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Comparative Constitutional Law
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LLM · Group 1 Constitutional and Administrative Law
2015 Examination
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LLM Group 1 Constitutional and Administrative Law Comparative Constitutional Law 2015 Question Paper with Solutions
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First published on munotes.in on 12 August 2026.
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Model answers written and edited by the munotes.in editorial desk.
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The University does not publish an official answer key for this paper. The answers in this volume are model answers, written to show how a full-mark answer is built. They are a study aid, not an authority on what an examiner marked.
The question paper reproduced here is the paper as set by the University of Mumbai at the 2015 examination.
The answers in this volume state the law as it stands today, not as it stood when the paper was set, and in a comparative subject that means four jurisdictions at once. Five changes alter answers here. Students for Fair Admissions v. Harvard, 29 June 2023, ended race conscious university admissions in the United States. State of Punjab v. Davinder Singh, 1 August 2024, permitted sub-classification within the Scheduled Castes. Mineral Area Development Authority v. Steel Authority of India, 25 July 2024, overruled India Cement on the States' power to tax mineral rights. The Constitution (One Hundred and Sixth Amendment) Act came into force on 16 April 2026 and is still not operative. And the advisory opinion of 20 November 2025 held that no timeline may be judicially prescribed for assent to a Bill. Where an answer relies on any of these it gives the date.
Contents
The questions below are the paper as the University of Mumbai set it at the 2015 examination, in the order it was set.
MarksPage
The Paper as Set
The questions in this volume are the questions asked at the 2015 examination, reproduced as the University of Mumbai set them, in the order it set them. Nothing has been reworded, added or left out. Only the answers are ours. See the original question paper.
Duration 3 hours · Total marks 100 · 8 questions answered
How to use this volume
Solve the paper first, under exam conditions and against the clock. Then read the answers here and mark your own. Reading a solution before attempting the question feels productive and teaches very little, because recognising an answer is not the same as being able to write one.
SECTION I
Attempt any four questions, all questions carry equal marks
any four of eight · 100 Marks
1.Write critically on the Independence of Indian Judiciary.[25]
Answer
For full marks, cover: what independence means and from whom; the constitutional guarantees, article by article; the appointment story, which is the heart of the subject; and then the critical part, because the question says critically and an answer that only lists the safeguards has answered half of it.
Judicial independence has two components and candidates usually give only the first. Decisional independence is the freedom of the individual judge to decide the case before them without fear or favour. Institutional independence is the freedom of the judiciary as a branch from control by the executive and the legislature in matters of appointment, tenure, conditions of service, budget and administration. The Indian Constitution provides generously for the first and, as originally drafted, left the second largely to the executive, which is why the whole constitutional history of this subject is a contest about appointments.
The framers made a deliberate choice, and it is worth quoting the reason. Dr Ambedkar told the Constituent Assembly that to allow the Chief Justice practically a veto on appointments was to transfer the authority to the Chief Justice, which he was not prepared to concede, since the Chief Justice was a man with all the failings, sentiments and prejudices of a common man; and equally that appointment by the executive alone was dangerous. Article 124(2) as enacted required consultation, not concurrence, which was the compromise.
The constitutional guarantees
Appointment and qualification. Article 124(2) provides for appointment by the President after consultation with such judges of the Supreme Court and High Courts as the President may deem necessary, with the proviso that the Chief Justice of India shall always be consulted for the appointment of a judge other than the Chief Justice. Article 217 makes parallel provision for the High Courts. Article 124(3) prescribes the qualifications and Article 124(4) the security of tenure.
Security of tenure. A Supreme Court judge holds office until sixty five and a High Court judge until sixty two, and may be removed only by an order of the President passed after an address by each House supported by a majority of the total membership of that House and by not less than two thirds of the members present and voting, on the ground of proved misbehaviour or incapacity. The Judges (Inquiry) Act, 1968, supplies the machinery. No judge has ever been removed. The motion against V. Ramaswami J. in 1993 failed although the inquiry committee found misbehaviour proved, because the ruling party abstained, which shows that the safeguard is also a shield.
Financial independence. Article 125 with the Second Schedule fixes salaries, which may not be varied to a judge's disadvantage after appointment except during a financial emergency under Article 360. The salaries and the administrative expenses of the Supreme Court are charged on the Consolidated Fund of India under Article 146(3), and of a High Court on the Consolidated Fund of the State under Article 229(3), so they are not votable and cannot be used as leverage.
Freedom from legislative criticism and from post retirement dependence. Article 121 forbids discussion in Parliament of the conduct of a judge in the discharge of his duties except on a motion for removal, and Article 211 imposes the same bar on State legislatures. Article 124(7) forbids a retired Supreme Court judge to plead or act in any court or before any authority within India, and Article 220 restricts a retired High Court judge to the Supreme Court and to other High Courts.
Institutional powers. Article 129 makes the Supreme Court a court of record with power to punish for contempt of itself, and Article 215 does the same for the High Courts. Article 50, a directive principle, requires the State to take steps to separate the judiciary from the executive in the public services, which was implemented in the criminal courts by the Code of Criminal Procedure, 1973. Article 235 gives the High Court control over the subordinate judiciary. Articles 32 and 226 give the courts the jurisdiction without which independence would be pointless.
Appointments: the four judges cases and their aftermath
S.P. Gupta v Union of India, 1981 Supp SCC 87*, the First Judges case. Seven judges held that consultation in Articles 124 and 217 did not mean concurrence, that the Chief Justice's opinion had no primacy, and that the executive could decline to accept it for cogent reasons. The same judgment relaxed standing and founded public interest litigation, so the case that weakened institutional independence strengthened access. The decade that followed saw transfers and non appointments widely perceived as punitive.
Supreme Court Advocates-on-Record Association v Union of India, (1993) 4 SCC 441, the Second Judges case. Nine judges overruled S.P. Gupta by seven to two, holding that consultation means concurrence, that the Chief Justice of India has primacy exercised in consultation with his senior colleagues, and that no appointment can be made against the collegium's recommendation. The Court reasoned from Article 50 and from the basic feature of judicial independence rather than from the words of Article 124.
In re Special Reference No 1 of 1998, (1998) 7 SCC 739, the Third Judges case. On a Presidential Reference after the executive questioned the working of the new system, nine judges fixed the collegium at the Chief Justice and the four senior most judges of the Supreme Court for appointments to that Court, and the Chief Justice and the two senior most judges for High Court appointments and transfers, and required the opinions to be in writing.
Supreme Court Advocates-on-Record Association v Union of India, (2015) 5 SCC 1, the NJAC case. The Constitution (Ninety Ninth Amendment) Act, 2014, and the National Judicial Appointments Commission Act, 2014, replaced the collegium with a six member Commission consisting of the Chief Justice, two senior most judges, the Union Minister of Law and two eminent persons. Four judges to one struck both down. The decisive objection was section 6(6) of the Act read with the amended Article 124A: any two members of the Commission could veto a recommendation, so two non judicial votes could defeat the three judicial ones, which destroyed the primacy the Court had held in 1993 to be part of the basic structure. Chelameswar J. dissented, arguing that the collegium's opacity was itself a threat to independence and that the amendment had been ratified by twenty State legislatures.
The critical assessment
The strongest criticism is that the collegium substituted one unaccountable process for another. There is no eligibility criterion published, no application, no record of deliberation and no reasoned order. Chelameswar J.'s dissent in 2015 called for transparency, and the Court itself in the Memorandum of Procedure proceedings accepted that reform was needed; the revised Memorandum has been under negotiation between the collegium and the Union since 2015 and has never been finalised, which leaves the process governed by a document neither side accepts.
The second criticism is that the executive retains a veto by inaction. The collegium recommends; the Union appoints. Where the Union simply does not act, the recommendation lapses in practice. Reiterated recommendations, which under the Second and Third Judges cases are binding, have remained pending for years, and the Supreme Court has repeatedly listed contempt proceedings against the Law Ministry over delays without pressing them to a conclusion. The result is that vacancies in the High Courts run at roughly a third of sanctioned strength, and delay in appointment is a more effective instrument of executive influence than refusal ever was.
The third criticism is post retirement employment. A judge who retires at sixty five is barred from practice by Article 124(7) but is not barred from appointment to a tribunal, a commission or a Governorship, and a large proportion of retired judges take such offices. The concern, stated bluntly by Arun Jaitley as a Minister, is that a pre retirement judgment may be influenced by a post retirement job. A cooling off period has been recommended by the Law Commission and never enacted. The comparison with the American life tenure under Article III and the British retirement at seventy five without any pattern of executive appointment is unfavourable to India.
The fourth criticism is that the removal machinery does not work. In seventy six years no judge has been removed, and the only motion to reach a vote failed on a party abstention. The consequence is that the only real discipline is the in house procedure adopted by the Court in 1997, which is internal, unpublished in its outcomes, and has no statutory basis.
The fifth criticism concerns the Chief Justice as master of the roster. The allocation of cases is entirely within the Chief Justice's discretion, as the Court itself confirmed in Asok Pande v Supreme Court of India, (2018) 5 SCC 341. The unprecedented press conference of four senior judges on 12 January 2018 was about precisely that power, and no institutional safeguard has followed it.
The sixth criticism is that contempt jurisdiction under Article 129 sits awkwardly with independence. A power to punish criticism of the institution protects the institution from pressure and also insulates it from scrutiny, and the conviction of Prashant Bhushan for criminal contempt on 14 August 2020 for two tweets, followed by a fine of one rupee, illustrated both the reach of the power and the difficulty of using it.
Against all that, three things should be said in the judiciary's favour. The Court struck down the Ninety Ninth Amendment against a government with a large majority, which few constitutional courts in the world have done. It has protected the independence of tribunals repeatedly, most recently in Madras Bar Association v Union of India, decided on 19 November 2025, striking down the core provisions of the Tribunals Reforms Act, 2021, on appointment, tenure and conditions of service, and directing the constitution of a National Tribunal Commission. And Anoop Baranwal v Union of India, decided on 2 March 2023, shows the Court extending the same logic to the Election Commission by directing appointment through a committee including the Chief Justice, although Parliament replaced the Chief Justice with a Union Cabinet Minister nine months later by the Chief Election Commissioner and other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023, whose constitutionality is still undecided.
The three appointments cases worked out
S.P. Gupta v Union of India, 1981 Supp SCC 87. In March 1981 the Union Law Minister circulated a letter to the Chief Ministers asking that additional judges be required to consent in advance to being appointed outside their home State, and that fresh appointees give the same undertaking. Lawyers across several High Courts challenged the circular, together with the non extension of two additional judges of the Delhi High Court. Seven judges held that consultation in Articles 124(2) and 217(1) requires a full and effective exchange of views but not concurrence, so where the constitutional functionaries differ the Union's view prevails, and that the circular was valid. The bearing on this question is direct: for twelve years the executive held the last word on who became a judge, and the transfers that followed are the reason the Court reversed itself in 1993.
Supreme Court Advocates-on-Record Association v Union of India, (1993) 4 SCC 441. The association of advocates entitled to file in the Supreme Court petitioned after a decade in which recommendations of Chief Justices had been passed over and judges transferred without consent. Nine judges overruled S.P. Gupta by seven to two and held that consultation means concurrence, that the Chief Justice of India's view, formed in consultation with his two senior most colleagues, has primacy, and that no appointment may be made against it. The reasoning was that judicial independence is a basic feature and cannot survive if the executive selects the judges who will decide against it. This is the case that created the collegium, and every criticism in the last part of this answer is a criticism of what it built.
Supreme Court Advocates-on-Record Association v Union of India, (2015) 5 SCC 1. The Ninety Ninth Amendment and the National Judicial Appointments Commission Act, 2014, replaced the collegium with a six member Commission: the Chief Justice, the two next senior judges, the Union Minister of Law and two eminent persons chosen by a panel of the Prime Minister, the Chief Justice and the Leader of the Opposition. Four judges to one struck both down. The operative defect was section 6(6) read with Article 124A: any two members could veto a recommendation, so the two eminent persons, or the Minister with one of them, could defeat the three judicial votes. Chelameswar J. dissented, holding that the collegium's own opacity was the greater danger. The case matters here because it shows the Court defending its independence successfully and, in the same judgment, declining to reform the process that independence rests on.
Conclusion. The Indian Constitution secures decisional independence as well as any constitution in the world, through fixed tenure, a charged salary, a near impossible removal procedure and a bar on legislative criticism, and the judiciary has used that security to strike down a constitutional amendment aimed at itself. Institutional independence is a different account. It rests on a doctrine the Court built for itself out of the word consultation, and it is undermined from three directions at once: by the opacity of the collegium, which forfeits the public support that is a court's only real defence; by executive delay, which achieves through inaction what the Ninety Ninth Amendment could not achieve directly; and by post retirement appointments, which create an interest the Constitution never contemplated. The critical judgment is that India has an independent judiciary and an indefensible method of composing it, and that the two problems are one problem, because a process that cannot be justified in public cannot be defended when it is attacked.
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