LL.M./M.C.L.

, 2/3 Year Course (I Term) [2009-10]

Paper LM 1012 : Federalism
Note : 1. The following course content should not be treated as exhaustive. The questions may be set from any topic which the examiner feels relevant to the subject. 2. There shall be one written examination of three hours duration in each subject at the end of each Term. One question paper shall be set in each of the subjects prescribed for study and examination. Each paper shall carry 100 marks out of which 20 marks will be for valuation of term paper and 80 marks for written examination. The minimum pass marks in each subject shall be 50%. 3. Every student of this course is required to present a paper in the class for discussion on a topic assigned by the concerned teacher. No student shall be permitted to appear in the examination unless a certificate is issued by the teacher that the paper presented by the student was to his satisfaction. TOPIC I THE FEDERAL PRINCIPLE: DEVELOPMENT, TRANSFORMATION AND CURRENT TRENDS K.C. Wheare, Modern Constitutions 1-51 (1951) K C Wheare, Federal Governments 1-52 (1963). Carl J Friedrich, Constitutional Government and Democracy 188-227 (1968). Edward Mc Whinney, Comparative Federalism: States Rights and National Power (1962). Durga Das Basu, Comparative Federalism 2-141 (1987). Douglas V. Verney, Federalism, Federative Systems, and Federation: The United States, Canada, and India, 25 Publius, The Journal of Federalism 81- 97 (1995). Peter Hogg, Constitutional Law of Canada 97-130 (1992). Hamish Telford, Federalism in Multinational Societies: Switzerland, Canada, and India in Comparative Perspective in Rekha Saxena ed., Mapping Canadian Federalism for India 52-79 (2002). K.L. Bhatia, Federalism and Frictions in Centre-State Relations: A Comparative Review of Indian And German Constitution (2001). TOPIC II FEDERALISM IN INDIA: A STUDY OF THE CONSTITUTIONAL PROVISIONS HAVING A BEARING ON UNION-STATE RELATIONS M C Setalvad, Union-State Relations under the Indian Constitution (1974) M.P. Jain, Indian Federalism: A Background Paper in Alice Jacob ed., Constitutional Development since Independence 205-54 (1975). Alice Jacob, The Finance Commission: Its Role in Adjustment of Union-State Financial Relations in Alice Jacob ed., Constitutional Development since Independence 317-34 (1975).

2 M Govinda Rao, Changing Contours of Fiscal Federalism in India (2001). E.S.Venkataramiah and P M Bakshi, Indian Federalism: A Comparative Study (1992). Granville Austin, The Indian Constitution: Cornerstone Of A Nation (1966), Chapter 811. Granville Austin, Working a Democratic Constitution: A History of Indian Experience (1999), Chapters 27-30). H M Seeravi, Constitutional Law of India 283-303 (2002). M Govinda Rao and Nirvikar Singh, Federalism in India: Political Economy and Reform (Working Paper No. 108, Centre for Research on Economic Development and Policy Reform, 2001). Report of the Commission on Centre-State Relations (Sarkaria Commission, 1988). TOPIC III DOCTRINES OF CONSTITUTIONAL INTERPRETATION (Territorial nexus; harmonious constructions; pith and substance; incidental and ancillary powers; colourable legislation). M.P. Jain, Constitutional Law of India (2003). V.N. Shukla, Constitutional of India (2003). H. M. Seervai, Constitutional Law of India (2002). TOPIC IV LEGISLATIVE POWERS OF THE UNION & REPUGNANCY (Note: Reference will also be made to other Constitutions, where relevant) Durga Das Basu, Comparative Federalism 250-334 (1987). H M Seervai, Constitutional Law of India 2304-579 (2002). Sarkaria Commission Report (1988) printed in Rajeev Dhavan and Geetanjali Goel, Indian Federalism: Texts and Materials 57-61 (1996). TOPIC V TRADE, COMMERCE AND INTERCOURSE WITH EMPHASIS ON THE INDIAN CONSTITUTION (Note reference will also be made to other Constitutions, where relevant) P. K. Tripathi, Freedom Of Trade Commerce And Intercourse In The Constitution Of India (the Anundoram Barooah Lectures, 1988). M.P. Singh, Freedom Of Trade And Commerce In India (1985). K P Singh, Fundamental Freedom of Trade and Commerce and Nationalization (1992). Geoffrey Stone, Louis Seidman, Cass Sunstein and Mark Tushnet (eds.) Constitutional Law 147-233 (1996). Ronald D Rotunda, Modern Constitutional Law (1993). H M Seervai, Constitutional Law of India 2587-612 (2002).

3 Sarkaria Commission Report (1988) printed in Rajeev Dhavan and Geetanjali Goel, Indian Federalism: Texts and Materials 190-4 (1996). TOPIC VI ROLE OF THE GOVERNOR Rajeev Dhavan, Presidents Rule in the State 8-33; 103-25 (1979). Hari Chand, Governors Power in Appointment and Dismissal of Ministries and Convening, Proroguing and Dissolution of Legislative Assemblies in Alice Jacob ed., Constitutional Development since independence 85-104(1975). K P Krishna Shetty, Presidents Power under Article 356 of the Constitution: Theory and Practice in Alice Jacob ed., Constitutional Development since Independence 335-54 (1975). Sarkaria Commission Report (1988). Report of the National Commission to Review the Working of the Constitution (2002) and consultation papers. TOPIC VII EMERGENCY PROVISIONS WITH EMPHASIS ON ARTICLE 356 Rajeev Dhavan, Presidents Rule in the State (1979). Sarkaria Commission Report (1988). Report of the National Commission to Review the Working of the Constitution (2002) and consultation papers Gopal Subramaniam, Emergency Provisions under the Indian Constitution in B N Kripal ed. Supreme, but not Infallible (2000).

4 Question Paper 2007 Attempt any FOUR questions. All questions carry EQUAL marks. 1. In the three older federations of the U.S.a. Canada and Australia, in the formative stages of development, the dominant concept was that of Competitive Federalism. With the passage of time, however, the concept of Competitive federalism has been way to cooperative federalism. Pointing out the meaning of Competitive and cooperative federalism, discuss the extent to which the concept of cooperative federalism has been incorporated in the Constitutional Law of India. Give concrete examples. 2. The legal theory on which the Constitution of India was based, was the withdrawal or resumption of all power of sovereignty into the people of this country and distribution of these powers, save those withheld from both the Union and the States by reason of the provisions of Part III between the Union and States. The result was a Constitution which was not true to any traditional pattern of federation. Examine the above statement and discuss the nature of India Federalism. 3. How is judicial review the backbone of federalism? Discuss how the power of judicial review has been used in India to harmonize federal and state interests? You are requested to make reference to major decisions on the doctrines of constitutional interpretation of legislature lists. 4. Strictly speaking the Automobile case (1962) has practically overruled the majority decision in Atiabari case (1961) and subsequent cases upholding various state taxes as compensatory or regulatory measures, have established that the majority view in Atiabari case is being paid only a lip service and it has lost its practical utility and force. Substantiate the above argument by a critical evaluation of case law. 5. In S.R. Bommais case (1994) the Supreme Court incorporated the main recommendations of Justice Sarkaria Commission Report (1988) for the purpose of determining the circumstances and conditions subject to which the Centre could act under Article 356. How these recommendations forming part of the judgement will be able to a check motivated and arbitrary dismissal of a state government by the Centre under Article 356? Refer to recent case-law in support of your argument. 6. Write short notes on any two of the following: (a) Full faith and credit clause; (b) Doctrine of colourable legislation; (c) Rule of repugnancy; (d)

Residuary power of Legislation

Question Paper 2008 Attempt any FOUR questions. All questions carry EQUAL marks. 1. The federal principle is dominant in the constitution of India and the principle of federalism has not been watered down. Make a critical evaluation of the above statement in the context of the working of the federal principle in India in the light of the decisions of the Supreme Court. 2. In S.R. Bommais case (1994) the Supreme Court incorporated the main recommendations of Sarkaria Commission Report for the purpose of determining the circumstances and conditions subject to which the centre could act under Article 356. How these recommendations forming part of the judgement in S.R. Bommais case and other principle laid down in this judgement will check motivated and arbitrary dismissal of a state government by the Centre under Article 356? Refer to recent caselaw in support of your argument. 3. Regulatory measures and compensatory taxes do not attract article 301. Make a critical analysis of the above statement in the light of important decisions of the Supreme Court on the subject. Also compare the position in Part XIII of the Constitution of India with the development of the 6 commerce clause in the United States Constitution. 4. How is judicial review the backbone of federalism? Discuss how it has been used in India to harmonise federal and state interests? Refer to major decisions on the doctrines of Constitutional interpretation of legislature lists. 5. Pointing out the meaning of Competitive and Cooperative federalism, discuss the extent to which the concept of cooperative federalism has been incorporated in the Constitution of India. Give concrete examples. 6. Write short notes on the following: (a) Doctrine of repugnancy (c) Doctrine of colourable legislation