Foreword
With the year 2020 behind us, we may hope that 2021 will see the last of the pandemic. With the efficient global rollout of several vaccines, one may hope that things will soon go back to normal and the world will not have to face a million more deaths due to the relentless coronavirus. The preparation of this issue has also been a personal challenge, which we hope we have overcome, as we took over the reins of the Journal from the outgoing Editor-in-Chief and his deputies. Amidst such existential challenges, there have been evolutionary changes in the Indian Justice System. Court proceedings and even quasi-judicial have moved completely online, starting from filing submissions to making oral pleadings. It is often said that the evolution of constitutional law is deeply linked to the evolution of a country’s political affairs. In this regard, India has seen a tumultuous political climate with regional elections across the country and the alleged use of federal agencies to suppress dissent. To this end, Edition XIII offers a critique on a bouquet of contemporary narratives ranging from a discussion on nominated MLAs in Puducherry to the controversial Government of NCT of Delhi Amendment Act.
Papers
Dr. S. Srinivasan, T.N. Thanaraman
The Union Territory of Puducherry Assembly was suspended, and placed under
President rule from 22nd February 2021 by the notification issued by the Ministry
of Home Affairs (MHA), after receiving a report from the Lieutenant Governor of
the Union Territory. The situation occurred due to a confidence motion moved by
the ruling party which ultimately could not succeed.
Because of the Supreme Court's Judgment in 2018 of Lakshminaraya Thenan vs.
Lieutenant Governor, Puducherry, (popularly known as the nominated MLAs
case), the opposition parties with nominated members could overthrow the ruling
government in power. Keeping in mind the instability prevailing in Puducherry,
the article revolves upon the basic question, whether the nominated MLAs can
exercise their voting rights and whether the Union Territories are given a
democratic set up with adequate autonomy.. The concept of “Union Territory'' is
one of the many ways in which India regulates the relations between the Centre
and its units. It should not be used to subvert the basis of an electoral democracy.
In short, parliamentary democracy should either have a unicameral legislature or
a bicameral legislature, and not a mix of both, as partly elected and partly
nominated. Experience shows that the Union Territories having legislatures with
ultimate control vested in the Union Government do not work.
K J Chendhil Kumar
Proportionality as a judicial standard has always been read into various provisions
of the Constitution of India and other legislations as well regardless of a textual
backing of the standard in the Indian Constitution. It has been regarded as an
equitable principle for a just construction of many provisions of laws. However, its
extension into Article 14 has not only been invalid and illegitimate in the beginning
but has also been devastating in terms of its consequences and understanding.
Perhaps a better reading of proportionality into Article 19 of the Constitution or
Article 19 read with Article 21, would be reasonable. Reading proportionality as a
standard under Article 14, as Prof. Tarunabh Khaitan suggests invites a lot of
confusions and problems along with it. This is owing to the reason that the equality
code of the Indian Constitution was not drafted in the way it was drafted in the
Constitutions of other jurisdictions. In this regard, it is important to go back in time
and trace the historical jurisprudence that has led to its current understanding and
check whether there was a proper incorporation of the standard into Article 14 of
the Constitution. That will clarify its context and help understanding its current
application.
Rishabh Joshi, Rishab Aggarwal
The Karnataka Electricity (Taxation on Consumption or Sale) Act, 1959 (“Act”),
by virtue of the 2013 amendment (“Amendment”) in its Section 3, imposes tax not
only on the sale but also on the consumption of “electricity” within the state. As
per the Supreme Court’s judgment in State of Andhra Pradesh v. National Thermal
Power Corporation Limited (“NTPCL”), State is not competent to levy taxation on
inter-state sale of electricity.
The present paper argues that this provision of the Amendment is unconstitutional
because: first, the decision of the Supreme Court in NTPCL is a precedent on the
competence of the State to impose tax on inter-State sale and consumption of
electricity. Second, the State of Karnataka is not competent to enact the said
Amendment because of lack of “territorial nexus” to impose taxes on inter-State
sale and consumption of electricity, especially when the electricity is sourced from
open access grid. Third, the said Act is unconstitutional since it violates the rights
enshrined in the Constitution. The vires of State’s Act to levy a tax not only on
“sale” but also on “consumption” is critically examined using these abovementioned constitutional law principles.
Further, Karnataka High Court in its ruling in 2016 upheld the impugned provision
of the Amendment on the ground that levy of tax is not on inter-State transaction,
but on the “consumption” of electricity within the State. The article argues that this
judgment is per incuriam because of the NTPCL judgement holding that the sale
and consumption of electricity cannot be separated.
Devansh Garg
Recently, the Government of National Capital Territory of Delhi (Amendment)
Act, 2021, which amends the Government of National Capital Territory of Act,
1991, received the Presidential assent and became an enacted law. Broadly
speaking, the Amendment Act enhances the powers of the Lieutenant Governor
and limits the elected government’s powers in Delhi. Despite enjoying immense
support from the Central Government, the Amendment Act has faced harsh
criticism from the Government of Delhi and various legal luminaries. One such
amendment made by the Amendment Act to section 44 of the Government of
National Capital Territory of Delhi Act, 1991 forms the main subject of this
article. The article, along with the amendment made to section 44, discusses in
detail the legal and constitutional challenges associated with it. The article is
divided into five parts, where Part-I conducts a detailed diagnosis of Article
239AA of the Constitution, Part-II spells out the amendments made by the
Government of National Capital Territory of Delhi (Amendment) Act, 2021,
Part-III illustrates the functioning of the executive branch of the government of
Delhi before the amendment was made to section 44, Part-IV deciphers the
amendment made to section 44 and attempts to shed light upon the various legal
challenges faced by it, and lastly, Part-V cumulates all the arguments and
findings of the article into a conclusion. The article is written in an
interpretative style and draws heavily from the 2018 decision of the Supreme
Court of India in the Government of National Capital Territory of Delhi v.
Union of India.
Aditya Anand
The ‘Government of NCT of Delhi v. Union of India’ judgment delivered by the
Constitution Bench of the Supreme Court with respect to the powers of the
Lieutenant Governor vis-à-vis the elected government of the union territory of
Delhi can be described as a milestone judgment, not only because of the substantial
interpretative questions that it answers concerning Article 239AA of the
Constitution, but also because of the fact that it is one of those rare constitutional
law judgments wherein the Supreme Court undertook a substantial analysis of the
various, multi-faceted themes of constitutional theory, such as constitutional
morality. However, the impact of the same was short-lived as the state of affairs
became murkier after the division bench sat in the year 2019 for deciding certain
specific questions of law and issues pertaining to the division of powers. There
were several conjectures wherein there was judicial ambiguity and contradictions
to what the constitution bench had decided. At certain points, the division bench’s
judgment can also be seen as tilted in the favour of the centre, which directly affects
the federal structure and division of powers between the centre and the state. This
paper will give the background of the entire dispute, while covering the
overarching themes of both the judgments and the limitations in the approach of
the respective Courts. Towards the end, the paper will analyse the judgments from
the focal lens of prominent constitutional law scholars Philip Bobbitt and Richard
H. Fallon Jr.