CHALLENGING PROBLEM-BASED QUESTIONS
A WTO member country “X” agrees with a non-member country “Y” to reduce the tariff on product “A” to 7 percent. Can the WTO members claim the same tariff level on like product “A” from country “X”? How have the dispute settlement bodies defined the “like product” in Article I-1 of GATT?
ASKED IN UPSC 2020
This question can be divided into 2 Parts.
PART 1 : ISSUE | Whether the tariff reduction given by one WTO member to a non-member of WTO, can be claimed by all other members of WTO.
RELEVANT LEGAL PROVISIONS |
· Article I:1 of GATT obligates that ‘any advantage, favour, privilege or immunity’ – given by 1 member to another – to any product – should be given to others.
· If a Member grants an advantage to a non-Member, Article I:1 obliges the Member to grant that advantage also to all WTO Members.
DISCUSSION ON THE ISSUE | BUT MFN principle is not strictly applicable for TARIFF REDUCTIONS/NEGOTIATIONS.
TARIFF REDUCTION HAS A DIFFERENT PRINCIPLE : As the Article XXVIII bis of the GATT 1994 calls for ‘[tariff] negotiations on a reciprocal and mutually advantageous basis’.
WORKING EXAMPLE | X wants Y to reduce tariff on corn, if Y reduces, then X should reduce the tariff on similarly/equivalent priced product. This is how the principle of reciprocity and mutual advantage works. Therefore, it can be agreed that outcome of tariff negotiation is based on (1) equivalent reduction of prices (2) political considerations.
ANSWER TO PART 1 : Therefore, the Other WTO members can claim the same tariff level for Product ‘A’ from country ‘X’. But it is for the country ‘X’ to reduce the tariff to others, based on the ‘bound’ and ‘applied’ rates of tariff schedule prevailing on that time.
PART 2 OF THE QUESTION : How the ‘like product’ is defined by WTO DSB.
ANSWER TO PART 2 : LIKE PRODUCTS : As per MFN treatment - Article I:1 of the GATT 1994 prohibits discrimination between like products originating in, or destined for, different countries.
MEANING : In EC- Asbestos case, WTO Appellate Body HELD that the dictionary meaning of ‘like’ suggests that ‘like products’ are products that share a number of identical or similar characteristics.
FACTORS TO BE CONSIDERED : In determining “like products” under the first sentence of Article III: 2, the following four factors are considered: (1) the product’s properties, nature and quality, (2) the product’s end uses, (3) consumer tastes and habits, and (4) tariff classification.
TRICKY CONCEPTUAL QUESTIONS
While conferring the power of delegated legislation on the administration, the enabling Act may specify the procedural safeguards to be followed in the exercise of the power. What are the consequences of non-compliance with the requirements as laid down in the Act ? Discuss with the help of decided cases.
ASKED IN UPSC 2019. QUESTION 3(B)
WHY DELEGATED LEGISLATION?
· Has no time.
· do not have subject-matter experts for preparation and consultation.
· cannot foresee every administrative difficulty that may arise in the working of the rules. 
HOW ENABLING ACT CAN CONFER SAFEGUARDS AGAINST MISUSE : Rules, bye-laws, regulations – framed by delegated authority – must comply with prescribed procedure under the enabling act/parent law.
Such parent law, in general, may require – (1) Consultation with interested persons (2) publication of draft rules or bye-laws (3) laying down before parliament.
NON-COMPLIANCE: Failure to comply with procedural safeguards in the parent law – will make the delegated legislation as invalid depending the nature of the parent law.
If the requirement under parent law is
Absolute – then it has to be obeyed or fulfilled exactly
Directory – then it has to be obeyed or fulfilled substantially.
MEANS OF SAFEGUARDS
NON-COMPLIANCE: . Non-publication of the delegated legislation is a defect goes to the root and makes the instrument non est, ineffective and of no consequence.
SAFEGUARD 2 : CONSULTATION : Consultation connotes deliberation, meeting of minds, exchange of mutual viewpoints with discussion on relative merits. It does not mean concurrence or consent.
1. It can be official consultation. [Central govt. can make rules after consultation with RBI] (See., Sec.52 of BCA,1949)
2. It can be consultation with statutory bodies. [Central govt. can make rules after consultation with Ayurvedic Board] (see., Section 33N of Drugs and Cosmetics Act, 1940]
3. It can be consultation with advisory bodies. NON-COMPLIANCE : Non-compliance of consultation can be directory or mandatory based on the parent law and its object.
SAFEGUARD 3 : LAYING DOWN : It means that administrative “legislation” made under delegated authority be presented/laid down to the legislature for approval.
1. Laying, subject to annulment : The moment law is laid before house it comes into force but it can be annulled.
2. Laying, Subject to affirmative resolution : The law when laid before house it does not come into force unless it is approved within 40 days.
3. Laying with deferred operation : The law when laid before house it remains in force unless it is rejected within 40 days.
4. Laying with immediate effect but requiring affirmative resolution as a condition for continuance.
NON-COMPLIANCE : Laying down can be made “directory” or “mandatory” by the Parent law. Such requirement has to be ascertained from the intent of the legislature which is the determining factor. [Atlas Cycle Industries Ltd. v. State of Haryana]
SAFEGUARD 4 : By Scrutiny of Committees : Committee of Subordinate Legislation is assigned with task of detailed scrutiny of all the rules framed by the executives through delegated legislation.
What do you understand by the term ‘Constitutional Conventions’ ? Are they are relevant in a country like India having a lengthy written constitution with preamble?
UPSC. 2012. QUESTION 1(a)
MEANING OF CONSTITUTIONAL CONVENTION:
· Legal and non-legal norms together constitute what we call as “Constitutional law” today.
· Norms which are enforced, applied and justiciable by the courts is ‘Legal’ whereas the ‘Non-legal’ norms are one which arise in course of time as a result of practices followed over and over again. These ‘non-legal’ norms are said to be ‘Constitutional Conventions’.
· This distinction itself is not relevant as our Apex Court in Supreme Court Advocates-on-record Association v. Union of India AIR 1994 SC 268 HELD that constitutional convention, if applied, becomes part of the constitutional law of the land.
IMPORTANCE OF CONSTITUTIONAL CONVENTIONS : Keeton observed that Constitutional Conventions need not be enforced in courts, as they are observed consistently and their non-observance will lead to political fracas or even worse, a bloody revolution.
RELEVANCE OF CONSTITUTIONAL CONVENTIONS IN LENGTHY WRITTEN INDIAN CONSTITUTION : Constitutional Conventions :
1. Are means of bringing about constitutional development without any formal changes in the law.
2. Helps to change otherwise rigid law to usher in social needs and changing political ideas.
3. Provides the flesh which clothes the dry bones of the law.
4. Helps to solve problems of interpretation and allow for the future development of the constitutional framework whatever, the nature of the Constitution.
These conventions are enforced because of political sanction or public opinion.
The Supreme court of India in S.P. Anand v H.D. Dev Gowda
“Conventions grow from longstanding accepted practice or by agreement in areas where the law is silent and such a convention would not breach the law, but fill the gap.”
RECOGNITION OF CONSTITUTIONAL CONVENTIONS : There are instances where the courts in India, and abroad, have recognised and applied the constitutional conventions.
Examples : (1) Carltona Ltd. v. Commissioners of Works; (2) Ram Jawaya v. State of Punjab (3) U.N.R. Rao v. Indira Gandhi (4) Samsher Singh v. State of Punjab.
EXAMPLES OF CONSTITUTIONAL CONVENTIONS IN INDIA | MATTERS DETERMINED BY CONVENTIONS :
The relationship between the President or the State Governor and his Council of Ministers,
The concept of ministerial responsibility for acts of the officials,
The relationship between the Prime Minister or the Chief Minister in a State and his Council of Ministers,
The appointment of a State Governor,
Dissolution of the Lok Sabha or of a State Legislative Assembly by the President or the Governor respectively,
The relations between the President and the Governor,
are some of the matters which are left to be evolved by conventions.
AGREEING [OR DISAGREEING] WITH STATEMENTS – BASED QUESTIONS.
"Power of the Parliament to amend the Constitution is wide, but not unlimited.” Do you agree with this statement ? Discuss whether the doctrine of basic structure has reinforced the power of judicial review under the Constitution.
Yes. Statement is correct in the view of Keshavananda Bharati and Minerva Mills case.
POWER OF AMENDMENT : Article 368(1) provides that notwithstanding anything in the Constitution, Parliament may in exercise of its Constitutional power amend by way of addition, variation or repeal any provision of the Constitution in accordance with the procedure laid down in the same Article.
UNLIMITED : Undoubtedly the constituent power is vested in the Parliament. Therefore, from the wide language in which the Article is couched, it might seem that, subject only to compliance with the procedure laid down in Article 368 itself, the powers of Parliament to amend Constitution are unlimited. This view the taken by the Supreme Court in Shankari Prasad v. Union of India as well as in Sajjan Singh v. State of Rajasthan.
DIVERGING : However, in Golak Nath v. State of Punjab, the Supreme Court overruled its decisions in the cases of Shankari Prasad and Sajjan Singh and held that, though there is no express exception from the ambit of Article 368, the fundamental rights cannot, by their very nature, be subject to the process of amendment provided for in the said Articles and that if any of such rights is to be amended a new constituent assembly must be convened for making a new Constitution or for radically changing it.
BASIC STRUCTURE DOCTRINE : The decision in Golak Nath's case was superseded by the Constitution (Twenty-fourth Amendment) Act, 1971 and that Kesavananda's case which holding that this amendment was valid and while overruling the said decision in Golak Nath's case the Supreme Court held that though the fundamental rights did not constitute a restriction on the amending power of the Parliament, there are nonetheless other implied limitations.
· The majority of the Judges held the view that though the amending power is a wide power and it reaches every article or every part of the Constitution,
· Article 368 does not enable the Parliament to alter the basic structure or the framework of the Constitution, for Parliament cannot, in the exercise of its amending power, abrogate or emasculate or damage the basic elements or the fundamental features of the Constitution, or to destroy its identity.
· Amendment of the Constitution necessarily contemplates, in the words of Khanna, J., that the Constitution has not to be abrogate, but only changes have to be made in it, because the word "amendment" postulates that the old Constitution survives without loss of its identity despite the change and continues even though it has been subjected to the alteration.
This view was reiterated by the Supreme Court in Minerva Mills's case.
MINERVA MILLS CASE : In fact, while dealing with the question of validity of section 55 of the Constitution (Forty-Second Amendment) Act, 1976 in Minerva Mills, the Court observed that since the Constitution had conferred a limited amending power on the Parliament, the latter cannot, in the exercise of that limited power, enlarge that very power into an absolute power.
It was further added that limited amending power is one of the basic features of our Constitution and therefore, the limitations on that power cannot be destroyed.
The same was approved in M.Nagaraj (2006) case.
BASIC STRUCTURE REINFORCING JR : Judicial Review is an essential feature of the Constitution. Khanna, J. appeared to be of the view that the democratic form of government, the secular character of the State and judicial review formed part of the basic structure.
If a constitutional amendment cannot be pronounced to be invalid even if it destroys the basic structure of the Constitution, a law passed in pursuance of such an amendment will be beyond the pale of judicial review because it will receive the protection of the constitutional amendment which the courts' will be powerless to strike down. Article 13 of Constitution will then become a dead letter.
Therefore, it can be seen that that the doctrine of basic structure is clearly reinforcing the power of judicial review. An Apt example of this would be when the Constitutional amendment depriving High Court of its jurisdiction under Article 226 and 227 (from decisions of Administrative Tribunal) was struck down in the ground that it violated basic structure in L. Chandra Kumar v. Union of India & Ors.
The law of contracts is not the whole law of agreements, nor it is the whole law of/obligations, but it also deals with the rights and obligations of both." Elucidate.
ASKED IN UPSC 2019. QUESTION 1(a)
Above-said statement is given by Salmond. He conveys the fact the law of contracts does not always deal with
· Whole of law of Agreements.
· Whole of law of Obligations.
We will understand the rationale behind these statements in 2 Parts.
PART 1 : WHY LAW OF CONTRACT DOES NOT DEAL WITH WHOLE OF LAW OF AGREEMENTS
Law of Contract is the law of only those agreements where the parties to the contract have the intention to create legal obligation to do or not to do something.
For example : An agreement to do for a movie or picnic cannot create a contract, and therefore, no rights or obligation are created. Thus, all agreements are not contracts, but all contracts are agreement.
INTENTION TO CREATE LEGAL RELATIONSHIP : It is a settled principle that “to create a contract there must be a common intention of the parties to enter into legal obligations”
Purely domestic or family arrangements
Cannot constitute to create legal relationship.
HOW CAN WE KNOW THE INTENTION OF THE PARTIES? It can be understood from (1) the terms of the agreement and (2) the surrounding circumstances.
Generally, one can agree that social or family arrangements do not intend legal consequences to follow in contradiction to matters of business arrangement where the legal consequences is intended.
IMPORTANCE OF INTENTION TO CONTRACT | Balfour v Balfour, (1919) 2 KB 571 (CA).
FACTS OF THE CASE : Mr Balfour worked for the Government as the Director of Irrigation in Ceylon. His wife was living with him. In 1915, they both came back to England during Mr Balfour's leave. At that time, Mrs Balfour had developed rheumatoid arthritis, thereafter she did not leave England to Ceylon with her husband. When the boat was about to set sail, and he orally promised her £30 a month until she came back to Ceylon. Later, they were separated. In March 1918, Mrs Balfour sued him to keep up with the monthly £30 payments.
HELD : The Court of Appeal unanimously held that there was no enforceable agreement.
PART 2 : NOT ALL LAW OF OBLIGATIONS RESULTS FROM LAW OF CONTRACTS :
An Obligation is the legal duty to do or not to do certain act. All legal obligation do not result in contract. For example, a legal obligation not to create nuisance for others will not give rise to contract, rather it is actionable by law under the Law of Torts.
Only those obligations which arise out of agreement are contractual. In other words, only that obligation which directly contemplates to have legal consequences is a contract.
The following types of obligations do not arise out of agreements: (1) Torts or civil wrongs. (2) Quasi contracts. (3) judgements of courts. (4) status obligations—like relationships of husband and wife.
All these obligations are not contractual in nature but are enforceable in a court of law. Obligations spring from several sources. This can be summarized as “The law of contracts is not the whole law of agreements nor is it the whole law of obligations. It is the law of those agreements which create obligations, and those obligations which have their source in agreements".
CURRENT AFFAIRS BASED QUESTIONS
X along with other 100 petitioners, argue that the “overwhelming” impact of coronavirus in the run-up to the civil services preliminary exam held on October 4, 2020. They said their access to study resources had shrunk with the closure of libraries and coaching centres during the lockdown. Some of them had fallen sick while others had cared for the sick during the pandemic months, leaving little or no time for study. If not given extra-attempt, they would be barred by age or number of attempts and were ineligible to appear in the UPSC preliminary exam to be conducted in future. Whether the Supreme court can issue writ of mandamus to frame policy? And further whether policy decisions can be interfered with?
FEBRUARY 2021 – CURRENT AFFAIRS BASED
ISSUES INVOLVED IN THE PROBLEM.
1) When the writ of mandamus can be issued ? Can it be used for the asking to frame policies
2) Whether policy decisions of the government can be judicially reviewed?
Facts of the case are similar to that of Rachna v. Union of India, Writ Petition (Civil) No(S). 1410 Of 2020.
SOLVING ISSUE 1 : FOR THE ISSUANCE OF WRIT OF MANDAMUS : In State of U.P. and Ors. v. Harish Chandra and Ors., reported in (1996) 9 SCC 309, at paragraph 10, the Hon'ble Apex Court held as follows: "10. ...Under the Constitution a mandamus can be issued by the court when the applicant establishes that he has a legal right to the performance of legal duty by the party against whom the mandamus is sought and the said right was subsisting on the date of the petition...."
In State of Kerala v. A. Lakshmi Kutty reported in (1986) 4 SCC 632, the Hon'ble Supreme Court held that, a Writ of Mandamus is not a writ of course or a writ of right but is, as a rule, discretionary.
SOLVING ISSUE 2 : INTERFERENCE WITH POLICY DECISIONS : . It is not in the domain of the courts to embark upon an inquiry as to whether a particular public policy is wise and acceptable or whether better policy could be evolved. The Court can only interfere if the policy framed is absolutely capricious and noninformed by reasons, or totally arbitrary, offending the basic requirement of Article 14 of the Constitution. [Union of India and Others Vs. M. Selvakumar and Another 2017(3) SCC 504]
MANDAMUS CANNOT BE ISSUED : Judicial review of a policy decision and to issue mandamus to frame policy in a particular manner are absolutely different. It is within the realm of the executive to take a policy decision based on the prevailing circumstances for better administration and in meeting out the exigencies but at the same time, it is not within the domain of the Courts to legislate.
In the case of Rachna v. Union of India, the supreme court observed that “Merely because as a matter of policy, if the Government/UPSC has granted relaxation in the past for the reason that there was a change in the examination pattern/syllabus and in the given situation, had considered to be an impediment for the participant in the Civil Service Examination, no assistance can be claimed by the petitioners in seeking mandamus to the Government/UPSC to come out with a policy granting relaxation to the participants who had availed a final and last attempt or have crossed the upper age by appearing in the Examination 2020 as a matter of right”
Therefore, it could be stated that courts cannot issue mandamus to frame policy. X along with others cannot ask the SC to issue mandamus for the frame policy.
“Though not a fundamental right, right to property is a constitutional and human right, and deprivation of property has to satisfy certain requirements under the Constitution of India” Explain the statement.
JANUARY 2021 – CURRENT AFFAIRS BASED
This statement is based on the Bajranga v. State of Madhya Pradesh [January 2021].
RIGHT TO PROPERTY : Right to private property could not be deprived without due process of law and upon just and fair compensation.
NOT A FUNDAMENTAL RIGHT | The right to property ceased to be a fundamental right by the Constitution (Forty Fourth Amendment) Act, 1978, however, it continued to be a human right in a welfare State, and a Constitutional right under Article 300A of the Constitution.
The Supreme court of India in Delhi Airtech Services Pvt. Ltd. & Ors. v. State of U.P.& Ors. (2011) 9 SCC 354, held that
Right to property right is an indispensable safeguard against tyranny and economic oppression of the Government.
It referred to opinion of the Jurists in doing so,
Jefferson opined that “liberty cannot long subsist without the support of property”
John Adams opined that “Property must be secured; else liberty cannot subsist"
ARTICLE 300-A : Article 300 A provides that no person shall be deprived of his property save by authority of law.
WHAT IT MEANS : The State cannot dispossess a citizen of his property except in accordance with the procedure established by law. The obligation to pay compensation, though not expressly included in Article 300A, can be inferred in that Article (K T Plantation Pvt. Ltd. v. State of Karnataka (2011) 9 SCC 1).
DUE PROCESS OF LAW IS THE REQUIREMENT : In a democratic polity governed by the rule of law, the State could not have deprived a citizen of their property without the sanction of law. Reliance is placed on the judgment of this Court in Tukaram Kana Joshi & Ors. v. M.I.D.C. & Ors. (2013) 1 SCC 353 wherein it was held that the State must comply with the procedure for acquisition, requisition, or any other permissible statutory mode. The State being a welfare State governed by the rule of law cannot arrogate to itself a status beyond what is provided by the Constitution.
 AIR 1975 SC 1331  B.K. Srinivasan & Another Etc. Etc vs State Of Karnataka & Ors 1987 AIR 1059, 1987 SCR (1)1054]  Gulf Goans Hotels Co. Ltd. v. Union of India(2014) 10 SCC 673  In Banwarilal case, consultation of central government with Mining boards was held to be mandatory whereas in Hindustan Zinc Ltd. Case, failure of board to consult with electricity council was directory.  “In other words, Parliament cannot, under Article 368, expand its amending power so as to acquire for itself the right to repeal or abrogate the Constitution or to destroy its basic and essential features. The donee of a limited power cannot by the exercise of that power convert the limited power into an unlimited one”  The State of West Bengal v. Subodh Gopal Bose and Ors. AIR 1954 SC 92  Tukaram Kana Joshi & Ors. v. M.I.D.C. & Ors. (2013) 1 SCC 353.