LL.M. (Two Years) Sem 3 Constitutionalism, Pluralism and Federalism 2015 Dec Question Paper with Solutions

For full marks, cover: constitution and constitutionalism distinguished; the claim explained (McIlwain: a legal limitation on government, the antithesis of arbitrary rule; Friedrich: effective, regular restraints); what makes power arbitrary; the five devices by which the Indian Constitution excludes it: conferred and limited power (articles 245, 13), separation of powers (article 50; Ram Jawaya Kapur), equality as the enemy of arbitrariness (E.P. Royappa, Maneka Gandhi, Shayara Bano), judicial review and the basic structure (articles 32, 368; Kesavananda Bharati, Indira Nehru Gandhi v. Raj Narain, Minerva Mills), and accountability; the test of an emergency (ADM Jabalpur, the Forty-fourth Amendment, Puttaswamy); the limits of the claim; and a conclusion.

Constitution and constitutionalism

Every State has a constitution in the descriptive sense: a set of rules that organises its government. An autocracy has one too, because its rules say accurately that one person decides. Constitutionalism is something more. It is the idea that the power of government is conferred, not original. That power may be used only within limits that a court will enforce.

How the Indian Constitution excludes arbitrary power

1. Power is conferred and limited. The Preamble records that "WE, THE PEOPLE OF INDIA" give the Constitution to themselves. The government is therefore created by the document. Parliament and the State Legislatures make laws "subject to the provisions of this Constitution" (article 245). Any law that takes away or abridges a fundamental right is void to the extent of the conflict (article 13(2)).

2. Power is divided. India has a functional, not a rigid, separation of powers. Article 50 directs the State to separate the judiciary from the executive. In Ram Jawaya Kapur v. State of Punjab, AIR 1955 SC 549, the Supreme Court held that the Constitution does not adopt an absolute separation. It recognises a broad demarcation of functions, with the executive answerable to the legislature. Dividing power prevents any one organ from becoming the sole judge of its own acts.

4. Judicial review guards the guard. Article 32 makes the right to approach the Supreme Court itself a fundamental right. In Kesavananda Bharati Sripadagalvaru v. State of Kerala, AIR 1973 SC 1461, thirteen judges held that the amending power in article 368 cannot destroy the basic structure of the Constitution. So even a constitutional majority cannot remove the limits. In Indira Nehru Gandhi v. Raj Narain, AIR 1975 SC 2299, article 329A(4) had declared the Prime Minister's election immune from every court. The Court struck it down for offending the rule of law and free and fair elections. In Minerva Mills Ltd v. Union of India, AIR 1980 SC 1789, the Court struck down clauses (4) and (5) of article 368, which claimed an unlimited amending power free from review. It held that the power to destroy is not a power to amend.

5. Power is accountable. Ministers answer to the Lok Sabha, elections are periodic, and bodies such as the Comptroller and Auditor-General and the Election Commission check the executive.

2. Limits can be eroded lawfully. Amendments, ordinances and emergency powers can weaken checks without formally abolishing them.
3. Judicial power must itself be limited. A court that strikes down laws as "arbitrary" must give principled reasons. Otherwise it puts its own discretion in place of the legislature's. That is why Shayara Bano demands manifest arbitrariness, not mere disagreement.