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May Parliament Act as a Constituent Assembly?

The apex court and the Gujarat High Court have stressed that federalism is an integral aspect of the BSEF doctrine and thereby saved it from the excesses of the amending power.

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By Prof Upendra Baxi

Among Justice Rohinton Fali Nariman’s last opinions for the Supreme Court of India (SCI) before his superannuation recently (with Justices BR Gavai and KM Joseph, the latter partly dissenting), was the brave reiteration of the basic structure and essential features (BSEF) doctrine.

The learned bench (on July 30, 2021) decided the 97th Amendment as constitutionally invalid for having trespassed Article 368(2) of the Constitution providing for ratification by the majority of state legislatures. The view that the decision was only about the interpretation of Article 368(2) and not about the meaning of the BSEF doctrine is wrong because the Court is at elaborate pains to deal with the question concerning adverse effects of consensual political action superseding the well-recognised exclusive legislative powers of the state (Entry 32, List 11, 7th Schedule).

Article 368(2) was always understood, by Parliament, the SCI and the citizens of India, as unproblematic—an essential aspect protecting the principle and detail of federalism. Division of legislative powers among the Union and states was elaborately blueprinted by the Constitution. And an amendment can only be valid if the majority of state legislative assemblies endorsed the change in the Constitution, which authorised a further sharing of powers.

This was endorsed by, and since, Kesavananda, which elaborately created the BSEF doctrine. The importance of invalidation by the Gujarat High Court and the SCI stressing that Article 368(2) is an integral part of the federal principle cannot be overstressed at the present juncture when the Constitution is considered to be under stress, and by some as under some distress. The ratification of a majority of state legislatures, as required, was not even sought before presenting it to the President of India for his assent. The Union’s affidavit that a committee of ministers approved such an amendment is no argument at all. Neither this prior conduct nor subsequent developments1 should ever rescue or redeem grave violation of List II of the 7th Schedule. This knowing disregard—the original sin—as it were, is unconscionable.

The Gujarat High Court was firm in its insistence (which was endorsed as well in principle by the SCI, if not in so many words) that “constitutional authority cannot do indirectly what it is not permitted to do directly”2. It is nothing short of amazing to hear the argument, in this day and age, that the Union of India and even Parliament could act in express violation of Article 368!

If Parliament wished to make a change in Article 368 itself, it certainly has the power to do so, as it did in the case of the Constitution [93rd Amendment] Act, 2000. It added Clause (5) to Article 15 saying that nothing in that Article or in Clause (I)(g) of Article 19 shall prevent the State from making any special provision, by law, for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes or the Scheduled Tribes “insofar as such special provisions relate to their admission to the educational institutions, including private educational institutions, whether aided or unaided by the State”. But the Supreme Court, while it held that this amendment did not offend the BSEF doctrine, left for the future the question whether such reservations could be made in private educational institutions on the “basis of the Constitution [93rd amendment] or whether any such legislation would be violative of Article 19(1)(g) or Article 14 of the Constitution or whether the said amendment… enables the State Legislatures or Parliament to make such legislations…”3

Justice Nariman, in the present case, opined that though “our Constitution has been described as quasi-federal” and there is “a tilt in favour of the Centre vis-à-vis the States given the federal supremacy principle”, yet “within their own sphere, the States have exclusive power to legislate on topics reserved exclusively to them” (Para 57). Put more pointedly, it does not matter whether the Constitution is read as federal or quasi-federal—what does matter is the ratification by a majority of state legislative assemblies. This is a resounding affirmation of the federal principle and detail.

Most relevant for now, and for the future, the principle that though “an amendment of the Constitution is the exercise of constituent power which differs from ordinary legislative power… does not convert Parliament into an original constituent assembly”. Parliament “being the donee of a limited power may only exercise such power in accordance with both the procedural and substantive limitations contained in the Constitution of India,” (Paras 33, 36).

But if such a ratification was needed, was not the entire amendment invalidated? It is here that Justice Nariman (and Justice BR Gavai) differ from Justice Joseph. Justice Nariman raises a technical and a substantive argument. The former simply says that “no such ground has been raised before the High Court” and all the grounds raised have reference to infraction of the federal principle and the fact that the subject “cooperative societies” is affected by the “amendment needing ratification”. Though the prayer asks for striking down “the entirety of Part IXB”, there is every justification not “to dea1 with this argument” as no ground or no argument has “been raised on this score before the High Court…” (Para 79). However, the Court has in many cases not been inclined to take this ground and has often resorted to expanded reading of the power to do complete justice under Article 142.

But the substantive path invites the majority to take recourse to the doctrine of severability. In a brilliant discourse, Justice Nariman insists that the Union has the power under List 1 to make laws regarding multi-state cooperatives which are not affected adversely by the requirements of a valid amendment. This Justice Joseph, does not contest but he is quite articulate in stressing why the entire amendment is void. He finds that the doctrine of severability simply does not work here because the entire amendment act is void and “still born”. Justice Joseph thinks that the provisions of Articles 243ZR and 243ZS are neither “independent” nor “workable” and therefore, the question of severability does not arise or survive.

I will not here take you through a close reasoning on “workability” and “severability” save to say, with respect, that Justice Joseph makes a compelling case for total invalidation of the amendment. Why were Justices Nariman and Gavai not persuaded by Justice Joseph, is a question which has two allied aspects: analytic as well as biographical.

The analytical question leads us to ask: What conception of judicial duty may underly the doctrine of judicial severability? Do what may apply to statutory construction apply at all or equally, to constitutional construction? Does the duty counsel justices to let a constitutional amendment perish altogether or to somehow salvage some aspects of it, even in the face of manifest violation of constitutional requirements or thresholds of validity? Are Article 368 and the BSEF doctrine obligations to be conceived differently in contexts of other statutory situations, raising issues of constitutional morality, as for example, developed by the rights to freedom of sexual minorities?

The biographical question must remain unknown till judicial autobiographies or biographies are written (and one very much looks forward to Justice Nariman’s memoirs), but a painstaking study of the judicial discourse may provide some preliminary clues concerning the dissension even among this small group of India’s able, erudite, and constitutionally caring justices.

Even so, we must still be grateful to the SCI for reiterating federalism as an integral aspect of the BSEF doctrine and saving it from the future excesses of the amending power in Article 368.

—The author is an internationally-renowned law scholar, an acclaimed teacher and a well-known writer

1The learned AG argued that as many as 17 out of 28 States have, after the 97th Amendment, already enacted legislative measures in conformity with Part IXB and therefore more than half of the States had, in effect, accepted and applied the provisions of Part IXB”, see Para 8, Union of India vs Rajendra N Shah (2020), hereafter referred to, in the text, simply by par number.

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2Rajendra N Shah vs Union of India (22 April 2013), Indian Kanoon, [Para 36]. The Court here invoked  the authority of Chief Justice Bhagwati in Wadhwa vs State of Bihar, [1987]. 1 SCC 625 (Para 1). 9 The decision does accord with the precents from the apex court but can be faulted on the ground of being rather vague on the first legal principle for example, Article 368 is described as a “formality” which was not observed though it is held to be an essential requirement by the Court. But that provision, whatever one may about its wisdom, is declared as a device that serves the integrity of federal structure. Similarly, federalism as the “basic structure” and as an essential” feature” of the Constitution. But as I have pointed out, several times in my writing, the notions have been distinguished often.

3Ashoka Kumar Thakur vs Union of India reported in (2008) 6 SCC 1., as discussed in Paras 24-25 of the Gujarat High Court decision cited above.

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