The Indian constitution is amongst the most intriguing texts in the world. Still, no nation has a constitution as extensive as ours. Despite its comprehensiveness, the reason this text is so intriguing is that it is highly adaptable. The framers of the constitution intended it to be non-rigid and should flourish the country to grow with it. As a result, the government of India has the authority to modify the constitution in response to numerous problems raised under Article 368 of the Constitution of India. An individual being a citizen of a democratic country as India has a right given by the Constitution that can be challenged any amendment made to the Constitution and when they do that it creates an obligation on the court of law to examine the matter in issue on the bases of its merits.
Along with the amendments in several legislations, some obligations are related to the Constitution. As the parliament derives its power to amend through Constitution, it is also necessary to follow the necessary procedures. Presently, the question was raised on the 97th amendment of the Constitution. It was bought in the Gujarat High Court by the way of PIL. The name of the case stands as Rajendra N. Shah v Union of India. However, the same was appealed to the Supreme Court to strike down the decision of the Gujarat High Court.
WHAT IS 97TH AMENDMENT ALL ABOUT?
The 97th amendment to the Constitution came as a dilemma. The main cause of this amendment was to look after the working of the cooperative societies and amend some of its rules and regulations. By the way of amendment, Article 19(1) (c) was amended. This was done to give protection to Article 43B of the Constitution. Article 43B of the Constitution states the promotion of cooperative societies. Also, Part IXB was inserted. The amendment was passed without being ratified by the State Legislatures. This led to the non-following of the procedure required by the Constitution.
Part IXB consists of Articles 243ZH to 243ZT. The articles in total have impacted the powers of state legislatures. It does not only restrict the powers but, has also paved a way for interference. Also, the amendment has bought the doctrine of basic structure in the scenario by making amendments to non-amendable parts of the constitution.
OVERVIEW OF THE DECISION OF GUJARAT HIGH COURT
In 2012 a writ petition was filed by Mr Rajendra N. Shah (hereinafter referred as petitioner) in the High Court of Gujarat at Ahmedabad through PIL. The major contention dealt with the 2011 amendment to the Constitution of India that the embedding Part IXB comprising Articles 243ZH to 243ZT violates the Indian Constitution since it does not make use of Article 368(2) of the Constitution, which requires the expressed ratification by a majority of the State Legislatures.
Apart from this petition, several other similar petitions were filed. The main challenge was to strike down the additions done via the 97th amendment, the argument of the petitioners was not for striking down the provisions but, for ratification by half of the state. The reason being, the amendment affected a subject that was present in the state list.
The petition expressly stated that the power under Article 368 is related to the basic structure of the Indian Constitution, and the fact that the impugned constitutional amendment did not follow the procedure prescribed in Article 368(2) of the Constitution, which recognizes the federal structure of the Constitution as one of the basic structures, is a violation of the Constitution of India. According to the petitioner, the State Legislature is the only competent authority in law to enact laws for cooperative societies as the same does not fall under the VII Schedule Entry 45 of List I of the Constitution, and that it is expressly excluded from Entry No. 43 of List and the proposed amendment should be set aside as violative of the Indian Constitution because the consent by way of ratification from the majority of State Legislatures was not obtained before presenting the Bill proposing the amendment to the President of India as provided in Article 368 (2).
The Gujarat High Court held in the present case that the amendment was taking away the necessary powers of state governments. On July 20, 2021, the apex court upheld the decision of the high court and has saved the supremacy of State Governments. Also, this amendment would have led to extensive interference of centres in subject matters of state. This judgment has been delivered by keeping in mind the federal structure of the Indian Constitution.
ARTICLE 368: IMPORTANCE AND HISTORY
As stated above, one of the major reasons for challenging the 97th amendment is that it was not done by complying with Article 368 of the Constitution. The main reason behind this is the “basic structure doctrine”. Before the applicability of this doctrine, even fundamental rights were amendable by the virtue of Article 368. With the series of judgements, the doctrine developed and some parts of the constitution were held to be non-amendable.
Mainly, in the case of I.C. Golaknath v State of Punjab and Haryana, it was held that the amendment of fundamental rights cannot be authorised. As, due to this, fundamental rights will vanish one day. So, parliament cannot amend them. Similarly, in the case of Keshvananda Bharati v State of Kerala, it was held that some of the basic features of the constitution cannot be amended as they will affect the federal structure of the constitution.
In India, we follow a rule of checks and balances. It is necessary to keep a check on the amendments made. One more important case is I.R Coelho by L.Rs v State of Tamil Nadu and ors. The main issue in the case was if Schedule IX of the Constitution can be amended by the virtue of Article 368 or not? It was held that any amendment made to Schedule IX is against the doctrine of basic structure. Also, Article 368 cannot be amended to allow the same.
Hence, when it comes to stating the importance and history of Article 368, it is an important asset to the doctrine of basic structure. It is against the basic principles to breach the basic features of the constitution. The same is being argued in the present case related to the 97th amendment. The position of Article 368 still stands the same and thus it cannot amend the basic structure of the Constitution.
THE DECISION OF THE SUPREME COURT AND ITS ANALYSIS
The decision of the Gujarat high court has been upheld by a three-judge bench consisting of R.F. Nariman, K.M. Joseph, and B.R. Gavai. Only Part IXB was stated to be struck down by Justice R.F. Nariman and B.R. Gavai. However, Justice K.M. Joseph stated that the whole of the constitutional amendment has to be stuck down.
As a consequence of the judgment, not the whole of the amendment has been struck down but, only a part of it. It has been stated that: We have struck down Part IXB but, have saved the Constitutional Amendment”. It has been contended that the part denudes the state of their powers but also restricts them. It has also been contended that the amendment is not a direct attack on the power of state legislatures in regards to cooperatives.
The other opinion that has been given about the amendment is that to achieve uniformity in the amendment, it was necessary to take recourse to Article 252 of the Constitution. This article states that it is necessary to take the consent of two or more states to bring any such amendments. Presently, the same is being challenged as the 97th amendment has been made without complying with the appropriate procedure. Hence, relying on the precedents, makes it clear that the amendment made to Part IXB of the Constitution is against the doctrine of basic structure and hence has been struck down by the Supreme Court.
The criticism for the amendment can also be seen through various opinions. One such opinion from All India Kisan Sabha states that these amendments are making India centralized which will, in turn, destroy the federal structure. To keep the working inflow, it is necessary to keep the powers with the states intact and not to include the Centre in it.
However, mixed opinions have been observed. The other side states that many of the states had already amended the legislatures according to the Constitutional Amendment. This calls for keeping the amendment intact as it is necessary for keeping a check on the activities in the state. This judgment now requires the pre-amendment of several legislatures in the states.
The decision of the High Court states that the provisions of amendment about cooperative societies lead to violation of the basic structure of federalism. The amendment was challenged based on various loopholes. One of them was, the process of amendment was not followed. Secondly, the provisions are an attack on the powers of state legislatures. Thirdly, the provisions are not following the federal feature of the constitution. Fourthly, the provisions are not empowering cooperative societies.
The judgment given by the apex court is vital. It has stated the main issues with their solutions. Striking down only part of the amendment states that no whole of the amendment was incorrect. Only the part that was being inconsistent has been removed. Various views are coming out. It has made it necessary to follow the procedures as established by law to avoid such circumstances.
Along with the amendments in several legislations, some obligations are related to the Constitution. As Parliament derives its power to amend through Constitution, it is also necessary to follow the necessary procedures. Currently, the question was raised on the 97th amendment of the Constitution. It was bought in the Gujarat High Court by the way of PIL. The name of the case stands as Rajendra N. Shah v Union of India. However, the same was appealed to the Supreme Court to strike down the decision of the Gujarat High Court.