LL.M. (Two Years) Sem 1 Constitutional Law Theory and Practice 2015 Dec Question Paper with Solutions

For full marks, cover: what a constitution is and the four jobs it does; why "complete" means more than "written"; the essentials, each with its Indian provision: a source of authority (the Preamble), declared aims (In re Berubari Union and Exchange of Enclaves; Kesavananda Bharati), organs constituted, power divided between organs and between levels (Ram Jawaya Kapur; article 246), rights that limit power (articles 13, 32), an independent judiciary with judicial review (Minerva Mills), supremacy, a balanced amending procedure (article 368), emergency powers with safeguards, and institutions of accountability; form (clarity, length, language); constitutionalism as the final test; a table; and a conclusion.

What a constitution is

A constitution is the body of fundamental rules that sets up the institutions of government. It distributes power among them, regulates the relation between the State and the individual, and provides how those rules may be changed. Every constitution does four jobs: it constitutes the organs, distributes power, limits power and provides for its own change.

3. The organs constituted. It must create the legislature, the executive and the judiciary and say how each is composed. Articles 79 (Parliament), 52 and 74 (the President and the Council of Ministers) and 124 (the Supreme Court) do this in India.

4. Power divided between the organs. No organ should hold all power. India adopts a functional separation with checks and balances. In Ram Jawaya Kapur v. State of Punjab, AIR 1955 SC 549, the Court held that the Constitution does not adopt the doctrine in its absolute rigidity. The functions of the organs are, however, sufficiently differentiated.

5. Power divided between levels. In a large and diverse country, a complete constitution also divides power between the centre and the regions. Article 246 and the three Lists of the Seventh Schedule do this in India.

6. Rights that limit power. A complete constitution guarantees rights that the State cannot override by ordinary law. Part III does this, and article 13(2) makes void any law that takes away or abridges those rights. Article 32 makes the right to approach the Supreme Court itself a fundamental right.

10. Emergency powers with safeguards. A complete constitution plans for crisis without handing over unlimited power. Part XVIII provides for national, State and financial emergencies. After the Emergency of 1975 to 1977, the Forty-fourth Amendment of 1978 tightened the safeguards. It replaced "internal disturbance" with "armed rebellion" and protected articles 20 and 21 from suspension.

11. Institutions of accountability and representation. Free elections, an independent Election Commission (article 324) and a Comptroller and Auditor-General (article 148) keep the government answerable. Citizenship rules (Part II) say who belongs to the political community.

Form: clarity, length and language

1. Clarity. Rules must be definite enough to guide officials and courts.
2. Length. A short text, like the American one, leaves much to courts and conventions. A long text, like India's, settles more in advance but needs frequent amendment.
3. Accessibility. The text should be published and understandable to citizens, so that they know their rights.

Conclusion. A complete constitution creates the organs of government and divides and limits their power. It protects rights through an independent judiciary and provides for its own orderly change. It also states its source of authority and its aims, and prepares for emergencies with safeguards. The Indian Constitution contains all these essentials, and Kesavananda Bharati and Minerva Mills protect them even against amendment. Completeness, finally, depends on practice: a text is complete only when those who govern are actually bound by it.