LLM Foundation Course Indian Constitutional Law New Challenges 2018 Question Paper with Solutions

For full marks, cover: the constitutional text and its three silences; the four Judges Cases with the holding of each; the National Judicial Appointments Commission and why it fell; how the collegium works in practice; and the criticisms with the reform that would answer them.

The text, and what it does not say. Article 124(2): every Judge of the Supreme Court is appointed by the President by warrant under his hand and seal after consultation with such Judges of the Supreme Court and of the High Courts as the President may deem necessary, and for an appointment other than that of the Chief Justice, the Chief Justice of India shall always be consulted. Article 124(3) fixes the qualifications: five years as a High Court Judge, or ten years as an advocate of a High Court, or a distinguished jurist in the President's opinion. Article 217(1) provides for High Court Judges, appointed after consultation with the Chief Justice of India, the Governor, and for a puisne Judge the Chief Justice of that High Court. Article 222 provides for transfer, Article 224 for additional and acting Judges.

Fourth Judges Case, Supreme Court Advocates-on-Record Association v. Union of India (2016) 5 SCC 1, decided 16 October 2015. The Ninety-ninth Amendment and the National Judicial Appointments Commission Act, 2014 were struck down 4:1. The Commission would have comprised the Chief Justice, the two next senior Judges, the Union Law Minister and two eminent persons, with any two members able to veto a name; the majority held that this destroyed judicial primacy in appointments, which is part of the basic structure. Chelameswar J. dissented, and his criticism of the collegium's opacity is quoted in every subsequent discussion.

How it works now, and the two practical facts an examiner will look for. The Supreme Court collegium is the Chief Justice and four senior-most Judges; a High Court recommendation passes from that Court's collegium of three to a Supreme Court collegium of three; the government may return a name once with objections, and a unanimous reiteration binds in principle. But no time limit binds the government, and the practice of neither notifying nor formally rejecting a reiterated name has become the effective instrument of executive influence. And the Memorandum of Procedure, directed to be revised in the remedial hearing after the NJAC judgment, remains unsettled a decade later, so the criteria and timelines that judgment contemplated do not exist.

For full marks, cover: what grass root democracy means constitutionally, which is Part IX and Part IXA; the reservation provisions in detail; the case law; the evidence on how it has worked and the criticisms; and then the contrast with the national level, where reservation arrived only in 2026 and is still not operative.

The statement in the question is true of local government and, until very recently, was not true of Parliament. That contrast is the answer.

Grass root democracy became a constitutional obligation in 1992. Before the Seventy-third and Seventy-fourth Amendments, in force from 24 April 1993 and 1 June 1993, local government was a State subject under entry 5 of List II and bodies were superseded without election for years at a time. Article 40, a directive principle, had since 1950 asked the State to organise village panchayats and endow them with the powers necessary to function as units of self-government, and four committees, Balwant Rai Mehta (1957), Ashok Mehta (1978), G.V.K. Rao (1985) and L.M. Singhvi (1986), the last of which first recommended constitutional status, had asked for action.

The case law. Kishansing Tomar v. Municipal Corporation of the City of Ahmedabad (2006) 8 SCC 352 held Article 243U mandatory, so a State Election Commission must hold elections before the term expires, and neither want of funds nor unpreparedness excuses delay; without that holding the reservation would be worth nothing, since an unelected body has no reserved seats. K. Krishna Murthy v. Union of India (2010) 7 SCC 202, a Constitution Bench, upheld reservation in local bodies and held that reservation for backward classes there stands on a different footing from reservation in education and employment, requiring an empirical enquiry, later formalised as the triple test in Vikas Kishanrao Gawali v. State of Maharashtra (2021) 6 SCC 73: a dedicated commission, contemporaneous empirical data, specification of the proportion required, and a fifty per cent ceiling on all reserved categories together. Rajbala v. State of Haryana (2016) 1 SCC 463 upheld minimum educational qualifications and other disqualifications for panchayat candidates, a decision widely criticised for excluding the very people the tier exists to represent, many of them women.

Now the contrast at the national level, which is what makes this a constitutional law answer and not a sociology one. For thirty years the same principle was resisted for Parliament. The Constitution (One Hundred and Sixth Amendment) Act, 2023, the Nari Shakti Vandan Adhiniyam, inserts Articles 330A, 332A and a proviso to Article 239AA(2)(b), reserving one-third of the seats in the Lok Sabha, the State Legislative Assemblies and the Delhi Assembly for women, including one-third of the seats reserved for Scheduled Castes and Tribes. But Article 334A provides that the reservation takes effect only after a delimitation carried out on the basis of the first census taken after the commencement of the Act, and that it ceases fifteen years after commencement. The Act was brought into force on 16 April 2026, and the Constitution (One Hundred and Thirty First Amendment) Bill, 2026, introduced to enable an earlier delimitation and so to operationalise the reservation, was defeated in the Lok Sabha for want of the special majority under Article 368.

For full marks, cover: why affirmative action is tied to State control, through Articles 16 and 12; the arithmetical effect of privatisation on employment; the education sequence from T.M.A. Pai to Article 15(5) and the Right to Education Act, which is the constitutional answer already given; three second-order effects; and the doctrinal question whether the State may discharge an equality obligation by transferring the field.

The arithmetical effect on employment is direct and undisputed. Since the New Industrial Policy of 24 July 1991 the State has disinvested public sector undertakings, contracted out services and withdrawn from whole sectors. A disinvested undertaking ceases to satisfy the Pradeep Kumar Biswas test, and its posts leave the reservation roster on the day the shares are sold. BALCO Employees' Union v. Union of India (2002) 2 SCC 333 upheld exactly such a sale, holding disinvestment to be a matter of economic policy not ordinarily justiciable and the employees to have no right to be heard, since a change of ownership affected no right of theirs. The constitutional consequence, which the Court did not dispute, is that Articles 14 and 16 governed those employees the day before and not the day after. The result is that the reservation percentages have risen over thirty years while the base to which they apply has shrunk, and there is no constitutional provision for reservation in private employment; proposals for it have been debated since the mid-2000s and none has been enacted, the private sector having offered voluntary affirmative action codes instead.

In education the State did legislate, and the sequence is the clearest illustration of the whole problem.

At the school level the same instinct produced section 12(1)(c) of the Right of Children to Free and Compulsory Education Act, 2009, requiring unaided schools to admit at least twenty-five per cent of the entry class from weaker sections and disadvantaged groups against State reimbursement; upheld in Society for Unaided Private Schools of Rajasthan v. Union of India (2012) 6 SCC 102 as a reasonable restriction on Article 19(1)(g), and held inapplicable to minority schools in Pramati.

The lesson from that sequence is the answer to the question. Affirmative action had to be re-legislated into the private sector by constitutional amendment, because privatisation had taken the sector out of its reach. That is direct evidence that privatisation affects the programme, and it is also evidence that the effect is remediable if the political will exists.

Now the doctrinal question, which is what lifts this above a policy essay. 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, a holding adopted in Indra Sawhney v. Union of India 1992 Supp (3) SCC 217. If that is right, affirmative action is not a concession the State may withdraw but an application of the equality guarantee itself, and the State's obligation is to secure substantive equality. On that footing it is at least arguable that the State cannot discharge the obligation by transferring the field to actors who are not bound by it, which is the constitutional argument for Article 15(5), for section 12(1)(c), and for extending reservation to private employment. Against it stand Article 19(1)(g) and the reasoning of T.M.A. Pai, and the fact that Inamdar had to be reversed by amendment rather than by interpretation shows how the Court reads the balance.

For full marks, cover: what preventive detention is and why India is unusual in constitutionalising it; Article 22 in its two halves; the safeguards in clauses (4) to (7); the central statutes; the case law from A.K. Gopalan through Maneka Gandhi to the modern grounds of quashing; and an assessment of whether the safeguards work.

The safeguards Article 22 does provide, and they must be given clause by clause.

Article 22(4): no law providing for preventive detention shall authorise detention for longer than three months unless an Advisory Board consisting of persons who are or have been or are qualified to be appointed as Judges of a High Court reports before the expiry of three months that there is sufficient cause; or unless the person is detained under a law made by Parliament under clauses (7)(a) and (b).

Article 22(5): the authority making the order shall, as soon as may be, communicate to the detenu the grounds on which the order has been made, and shall afford him the earliest opportunity of making a representation against the order.

Article 22(6): nothing in clause (5) requires disclosure of facts which the authority considers against the public interest to disclose.

Article 22(7): Parliament may by law prescribe the circumstances in which, and the class of cases in which, a person may be detained beyond three months without an Advisory Board's opinion, and the maximum period of detention.

Stage one, A.K. Gopalan v. State of Madras (AIR 1950 SC 27). The Court read Articles 19, 21 and 22 as mutually exclusive; "procedure established by law" meant only a procedure prescribed by a validly enacted law, without any requirement that it be fair; and since Article 22 was a self-contained code for detention, the reasonableness of the procedure was not open to review. Fazl Ali J. dissented, holding that the Articles overlap.

Stage two, Maneka Gandhi v. Union of India (1978) 1 SCC 248. The dissent became the law. Articles 14, 19 and 21 are not watertight compartments; a law depriving a person of personal liberty must prescribe a procedure that is right, just and fair, and not arbitrary, fanciful or oppressive; and it must satisfy Articles 14 and 19 as well. After Maneka a preventive detention law is fully justiciable on the fairness of its procedure, which is the doctrinal foundation of everything that follows.

Stage three, the grounds on which detention orders are actually quashed. The courts rarely strike down the statutes; they quash the orders, and the recurring grounds are worth listing because they are what a problem question turns on:

4. Non-application of mind, including a mechanical or copied order, and failure to consider that the detenu is already in custody with no real likelihood of release. Rekha v. State of Tamil Nadu (2011) 5 SCC 244, where the Court said preventive detention is a necessary evil only to prevent public disorder and must be confined within strictly constitutional limits, and Banka Sneha Sheela v. State of Telangana (2021) 9 SCC 415, where an order under a State Act was quashed on exactly that ground.
5. Failure to inform of the right to make a representation to the detaining authority, not only to the Advisory Board. Kamlesh Kumar Ishwardas Patel v. Union of India (1995) 4 SCC 51.

The remedies are habeas corpus under Article 32 or Article 226, which lies notwithstanding Article 22(3)(b), because the question is whether the detention is according to law. The darkest chapter, ADM Jabalpur v. Shivakant Shukla (1976) 2 SCC 521, which held that no habeas corpus petition lay during the Emergency, was expressly overruled in Justice K.S. Puttaswamy v. Union of India (2017) 10 SCC 1, and the Forty-fourth Amendment amended Article 359 so that Articles 20 and 21 can no longer be suspended even during an emergency.

Conclusion. The statement in the question is the constitutional rule and it is exactly right so far as it goes: the executive has no inherent power to detain, and every preventive detention must be traceable to a law and must follow that law's procedure, which must itself be right, just and fair. What the statement does not say is that the Constitution permits a great deal to be done under such a law: detention without charge, without trial, without evidence tested in court, and without counsel before the Advisory Board. Preventive detention is therefore the one place in Part III where the Constitution licenses what it elsewhere forbids, and the only real protection has come from the courts, first by discarding A.K. Gopalan, then by insisting on strict compliance with Article 22(5), and lately by holding in Rekha and Banka Sneha Sheela that the power is a necessary evil to be confined within strict limits.

The power is very wide and its scope has been contested. In Union Carbide Corporation v. Union of India (1991) 4 SCC 584 the Court took the view that prohibitions in ordinary statutes cannot limit the constitutional power under Article 142. That was corrected in Supreme Court Bar Association v. Union of India (1998) 4 SCC 409, which held that Article 142 cannot be used to supplant substantive law or to build a new edifice where none existed, nor to ignore an express statutory provision dealing with the subject, and that the Court cannot, in the exercise of the power, do what the statute forbids. The modern formulation is that Article 142 supplements the law and does not supplant it.

The best-known applications are worth naming: dissolution of marriage on irretrievable breakdown, a ground the Hindu Marriage Act, 1955 does not contain, a jurisdiction confirmed by a Constitution Bench in Shilpa Sailesh v. Varun Sreenivasan (2023) SCC OnLine SC 544, which also held that the Court may waive the six-month waiting period under section 13B(2); the transfer of the Bhopal litigation; the complete justice orders in the Vishaka line; and the direction in M. Siddiq v. Mahant Suresh Das (2020) 1 SCC 1 allotting five acres for a mosque, expressly made under Article 142.

Source three: section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023, formerly section 482 of the Code of Criminal Procedure, 1973. Nothing in the Sanhita shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under the Sanhita, to prevent abuse of the process of any court or otherwise to secure the ends of justice. Note that this power belongs to the High Court alone. The leading authority is State of Haryana v. Bhajan Lal 1992 Supp (1) SCC 335, which listed seven categories in which a first information report or complaint may be quashed, the principal ones being that the allegations, taken at their highest, disclose no offence; that they are absurd and inherently improbable; that the proceeding is manifestly attended with mala fides or is instituted with an ulterior motive; and that there is an express legal bar. The Court also warned that the power is to be exercised sparingly and that the High Court should not embark on an appreciation of evidence. R.P. Kapur v. State of Punjab (AIR 1960 SC 862) is the earlier statement of the same principle, and Gian Singh v. State of Punjab (2012) 10 SCC 303 established that the High Court may quash even a non-compoundable offence on the basis of a settlement where the dispute is essentially civil or matrimonial, a power the compounding provision itself does not give.

Conclusion. Inherent powers exist because no code can anticipate every situation in which the process of a court may be abused or justice defeated, and Indian law recognises them at four levels: Article 142 for the Supreme Court, section 151 of the Civil Procedure Code for civil courts, section 528 of the Bharatiya Nagarik Suraksha Sanhita for the High Courts in criminal matters, and the contempt jurisdiction of a court of record under Articles 129 and 215. Their exercise is governed by one idea throughout, that the power supplements the law and does not supplant it: Supreme Court Bar Association said so of Article 142, Padam Sen of section 151, and Bhajan Lal of the quashing power. The tension is permanent and cannot be resolved by definition, because a power wide enough to prevent every abuse is wide enough to be abused, which is why the only real control on it is the discipline of the court exercising it.

Three consequences. The views of the affected State are not binding; there is no requirement of consent; and the President may act after the specified period whether or not views are expressed. No Indian State has a guaranteed territorial existence, which is the sharpest difference from the American, Australian or Canadian federations, and it is the strongest single argument that the Indian Union is not federal in the classical sense.

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 is not within 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 is not cession and may be effected by executive action, the reasoning later applied to the Hundredth Amendment, 2015, which gave effect to the Land Boundary Agreement with Bangladesh.

The most recent exercise, which post-dates this paper and is essential to a current answer. The Jammu and Kashmir Reorganisation Act, 2019 converted a State into two Union territories, a course Article 3 does not expressly contemplate, and did so while the State was under President's rule, so that the "views" of the State legislature were expressed by Parliament itself. In In Re: Article 370 of the Constitution, decided 11 December 2023, a Constitution Bench upheld the abrogation of Article 370, holding it a temporary provision and that the President's power under Article 370(3) survived the dissolution of the State's Constituent Assembly. On the reorganisation, the Court declined to decide whether a State may be converted into Union territories, in view of the Solicitor General's statement that statehood would be restored, upheld the carving out of Ladakh under Article 3(a), directed that statehood be restored at the earliest, and ordered Assembly elections by 30 September 2024, which were held.

Reforms the Commission has delivered on its own authority under Article 324: the Model Code of Conduct, non-statutory and enforced with real effect from 1991; the electors photo identity card from 1993; electronic voting machines, used from 1998 and universally from 2004 after section 61A was inserted in 1989 to cure the defect found in A.C. Jose v. Sivan Pillai (1984) 2 SCC 656; VVPAT from 2013, with verification of five randomly chosen machines per Assembly segment after the directions in Association for Democratic Reforms v. Election Commission of India (26 April 2024); expenditure observers, flying squads and video surveillance; and the cVIGIL citizen complaint application from 2018.

The appointment reform, and its reversal. Anoop Baranwal v. Union of India (2023) 6 SCC 161, decided 2 March 2023, held that appointments to the Election Commission 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 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, and its validity is under challenge and undecided.

Conclusion. The two notes share a theme. Article 3 gives Parliament an almost unfettered power to redraw the Union's own units, checked in practice only by politics and, in 2023, by a judicial direction to restore statehood at the earliest. Electoral reform shows the opposite pattern: the power to reform lies with Parliament, which has used it sparingly, and almost every significant change of the last twenty five years, disclosure, NOTA, immediate disqualification and the end of anonymous corporate funding, has come from the Supreme Court reading Article 19(1)(a). Where Parliament is free to act it acts quickly, and where reform would cost the parties in power it has not acted at all.

Independence, grouped by what each provision protects. 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, Article 124(4) applied to High Court Judges by Article 218. Money: salaries determined by Parliament, not variable to a Judge's disadvantage after appointment except during a financial emergency, and charged on the Consolidated Fund by Articles 112(3)(d), 125, 202(3)(d) and 221, so they are not voted on annually. 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 confer the contempt power; Articles 124(7) and 220 restrict practice after retirement; Article 50 directs separation of the judiciary from the executive. The subordinate judiciary: Article 235 vests control in the High Court, read in State of West Bengal v. Nripendra Nath Bagchi (AIR 1966 SC 447) to include disciplinary jurisdiction, and the All India Judges' Association cases have secured service conditions nationally.

Removal is theoretically available and practically unusable. 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, a finding of misbehaviour, and then a special majority in both Houses in the same session. No Judge has ever been removed. In 1993 the committee found misbehaviour against Justice V. Ramaswami and the motion still failed, because a large bloc abstained and the motion did not secure a majority of the total membership of the House. Justice Soumitra Sen resigned in 2011 after the Rajya Sabha passed the motion. 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 a proceeding in Parliament immune from review, and that the Speaker's decision to admit a motion is justiciable.

Transparency. In Central Public Information Officer, Supreme Court of India v. Subhash Chandra Agarwal (2020) 5 SCC 481 a Constitution Bench held that the office of the Chief Justice of India is a public authority under the Right to Information Act, 2005, so information about judges' assets and about collegium deliberations falls within the Act, subject to its exemptions and the public interest test. The decision was given against the Supreme Court's own registry, which had resisted disclosure, and it is the best evidence that the judiciary will accept accountability that is not executive-controlled. Collegium resolutions have been published since 2017, but without reasons in most cases.

How the two relate, which is the point of the question. They are usually presented as a trade-off and are better understood as complements. A court commands neither the purse nor the sword; its authority rests on public confidence alone. A judiciary that is unaccountable forfeits that confidence and with it the only real source of its power, which is exactly why the Court itself devised the in-house procedure, accepted the application of the Right to Information Act to the Chief Justice's office, and adopted the Restatement of Values of Judicial Life in 1997. Conversely, an accountability mechanism controlled by the executive would destroy independence, which is what the majority held about the National Judicial Appointments Commission, on which the Law Minister could combine with one eminent person to block any name.

Then the four Judges Cases, one sentence each. S.P. Gupta v. Union of India 1981 Supp SCC 87: consultation is not concurrence and the executive has the last word. Supreme Court Advocates-on-Record Association v. Union of India (1993) 4 SCC 441: overruled by nine judges, primacy to the Chief Justice acting with senior colleagues, and the collegium is created. Special Reference No. 1 of 1998 (1998) 7 SCC 739: the collegium is the Chief Justice plus four senior-most Judges for the Supreme Court and two for a High Court. Supreme Court Advocates-on-Record Association v. Union of India (2016) 5 SCC 1: the Ninety-ninth Amendment and the National Judicial Appointments Commission Act, 2014 struck down 4:1, judicial primacy in appointments being basic structure, because any two members of the proposed Commission could veto a name.

Then how it works now. Collegium composition; the government may return a name once; a unanimous reiteration binds in principle; but no time limit binds the government, and the practice of neither notifying nor rejecting a reiterated name has become the real instrument of influence.

This question is printed word for word as question 2 of Q.P. Code 33855, and the full answer is given there. The plan is as follows.

The proposition is true of local government and became true of Parliament only in 2026. That contrast is the answer.

At the grass roots the guarantee is constitutional and mandatory. The Seventy-third and Seventy-fourth Amendments, 1992, in force 24 April 1993 and 1 June 1993, put local government into Parts IX and IXA. Article 243D(1) reserves seats for the Scheduled Castes and Tribes in proportion to population; 243D(2) reserves one-third of those for women of those groups; 243D(3) reserves not less than one-third of all directly elected seats for women, by rotation; 243D(4) applies the same one-third to the offices of chairperson. Articles 243T(3) and (4) do the same for municipalities. The supporting machinery is the Gram Sabha (243A), the five-year term with elections before expiry or within six months of dissolution (243E), the twenty-nine subjects of the Eleventh Schedule (243G), the State Finance Commission (243I) and the State Election Commission (243K).

Conclusion. The difference between the two levels is one of drafting rather than principle: the 1992 amendments made the reservation operative on commencement, and the 2023 amendment made it operative on a future event that has not occurred.

Education, where the State did legislate. T.M.A. Pai Foundation v. State of Karnataka (2002) 8 SCC 481 held that running an educational institution is an occupation under Article 19(1)(g); 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), upheld in Ashoka Kumar Thakur v. Union of India (2008) 6 SCC 1 and Pramati Educational and Cultural Trust v. Union of India (2014) 8 SCC 1. At the school level, section 12(1)(c) of the Right to Education Act, 2009 was upheld in Society for Unaided Private Schools of Rajasthan v. Union of India (2012) 6 SCC 102 and held inapplicable to minority schools in Pramati.

Three second-order effects. The minority exemption creates an incentive to seek minority status, sharpened by Aligarh Muslim University v. Naresh Agarwal (8 November 2024); outsourcing within government bypasses the roster without abolishing a post; and reserved seats increasingly secure access to the tier the State still funds rather than the tier that confers advantage.

This question is printed word for word as question 4 of Q.P. Code 33855, and the full answer is given there. The plan is as follows.

The three provisions. Article 21, no deprivation of personal liberty except according to procedure established by law. Article 22(1) and (2), grounds of arrest, counsel of choice and production before a magistrate within twenty-four hours. Article 22(3)(b), which makes those two clauses inapplicable to preventive detention. So detention must be under a law, and that law must carry its own procedure and satisfy Articles 14, 19 and 21.

The case law in three stages. A.K. Gopalan v. State of Madras (AIR 1950 SC 27): Articles 19, 21 and 22 mutually exclusive, procedure means any enacted procedure. Maneka Gandhi v. Union of India (1978) 1 SCC 248: overruled in effect, procedure must be right, just and fair. Then the grounds on which orders are actually quashed: vague or irrelevant grounds and the law and order, public order, security of the State distinction from Ram Manohar Lohia v. State of Bihar (AIR 1966 SC 740); delay in supplying grounds or deciding a representation, Khudiram Das v. State of West Bengal (1975) 2 SCC 81; failure to supply documents or a translation, Harikisan v. State of Maharashtra (AIR 1962 SC 911); non-application of mind, Rekha v. State of Tamil Nadu (2011) 5 SCC 244 and Banka Sneha Sheela v. State of Telangana (2021) 9 SCC 415; and failure to inform of the right to represent to the detaining authority, Kamlesh Kumar Ishwardas Patel v. Union of India (1995) 4 SCC 51.

The remedy is habeas corpus under Article 32 or 226. ADM Jabalpur v. Shivakant Shukla (1976) 2 SCC 521 was overruled in Justice K.S. Puttaswamy v. Union of India (2017) 10 SCC 1, and the Forty-fourth Amendment made Articles 20 and 21 non-suspendable even in an emergency.

For full marks, cover: Article 143 in its two clauses and the difference between them; the nature of the opinion and whether it binds; when the Court has declined to answer; the principal references with what each decided; and an assessment of the jurisdiction's value.

Article 143 has two clauses and they are not the same.

Article 143(1): if at any time it appears to the President that a question of law or fact has arisen or is likely to arise, which is of such nature and of such public importance that it is expedient to obtain the opinion of the Supreme Court upon it, he may refer the question to that Court for consideration, and the Court may, after such hearing as it thinks fit, report to the President its opinion thereon. Note the two discretions: the President may refer, and the Court may answer.

Two, the opinion is advisory and does not bind. It is not a "law declared by the Supreme Court" within Article 141 and it is not a judgment, decree or order; it binds nobody, not even the President, who is free not to act on it. But it carries the highest persuasive authority and is invariably followed in practice; in Cauvery Water Disputes Tribunal, In re 1993 Supp (1) SCC 96 (II) the Court said that its opinion is entitled to due weight and respect and is normally followed by all concerned. It is also not a precedent in the strict sense, though later benches treat it as authoritative; the point was discussed in Natural Resources Allocation, In re, Special Reference No. 1 of 2012 (2012) 10 SCC 1.

Three, the Court may decline to answer under clause (1) and must give reasons. It declined in the Ayodhya reference, Ismail Faruqui v. Union of India (1994) 6 SCC 360, where the question whether a Hindu temple existed at the disputed site before the mosque was returned unanswered as superfluous, unnecessary and opposed to secularism, since answering it would favour one religious community. That is the leading instance and every answer should carry it.

The principal references, with what each decided.

In re Keshav Singh (AIR 1965 SC 745), the Presidential Reference on legislative privileges: the relationship between the privileges of a State legislature under Article 194 and the powers of the High Court under Article 226 and the fundamental rights, holding that the legislature could not punish a Judge for entertaining a petition.

In re Special Courts Bill, 1978 (1979) 1 SCC 380: the constitutionality of special courts for offences committed during the Emergency, decided on Article 14 and reasonable classification.

Cauvery Water Disputes Tribunal, In re 1993 Supp (1) SCC 96: a State legislature cannot nullify an award of a tribunal constituted under the Inter-State River Water Disputes Act, 1956; the reference also contains the statement on the weight of an advisory opinion.

In re Presidential Poll (1974) 2 SCC 33: the election of the President cannot be postponed on the ground that some State Assemblies stand dissolved, since Article 62 requires the election to be completed before the expiry of the term.

Special Reference No. 1 of 1998 (1998) 7 SCC 739, the Third Judges Case: the composition and working of the collegium, clarifying the Second Judges Case at the Union's request.

And the most recent, which is what makes an answer current. In Special Reference No. 1 of 2025, decided 20 November 2025, the President referred fourteen questions under Article 143(1) on the powers of the Governor and the President in relation to Bills. The Court held that no rigid timelines can be judicially prescribed for action under Articles 200 and 201, that the concept of deemed assent is alien to the Constitution, and that decisions under those Articles are not ordinarily justiciable, while holding that a Governor may not sit on a Bill indefinitely and that a limited judicial review lies where the delay is unexplained. The reference followed State of Tamil Nadu v. Governor of Tamil Nadu, decided 8 April 2025 by a two-judge bench, which had prescribed timelines and declared ten Bills deemed assented, and the advisory opinion has in substance displaced that decision, which is a striking illustration of what the jurisdiction can do.

Assessment, which "discuss" invites.

In favour. It allows a constitutional doubt to be resolved before a law is passed or an action taken, which avoids invalidity after the event and the disruption that follows; it provides an authoritative answer where no lis exists and therefore no ordinary proceeding is possible; and it has produced some of the most important expositions in Indian constitutional law, of which In re Delhi Laws Act is the outstanding example.

Conclusion. The advisory jurisdiction is a deliberate departure from the ordinary judicial function, borrowed from section 213 of the Government of India Act, 1935, and its central features follow from that: the President alone may invoke it, there is no lis, the Court may decline under clause (1) but not under clause (2), and the opinion binds nobody while in practice settling the question. Used sparingly it has been valuable, and In re Delhi Laws Act and In re Kerala Education Bill are permanent parts of the constitutional canon. Used to reopen a decided question it is troubling, and the Court's own answer to that risk is the discretion it insisted on in Ismail Faruqui and again in the 2012 reference: it may refuse to answer, and it should.

Delivered by the Commission under Article 324: the Model Code of Conduct, non-statutory, enforced with effect from 1991; the photo identity card from 1993; electronic voting machines, universal from 2004 after section 61A cured the defect found in A.C. Jose v. Sivan Pillai (1984) 2 SCC 656; VVPAT from 2013, with the five-machine verification confirmed in Association for Democratic Reforms v. Election Commission of India (26 April 2024); expenditure observers and flying squads; and cVIGIL from 2018.

Imposed by the courts: the voter's right to know under Article 19(1)(a), Union of India v. Association for Democratic Reforms (2002) 5 SCC 294, and the striking down of section 33B in PUCL v. Union of India (2003) 4 SCC 399; NOTA, PUCL v. Union of India (2013) 10 SCC 1; immediate disqualification on conviction by the striking down of section 8(4) in Lily Thomas v. Union of India (2013) 7 SCC 653; publication of criminal antecedents and the reasons for selecting a candidate, Public Interest Foundation v. Union of India (2019) 3 SCC 224 and the order of 13 February 2020; religious appeals as a corrupt practice, Abhiram Singh v. C.D. Commachen (2017) 2 SCC 629; and the striking down of the Electoral Bond Scheme on 15 February 2024 in Association for Democratic Reforms v. Union of India.

(b) Formation of new States

Article 3 allows Parliament by law to form a new State, alter areas, boundaries or names, subject only to the President's recommendation and a prior reference to the affected State legislature for its views, which are not binding. Article 4 declares that such a law is not an amendment for Article 368, so an ordinary majority suffices and no State ratification is required. No Indian State therefore has a guaranteed territorial existence.

The cases. Babulal Parate v. State of Bombay (AIR 1960 SC 51): one reference suffices, the Bill may be amended afterwards, and the views do not bind. In re: Berubari Union (AIR 1960 SC 845): cession to a foreign State needs an amendment under Article 368, hence the Ninth Amendment, 1960. Maganbhai Ishwarbhai Patel v. Union of India (1970) 3 SCC 400: settlement of a boundary dispute may be done by executive action, the reasoning behind the Hundredth Amendment, 2015 on the Land Boundary Agreement with Bangladesh.

This question is printed word for word as question 5 of Q.P. Code 33855, and the full answer is given there. The plan is as follows.

What an inherent power is. A power a court has by virtue of being a court, to do what is necessary for the ends of justice and to prevent abuse of its own process. The provisions that mention it are declaratory, saving a power that already exists rather than conferring one.

Four sources.

Article 142, the Supreme Court's power to pass any decree or order necessary for doing complete justice. Its limits were fixed in Supreme Court Bar Association v. Union of India (1998) 4 SCC 409, correcting Union Carbide Corporation v. Union of India (1991) 4 SCC 584: the power supplements the law and does not supplant it, and cannot be used to ignore an express statutory provision. Applications: dissolution on irretrievable breakdown and waiver of the six-month period under section 13B(2), confirmed by a Constitution Bench in Shilpa Sailesh v. Varun Sreenivasan (2023), and the five-acre allotment in M. Siddiq v. Mahant Suresh Das (2020) 1 SCC 1.

The four common limits. The power fills a gap and is unavailable where the statute has spoken; it cannot be used to do what the law forbids; it is exercised sparingly and on principle; and it is not a source of jurisdiction.

Conclusion. Inherent powers exist because no code can foresee every abuse, and their exercise is governed throughout by one idea: the power supplements the law and does not supplant it. That is what Supreme Court Bar Association held of Article 142, Padam Sen of section 151, and Bhajan Lal of the quashing power.