Constitutional LAW -II Question BANK 2019 edited PDF

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A L - A M E E N C O L L E G E O F L A WI I S E M E S T E R 3 Y E A R S L L. B. , C O U R S EC O N S T I T U T I O N A L L A W - I IM O D E L A N S W E R P A P E R - M A Y 2 0 1 9 /I M O R T A N T Q U E S T I O N S W I T HA N S W E R SP r e p a r e d B y : M s. S a h a n a F l o r e n c e A s s t. P ...

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AL AL--AM AME E E N C O LLE GE O F LA W II SEM EME EST STER ER 3 YE YEAR AR ARS S LL.B. .B.,, COUR URS SE

CONS NST TITUTIONAL LAW AW--II

MO MOD DEL AN ANSW SW SWE ER PAPE PER R-MA MAY Y 201 019 9/

IM IMO O R T A N T Q U E S T IO N S WIT H AN ANS S WE R S Pre Prepar par pared ed By: Ms Ms.. Saha Sahana na Fl Flor or orenc enc ence e As Asst st st.. Pr Prof of of.. AlAl-Am Am Amee ee een n Col Colleg leg lege e of Law aw..

Q.No.1. Discuss the Federal Characteristics of the Indian Constitution. SYNOPSIS: Introduction Definitions of Federalism Is the Constitution of India Federal ? Federal Characteristics of Indian Constitution Conclusion.

Introduction: Federalism is at its core a system where the dual machinery of government functions. Generally, under federalism, there are twolevels of government. One is a central authority which looks after the major affairs of the country. The other is more of a local government which looks after the day to day functioning and activities of their particular region. Federalism is a method of segregating powers so that the Central and local governments are each within a domain, harmonizing and autonomous. Federalism postulates a constitutional apparatus for bringing unity in diversity by toning the divergent forces of centripetal trends in the Country for the attainment of conjoint national targets. Definition:

a. Distribution of powers among governmental bodies b. Supremacy of the Constitution and c. The authority of the Courts as the interpreters of the Constitution.

IS THE CONSTITUTION OF INDIA FED FEDERAL? ERAL? According to the traditional classification followed by the political scientists, Constitutions are either unitary or federal. In a unitary Constitution the powers of the Government are centralised in one government viz., the Central Government. The provinces are subordinate to the Centre. In a federal Constitution, on the other hand,

there is a division of powers between the Federal and the State Governments and both are independent in their own spheres. There is a difference of opinion amongst the constitutional jurists about the nature of the Indian Constitution. One view is that it is a quasi-federal constitution and contains more unitary features than federal. The other view is that it is a federal Constitution with a novel feature of adopting itself to national emergencies. Federalism is a basic feature of the Constitution of India in which the Union of India is permanent and indestructible. Both the Centre and the States are co-operating and coordinating institutions having independence and ought to exercise their respective powers with mutual adjustment, respect, understanding and accommodation. The Indian federalism was devised with a strong Centre. Federalism with a strong Centre was inevitable as the framers of the Indian Constitution were aware that there were economic disparities as several areas of India were economically as well as industrially far behind in comparison to others. The view of the framers of the Constitution is that the Indian Constitution is a federal constitution. But some Constitutional jurists hesitate to characterise the Indian Constitution as federal. It is therefore necessary to ascertain firstly, what federal Constitution is and what are its essential characteristics, and Secondly, to examine whether our Constitution possesses those characteristics.

Essential Characteristics of a Federal Constitution A federal Constitution usually has the following essential characteristics:1.

In a federal constitution, powers are divided between the centre and the states in a systematic manner. The central government is provided with power to look into the matters of national importance. The subjects of provincial importance are entrusted to the states. 2. The constitution of a federal state is supreme and powerful. The centre and the states get their powers from the constitution. They fulfill their obligations and exercise authority within the limitations imposed by the constitution. They are not allowed to surpass their jurisdiction of authority. The judiciary declares the acts passed either by the centre or by the states, if they are against the constitution, as unconditional. Neither the centre nor the states are allowed to exceed their authority as conferred by the constitution. 3. Written constitution is an essential feature of a federal state. The powers and functions of the government, the rights and liberties of the citizens

also incorporated. The relation between the citizens and the government is also clearly mentioned. In the absence of a written constitution, conflicts may arise between the centre and the states. This makes the written constitution highly essential for the successful working of the federation. 4. The constitution of a federal government is not only written but also rigid in its nature. When the constitution is rigid, there will be no frequent changes. But the consent of both the centre and the state is necessary for changing its provisions. If this arrangement is not made, either the centre or states may try to change the provisions of the constitution for their selfish ends 5. A Federal State is featured by the existence on independent judiciary. The centre and the states have to fulfill their obligations within the framework of the constitution. However, conflicts may arise between them. In order to settle such conflicts, federal state establishes an independent judiciary, wherein judges possess independent position enabling them to deliver independent judgments honestly, impartially and without any fear or favour. Hence, the judiciary in federation acts as the final interpreter of the constitution. The Indian Constitution possesses all the essential characteristics of a federal Constitution mentioned above. The Constitution establishes a dual polity, a system of double government with the Central Government at one level and the State Government at the State level. There is a division of power between the Central and the State Governments. Each level of Government is supreme in its own sphere. The Constitution of India is written and is supreme. The provisions of the Constitution which are concerned with federal principles cannot be altered without the consent of the majority of the State. The Constitution establishes a Supreme Court to decide disputes between the Union and the States, or the States inter se interpret finally the provisions of the Constitution. Let us now examine what are those provisions of the Constitution which are produced in support of the above argument and how they modify the strict application of the federal principle. In the following matters, it is pointed out, the India Constitution contains the modifications of the federal principle:1. Appointment of Governors 2. Parliament’s power to legislate in the national Interest 3. Parliament’s power to form new state and alter boundaries of existing States. 4. Emergency Provisions. Conclusion: In short, it may be concluded that the Constitution of India is neither purely federal nor purely unitary but it is a combination of both. It is a union of composite State of a novel type. It enshrines the principle that inspite of federalism, the national interest ought to be paramount. Thus, the Indian Constitution is mainly federal with unique

safeguards for enforcing national unity and growth. Q.No.2. Discuss the Centre and State relations. SYNOPSIS Introduction Centre-State Relations a. Legislative Relationship b. Administrative Relationship c. Financial Relationship After independence India adopted the federal structure for, perhaps, administrative convenience. The state did not impose compulsions. That is why limited autonomy has been given to the states. There is dual policy, with the Union government at the centre and the state governments at the periphery—each enjoying powers assigned to them. The autonomy of the states is so adjusted with the centre that the latter can perform its function of ensuring unity of the country. Pt. Nehru wanted a happy and harmonious compromise between the strong centre and autonomous states. The Constitution of India divides powers between the Union and the State governments. The Seventh Schedule of the Constitution includes three lists of subjects the Union List, the State List and the Concurrent List. The Central or Union Government has exclusive power to make laws on the subjects which are mentioned in the Union List. The States have the power to make law on the subjects which are included in the State List. With regard to the Concurrent List, both the Central and State governments can make laws on the subjects mentioned in the Concurrent List. Finally, the subjects which are not mentioned in the above three lists are called residuary powers and the Union government can make law on them  It may be noted here that in making laws on the subjects of the Concurrent list, the Central government has more authority than the State governments. And on the subjects of the State List also the Central government has indirect control. All this shows that though the Indian Constitution has clearly divided powers between the two governments, yet the Central government has been made stronger than the State governments.We can discuss the division of powers between the two governments in India under three headings, such as, 1. Legislative relations, 2. Administrative relations and

3. Financial relations with reference to the three lists.

I. LEGISLATIVE RELATIONS-ARTICLE 246 The legislative relations between the centre and the states determined in accordance with the provisions of the of the Constitution. The legislative powers are categorized in three lists So far as the legislative relations between the Central government and the State governments is concerned, the Central government has been given exclusive power to make law on the subjects of the Union list. The union list has 97 subjects. These subjects are of great importance for the country and uniform in character. So, these subjects are given to the Union government. The State governments can make laws on the subjects mentioned in the State list. The State list has 66 subjects. The subjects which are of local importance and may vary from State to State are included in the State list. Some subjects of the State list are - law and order, public health, forests, revenue, sanitation, etc. Though the State governments have power to make laws on the subjects of the State list, yet the Central government, on certain occasions, can also make laws on these subjects. The Concurrent list has 47subjects. On these subjects both the central and the state governments can make laws. The subjects which are of great importance and uniform in character but man require local variations, are included in the Concurrent list. In respect of Concurrent list also, though both the governments can make laws on the subjects included in the list, yet the laws made by the Central government will prevail over the State laws in case of a conflict between the two.

Thus, we find that in legislative matters, the Union Parliament is very powerful. It has not only exclusive control over the Union list and the residuary powers, but it has also dominance over the Concurrent list and the State list. The Residuary Powers-Article- 248 vests the residuary powers in the Parliament. It says that Parliament has exclusive power to make any law with respect to any matter not enumerated in the Concurrent List or the State List.

Residuary legislative powers rest with the Parliament. Moreover when there is state of emergency, Parliament can make laws on the subjects given under Union List. In the case of a conflict between the laws made by the state and the laws passed by the centre the central law will prevail. Clearly the centre is decidedly stronger as far as legislative powers are concerned. II.

ADMINISTRATIVE RELATIONS [ARTS-256-263 ]

As in legislative matters, in administrative matters also, the Central government has been made more powerful than the States. The Constitution has made it clear that the State governments cannot go against the Central government in administrative matters. The State governments have to work under the supervision and control of the Central government. The States should exercise its executive powers in accordance with the laws made by the Parliament. The Central government can make laws for maintaining good relations between the Centre and the States. It can control the State governments by directing them to take necessary steps for proper running of administration. If the State fails to work properly or according to the Constitution, it can impose and take over its (the State’s) administration. Again, there are some officials of the Central government, working in the States, through which it can have control over the State governments.The framers of the Indian Constitution therefore decided to include detailed provisions to avoid clashes between centre and states in the administrative domain and to ensure effective Federal Executive control of matters failing within the Jurisdiction of the Parliament. In order to ensure smooth and proper functioning to the administrative machinery, they made provisions for meeting all types of eventualities resulting through the working of federalism or emergence of new circumstances due to difference of opinion between the dual authorities

III.FINANCI III.FINANCIAL AL RELATIONS [ARTICLES-265 TO 291] In financial matters also, the central government is more powerful than the States. The President of India has the power to make alterations in the distribution of revenues earned from income-tax between the centre and the States. The Centre has also the power to great loans and great-in-aid to the State governments. The Comptroller and Auditor General India and the Finance Commission of India which are the central agencies also have control over the State finances. Division of financial powers and functions among different levels of the federal polity are asymmetrical, with a pronounced bias for revenue taxing powers at the Union level while the States carry the responsibility for subjects that affect the day to day life of the people entailing larger

expenditure than can be met from their own resources. To run the administration properly, both the Central and the State governments need adequate sources of income. The income of the government comes mainly from various taxes imposed by it. In financial relations between the two governments, we will discuss how the sources of income are adjusted between the two governments. There are certain taxes like land revenue, tax on agricultural income, estate duty, etc., which are levied and collected by the States. They are the sources of State revenue. Some taxes are there like stamp duty, excise on medicine, toilet preparations, etc. which are levied by the Union but collected and appropriated by the States. There are some other taxes also which are the sources of income of the Union government alone. They are revenue earned from railways, posts and telegraphs, wireless, broadcasting, etc. On an average, the revenue of States from their own resources suffices only for about 50 to 60 percent of States’ current expenditure. Since the insufficiency of the States’ fiscal resources had been foreseen at the time of framing the Constitution, a mechanism in the shape of Finance Commission was provided under article 280 for financial transfers from the Union. Its function is to ensure orderly and judicious devolution that is deemed necessary from the point of view of avoiding vertical or horizontal imbalances. The Finance Commission is only one stream of transfer of resources from the Union to the States. The Planning Commission advises the Union Government regarding the desirable transfer of resources to the States over and above those recommended by the Finance Commission. Bulk of the transfer of revenue and capital resources from the Union to the States is determined largely on the advice of these two Commissions. By and large, such transfers are formula-based. Then there are some discretionary transfers as well to meet the exigencies of specific situations in individual States. These institutional arrangements served the country well in the first three decades after independence. Testifying to the strength of these institutions neither the Union nor the States suffered from any large imbalance in their budgets, although the size of the public sector in terms of proportion of government expenditure to Gross Domestic Product had nearly doubled during this period. Imbalances have become endemic during the last two decades and have assumed alarming proportions recently.For this state of affairs, the constitutional provisions can hardly be blamed.Broadly, the causes have to be sought in the working of the political institutions. There are shortcomings in the transfer system.For example, the ‘gap-filling’ approach adopted by the Finance Commission and the soft budget constraints have provided perverse incentives.The point, however, is that these deficiencies are capable of being corrected without any change in the Constitution.

Q.No. 3. State the Legislative relations between Centre and the State OR Discuss the Const Constitutional itutional scheme of distribution of legislative powers between the Centre and the States SYNOPSIS 1. Introduction 2. Constitutional scheme of distribution of legislative powers between the Centre and the States 3. Conclusion.

Introduction After independence India adopted the federal structure for, perhaps, administrative convenience. The state did not impose compulsions. That is why limited autonomy has been given to the states. There is dual policy, with the Union government at the centre and the state governments at the periphery—each enjoying powers assigned to them. The autonomy of the states is so adjusted with the centre that the latter can perform its function of ensuring unity of the country. Pt. Nehru wanted a happy and harmonious compromise between the strong centre and autonomous states. Thus the Constitution provides the main aspects relating to Centre and State relationship. Centre – State Relationship The Indian Constitution has clearly divided powers between the two governments, yet the Central government has been made stronger than the State governments.We can discuss the division of powers between the two governments in India under three headings, such as, 1. Legislative relations, 2. Administrative relations and 3. Financial relations with reference to the three lists. Constitutional scheme of distribution of legislative powers between the Centre and the States The legislative relations between the centre and the states determined in accordance with the provisions of the Article 246 of the Constitution. The legislative powers are categorized in three lists—Union Lists with 97 subjects, States List with 66

and Concurrent List with 47 subjects. So far as the legislative relations between the Central government and the State governments is concerned, the Central government has been given exclusive power to make law on the subjects of the Union list. The union list has 97 subjects. These subjects are of great importance for the country and uniform in character. So, these subjects are given to the Union government. Some such subjects are defense, foreign affairs, currency and coinage, citizenship, census, etc. The State governments can make laws on the subjects mentioned in the State list. The State list has 66 subjects. The subjects which are of local importance and may vary from State to State are included in the State list. Some subjects of the State list are - law and order, public health, forests, revenue, sanitation, etc. Though the State governments have power to make laws on the subjects of the State list, yet the Central government, on certain occasions, can also make laws on these subjects. For example, during the period of emergency, the Parliament makes laws on State subjects. The Concurrent list has 47subjects. On these subjects bo...