LLM Foundation Course Indian Constitutional Law New Challenges 2016 Question Paper with Solutions

Where the phrase comes from. Article 12 includes within "the State", for the purposes of Part III, the Government and Parliament of India, the Governments and Legislatures of the States, all local authorities and other authorities within the territory of India or under the control of the Government of India. The words "agency or instrumentality" appear nowhere in the Article. They come from Sukhdev Singh v. Bhagatram Sardar Singh Raghuvanshi (1975) 1 SCC 421, where Mathew J., concurring, held that a public corporation is an agency or instrumentality of the State, and that the State cannot escape its constitutional obligations by the device of creating a corporation. The whole body of testing that follows is an attempt to give that idea a workable content.

The tests were first listed in Ramana Dayaram Shetty v. International Airport Authority of India (1979) 3 SCC 489. Bhagwati J. set out five indicia:

1. the entire share capital of the body is held by government;
2. the body enjoys financial assistance from the State meeting almost the whole of its expenditure;
3. the body enjoys a monopoly status conferred or protected by the State;

They were applied in the following decade to a government company in Som Prakash Rekhi v. Union of India (1981) 1 SCC 449, to the Indian Council of Agricultural Research in P.K. Ramachandra Iyer v. Union of India (1984) 2 SCC 141, and to a State-aided institution in Tekraj Vasandi v. Union of India (1988) 1 SCC 236, where the Institute of Constitutional and Parliamentary Studies was held not to be State, showing that the tests do exclude.

The consolidation, and the test as it stands today, is Pradeep Kumar Biswas v. Indian Institute of Chemical Biology (2002) 5 SCC 111, a bench of seven which overruled Sabhajit Tewary v. Union of India (1975) 1 SCC 485 and held the Council of Scientific and Industrial Research to be State. The Court restated the enquiry in a single composite question:

Is the body financially, functionally and administratively dominated by, or under the control of, the Government; is that control particular to the body; and is it pervasive?

Two supplements to the tests, because Article 12 alone no longer covers the field. First, the public function doctrine: Andi Mukta Sadguru Trust v. V.R. Rudani (1989) 2 SCC 691 holds that mandamus lies under Article 226 against any person or body performing a public duty, whatever its constitutional character, and Zee Telefilms preserved that remedy expressly. Second, horizontality: Kaushal Kishor v. State of Uttar Pradesh (2023) 4 SCC 1 held by 4:1 that the rights under Articles 19 and 21 are enforceable against non-State actors, which reduces the practical importance of the Article 12 enquiry for two of the most litigated rights in Part III. Both post-date this paper and both are essential to a current answer.

For full marks, cover: the two limbs of Article 14 and their different sources; why the claim in the quotation is defensible, which is the structural argument that equality is presupposed by every other right; the classification test; the arbitrariness doctrine; the relationship with Articles 15, 16, 17 and 21; and a qualification, because equality is not in fact absolute.

The provision. Article 14: the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India. The first phrase is Dicey's, drawn from the English common law, and is negative: no person is above the law, and all are equally subject to the ordinary law administered by the ordinary courts. The second is drawn from the Fourteenth Amendment to the United States Constitution and is positive: it requires equal treatment in equal circumstances, and therefore permits, indeed requires, unequal treatment of unequals.

The classification test, which is how Article 14 was first applied. Because equal protection permits classification, the courts had to distinguish classification from discrimination. State of West Bengal v. Anwar Ali Sarkar (AIR 1952 SC 75) struck down a provision allowing any case to be sent to a special court with a truncated procedure, because it supplied no principle of selection. Budhan Choudhry v. State of Bihar (AIR 1955 SC 191) gave the two conditions every answer must state: the classification must rest on an intelligible differentia distinguishing those grouped from those left out, and that differentia must bear a rational nexus to the object of the statute. Ram Krishna Dalmia v. Justice S.R. Tendolkar (AIR 1958 SC 538) added the working presumptions: constitutionality is presumed, the burden is on the challenger, the legislature may recognise degrees of harm and may proceed one step at a time.

The equality code as a whole. Article 14 is general; Articles 15, 16, 17 and 18 are its specific applications. Article 15 forbids discrimination on grounds only of religion, race, caste, sex or place of birth, and clause (2) binds private persons in access to shops, hotels, wells and places of public resort. Article 16 applies the guarantee to public employment. Article 17 abolishes untouchability absolutely, subject to no exception, and is the most radical provision in the code. Article 18 abolishes titles. In State of Kerala v. N.M. Thomas (1976) 2 SCC 310 the Court held that Article 16(4) is a facet of Article 16(1) and not an exception to it, which is the doctrinal move that makes reservation part of equality rather than a departure from it, and Indra Sawhney v. Union of India 1992 Supp (3) SCC 217 adopted it.

Now the qualification, which is what "comment" invites. The claim in the quotation is true as a statement about the structure of rights and overstated as a statement about their enforcement. Three points. One, Article 14 forbids denial of equal protection, which is a negative obligation; it does not by itself require the State to supply the conditions of equal citizenship, and the provisions that do, Articles 38, 39 and 46, are unenforceable directive principles. Two, the presumption of constitutionality and the wide latitude given in matters of economic and fiscal classification, R.K. Garg v. Union of India (1981) 4 SCC 675, mean that a great deal of unequal treatment survives Article 14 scrutiny. Three, uncodified personal law is not "law in force" for Article 13 on State of Bombay v. Narasu Appa Mali (AIR 1952 Bom 84), a decision doubted but never overruled, so the equality guarantee reaches personal law only indirectly, which is why Shayara Bano proceeded on the arbitrariness of a practice rather than on the invalidity of a system.

For full marks, cover: Article 19(1)(a) and 19(2) with the two amendments that shaped the clause; then the "changing dimension" in three waves, the print era, the broadcast era and the internet era, each with its cases; and the fourth wave now beginning, which is automated moderation and synthetic media.

The provision and its two amendments. Article 19(1)(a) guarantees to all citizens freedom of speech and expression; Article 19(2) permits reasonable restrictions in the interests of eight matters and no others. The First Amendment, 1951 added public order, friendly relations with foreign States and incitement to an offence, and inserted the word "reasonable"; it was enacted because Romesh Thappar v. State of Madras (AIR 1950 SC 124) and Brij Bhushan v. State of Delhi (AIR 1950 SC 129) had struck down a circulation ban and pre-censorship for want of a public order ground. The Sixteenth Amendment, 1963 added the sovereignty and integrity of India. In Kaushal Kishor v. State of Uttar Pradesh (2023) 4 SCC 1 the Court confirmed that the list is exhaustive.

Second dimension: the right expands beyond speaking. State of Uttar Pradesh v. Raj Narain (1975) 4 SCC 428 and S.P. Gupta v. Union of India 1981 Supp SCC 87 established the right to know, later the constitutional basis of the Right to Information Act, 2005 and of the voter's right to a candidate's antecedents in Union of India v. Association for Democratic Reforms (2002) 5 SCC 294. Bijoe Emmanuel v. State of Kerala (1986) 3 SCC 615 recognised the right to remain silent. Tata Press Ltd. v. Mahanagar Telephone Nigam Ltd. (1995) 5 SCC 139 brought commercial speech within the Article, on the ground that the public has an interest in receiving commercial information. Union of India v. Naveen Jindal (2004) 2 SCC 510 held flying the national flag to be expression.

Fourth dimension: the internet, which is where the syllabus phrase "new challenges" points. Shreya Singhal v. Union of India (2015) 5 SCC 1, decided in March of the year before this paper was set, is the leading case: section 66A of the Information Technology Act, 2000 was struck down for vagueness and overbreadth, since terms such as "grossly offensive" and "menacing character" have no ascertainable standard; section 69A on blocking was upheld as narrowly drawn with reasons and a hearing; and section 79(3)(b) was read down so that an intermediary loses safe harbour only on a court order or a government notification. The Court restated the crucial line: discussion and advocacy are protected and only incitement may be restricted. Anuradha Bhasin v. Union of India (2020) 3 SCC 637 held that speech and trade through the internet are protected under Articles 19(1)(a) and 19(1)(g), that an indefinite suspension is impermissible, that suspension orders must be published and are reviewable, and that proportionality applies. Kaushal Kishor (2023) held Articles 19 and 21 enforceable against non-State actors, which matters when the censor is a private platform.

Two matters that remain unresolved and should be stated as open. Sedition: section 124A of the Penal Code was kept in abeyance by the Supreme Court in S.G. Vombatkere v. Union of India on 11 May 2022, and the Penal Code was replaced on 1 July 2024 by the Bharatiya Nyaya Sanhita, 2023, whose section 152 is the successor offence with an Explanation saving lawful expression of disapprobation. Hate speech: there is still no statutory definition, the Law Commission's 267th Report (2017) having proposed one that was not enacted, and Amish Devgan v. Union of India (2021) 1 SCC 1 supplies only a framework.

For full marks, cover: the source of the quotation, which is Mohini Jain; how the proposition was corrected within a year by Unni Krishnan; the Eighty-sixth Amendment; the Right to Education Act, 2009; who the Act binds after Society for Unaided Private Schools and Pramati; and a discussion of what the right does not reach.

The quotation is from Mohini Jain v. State of Karnataka (1992) 3 SCC 666. Kuldip Singh J. held that although the right to education is not stated in Part III in terms, it is concomitant to the fundamental rights enshrined there: the dignity of the individual promised by the Preamble cannot be assured unless accompanied by the right to education; Articles 21, 38, 39(a), 39(f), 41 and 45 make it obligatory on the State to provide education at all levels; and charging a capitation fee in consideration of admission is arbitrary and violates Article 14. That is the proposition the question asks about.

The enabling statute is the Right of Children to Free and Compulsory Education Act, 2009, in force 1 April 2010. The provisions worth naming: section 3, the right to free and compulsory elementary education in a neighbourhood school; section 4, admission of an out-of-school child to an age-appropriate class with special training; section 12(1)(c), the obligation on unaided schools to admit at least twenty-five per cent of the entry class from weaker sections and disadvantaged groups against State reimbursement; section 13, no capitation fee and no screening procedure, which enacts Mohini Jain's holding; section 14, no denial for want of age proof; section 16, no holding back or expulsion until elementary education is completed, amended in 2019 to permit regular examination with re-examination and detention in classes 5 and 8; section 17, no physical punishment or mental harassment; section 21, School Management Committees; section 23, teacher qualifications; and the Schedule on pupil-teacher ratio, working days and instructional hours.

Is the proposition in the quotation still correct? Formally, it has been superseded: after 2002 the right to education is not merely concomitant to the fundamental rights, it is one, in Article 21A, for the six to fourteen band. Outside that band the Mohini Jain and Unni Krishnan reasoning still does the work, which is why the argument for a right to higher and professional education continues to be framed through Article 21 and Article 19(1)(g) rather than Article 21A.

Four limits worth stating. Age: the guarantee ends at fourteen, precisely where secondary education and the labour market begin, and the zero to six band was deliberately left in Article 45; the National Education Policy 2020 recommends extending the guarantee to three to eighteen, which would require a further amendment. Quality: the Act regulates inputs, buildings, ratios and qualifications, and says almost nothing about learning outcomes. Reach: after Pramati, minority institutions are outside the Act entirely, so the principal equalising provision does not touch a large and growing part of the school system. Enforcement: Article 21A says "in such manner as the State may, by law, determine", which makes the content of the right depend on the statute, unlike Articles 19 and 21.

For full marks, cover: Article 30(1) and its relationship with Article 29; who is a minority and by what unit; what "establish and administer" means and the change made by the 2024 Aligarh Muslim University decision; the regulation line from Kerala Education Bill to T.M.A. Pai and P.A. Inamdar; and the two provisions that now cut across the right, Article 15(5) and section 12(1)(c) of the Right to Education Act.

The right. Article 30(1): all minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice. Article 30(1A), inserted by the Forty-fourth Amendment, requires that compensation on compulsory acquisition of such an institution's property must not restrict or abrogate the right. Article 30(2): the State shall not, in granting aid, discriminate against any educational institution on the ground that it is under minority management.

"Establish and administer" is conjunctive, and the law on it changed in 2024. In S. Azeez Basha v. Union of India (AIR 1968 SC 662) the Court held that the two words go together, that a community which has not established an institution cannot claim to administer it, and that Aligarh Muslim University, being brought into existence by an Act of 1920, was not established by the Muslim minority. That holding was overruled in Aligarh Muslim University v. Naresh Agarwal, decided 8 November 2024 by a seven-judge bench, 4:3. The majority held that incorporation by statute does not by itself destroy minority character; the enquiry is who brought the institution into existence, whose effort and funds founded it and for whose benefit; and that it is unnecessary to show that administration vests in the minority, because the right to administer is a consequence of establishment rather than proof of it. Whether Aligarh Muslim University is on the facts a minority institution was remitted to a regular bench.

The right to administer is not a right to maladminister, and the regulation cases are a single line:

• T.M.A. Pai Foundation (2002), eleven judges: establishing an institution is an occupation under Article 19(1)(g); unaided minority institutions have the widest autonomy in admission and fees; no capitation fee and no profiteering, but a reasonable surplus for development is permissible; the State may prescribe qualifications and a rational, transparent admission procedure.
• Islamic Academy of Education v. State of Karnataka (2003) 6 SCC 697: fee and admission committees created to police that line.
• P.A. Inamdar v. State of Maharashtra (2005) 6 SCC 537: the State cannot impose its own reservation quota on unaided institutions, minority or otherwise.

Conclusion. Article 30 exists on a simple constitutional judgment: a minority's language, script and culture will not survive unless it can educate its own children, and a majoritarian legislature cannot be relied on to secure that. The case law has settled the balance between that autonomy and the State's legitimate interest in standards, and the settlement is workable: regulation for excellence yes, takeover of management no, profiteering no, a State-imposed quota on an unaided institution no. What has shifted in the last decade is the reach of the right rather than its content. Pramati placed minority schools outside the right to education legislation, which puts a large and growing part of the school system outside its principal equalising provision and creates an incentive to claim minority status; and the 2024 Aligarh Muslim University decision, by overruling Azeez Basha, has reopened the status of every institution incorporated by statute. Those two developments, and not the regulation cases, are where this branch of law is now moving.

The text is short, and its silences are the whole subject. Article 124(2): every Judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal after consultation with such of the Judges of the Supreme Court and of the High Courts as the President may deem necessary, and in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of India shall always be consulted. Article 124(3) prescribes the qualifications: a citizen who has been a Judge of a High Court for five years, or an advocate of a High Court for ten, or is in the President's opinion a distinguished jurist. Article 217(1): a Judge of a High Court is appointed by the President after consultation with the Chief Justice of India, the Governor of the State, and, for a Judge other than the Chief Justice, the Chief Justice of that High Court. Article 217(2) prescribes the qualifications; Article 222 provides for transfer; Article 224 for additional and acting Judges; and Article 231 for a common High Court for two or more States.

The Constitution says nothing about who initiates a name, what criteria apply, or what happens if the consultees disagree. Every controversy since 1973 has been about those three silences.

Third Judges Case: Special Reference No. 1 of 1998 (1998) 7 SCC 739. On a Presidential reference the Court clarified the mechanics: the Chief Justice must consult a collegium of the four senior-most Judges of the Supreme Court for an appointment to that Court, and the two senior-most for High Court appointments and transfers; the opinions must be in writing; and a recommendation made without such consultation is not binding on the government.

Fourth Judges Case: Supreme Court Advocates-on-Record Association v. Union of India (2016) 5 SCC 1, decided 16 October 2015. The Ninety-ninth Constitutional Amendment and the National Judicial Appointments Commission Act, 2014 were struck down 4:1. The Commission was to consist of the Chief Justice of India, the two next senior Judges, the Union Minister of Law and Justice and two eminent persons chosen by a committee of the Prime Minister, the Chief Justice and the Leader of the Opposition, with a power in any two members to veto a recommendation. The majority held that this destroyed the primacy of the judiciary in appointments, which is part of the basic structure, since the Law Minister together with one eminent person could block any name. Chelameswar J. dissented, holding the collegium opaque and unaccountable and the amendment a legitimate exercise of constituent power; his criticism is quoted in almost every subsequent discussion.

Criticism and reform. The standing objections to the collegium are opacity, since reasons are not published though resolutions have been since 2017; the absence of stated criteria; the risk of self-selection and the absence of any lay element; and delay. The standing objection to any executive-led alternative is Kesavananda and the NJAC holding. Proposals in circulation include a permanent secretariat for the collegium with published criteria, a statutory Judicial Appointments Commission with a judicial majority, and mandatory publication of reasons; none has been enacted. The Law Commission's 214th Report (2008) recommended reconsidering the Second and Third Judges Cases, and the 230th Report (2009) addressed transparency.

For full marks, cover: two notes at roughly twelve marks each. All four are written out below.

(a) Federalism

Article 1(1) calls India a "Union of States", and Dr Ambedkar explained the word 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, not by a compact.

The leading cases. State of West Bengal v. Union of India (AIR 1963 SC 1241): the States are not sovereign and Indian federalism is a matter of degree. S.R. Bommai v. Union of India (1994) 3 SCC 1: federalism is part of the basic structure, a Proclamation under Article 356 is justiciable, and the floor of the House is the test of majority. Kuldip Nayar v. Union of India (2006) 7 SCC 1: the model is quasi-federal. Government of NCT of Delhi v. Union of India (2018) 8 SCC 501 and (2023) 9 SCC 1: collaborative federalism. Union of India v. Mohit Minerals (2022) 10 SCC 700: the recommendations of the GST Council under Article 279A are not binding, both legislatures having simultaneous power under Article 246A.

The current strain is the Governor's office. In State of Tamil Nadu v. Governor of Tamil Nadu, decided 8 April 2025, a two-judge bench prescribed timelines for assent and declared ten Bills deemed assented. On a Presidential Reference the Supreme Court held on 20 November 2025 that courts cannot prescribe timelines 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 review lies for unexplained delay.

The cases that did the work. Air India v. Nergesh Meerza (1981) 4 SCC 335 struck down termination of an air hostess's service on first pregnancy. Vishaka v. State of Rajasthan (1997) 6 SCC 241 held sexual harassment at the workplace to violate Articles 14, 15, 19(1)(g) and 21 and laid down guidelines drawn from the Convention on the Elimination of All Forms of Discrimination against Women, replaced by the Act of 2013. Anuj Garg v. Hotel Association of India (2008) 3 SCC 1 applied stricter scrutiny to sex classifications and held that protection by exclusion is self-defeating. Githa Hariharan v. Reserve Bank of India (1999) 2 SCC 228 read "after him" in the Hindu Minority and Guardianship Act as "in the absence of". Shayara Bano v. Union of India (2017) 9 SCC 1 struck down instantaneous triple talaq. Joseph Shine v. Union of India (2018) 2 SCC 189 struck down the adultery offence. Secretary, Ministry of Defence v. Babita Puniya (2020) 7 SCC 469 secured permanent commission for women officers in the Army. Vineeta Sharma v. Rakesh Sharma (2020) 9 SCC 1 held a daughter's coparcenary right under the Hindu Succession (Amendment) Act, 2005 to be by birth and independent of the father surviving to 9 September 2005. X v. Principal Secretary, Health and Family Welfare Department, NCT of Delhi (2023) 9 SCC 433 held reproductive autonomy part of Article 21 and struck down the marital distinction in the Medical Termination of Pregnancy Rules.

(c) Secularism

Indian secularism is neither the American wall of separation nor French laicite. It is usually called principled distance or sarva dharma sama bhava: the State establishes no religion, treats no faith as official, and may intervene in religious affairs for social reform. The proof is textual. Article 25(1) guarantees freedom of conscience and the right to profess, practise and propagate religion, expressly subject to public order, morality, health and the other provisions of Part III. Article 25(2)(a) permits regulation of economic, financial, political or other secular activity associated with religious practice; Article 25(2)(b) permits laws for social welfare and reform and for throwing open Hindu religious institutions to all classes and sections of Hindus. Article 26 gives denominational rights; Article 27 forbids taxes for the promotion of a religion; Article 28 regulates religious instruction in State-funded institutions; Article 17 abolishes untouchability; Article 44 directs a uniform civil code.

Religion and elections. Abhiram Singh v. C.D. Commachen (2017) 2 SCC 629 held by 4:3 that section 123(3) of the Representation of the People Act, 1951 forbids an appeal on the ground of the religion, race, caste, community or language of the candidate, his agent, the voter or anyone, making any such appeal a corrupt practice.

The honest criticism. The Constitution does not require identical treatment of all religions; it forbids discrimination while permitting reform, and the reforming clause names Hindu institutions expressly. Article 30 gives minorities an educational autonomy the majority does not have, reinforced by Pramati (2014) and by Aligarh Muslim University v. Naresh Agarwal (8 November 2024). And there is still no statutory definition of hate speech, eight years after the Law Commission's 267th Report. Indian secularism is therefore best described as equal respect with unequal intervention.

The cases. Babulal Parate v. State of Bombay (AIR 1960 SC 51): one reference satisfies the proviso, Parliament may amend the Bill afterwards without a fresh reference, and the President is not bound by the views expressed. In re: Berubari Union (AIR 1960 SC 845): cession of Indian territory to a foreign State cannot be done under Article 3 and requires an amendment under Article 368, which produced the Ninth Amendment, 1960. Maganbhai Ishwarbhai Patel v. Union of India (1970) 3 SCC 400: the settlement of a boundary dispute, as distinct from cession, may be effected by executive action, the reasoning that later supported the Hundredth Amendment, 2015 implementing the Land Boundary Agreement with Bangladesh.

The history. The States Reorganisation Act, 1956 with the Seventh Amendment redrew the map on a broadly linguistic basis after the Fazl Ali Commission reported in 1955, itself a consequence of the agitation following the death of Potti Sriramulu and the creation of Andhra in 1953. Then Maharashtra and Gujarat (1960), Nagaland (1963), Haryana and Himachal Pradesh (1966 and 1971), the north-eastern States (1971 to 1987), Sikkim (1975, by the Thirty-sixth Amendment), Goa (1987), Chhattisgarh, Uttarakhand and Jharkhand (2000) and Telangana (2014).

Conclusion. These four notes describe the same constitutional method from four directions. Federalism and the formation of new States show a Union that may redraw its own units by ordinary majority and is nonetheless bound by federalism as a basic feature. Secularism shows a State that must not establish a religion and may reform one. And the empowerment of women shows a guarantee delivered fastest where the Constitution made it mandatory, one-third of panchayat seats since 1993, and slowest where it left the matter to the political process, which is why the 106th Amendment took from 2023 to April 2026 to be brought into force and is still not operative.