LLM Foundation Course Indian Constitutional Law New Challenges 2023 Question Paper with Solutions

For full marks, cover: what the 1991 policy actually changed; why Article 12 was drafted for a different economy; the mechanism by which liberalisation narrows Part III, with BALCO as the proof; the three doctrinal routes available for redefining State, and which of them the courts have in fact taken; and a conclusion that answers whether redefinition is needed or whether the answer lies elsewhere.

What liberalisation changed. The New Industrial Policy of 24 July 1991 abolished industrial licensing for most industries, reduced the number of industries reserved for the public sector from seventeen to eight and later to three, opened most sectors to foreign direct investment, and began disinvestment in public sector undertakings. Since then the State has withdrawn from telecommunications, aviation, airports, ports, power distribution, banking in part, and increasingly from health and education, and it has re-entered many of these fields as a regulator and as a contracting party rather than as an owner.

The proof is BALCO. In BALCO Employees' Union v. Union of India (2002) 2 SCC 333 the Court upheld the sale of the Union's fifty-one per cent holding in Bharat Aluminium Company, holding that disinvestment is a matter of economic policy, that the Court has no expertise to sit in judgment over it, and that the employees had no right to be heard because no right of theirs was affected by a change of ownership. The constitutional consequence is stark and the Court did not deny it: an employee who on the day before the sale could have moved the High Court under Article 226 alleging a breach of Article 14 or Article 16 could not do so the day after, because his employer had ceased to be State.

The same problem in three other forms. One, public private partnership: an airport, a highway or a hospital run under concession performs a public function with State assets but is owned privately, and no test of pervasive control will catch it. Two, outsourcing: when a government department contracts out a service, the employees of the contractor are outside Article 16 and the users are outside Article 14 as against the contractor. Three, the regulated private monopoly: a private distribution licensee may be the only supplier of electricity in a city and yet, on Federal Bank Ltd. v. Sagar Thomas (2003) 10 SCC 733, extensive regulation is not control.

Route two, shift the question from what the body is to what it does. This is the route actually taken, and it runs through Article 226, not Article 32. Andi Mukta Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav Smarak Trust v. V.R. Rudani (1989) 2 SCC 691 held that a writ of mandamus lies against any person or body performing a public duty, whatever its constitutional status, because Article 226 extends to "any other purpose". Zee Telefilms itself preserved this remedy against the Board. K.K. Saksena v. International Commission on Irrigation and Drainage (2015) 4 SCC 670 supplies the limit: the duty must be a public duty, imposed by statute or by the nature of the function, and not merely a duty owed to members of the public under contract. This route has two weaknesses: it is available only in the High Courts and not under Article 32, and it enforces public duties rather than fundamental rights as such.

Conclusion. The need to redefine "State" arises because Article 12 measures a body by how far the Government owns and controls it, and liberalisation has reduced Government ownership without reducing the public importance of what the bodies do. The consequence, demonstrated by BALCO, is that Part III retreats every time a public enterprise is sold, though nobody voted to reduce fundamental rights. But redefinition by stretching "other authorities" is not the right answer and the Supreme Court has refused it, because control is the only principled criterion available and Zee Telefilms shows what happens when it is absent. The workable answers are the two the courts have in fact developed: the public function jurisdiction under Article 226, which asks what the body does rather than what it is, and the horizontal enforcement of Articles 19 and 21 recognised in Kaushal Kishor. Redefinition is therefore needed, but of the reach of the rights, not of the definition of the State.

Three functions: administrative, in preparing rolls, notifying the schedule, allotting symbols and enforcing the Model Code; advisory, under Articles 103(2) and 192(2), where the President or Governor decides a sitting member's disqualification according to the opinion of the Commission, which is binding; and quasi-judicial, in deciding disputes over recognition and symbols, upheld in Sadiq Ali v. Election Commission of India (1972) 4 SCC 664.

The width of the power. Mohinder Singh Gill v. Chief Election Commissioner (1978) 1 SCC 405 described Article 324 as a reservoir of power enabling the Commission to act where the law is silent, subject to natural justice. A.C. Jose v. Sivan Pillai (1984) 2 SCC 656 set the limit: it cannot act contrary to a statute, and voting machines used without statutory authority were bad, which Parliament cured by inserting section 61A in 1989. T.N. Seshan v. Union of India (1995) 4 SCC 611 held the Commission to be a multi-member body acting by majority, the Chief Election Commissioner not being superior to his colleagues.

One, appointment. The Commission that certifies who has won is chosen by whoever is in office. In Anoop Baranwal v. Union of India (2023) 6 SCC 161, decided 2 March 2023, three months before this paper was set, a Constitution Bench held unanimously that appointments must be made by the President on the advice of a committee of the Prime Minister, the Leader of the Opposition in the Lok Sabha and the Chief Justice of India, until Parliament legislated. The Court's reasoning is the strongest available statement of the criticism: democracy is a facet of the basic structure, free and fair elections are inseparable from it, and an Election Commission constituted by the executive alone cannot deliver them with the necessary appearance of impartiality. Parliament legislated within the year, and the Chief Election Commissioner and Other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023 replaced the Chief Justice with a Union Cabinet Minister nominated by the Prime Minister, restoring an executive majority on the committee. That Act is under challenge and the position is not yet settled. The Dinesh Goswami Committee (1990) and the Law Commission's 255th Report (2015) had both recommended a plural appointment body.

Four, dependence on personality. The Commission's assertiveness has varied with its members rather than with its constitutional protection, which is exactly what a well-designed institution should not do. This is the cumulative effect of the first three criticisms and it is the point on which to close the critical half.

Balance. Against all this stands a record no other institution in India can match: no general election has been set aside, turnout has risen, and the transfer of power after defeat has never been contested on the ground that the count was dishonest. Whatever the defects of design, the Commission has delivered the outcome the design exists to secure.

For full marks, cover: the text of both articles and the four differences between them; who is a minority and by reference to what unit; what "establish and administer" means; the regulation cases from Kerala Education Bill to T.M.A. Pai and P.A. Inamdar; and the two most recent developments, Pramati and the 2024 Aligarh Muslim University decision.

Article 29 is headed "Protection of interests of minorities" but its first clause is not confined to minorities. Article 29(1): any section of the citizens residing in the territory of India or any part of it having a distinct language, script or culture of its own shall have the right to conserve the same. Article 29(2): no citizen shall be denied admission into any educational institution maintained by the State or receiving aid out of State funds on grounds only of religion, race, caste, language or any of them.

Who is a minority? The Constitution does not define it. The determining unit is the State, not the country: D.A.V. College, Bhatinda v. State of Punjab (1971) 2 SCC 269 held Hindus in Punjab to be a religious minority for this purpose, and T.M.A. Pai Foundation v. State of Karnataka (2002) 8 SCC 481 confirmed by eleven judges that since the reorganisation of States is on linguistic lines, the unit for determining both religious and linguistic minorities is the State. The National Commission for Minorities Act, 1992 notifies communities at the national level, and the challenge to that scheme in Ashwini Kumar Upadhyay v. Union of India remains pending.

• In re Kerala Education Bill, 1957 (AIR 1958 SC 956): the right under Article 30(1) is not absolute; regulations in the interest of the institution itself, prescribing standards of teaching, qualifications of teachers and conditions of service, are permissible, and aid may be conditioned but not on terms that require surrender of the Article 30 right.
• Rev. Sidhajbhai Sabhai v. State of Bombay (AIR 1963 SC 540): a regulation must be reasonable and directed to making the institution an effective vehicle of minority education, and a compulsory reservation of eighty per cent of seats for government nominees was struck down.
• State of Kerala v. Very Rev. Mother Provincial (1970) 2 SCC 417: the State may not appoint the governing body or take over management.
• Ahmedabad St. Xavier's College Society v. State of Gujarat (1974) 1 SCC 717: nine judges; the right protects the choice of teachers, disciplinary control and the medium, subject to reasonable regulation for excellence, and affiliation conditions may be imposed if they do not destroy the minority character.

The intersection with the right to education. Pramati also held that the Right of Children to Free and Compulsory Education Act, 2009 does not apply to minority institutions at all, aided or unaided, because Article 21A cannot be given effect in a manner that abrogates Article 30(1). Society for Unaided Private Schools of Rajasthan v. Union of India (2012) 6 SCC 102 had earlier upheld section 12(1)(c), the twenty-five per cent obligation, for non-minority unaided schools. The result is that the principal equalising provision of the RTE Act does not reach a large and growing part of the school system, which is the sharpest practical criticism of Article 30 as it now operates.

Two cases on language, because Article 29(1) is about language and script. State of Bombay v. Bombay Education Society (AIR 1954 SC 561) struck down an order restricting admission to English-medium schools by mother tongue, as violating Article 29(2). State of Karnataka v. Associated Management of Primary and Secondary Schools (2014) 9 SCC 485 held that a State may prescribe the mother tongue as the medium in its own and aided schools but cannot impose it on unaided schools, the choice of medium being part of Article 19(1)(a) for the parent and Article 30(1) for a minority institution.

For full marks, cover: why the Constitution says "Union of States"; the federal features and the unitary ones; the three distributions, legislative, administrative and financial; the case law culminating in Bommai; and then the trust half, which is Article 263, the GST Council and the Governor, ending with the position after the Supreme Court's advisory opinion of 20 November 2025.

Article 1(1) says India, that is Bharat, shall be a Union of States, and the choice of "Union" over "Federation" was explained by Dr Ambedkar in the Constituent Assembly: the Union is not the result of an agreement between the States, and the States have no right to secede. The federation is created by the Constitution and not by a compact between pre-existing sovereigns.

Unitary features. Article 3 allows Parliament to redraw any State's boundaries or change its name on the President's recommendation after merely ascertaining the views of the State legislature, which are not binding, and Article 4 says such a law is not an amendment for the purposes of Article 368. Articles 249, 250, 252 and 253 allow Parliament to legislate on State subjects in defined circumstances, including to implement a treaty. Articles 200 and 201 allow a Governor to reserve a Bill and the President to withhold assent. Articles 256, 257 and 365 allow the Union to direct a State and to treat non-compliance as a failure of constitutional machinery. Article 356 allows President's rule. There is a single citizenship, a single integrated judiciary, an All India Services cadre under Article 312, and a common Comptroller and Auditor General and Election Commission. The residuary power is with the Union, under Article 248 and entry 97 of List I.

The case law. State of West Bengal v. Union of India (AIR 1963 SC 1241) rejected State sovereignty and held Indian federalism a matter of degree. State of Rajasthan v. Union of India (1977) 3 SCC 592 took a strongly centralist view. S.R. Bommai v. Union of India (1994) 3 SCC 1 corrected it: federalism is part of the basic structure, a Proclamation under Article 356 is justiciable, the President's satisfaction must rest on relevant material, the test of a government's majority is the floor of the House and not the Governor's opinion, and dissolution before parliamentary approval is impermissible and can be undone. Kuldip Nayar v. Union of India (2006) 7 SCC 1 described the model as quasi-federal. Government of NCT of Delhi v. Union of India (2018) 8 SCC 501 and (2023) 9 SCC 1 developed collaborative federalism, holding the Lieutenant Governor bound by ministerial advice except on police, public order and land, a position Parliament then altered by statute in 2023. Jindal Stainless Ltd. v. State of Haryana (2017) 12 SCC 1 re-read Articles 301 to 304 and abandoned the compensatory tax doctrine.

Now the trust and faith half.

Where trust has broken down is the Governor. Appointed by the President under Article 155 and holding office during pleasure under Article 156, the Governor is a Union nominee exercising discretion under Articles 163 and 200 in States often governed by another party. The two flashpoints are government formation, on which Bommai and Rameshwar Prasad v. Union of India (2006) 2 SCC 1 supply the law, and delay in assent. On the second, in State of Tamil Nadu v. Governor of Tamil Nadu, decided 8 April 2025, a two-judge bench held the withholding of assent to ten Bills illegal, prescribed timelines and declared the Bills deemed assented. The President then referred fourteen questions under Article 143(1), and on 20 November 2025 the Supreme Court held in its advisory opinion that no rigid timelines can be judicially prescribed under Articles 200 and 201, that deemed assent is alien to the Constitution, and that these decisions are not ordinarily justiciable, while holding that a Governor may not sit on a Bill indefinitely and that limited judicial review lies for unexplained delay. That is the present law.

Conclusion. Indian federalism is federal in structure and unitary in emergency, which is why Bommai preferred to describe it in its own terms rather than measure it against a classical model. The distribution of powers, the Seventh Schedule and the Article 368 proviso are real guarantees, and since Bommai federalism is part of the basic structure and therefore beyond amendment. But the relationship of trust and faith depends almost entirely on institutions the Constitution merely permits, an Inter-State Council that rarely meets, a Finance Commission whose recommendations are not binding, and a Governor who owes his office to the Union. The GST Council shows what a properly constituted joint forum can achieve; the Presidential Reference of November 2025 shows what happens when the parties stop trusting each other and reach instead for the Court. The Constitution secures federalism at the level of power and leaves it to convention at the level of practice, and it is the convention that has been failing.

Appointment is governed by Articles 124(2) and 217(1), which require consultation with the Chief Justice of India, with qualifications prescribed by Articles 124(3) and 217(2) so the executive cannot alter the bar. Security of tenure: retirement at sixty-five and sixty-two, and removal only by an order of the President after an address by each House supported by a majority of the total membership and by two-thirds of those present and voting, on proved misbehaviour or incapacity, under Article 124(4) applied to High Courts by Article 218. Financial security: salaries fixed by Parliament, not variable to a judge's disadvantage except in a financial emergency, and charged on the Consolidated Fund under Articles 112(3)(d), 125, 202(3)(d) and 221, so they are non-votable. Protection of the office: Articles 121 and 211 bar discussion of a judge's conduct in the legislature except on a removal motion; Articles 129 and 215 give the power to punish for contempt; Articles 124(7) and 220 restrict practice after retirement; Article 50 directs separation of the judiciary from the executive. Control of the subordinate judiciary is vested in the High Court by Article 235, read in State of West Bengal v. Nripendra Nath Bagchi (AIR 1966 SC 447) to include disciplinary jurisdiction.

Removal has never once succeeded. Article 124(4) with the Judges (Inquiry) Act, 1968 requires a motion signed by 100 members of the Lok Sabha or 50 of the Rajya Sabha, admission by the Speaker or Chairman, an inquiry committee of a Supreme Court Judge, a High Court Chief Justice and a distinguished jurist, and then the special majority in both Houses. In the case of Justice V. Ramaswami in 1993 the committee found misbehaviour and the motion still failed, because the governing party abstained and the motion did not secure a majority of the total membership. Justice Soumitra Sen resigned in 2011 after the Rajya Sabha passed the motion. The procedure is so demanding that it is in practice unusable, which means the only real sanction is resignation under pressure. Sub-Committee on Judicial Accountability v. Union of India (1991) 4 SCC 699 and Sarojini Ramaswami v. Union of India (1992) 4 SCC 506 held that the process up to the committee's finding is not immune from judicial review and that the Speaker's decision to admit a motion is justiciable.

The unlegislated weakness is post-retirement appointment. Nothing in the Constitution bars a retired judge from accepting an office from the executive, and successive proposals for a cooling-off period have not been enacted. Since the appointing authority for such offices is the executive, whose litigation the judge decides in his last years on the bench, this is the most direct structural threat to independence that remains, and it is untouched by any of the four Judges Cases.

And the still-unfinished business. The Memorandum of Procedure the Court directed to be revised in the remedial hearing after the NJAC judgment has still not been settled between the collegium and the Union, more than a decade later, and delay in notifying recommended names has become the practical instrument by which appointments are influenced. The Judicial Standards and Accountability Bill, 2010, which would have created a statutory complaints mechanism and required declaration of assets, lapsed. The National Court Management Systems and the pendency figures, now above five crore cases across all courts, are the accountability question that the public actually cares about and that the constitutional debate ignores.

Conclusion. The Constitution secures judicial independence well by four devices, a difficult removal, an unassailable salary, a protected office and High Court control of the subordinate judiciary, and it says almost nothing about the two things that matter most in practice, appointment and accountability. Both gaps have been filled by the Court itself: appointment by the collegium built in the Second and Third Judges Cases, and accountability by the in-house procedure of Ravichandran Iyer. Neither is in the constitutional text, neither is transparent, and both are defended chiefly on the ground that the alternative, executive involvement, is worse. That is a weak justification for a permanent arrangement, and it is why the unfinished Memorandum of Procedure matters: it is the one instrument that could give the collegium published criteria and reasons without surrendering primacy, and its absence a decade after it was directed is the strongest criticism available of both the judiciary and the executive.

How far the courts widened it, and by what steps. University of Madras v. Shantha Bai (AIR 1954 Mad 67) applied ejusdem generis and confined the phrase to sovereign functions. Rajasthan State Electricity Board v. Mohan Lal (AIR 1967 SC 1857) rejected that and brought in every statutory authority on which powers are conferred by law, regardless of commercial activity. Sukhdev Singh v. Bhagatram (1975) 1 SCC 421 brought in statutory corporations and gave the theory of instrumentality. Ramana Dayaram Shetty v. International Airport Authority of India (1979) 3 SCC 489 supplied the tests. Ajay Hasia v. Khalid Mujib Sehravardi (1981) 1 SCC 722 made those tests independent of legal form and brought in a registered society. Pradeep Kumar Biswas consolidated them by a bench of seven and overruled Sabhajit Tewary v. Union of India (1975) 1 SCC 485.

Where it stopped. Zee Telefilms Ltd. v. Union of India (2005) 4 SCC 649 held the Board of Control for Cricket in India not to be State, and Federal Bank Ltd. v. Sagar Thomas (2003) 10 SCC 733 held a private bank under Reserve Bank regulation not to be State. Both decisions turn on the same point: regulation is not control, and a body not owned, funded or dominated by government does not become State by being powerful or by being regulated.

Now the justification liberalisation supplies. Four arguments, and each should be given with its illustration.

Third, the citizen has no choice. The classical justification for confining Part III to the State is that the State is coercive and private parties are not: a citizen may walk away from a private party. That justification fails for a monopoly utility, a sole hospital in a district, or the only recognised body governing a sport, which is exactly the fact situation in Zee Telefilms, where the Court accepted that the Board enjoys a monopoly and still held it outside Article 12. The absence of exit is the modern equivalent of coercion, and it is the strongest single argument for widening.

Fourth, the alternative remedies are incomplete. Statutory regulators, consumer law and contract give a remedy in some fields and not others, and none of them supplies the guarantee of non-arbitrariness that Article 14 supplies. The Right to Information Act, 2005 reaches a private body only if it is "substantially financed" by government under section 2(h), which is the same ownership criterion in another form.

Conclusion. Liberalisation justifies widening the reach of fundamental rights, and the four arguments for it, the unlegislated loss of rights on disinvestment, the unchanged public character of the function, the absence of exit where the provider is a monopoly, and the incompleteness of statutory remedies, are strong. What it does not justify is widening the words "other authorities" beyond the Pradeep Kumar Biswas test, because that test rests on control and there is no principled criterion beyond it: Zee Telefilms shows that the alternative is a definition with no boundary. The correct constitutional response, and the one the Supreme Court has in fact adopted, is to make the enquiry functional rather than institutional: Article 226 against any body discharging a public duty, and, after Kaushal Kishor, direct horizontal enforcement of Articles 19 and 21. The nature and scope that need widening are those of the rights, not of the definition.

The courts made it a fundamental right before Parliament did. Mohini Jain v. State of Karnataka (1992) 3 SCC 666 held the right to education to be concomitant to the fundamental rights in Part III and capitation fees to be arbitrary. Unni Krishnan, J.P. v. State of Andhra Pradesh (1993) 1 SCC 645 corrected and confined it: the right flows from Article 21, but reading Articles 21, 41 and 45 together, it is a fundamental right to free education only up to fourteen years, and beyond that it is subject to the State's economic capacity.

The Eighty-sixth Amendment, 2002 has three limbs. New Article 21A: free and compulsory education to all children of six to fourteen years in such manner as the State may by law determine. Article 45 substituted: early childhood care and education until the age of six, which remains a directive principle. New Article 51A(k): a fundamental duty on the parent or guardian to provide opportunities for education between six and fourteen.

Content beyond a seat. Avinash Mehrotra v. Union of India (2009) 6 SCC 398 held the right to include education in a safe school; Environmental and Consumer Protection Foundation v. Delhi Administration (2012) 13 SCC 690 directed toilets, drinking water and teachers; State of Tamil Nadu v. K. Shyam Sunder (2011) 8 SCC 737 held the right to be to education of reasonable quality.

The criticism. The guarantee stops at fourteen, so secondary education, where drop-out is heaviest, is outside Article 21A; the zero to six band was deliberately left in Article 45; the Act regulates inputs rather than learning outcomes; and after Pramati a large part of the school system stands outside its principal equalising provision. The National Education Policy 2020 recommends extending the guarantee to the three to eighteen band, which would need a further amendment.

(b) Effect of privatization on the State's affirmative actions

The proposition. Affirmative action under Articles 15(4), 15(5), 16(4) and 16(4A) operates on institutions and employments controlled by the State. Privatisation moves institutions and employments out of that control. The direct effect is therefore arithmetical: as the public sector shrinks, the number of posts and seats to which reservation attaches shrinks with it, and the programme delivers less without any change in the law.

Education. Here the State did legislate, and the sequence is the clearest illustration of the whole problem. T.M.A. Pai Foundation v. State of Karnataka (2002) 8 SCC 481 held that establishing an educational institution is an occupation under Article 19(1)(g) and that unaided institutions have autonomy in admission; P.A. Inamdar v. State of Maharashtra (2005) 6 SCC 537 held that the State cannot impose its reservation policy on unaided institutions. Parliament reversed that by the Ninety-third Amendment, 2005, inserting Article 15(5) to permit special provision in educational institutions including private unaided ones, minority institutions excepted; upheld in Ashoka Kumar Thakur v. Union of India (2008) 6 SCC 1 and Pramati (2014). At the school level the same instinct produced section 12(1)(c) of the Right to Education Act, upheld in Society for Unaided Private Schools (2012). In other words, affirmative action had to be re-legislated into the private sector by constitutional amendment because privatisation had taken the sector out of its reach.

Conclusion. The two notes are two halves of one problem. Article 21A promises free and compulsory education and the State discharges that promise increasingly through private schools; Articles 15 and 16 promise affirmative action and the State's capacity to deliver it shrinks as it privatises. In both fields the constitutional response has been the same and it has come by amendment rather than interpretation: Article 15(5) and section 12(1)(c) of the Right to Education Act are attempts to attach public obligations to private providers. They work, they have been upheld, and they leave minority institutions outside, which is the principal unresolved difficulty in both notes.