, Electoral Process

LECTURE no. 9 – Overall Scheme of Qualifications and Disqualifications: Constitutional

and Statutory
Readings
● Chief Election Commissioner v. Jan Chaukidar, 2013(8) SCALE487 (Download)

LECTURE no. 10 – Anti-Defection Law

Reading
● Shri Kihota Hollohon v. Mr. Zachilhu and Ors, 1992 SCR (1) 686 (Download)

LECTURE no. 11 – Anti-Defection Law

Readings
● Keisham Meghachandra Singh v. Speaker Manipur Assembly, (2020) SCC OnLine SC
55 (Download)
● Shrimanth Balasaheb v. Speaker Karnataka Assembly, 2019 SCC OnLine SC 1454
(Download)

LECTURE no. 12 - Legislative Privileges and their relationship with Fundamental Rights
Readings
● Gunupati Keshavaram Reddy v. Nafisul Hasan & the State of UP, AIR 1952 SC 636
(Download)
● MSM Sharma v. Shri Krishna Sinha, AIR 1959 SC 395 (Download)
● Raja Ram Pal v The Hon’ble Speaker, (2007) 3 SCC 184 (Download)
● P.V. Narsimha Rao v State, (1998) 4 SCC 626 (Download)

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LECTURE no. 13 – Legislative Procedure, Money Bill
Readings
● Shivam Shankar Singh, ‘Is Parliament’s Question System Broken? - Here’s How to fix
it! (Download)

Module IV – Union and State Judiciary

This module discusses the structure and functioning of the judiciary. The constituent assembly
decided to retain the same judicial system as the British system for post-colonial India as well.
The particular topics in focus will be the appointments, transfers of judges including the
collegium system; the removal of judges and the jurisdictions of the constitutional courts; the
working of the lower judiciary in India; and the independence of judiciary. Emphasis during
the discussion will be on the current debate on the correctness of the collegium system, the lack
of transparency in the Judiciary and the possible political influence.

LECTURE no. 14 – Appointment of Judges – Part I

Readings
● Rangin Tripathy & Soumendra Dhanee, ‘An Empirical Assessment of the Collegium's
Impact on the Composition of the Indian Supreme Court’ (2020) 32 NLS. Rev. 118
(Download)

LECTURE no. 15 – Appointment of Judges – Part II

Reading
● Rangin Pallav Tripathy, ‘Supreme Court Collegium and Transparency: An Empirical
Inquiry’ (2021) 56(22) Economic and Political Weekly (Download)
● Recommended – P.L. Lakhanpal v. A.N. Ray and Ors., AIR 1975 Del 66 (Download)

LECTURE no. 16 – Removal of Judges – Part I

Reading
● Recommended – Sub-Committee on Judicial Accountability v. Union of India, AIR
1992 SC 320 (Download)

LECTURE no. 17 – Removal of Judges – Part II

Readings
● Dr. Rangin Pallav Tripathy, ‘Standard of Proof Against Judges: A Case for a Lower
Threshold’ (2018) 5(2) NLUJ Law Rev. 85. (Download)

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LECTURE no. 18 – Transfer of Judges and Judicial Independence
Reading
● Rangin Pallav Tripathy, ‘Tahilramani’s resignation: Mysterious ‘public interest’’
Deccan Herald (September 11, 2019) (Download)

LECTURE no. 19 - Original Jurisdiction, Appellate Jurisdiction, Special Jurisdiction

LECTURE no. 20 – Advisory Jurisdiction and Subordinate Judiciary

Readings
● Rangin Pallav Tripathy, ‘All India Judicial Service won’t solve pendency. And no, the
IAS, IPS parallel doesn’t work’ The Print (November 16, 2021) (Download)

Module V – Centre-State Legislative Relations

This module will expand on the concept of federalism introduced to the students in the first
module. Defined powers, jurisdictions and spheres of the Centre and the State organs are the
stem of any federal structure. The Indian Constitution divides the powers between the centre
and the states in the spheres of legislature, administration and finance, but follows a unified
judiciary. This module focuses on the legislative relations between the centre and the states.
Remedies to the encroachment of legislative powers, or possible conflicts will be discussed
through cases laws as examples and the doctrines related to the interpretation of boundaries
of law marking powers of the Union and the States.

LECTURE no. 21 – Distribution of Legislative Powers

Reading
● Moushumi Das Gupta, ‘How rising Centre-state friction is chipping away at Modi’s
‘cooperative federalism’ mantra’ The Print (November 19, 2020) (Download)

LECTURE no. 22 – Ancillary and incidental powers, Doctrine of Pith and substance;
legislative conflict and repugnancy
Readings
● Vijay Kumar Sharma v. State of Karnataka, 1990 AIR 2072 (Download)

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LECTURE no. 23 – Doctrine of harmonious construction, doctrine of colourable legislation,
Revocation of Special Status of J&K

Module VI – Centre State Administrative & Financial Relations

This module on Centre-State relations is in furtherance to the previous module and focuses on
the federal structure of the Constitution with an unitary bias with respect to administrative and
financial powers. As a part of the administrative relations, the module will also discuss the
emergency powers. Focus will be on assessing the excess of powers and limitation of liberties
that has happened historically in case of application emergency laws. Individual liberties will
again be a focus when discussion relating to COVID pandemic and the division of power
therein is undertaken. A lecture will be devoted to discussing the status of removal of the
Special Status of J&K.

LECTURE no. 24 - Centre's Control over states, Intergovernmental delegation and

cooperation
Reading
● ‘Covid -19 Crisis and the Centre-State Relations’ (2021) 56(17) Economic and Political
Weekly (Download)
● Recommended – Pankhuri Agarwal, ‘Covid-19 and Dwindling Indian Federalism’
55(26-27) Eco. & Pol. Wkly (Download)

LECTURE no. 25 – National Emergency

Readings
● ADM Jabalpur v. Shivkant Shukla, (1976) 2 SCC 521 (Download)

LECTURE no. 26 – President’s Rule in States

Reading
● S.R. Bommai v. Union of India, AIR 1994 SC 1918 (Download)

LECTURE no. 27 - Financial Relations between the Centre and the States – Classification of
Taxes, Scheme of Distribution, Finance Commission
Reading
● PRS India, ‘Report on the 15th Finance Commission for 2021-26’ (Download)

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 Module VII – Inter-State Trade, Commerce and Intercourse

This module will analyse the interaction of states among themselves and the centre for trade
and commerce and the fiscal powers and boundaries of the states and the centre. The module
will read the trade and commerce freedoms in comparison with the individual civil liberties of
trade and commerce. The students will be familiarised with the regulatory and restrictive
measures that are allowed to be taken by the state against the freedom of trade and commerce
which may not in itself constitute as a restriction.

LECTURE no. 28 - Meaning of Trade, Commerce and Intercourse; Issues of freedom of trade
and commerce and its Fiscal measures
Readings
● EPG Pathshala – Module 28: Interstate Trade and Commerce (Download)

LECTURE no. 29 - Direct and Immediate Restrictions; Regulatory Measures, Compensatory

Taxes; Restrictions on trade, commerce and intercourse among states, Powers of Parliament
and State Legislatures; State Monopoly
Readings
● Jindal Steel v. State of Haryana, 2016 SCC OnLine 1260 (Download)
● Mekhla Anand, ‘Entry Tax – The Quandary Continues …’ Mondaq (August 30, 2017)
(Download)

Module VIII – Election Commission of India

Elections in a country determine the execution of the democratic choices of its people.
Therefore, in India, the role of the election commission becomes important. This module will
build on the discussions of the electoral process undertaken in Module III to briefly introduce
to the students the powers and functions of the Election Commission of India and particularly
on its role in preserving the democratic values in the Indian elections and political tussle in
conducting free and fair elections.

LECTURE no. 30 – Composition, Powers, Functions and Independence

Readings
● T.N. Seshan, Chief CEC v. Union of India, 1995 (4) SCC 611 (Download)

LECTURE 31 – Review of the Course

LECTURE 32 – Review of the Course

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 xlii THE TRANSFORMATIVE CONSTITUTION

Phule's critiques of caste

by using the vocabulary of
Alavery
freedom, Tarabai Shinde's critiqueof gender relations in y
of equality, the Ad-Dharmi Movement's 'communal eoal. ng
ana
B.R. Ambedkar's
of access
framing
the public sphere, Gandhis
to
of his
egal
anti-boycott movemen
in termeent
uncompromising
itarianim
of the freedom of speech, and many more-Indians
of
concept rights, framed it to respond to the
the
ans ex
excavated the advocacy
time, and made it their own.""
circumstanc.h circumstances
of the
The second objection is that transtormative
constinti.

rigoursonalof istm
takes a historical approach without undergoing the ful
ull ion
historical method. To an extent, this peril exists with anv
to legal and constitutional he nature
interpretation. The nature of approad
of the
enterprise requires the interpreter to draw conclusions fromthe legal
and,
,sociology, andhisottory
lesser extent, from political philosophy,
to a

disciplines. This remains a fraught enterprise. As Alessandto P

observed, while discussing Italian terror trials of the 1970s: rteli
. .
the
magistrates were thus involved in reconstructing the nas.

redefining its meaning, and attempting an overall interpretationpast,

These are historical tasks, and it is appropriate to
examine the wau
they were performed from the point of view of the theory anday
method of history...112

The criticism is well taken, and, as will be clarified in the ne

next
section, transformative constitutionalism makes no claim to superio
truth, whether legal or historical. It is also to important point
out, however, that the form of interpretation is
constitutional, not
historical. Transformative constitutionalism does not seek to engage
in purely historical
a
enquiry. Rather, it takes the constitutional
text and the principles embedded in it as its starting point, and
attempts to place them in their extended historical context in order to
understand their meaning. This form of 'contextual
interpretation is
the staple feature of numerous constitutional courts
(such as those
of Canada and South Africa). While it
must, of necessity., remain
 The Past Is a
Foreign Country xliii

eHsitior to historiography and the historical method, it need not be

udged on preciscly the same yardstick that we would judge a claim

that is made within the discipline ofhistory.

13

VI. The Contrapuntal Canon

Finally, to reiterate, this vision of the transformative Constitution
does not make any claims to universal truth. It does not setitself up as
the correct interpretation of the Constitution, or necessarily even as a
superior interpretation of the Constitution. That would be a perilous
claim, given the polyphony of the Constituent Assembly, the sheer
diversity of its voices, as well as the silences and absences (of the
Muslim League, the Socialist Party, and Gandhi, to name just three)
that surrounded the Constitution-making process.4 Besides, grand
narratives have a tendency towards becoming totalitarian.s Any
historically grounded interpretation must therefore acknowledge
its own potential to exclude and marginalize voices from the past,
and commit to remaining both open-ended and subject to revision.
Otherwise, it risks stifling the very Constitution that it intends to
liberate 116 So, my aims are more modest: I seek only to advance one

reading ofthe Constitution that, when viewed in light of its text and
context, is compelling on its own terms.117
Indeed, any attempted task of imposing a single truth upon the
Constitution would be a futile one. As Robert Cover pointed out

in famous essay, 'no set of legal institutions or prescriptions exists

a
it and give it meaning'.118 And
apart from the narratives that locate
narratives are never singular. Through the course of his essay, Cover
explored the proliferation of legal meanings and narratives through
a of
range taken from US history. For instance, in the mid-
examples
challenged
constitutionalists' the US
nineteenth century, the 'radical
between slavery
Supreme Court's interpretation of the relationship
and the constitution. They advanced an insurgent, alternative reading
and a broader
ofthe constitution that used the constitutional
structure

interpretive canon (including the Declaration of Independence)

moral wrong, but that it was
to argue that slavery was not just a
 T r TexNeFORMATYE CoNeTITerroN
liv

is thus an inevitable plurality of meanings

unconstitutional There
the constitutional text, as well as a pluralit
rhat circulates around
of 'narratives' within which the text comes to be located. al

moral tensions arise when

dominant meanings and narratives
ves,
and
as selected by courts, are challenged by dissident individuals and
of meaning.
communities who build alternative systems
comes from within the courtroom
But, in this book, that dissent
are not part 'constitutional
of the traditional
The nine judgements
or tound in popular writing-the
canon, as taught in law schools
Kesavananda Bbarati, Maneka and
canon that is defined by i,
Minerva Mill, Vishaka, and so on. Instead, they include high con
judgements that were reversed by the Supreme Court, dissenting
that remain good law bur
ting
opinions, and Supreme Court judgements
are rarely relied upon or even cited by the contemporary Court. Thie
is a contrapuntal canon.
I I borrow the term contrapuntal from Edward Said,
Edward Said, who
counselled us to read any textual tradition with an effort to c
raw
out, extend, give emphasis and voice to what is silent or marginalh
present'120 From the detritus of the Indian constitutional cano
the dissenting opinions, the overruled high court judgements, and
the ignored or marginalized Supreme Court decisions-there shine
nes
forth the vision ofthe transformative Constitution, and the trinity of
liberty, equality, and fraternity. By reading our constitutional histo
against the grain," it is a vision that is open to us to retrieve ory
and
reclaim.122 That is the task of this book.