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Constitutional Law I

Tribhuvan University Law Faculty
Course Title: Constitutional Law I (Constitutionalism)

Course Description: Constitutional Law I (Constitutionalism) will critically focus in institutional part (the structural and functional aspects of institutions such as federalism, the formation of the government, interrelation among three wings of the government, separation of powers, checks and balances, emergency provisions, constitutional amendment, interpretation, election, dissolution, constitutional bodies, president, parliament, judiciary, constitution history of institutional development and modern trends. This paper will basically focus on the provisions meant for ensuring effective functioning of limited government.

Course Objectives: The objectives of the course are as follows:

a. To produce creative faculty and critical mind for constitutional governance of the country.

b. To give in depth knowledge on institutional and functional aspects of constitutional law and in comparative perspective so that they could be an effective support to executive legislative and judicial wings of the government to improve the quality of their decisions.

c. To be a specialized constitutional expert able to help citizens for seeking their problems solved through legal institutions.

d. To produce competent manpower capable enough to work at policy making level.

By the end of the course the students should be active in analysis, evaluation and reform perspective in existing laws and development of new laws and institutions.


Unit 1 Constitution and Constitutionalism Objectives of the Unit: To give in depth and critical knowledge about the concept of constitutional law and constitution alums and its operational modalities in the context of UK (where there is unwritten constitution) and India, USA and Nepal (where there are written constitutions). The students will be given with the critical knowledge about the concept of limited government and different mechanisms to ensure constitutionalism.

Contents in the Instructional Unit
1.Sources, scope and nature of constitution as a politico-legal document
2. Analysis of advantage and disadvantages of written and unwritten constitutions unitary and rigid constitutions.
3. Basic Features of a federal constitution.
4. General discussion about American federalism and Indian federalism
5. Concept of constitutionalism and itd operational modalities in the context of U.K\ unwritten constitution and Nepal, India or USA\written constitutions.
6. Legal and political constitutionalism
7. Problems and prospects of ensuring effective constitutionalism in Nepal.

Time for Each Unit: 8 Periods / 16 hours

Instructional Techniques for Each Unit: Lectures, discussions, question-answers, case analysis, etc.

Materials for Instructions for Each Unit: Text books and reference books

Assessment of Each Unit: Identification of success stories and instances of failure in the process of Nepalese constitutionalism critical analysis of the reasons behind such failures and successes.

Reading Materials:
• A.v. Dicey, An introduction to the study of the Law of the Constitution
• C.F. Strong, Modern Political Constitution
• D.D Basu, Constitutional Law of India
• Dhungel and others, Commentary on the Nepalese Constitution
• Gerald Gunther, Constitutional Law
• H.M. Seervai, Constitutional Law of India
• Hillary Barnnrtte, Constitutional and Administrative Law
• Hood & Phillips, Comparative Constitutions
• K.C. Wheare, Modern Constitutions
• K.C. Wheare, Federal Government
• M.P. Jain, Constitutional Law of India
• Ridges, Constitutional Law of England
• Sir Lvor Jennings, Cabinet Government
• Sir Lvor Jennings, Parliament
• Sir Lvor Jennings, The Law and The Constitution
• Stone, Seidman, Sunstein and Tushnet, Constitutional Law
• V.N Shukhla, Constitutional Law of India
• Wade and Phillips, Constitutional Law

Unit-2 Preamble

Objectives of the Unit: To understand the increasing relevance of preamble in modern constitutionalism

Contents in the Instructional Unit
1.Constitutional status of preamble
2. Preamble, Basic structure and interpretation of constitution

Time for Each Unit: 2 period / 4 hrs

Instructional Techniques for Each Unit: Lecture, discussions, question answers, analysis of relevant cases from India and Nepal.

Materials for Instructions for Each Unit: Text books, reference materials and class.

Assessment of Each Unit: Analysis of preamble in the constitution of Nepal and India

Reading Materials:
• A.C. Kapoor, world Constitutions
• A.V. Dicey, An Introduction to the study of law of the Constitution
• C.F. Strong, Modern Political Constitution
• D.D. Basu, Constitutional Law of India
• Dhungel and others, Commentary on the Nepalese Constitution
• Gerald Gunther, Constitutional Law
• H.M. Seervai, Constitutional Law of India
• Hillary Barnnrtte, Constitutional and Administrative Law
• Hood & Phillips, Comparative Constitutions
• K.C. Wheare, Modern Constitutions
• K.C. Wheare, Federal Government
• Kanak Bikram Thapa and Bharat Uprety (edi.), Constitutional Law of Nepal, pub by FREEDEAL
• M.P. Jain, Constitutional Law of India
• Ridges, Constitutional Law of England
• Sir Lvor Jennings, Cabinet Government
• Sir Lvor Jennings, Parliament
• Sir Lvor Jennings, The Law and The Constitution
• Stone, Seidman, Sunstein and Tushnet, Constitutional Law
• V.N Shukhla, Constitutional Law of India
• Wade and Phillips, Constitutional Law

Unit-3 Separation of Powers with Doctrine of Check and Balance

Objectives of the Unit: To give the critical idea of separation of power and doctrine of check and balance as it is applied in USA, India, UK and Nepal.

Contents in the Instructional Unit
1.Sparation of power and check and balance in U.S constitution: relevant provisions interpretations and applications.
2. Separation of powers and check and balance in India and U.K Constitution: relevant provisions, interpretations and applications.
3. Separation of power and check and balance in Nepalese constitution: relevant provisions interpretations and applications.

Time for Each Unit: 6 periods / 12 hrs

Instructional Techniques for Each Unit: Lecture, discussions, question answer, analysis, of relevant cases from USA, India and Nepal.

Materials for Instructions for Each Unit: Text Books, reference materials and cases.

Assessment of Each Unit: Discussion on hypothetical problems of violation of separation of powers and the remedies available for problems under the constitutional law of Nepal

Reading Materials:
• A.C. Kapoor, world Constitutions
• A.V. Dicey, An Introduction to the study of law of the Constitution
• C.F. Strong, Modern Political Constitution
• D.D. Basu, Constitutional Law of India
• Dhungel and others, Commentary on the Nepalese Constitution
• Gerald Gunther, Constitutional Law
• H.M. Seervai, Constitutional Law of India
• Hillary Barnnrtte, Constitutional and Administrative Law
• Hood & Phillips, Comparative Constitutions
• K.C. Wheare, Modern Constitutions
• K.C. Wheare, Federal Government
• Kanak Bikram Thapa and Bharat Uprety (edi.), Constitutional Law of Nepal, pub by FREEDEAL
• M.P. Jain, Constitutional Law of India
• Ridges, Constitutional Law of England
• Sir Lvor Jennings, Cabinet Government
• Sir Lvor Jennings, Parliament
• Sir Lvor Jennings, The Law and The Constitution
• Stone, Seidman, Sunstein and Tushnet, Constitutional Law
• V.N Shukhla, Constitutional Law of India
• Wade and Phillips, Constitutional Law

Unit-4 Rule of Law

Objectives of the Unit: To give critical knowledge about the changing dimensions of the concept and content of the Rule of Law and its enforcement through constitutional mechanisms in different countries.

Contents in the Instructional Unit
1. Critical analysis of the concept and content of Rule o law.
2. Rule of Law and parliamentary sovereignty in UK.
3. Rule of Law basic structure theory and judicial supremacy.
4. Rule of Law and the Interim Constitution of Nepal.
5. Institutions responsible for enforcement of Rule of Law.

Time for Each Unit: 4 periods / 8 hrs

Instructional Techniques for Each Unit: Lecture, discussions, question answer, case analysis.

Materials for Instructions for Each Unit: Text books, reference materials and cases.

Assessment of Each Unit: Assessment of Rule of Law situation in Nepal and identification of problem areas and constrains in enforcement of Rule of Law in Nepal.

Reading Materials:
• A.C. Kapoor, world Constitutions
• A.V. Dicey, An Introduction to the study of law of the Constitution
• C.F. Strong, Modern Political Constitution
• D.D. Basu, Constitutional Law of India
• Dhungel and others, Commentary on the Nepalese Constitution
• Gerald Gunther, Constitutional Law
• H.M. Seervai, Constitutional Law of India
• Hillary Barnnrtte, Constitutional and Administrative Law
• Hood & Phillips, Comparative Constitutions
• K.C. Wheare, Modern Constitutions
• K.C. Wheare, Federal Government
• Kanak Bikram Thapa and Bharat Uprety (edi.), Constitutional Law of Nepal, pub by FREEDEAL
• M.P. Jain, Constitutional Law of India
• Ridges, Constitutional Law of England
• Sir Lvor Jennings, Cabinet Government
• Sir Lvor Jennings, Parliament
• Sir Lvor Jennings, The Law and The Constitution
• Stone, Seidman, Sunstein and Tushnet, Constitutional Law
• V.N Shukhla, Constitutional Law of India
• Wade and Phillips, Constitutional Law

Unit-5 Executive

Objectives of the Unit: To give a critical idea of executive wings of the Government To study their role and limitation from the point of view constitutional organizational and functional point of view.

Contents in the Instructional Unit
1. President as a head of states it's election process and its constitutional role
2. The formation of the cabinet government and its relation with the president
3. The collective responsibility of the cabinet and its accountability to the parliament.
4. The role and responsibility of the prime Minister in the constitutional set up of Nepal.

Time for Each Unit: 6 periods / 12 hrs

Instructional Techniques for Each Unit: Lecture, discussions, question answer, case analysis.

Materials for Instructions for Each Unit: Text books, reference materials articles and cases.

Assessment of Each Unit: Assessment of functioning of president in Nepal under the interim constitution and its comparison with the constitutional monarchy in the past.

Reading Materials:
• A.C. Kapoor, world Constitutions
• A.V. Dicey, An Introduction to the study of law of the Constitution
• C.F. Strong, Modern Political Constitution
• D.D. Basu, Constitutional Law of India
• Dhungel and others, Commentary on the Nepalese Constitution
• Gerald Gunther, Constitutional Law
• H.M. Seervai, Constitutional Law of India
• Hillary Barnnrtte, Constitutional and Administrative Law
• Hood & Phillips, Comparative Constitutions
• K.C. Wheare, Modern Constitutions
• K.C. Wheare, Federal Government
• Kanak Bikram Thapa and Bharat Uprety (edi.), Constitutional Law of Nepal, published by FREEDEAL
• M.P. Jain, Constitutional Law of India
• Ridges, Constitutional Law of England
• Sir Lvor Jennings, Cabinet Government
• Sir Lvor Jennings, Parliament
• Sir Lvor Jennings, The Law and The Constitution
• Stone, Seidman, Sunstein and Tushnet, Constitutional Law
• V.N Shukhla, Constitutional Law of India
• Wade and Phillips, Constitutional Law

Unit-6 LEGISLATURE

Objectives of the Unit: To give a critical idea of the legislative wings of the Government with special focus on parliament as a final body to decide the law, policy matters of the government to study their role and limitations from the point of view of constitutional organizational and functional point of view.

Contents in the Instructional Unit
1. Role and responsibility of Constitution Assembly as National parliament
2. Parliamentary control over executive
3. Privileges of parliament
4. Defection in parliament
5. Committee system in parliament and its comparison with the committee system of UK
6. The role of the opposition
7. Critical analysis of the role of the speaker

Time for Each Unit: 6 periods / 12 hrs

Instructional Techniques for Each Unit: Lecture, discussions, question case analysis, discussion of political behaviors.

Materials for Instructions for Each Unit: Text books, reference materials articles and cases.

Assessment of Each Unit: Assessment of functioning of parliamentary system in Nepal under the interim constitution and its comparison with the functioning of parliamentary system in UK.

Reading Materials:
• A.C. Kapoor, world Constitutions
• A.V. Dicey, An Introduction to the study of law of the Constitution
• C.F. Strong, Modern Political Constitution
• D.D. Basu, Constitutional Law of India
• Dhungel and others, Commentary on the Nepalese Constitution
• Gerald Gunther, Constitutional Law
• H.M. Seervai, Constitutional Law of India
• Hillary Barnnrtte, Constitutional and Administrative Law
• Hood & Phillips, Comparative Constitutions
• K.C. Wheare, Modern Constitutions
• K.C. Wheare, Federal Government
• Kanak Bikram Thapa and Bharat Uprety (edi.), Constitutional Law of Nepal, pub by FREEDEAL
• M.P. Jain, Constitutional Law of India
• Ridges, Constitutional Law of England
• Sir Lvor Jennings, Cabinet Government
• Sir Lvor Jennings, Parliament
• Sir Lvor Jennings, The Law and The Constitution
• Stone, Seidman, Sunstein and Tushnet, Constitutional Law
• V.N Shukhla, Constitutional Law of India
• Wade and Phillips, Constitutional Law

Unit-7 Constituent Assembly

Objectives of the Unit: To give an idea about the composition working process and constitution making process of constitution assembly.

Contents in the Instructional Unit
1. Process of election of constituent assembly
2. Process of constitution making
3. Committee system in constitution making process.

Time for Each Unit: 4 periods / 8 hrs

Instructional Techniques for Each Unit: Lecture, discussions, question answers, comparative analysis.

Materials for Instructions for Each Unit: Text books, reference materials articles.

Assessment of Each Unit: Assessment of constitution making process in India, America and Nepal.

Reading Materials:
• A.C. Kapoor, world Constitutions
• A.V. Dicey, An Introduction to the study of law of the Constitution
• C.F. Strong, Modern Political Constitution
• D.D. Basu, Constitutional Law of India
• Dhungel and others, Commentary on the Nepalese Constitution
• Gerald Gunther, Constitutional Law
• H.M. Seervai, Constitutional Law of India
• Hillary Barnnrtte, Constitutional and Administrative Law
• Hood & Phillips, Comparative Constitutions
• K.C. Wheare, Modern Constitutions
• K.C. Wheare, Federal Government
• Kanak Bikram Thapa and Bharat Uprety (edi.), Constitutional Law of Nepal, published by FREEDEAL
• M.P. Jain, Constitutional Law of India
• Ridges, Constitutional Law of England
• Sir Lvor Jennings, Cabinet Government
• Sir Lvor Jennings, Parliament
• Sir Lvor Jennings, The Law and The Constitution
• Stone, Seidman, Sunstein and Tushnet, Constitutional Law
• V.N Shukhla, Constitutional Law of India
• Wade and Phillips, Constitutional Law

Unit-8 Judiciary

Objectives of the Unit: To give comprehensive and critical knowledge about the constitutional role of the judiciary (especially supreme court) in enforcing constitutional limitations, fundamental rights and directive principles of state policy. To make a performance evaluation of the supreme court with the critical analysis of the cases decided by it.

Contents in the Instructional Unit
1. Independence of judiciary: theory and practice
2. Judicial review and democracy
3. Power to enforce fundamental and legal rights
4. Scope of judicial review in Nepal (constitutional amendments, legislation and administrative action) and its comparison with the scope of judicial review in UK
5. Political question doctrine and tis application in India, USA and Nepal
6. Public Interest Litigation and judicial activism: constitutional mandate and its interpretations (comparison with the practice in India and USA)
7. Contempt of court
8. Extra-ordinary, ordinary and advisory jurisdiction of the supreme court.

Time for Each Unit: 12 periods / 24 hrs

Instructional Techniques for Each Unit: Lecture, discussions, question answers case analysis discussion of political behaviors.

Materials for Instructions for Each Unit: Text books, reference materials articles and cases.

Assessment of Each Unit: Comparative analysis of scope of judicial review in Nepal and UK and discussion on the reasons behind the difference.

Reading Materials:
• A.C. Kapoor, world Constitutions
• A.V. Dicey, An Introduction to the study of law of the Constitution
• C.F. Strong, Modern Political Constitution
• D.D. Basu, Constitutional Law of India
• Dhungel and others, Commentary on the Nepalese Constitution
• Gerald Gunther, Constitutional Law
• H.M. Seervai, Constitutional Law of India
• Hillary Barnnrtte, Constitutional and Administrative Law
• Hood & Phillips, Comparative Constitutions
• K.C. Wheare, Modern Constitutions
• K.C. Wheare, Federal Government
• Kanak Bikram Thapa and Bharat Uprety (edi.), Constitutional Law of Nepal, published by FREEDEAL
• M.P. Jain, Constitutional Law of India
• Ridges, Constitutional Law of England
• Sir Lvor Jennings, Cabinet Government
• Sir Lvor Jennings, Parliament
• Sir Lvor Jennings, The Law and The Constitution
• Stone, Seidman, Sunstein and Tushnet, Constitutional Law
• V.N Shukhla, Constitutional Law of India
• Wade and Phillips, Constitutional Law

Unit-9 MISCELLANEOUS

Objectives of the Unit: 1. To give critical knowledge about the constitutional regulations limitation and registration on of political parties.
2. To give a critical idea about the Constitutional Bodies under the scheme of the Interim Constitution of Nepal and the jurisprudential basis for their creation as autonomous bodies.
3. To give knowledge about the process and limitations on constitution amending power.
4. To give a critical and comparative idea of emergency provisions in India, USA and Nepal.

Contents in the Instructional Unit
1. Political parties constitutional requirements, limitations and immunities
2. Constitutional Bodies: problem prospects of their independence and their relation with other with other wings of the government (special focus of Abuse of Authority Investigation Commission as an Ombudsman and Election Commission)
3. Procedural and substantive limitations on power of constitutional amendment in Nepal (with special reference and comparison to Basic Structure theory of India).
4. Constitutional amendments through judicial interpretation and development of conventions
5. Emergency power in Nepal and its comparison with India and US system.

Time for Each Unit: 10 periods / 20 hrs

Instructional Techniques for Each Unit: Lecture, discussions, question answers case analysis discussion of political behaviors.

Materials for Instructions for Each Unit: Text books, reference materials articles and cases.

Assessment of Each Unit: Assessment of behavior of political parties in the context of constitutional vision and identification of provisions which need to be reformed. Assessment of practical problems faced by these bodies in realizing constitutional independence Identification of provision requiring amendments and see how far they are consistent with basic structure of the Nepal. Assessment the constitutional provision of Emergency and see if it can work in the geo political context of Nepal.

Reading Materials:
• A.C. Kapoor, world Constitutions
• A.V. Dicey, An Introduction to the study of law of the Constitution
• C.F. Strong, Modern Political Constitution
• D.D. Basu, Constitutional Law of India
• Dhungel and others, Commentary on the Nepalese Constitution
• Gerald Gunther, Constitutional Law
• H.M. Seervai, Constitutional Law of India
• Hillary Barnnrtte, Constitutional and Administrative Law
• Hood & Phillips, Comparative Constitutions
• K.C. Wheare, Modern Constitutions
• K.C. Wheare, Federal Government
• Kanak Bikram Thapa and Bharat Uprety (edi.), Constitutional Law of Nepal, published by FREEDEAL
• M.P. Jain, Constitutional Law of India
• Ridges, Constitutional Law of England
• Sir Lvor Jennings, Cabinet Government
• Sir Lvor Jennings, Parliament
• Sir Lvor Jennings, The Law and The Constitution
• Stone, Seidman, Sunstein and Tushnet, Constitutional Law
• V.N Shukhla, Constitutional Law of India
• Wade and Phillips, Constitutional Law

Unit-10 Modern Trend And Development of Constitution

Objectives of the Unit: To give an idea about the new trends in constitutional development in democratic countries of the word (including Nepal) and male an assessment of their relevance for Nepal.

Contents in the Instructional Unit
MODERN TREND AND DEVELOPMENT OF CONSTITUTION

Time for Each Unit: 41/2 periods / 9 hrs

Instructional Techniques for Each Unit: Lecture, discussions, question answers case analysis discussion of political behaviors.

Materials for Instructions for Each Unit: Journals, text books, reference materials articles and cases

Assessment of Each Unit: Assess how far Nepalese constitution has kept in track with the new trends of constitutional development around the word.

Reading Materials:
• A.C. Kapoor, world Constitutions
• A.V. Dicey, An Introduction to the study of law of the Constitution
• C.F. Strong, Modern Political Constitution
• D.D. Basu, Constitutional Law of India
• Dhungel and others, Commentary on the Nepalese Constitution
• Gerald Gunther, Constitutional Law
• H.M. Seervai, Constitutional Law of India
• Hillary Barnnrtte, Constitutional and Administrative Law
• Hood & Phillips, Comparative Constitutions
• K.C. Wheare, Modern Constitutions
• K.C. Wheare, Federal Government
• Kanak Bikram Thapa and Bharat Uprety (edi.), Constitutional Law of Nepal, published by FREEDEAL
• M.P. Jain, Constitutional Law of India
• Ridges, Constitutional Law of England
• Sir Lvor Jennings, Cabinet Government
• Sir Lvor Jennings, Parliament
• Sir Lvor Jennings, The Law and The Constitution
• Stone, Seidman, Sunstein and Tushnet, Constitutional Law
• V.N Shukhla, Constitutional Law of India
• Wade and Phillips, Constitutional Law
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