LLM Group 1 Constitutional and Administrative Law Public Authorities and Power Holders 2019 Question Paper with Solutions

For full marks, cover: the meaning and its basis in collective responsibility; then the second limb carefully, because it asks about importance and necessity in the functioning of law making bodies, which is a question about what the control does for the legislature itself and not a request for a list; then the instruments with their provisions, since necessity cannot be shown in the abstract; then the cases, of which Krishna Kumar Singh is the most important; then what has weakened the control and what that costs the legislature; and a conclusion.

Second, the necessity grows with delegation, and delegation is unavoidable. A modern legislature cannot enact the detail regulation requires, so it confers rule-making power, and every such conferment hands part of the legislative function to the executive. The control of delegated legislation is therefore not peripheral: it is the means by which the legislature keeps what it has given away. Without laying requirements, a scrutiny committee and the rule against delegating the essential legislative function, a legislature would legislate itself out of existence by instalments.

Third, control is what distinguishes a legislature from a registry. Where the executive commands a majority the passage of its Bills is assured. What is not assured, and what a Government cannot vote away, is the obligation to answer a question, to submit a demand for grant, to face a committee and to lay an ordinance. In a system of party discipline those obligations are the House's real work.

By interrogation. Starred questions, answered orally, expose the Minister to supplementaries, where the real testing happens; unstarred questions yield written answers and are the standard means of extracting official data; short notice questions are allowed on urgent matters; a half-an-hour discussion may follow an important question; and zero hour allows matters without notice, an Indian practice absent from the Rules.

Over the purse. No tax except by authority of law, Article 265; no withdrawal from the Consolidated Fund except under appropriation made by law, Article 114(3); the annual financial statement before both Houses, Article 112; demands for grants voted by the House of the People, Article 113; money Bills only in the House of the People, Articles 109 and 110; supplementary, additional and excess grants under Article 115. The instruments during the budget are the cut motions: the disapproval of policy cut reducing a demand to one rupee, the economy cut and the token cut of one hundred rupees.

Through committees, which is where detailed control now lives: the Public Accounts Committee under Rule 308 of the Rules of Procedure and Conduct of Business in Lok Sabha, examining the audit reports laid under Article 151, with the Estimates Committee and the Committee on Public Undertakings; and the twenty-four Departmentally Related Standing Committees, in their present form since 1993.

The cases

Krishna Kumar Singh v. State of Bihar, (2017) 3 SCC 1, decided on 2 January 2017 by seven judges, goes directly to necessity. Between 1989 and 1992 the State of Bihar took over some four hundred and twenty-nine Sanskrit schools by ordinance and re-promulgated the ordinance at least seven times without once placing it before the Legislature; teachers claimed to have become government servants. The Court held that re-promulgation without placing the ordinance before the legislature is a fraud on the Constitution and a subversion of the democratic legislative process; that the satisfaction of the President or Governor is open to judicial review; and that a lapsed ordinance creates no enduring rights except where irreversible consequences require relief. The requirement of laying is mandatory because it is how the legislature recovers its monopoly of law-making. The case is the clearest judicial statement that legislative control is a constitutional condition and not a courtesy, and that a Government which evades it acts unconstitutionally.

And the money Bill line shows control evaded by classification. In Justice K.S. Puttaswamy (Aadhaar) v. Union of India, (2019) 1 SCC 1, the majority upheld the enactment of the Aadhaar Act as a money Bill, Chandrachud J. dissenting on the ground that the Speaker's certificate was a fraud on the Constitution; in Rojer Mathew v. South Indian Bank Ltd., (2020) 6 SCC 1, a Constitution Bench doubted that reasoning and referred the money Bill question to a larger Bench, where it remains, so the position is open. Since Article 110(3) makes the certificate final, a Bill so certified escapes the Council of States, and one House loses its share of the control without any change in the law.

What has weakened it, and what that costs the legislature

The powers are intact and their use has thinned. Sitting days have fallen well below the averages of the early decades; a substantial proportion of Bills is passed without reference to a standing committee and some after very short debate; the guillotine disposes of most demands for grants without discussion, so the strongest control in law is the weakest in practice; question hour is frequently lost to disorder; and the Tenth Schedule puts a member who votes against the whip at risk of disqualification, which limits the House's capacity to divide against its own Government.

Conclusion. Legislative control is the whole set of means by which a legislature holds the executive to the authority it has given and calls it to account: motions that can end a Government, questions that compel answers on the record, the constitutional control of the purse under Articles 265, 266 and 114(3) with the cut motions, the committees, the laying of delegated legislation with the Committee on Subordinate Legislation, and the six week life of an ordinance under Article 123. Its importance to the functioning of a law making body is that it is the only way the legislature learns what became of its statutes, the only way it retains what it delegates, the only obligation a majority cannot vote away, the condition on which the executive's own powers were granted, and a discipline on administration even when unused.

In re Delhi Laws Act and Hamdard Dawakhana stop a legislature from abdicating, and Krishna Kumar Singh holds that evading the duty to lay an ordinance is a fraud on the Constitution. The necessity is proved by what happens without it: where Parliament has not controlled, the courts have, and a legislature that leaves its own work to others has surrendered not merely a power but its reason for sitting.