Bi-Annual Law Review | ISSN-2456-8325
Edition 13


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.

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Nominated MLA’s in the Union Territory of Puducherry Assembly: A Façade of Democracy

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.

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Doctrine of Proportionality as a Standard of Review under Article 14

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.

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The Constitutional Validity of a State Tax on Consumption of Electricity Sourced from outside the State

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.

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The Proviso to Section 44(2) of the Government of National Capital Territory of Delhi Act, 1991: A Constitutional Perspective

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.

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Government of NCT of Delhi v. Union of India: A Tale of Two Judgments

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.

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