President Obama and Bhopal Gas Leak Disaster

Date: 06-Nov-2010
To
Respected, Barack Hussein Obama
Hon'ble President
United States of America
White House
Washington D.C.

Sub: Request for your intervention to secure additional compensation to the survivors and victims of the Bhopal Gas Leak Disaster, the worst industrial accident in human history.

With Respects, Sir:

1. My name is K.V.Dhananjay. I am a citizen of India. I am 36 years old. I am an advocate in practice at the Supreme Court of India and at several High Courts across India.

2. I take this opportunity to extend a warm welcome to you, your family and to your entourage while on a visit to India beginning 06-Nov-2010.

3. I wish to request you for your time and reflection upon the consequences from Bhopal Gas Leak Disaster that occurred on 2-3,Dec 1984 in Bhopal, the capital city of a northern State in India, Madhya Pradesh.

4. An unexpected, accidental or negligent release of methyl isocyanite in an industrial unit in Bhopal led to unprecedented loss of human life and limb - to an extent that the said event is characterised, universally, as the 'worst industrial accident in the history of mankind' (a view also endorsed by numerous decisions of Courts in the United States). In relation to the human toll from this catastrophe, Affidavits by the Government put the number of deaths in excess of 15,000 and severe injuries at 5,58,125.

5. On 14-Feb-1989, the Supreme Court of India set the monetary compensation and settlement in relation to the said disaster at a sum of 470 Million US Dollars . The said sum of 470 Million US Dollars was stated to "finally dispose of all past, present and future claims, causes of action and civil and criminal proceedings ...with respect to all past, present and future deaths, personal injuries, health effects, compensation, losses, damages and civil and criminal complaints of any nature whatsoever ...arising out of, relating to or connected with the Bhopal Gas Leak Disaster, including past, present and future claims, causes of action and proceedings...

6. It may not be profitable now to enquire into what could have been bought with a sum of 470 Million US Dollars in the year 1989. However, in 2009 or 2010, a sum of 470 Million US Dollars will barely cover the cost of producing, marketing and releasing two big-budget Hollywood films.

7. Yes. 'Avatar' and '2012', two Hollywood releases in 2009 that fared better than domestic fare in India cost more than 470 Million US Dollars to produce, market and release. Similarly, 'Iron Man 2' and 'Toy Story 3', two Hollywood summer-2010 movies released in India and elsewhere cost much more than 470 Million US Dollars to produce, market and release.

8. Any person acutely aware of the inadequacy of 470 Million US Dollars to compensate for the ‘worst industrial accident in human history’ will always remember your overwhelming role in compelling BP to provide for a 20 Billion US Dollars reparation fund to account for and to compensate for the Deepwater Horizon Oil Spill that occurred on 20-Apr-2010 from a drilling rig explosion in the Gulf of Mexico - the responsibility for which accident has been fastened upon BP. In all, BP has set aside 32.2 Billion US Dollars in its financial statements to account for the said oil spill.

9. I write here to express my request to you, as the President of the United States, to consider a similar intervention and to persuade Dow Chemicals to provide for a greater sum of monetary compensation to account for the suffering and misery inflicted and forced by the Bhopal Gas Leak Disaster.

10. I thank you for your time for this letter. I hope that you will recognise that the people of this world will incur gratitude towards your office and will ever remain grateful for any personal intervention you may initiate to secure fuller justice to the victims of what has become the worst industrial accident in human history - the Bhopal Gas Leak Disaster.

Sincerely

K.V.DHANANJAY

Advocate

#127, Lawyers Chambers
Supreme Court of India
New Delhi 110 001

Also at:
No.296, Kamakshipalya
Magadi Main Road
Bangalore 560 079

Email: dhananjaylegal@gmail.com
Mob: +91 9902909390

Hysteria and Indian Television - inseparable

Dear Friends
For those still in doubt over the sanity of many people in the television media in India, the 'massive outrage' over Vishwanathan Anand's 'citizenship' query from the Government of India will most likely dissolve all such 'doubt'.

It is an established procedure in most countries of the world to reserve all or most categories of 'titles' to individuals who show or prove 'citizenship' to the satisfaction of their federal Government.

Vishwanathan Anand is undoubtedly, the most gifted and honoured of all Indian sportspersons. But, when the Government of India seeks to confer or endorse the conferment of any 'title' upon any person, it is not unreasonable or improper for it to ask the 'potential recipient' to prove his 'citizenship' of India. 'Citizenship' is always the 'legal status' of an individual and a number of intervening circumstances could deprive a person of his 'citizenship'.

Without seeking to defend the action of the Government of India in asking Vishwanathan Anand to prove his 'citizenship' of India, I would like to state that Vishwanathan Anand should simply ask his lawyer to guide him on whether the 'procedure' adopted by the Government of India was authorised for it. Most likely, his lawyer will, if queried, say 'yes'. That is all there is to this issue. What happened is not 'national outrage' but mere 'pursuit of procedure'. And, for quirky ministers already declaring their 'readiness' to apologise for the full viewing pleasure of the prime time audience, I have a suggestion - please visit your nearest therapist; you could be in need of help.

Regards

K.V.Dhananjay
Advocate
Supreme Court of India
+91 9902909390

When is the President's Rule justified for a State?

Dear Friends
The frequent recitation of 'President's Rule' for Karnataka has resulted in a situation where I find myself fielded with several questions from a number of people including politicians, mediamen and lawyers. So, here is a Q and A meant to clarify on the situation:

1.When is President's rule justified in a State?
The President's rule has been imposed on more than 115 occasions since the Constitution of India was put into effect in 1950. The President's rule is meant to be imposed only in the event of a 'break down of the constitutional machinery in a State' and if the 'State concerned cannot be governed in accordance with the Constitution of India'.

2. Does this mean that there should always be a rise in violence and crime rates for the president rule to be imposed ?
Certainly not. A mere increase in crime rate in a State is not a criterion for imposition for the President's rule. The imposition of the President's rule is meant to accomplish an objective in which the State has failed even after specific direction from the Governor of that State.

3. Does it mean that a subjective satisfaction of the Governor is enough to impose the President's rule?
Absolutely not. Our Constitution is founded on principles of democracy. Further, the casting of a vote in our system of democracy is a vote made with knowledge of the fact that the party voted to power will remain in office for the prescribed duration. As such, the President's rule is never meant to save people from the consequences of unpleasant choices. A democratic form of Government mandates that people should take responsibility for their vote. That is, good or bad, they should face the consequences of their vote. If they happen to vote undeserving individuals to office, they should simply suffer the consequences and learn their lesson for the next scheduled election. The concept of President's rule is not meant to protect people from unpleasant consequences of their vote.

4. This would mean that people have to put up with a bad Government and endure it for the full length of five years?
Precisely. This is a natural consequence of democracy - we should take responsibility for who we vote and if we make a bad choice, we should exhibit the maturity to put up with the Government for five years so that the pain we experience will teach us to discriminate and to choose a better candidate in the forthcoming election.

5. If a cabinet minister is alleged to be involved in illegal mining, can it be said that the 'constitutional machinery in the State has failed'?
If a cabinet minister is involved in illegal activity, he should be punished under the law - no law in India confers any immunity upon any minister breaking the law. Illegal mining is a serious offence in India. There is a law to deal with illegal mining and it should be invoked against an erring minister. As such, I fail to understand how illegal mining in the State could be termed as a 'failure of the constitutional machinery in the State'. However, should there be objective and verifiable material which would implicate several ministers of the cabinet in the commission of an illegal activity, the Governor may instruct the Chief Minister to dismiss 'forthwith', ministers so implicated. Should the Chief Minister fail to satisfactorily refute the material shown by the Governor, the Chief Minister would incur a constitutional duty to immediately dismiss the offending 'ministers'. Should the Chief Minister fail to so dismiss offending members of his cabinet, a situation would have been created whereby the Government of the State cannot be carried on in 'accordance with the Constitution'. Obviously, no State in India can be allowed to function as if the Chief Minister would hold no regard for the rule of law - for a Chief Minister to knowingly continue the tenure of ministers who are shown to be involved in massive illegality, even in the face of an express directive from the Governor, would warrant the imposition of the President's rule.

6. What is the extent of material that would be required for the Governor to so act?
As already stated, the Governor cannot reach a subjective satisfaction in the matter of imposition of President's rule. Further, the incriminating material against the offending ministers should be of such nature that it is objective and verifiable. Mere political allegations are of no use. Should the material fail the test of 'strict rules of evidence' employed by a court of law, it should at least merit admissibility should the court relax some rules of evidence in a manner it does in deserving cases. As such, unless there is objective and verifiable material to impeach the credibility of a minister, it would be futile to even consider the imposition of 'President's rule' in a State.

7. Can the Court intervene in the event of an improper imposition of 'President's rule' in a State?
Very much. However, rarely does a Court grant relief in time in such matters. Often, the decisions of Court take so much time in these kinds of matters that by the time the decision is delivered, a new election would have been held and everybody would have forgotten the entire episode. First of all, should the 'President's rule' be wrongly imposed upon a State Government, the affected persons may only move the High Court. The Supreme Court does not have original jurisdiction in such matters. Because this class of litigation is very infrequent at the High Courts, any petition is generally heard by a 'Single Judge' who generally hears residual matters. Thereafter, any decision of such 'single judge' is appealable to a 'Division Bench' (that is, a bench consisting of two judges). Further, the decision of the Division Bench may further be appealed to the Supreme Court. As such, because too much time is consumed in the process of deciding such matters, the option of securing an intervention by the Court is time consuming and is generally of no practical assistance to those injured by improper imposition of 'President's rule'..

--
Regards,

K.V. Dhananjay.
Advocate, Supreme Court of India
+91-99029-09390

Are our local languages good for our Courts?

Dear Friends
Bored with English in our Courts? How about Hindi? A serious effort to seek Hindi in arguments is underway at the Delhi High Court. And Tamil is not far behind. But the real problem comes here: What are the equivalents for 'pledge' and 'bailment'. 'Insurance' and 'vicarious liability'? The truth is, we do not have the equivalents for nearly 50% of the words in a legal dictionary. And, we have no consensus over the equivalents we already have. It takes more than a few hundred years to cultivate a language for legal use. Urdu became the only Indian language that received enough nourishment to merit the status of a 'court language' in a handful of provinces. Unfortunately, due to sheer political reasons, it was shelved. Good luck with Hindi this time. But the fact remains that there are 8 Division Benches in the Delhi High Court and half of the Judges who sit in those Benches are persons from non-Hindi speaking States.

And nobody should suggest that street-Hindi or street-Tamil is good for our Courts. A refined Hindi is quite beyond the comprehension of many Hindi speaking Judges. It is like this, the Kannada that most lawyers speak in Karnataka is not good enough for our Courts. So, if our aim is to merely localise our Courts, we might not be doing a great service to ourselves. The fact remains that we do not speak good Kannada or good Hindi or good Tamil most of the time.

If only we could speak good Kannada or good Hindi or good Tamil or a good local language, many of our Courts would have switched over to regional languages long ago. It is that simple. Resistance to a local language in Courts is not so much a resistance to any given Indian language but to the degree of care people generally adopt in speaking it.


--
Regards,

K.V. Dhananjay.
Advocate, Supreme Court of India
+91-99029-0939

'Outrage' for 'Dummies in India'.

Dear Friends
This is the excerpt of a proposed book 'for Dummies in India'. Chapter - 'outrage'.

Why an efficient judiciary is in nobody's interests? Bhopal Gas Leak Disaster has been addressed judicially - more than 25000 deaths. 8 individuals have been sentenced to 2 years imprisonment - after a trial that lasted 26 years.

I want to be outraged at all of this. Will it help?
Did you just arrive from another planet or something?

But the media is all too outraged? I want to add to the noise.
Well, media outrage in India has a lifespan. It is now, '1 week'. Next Monday, there will be another crisis to talk about and everything will be forgotten about this episode.

What went wrong about this trial?
Of what use is it for you to know what went wrong. A few hundred things might have gone wrong.

But surely, we cannot simply forget the Gas Leak victims?
Pray for the departed souls. But do not expect any formal redressal from the judicial system. With the judgment already out in the open, it will be ages before any appeal is decided. Even thereafter, there is another appeal to the Supreme Court.

But I hear so much about judicial reforms in India?
Surely, what makes you think that it is in anybody's interests to strengthen the judiciary in India?

What do you mean?
Well, you should not be asking that X or Y should be punished - you should be asking that X or Y should be prosecuted to the fullest extent and a fair verdict commensurate with the crime be delivered by a judge.

Yes. I want an efficient judicial system in this country.
Yes. That is the root of the problem.

I don't get it.
You see, if the judicial system is strengthened to the point that the guilty will always be punished, do you see the obvious consequence?

No.
A judicial system that nails a murderer will equally nail a corrupt politician or a negligent public servant. You cannot have a judicial system that will only nail criminals and set aside politicians. That never happens and has never happened. It is like a vast fishing net. Whatever is thicker than the net strand will stumble upon the net and get wrapped in it. So, an efficient judicial system is the last thing corrupt politicians want in this country. So, because we need to keep our judiciary weak so as to protect corrupt politicians, we obviously should learn to tolerate such incidents as Bhopal Gas Leak Disaster and move on.

What then is the best use of my time?
Indian film industry churns out the most number of movies in a year and you should head to your nearest multiplex.

How should I know when to expect any judicial reform in this country?
As and when some high ranking politician is convicted for corruption. When that happens and is affirmed by the Supreme Court, take it as a sign that things have changed a lot. Of course, you don't have to watch out for it. If Fire crackers are burst across your town on a Day that is not Diwali or a cricket match day, you should watch your television for confirmation.

--
Regards,

K.V. Dhananjay.
Advocate, Supreme Court of India
+91-99029-09390

Dear Friends

The sudden realisation by people in Delhi that radiation emitted by Cell Phone Towers is generally higher than internationally recommended levels has a legal aspect to it.
Telecommunications and Telegraph are Central subjects under our Constitution.

Accordingly, only the Parliament may legislate on the topic of telecommunications and the Central Government and its agencies may issue suitable Orders and directions to comply with the law made by the Parliament.

States and their local bodies have practically very little scope for regulating any aspect of 'telecommunication' in view of the fact that 'telecommunication' is a federal subject in India

The act of installing a telecom tower for the purpose of transmitting a radio wave so as to facilitate 'telecommunication' is therefore a topic over which State Governments or local bodies have very limited legal authority.

'Telecommunication' is similarly, a federal subject in many other countries of the world and State Governments and local bodies in countries such as United States, Canada and Australia have often made unsuccessful attempts to regulate telecom towers on one or more 'health' or 'safety' grounds.

In India, local authorities or the States cannot impose any restriction on what should be the maximum Radiowave Frequency (RF) emission levels. Only the Parliament or the Central Government may make any regulation in this regard.

In fact, the Telecom Regulatory Authority of India, (TRAI) is the regulatory body in India in relation to telecom and TRAI should be faulted for having done nothing so far to mandate maximum RF emission levels for telecom towers.

Further, an NGO from Gujarat, Karma Jyot Seva Trust filed a Writ Petition No.471 of 2005 in the Supreme Court seeking the prescription of maximum emission levels for Telecom towers in India. Unfortunately, that petitioner did not pursue that matter and the same was dismissed on 15-Jan-2010 by the Supreme Court by observing that 'the matter is being dismissed for non-prosecution'.

Further, local authorities in many States had objected to the installation of telecom towers on safety grounds and the Supreme Court had stayed all such Orders on 13-Nov-2006 principally on the ground that local authorities do not possess the legal authority to interfere with 'telecom towers' except for limited purposes such as 'structural safety' - the same reasoning adopted by Courts in most other countries of the world where 'Telecom' is a federal subject.

As such, the most that the Municipal Corporation Delhi could do in the matter of telecom towers is to insist on standards for structural safety. If these standards are complied with, the MCD will have no further 'say' in these matters.

Further, bodies similar to MCD in countries such as the United States have sued their Telecom regulator in cases where the local authorities felt that the telecom regulator was sleeping over its duties. Similarly, the MCD could sue the TRAI before the Delhi High Court on the ground that the TRAI has contributed to a health hazard by failing to regulate on a critical aspect of 'telecom towers' by not mandating 'maximum RF emission levels'.

Regards,

K.V. Dhananjay.
Advocate, Supreme Court of India
+91-99029-09390

Mangalore Airport Runway was the ideal setting for the 'Indian Jones' movie - not for a passenger facility

Dear Friends
I submitted an RTI application to the DGCA, a week ago, on 24-May. Just learnt that it is making all people uncomfortable there. The RTI application and the explanation thereto are attached. The RTI application, of course, expands the frontiers of the RTI law. The RTI application was made by me for the benefit of certain lawyers and NGOs at Bangalore. Also reproduced here:

Date: 24-May-2010
To
Sri Bhir Singh Rai (or any other officer dealing with - all matters pertaining to investigation of accidents/incidents to Indian registered and foreign registered aircraft occurring in India, to provide assistance to Courts/Committees of Inquiry and all the other matters relating to Air Safety.)
Director
Central - Assistant Public Information Officer
Director General of Civil Aviation Headquarters
Opposite Safdarjung Airport,
New Delhi 110 003

From:

K.V.DHANANJAY
Advocate
No.43, Ajantha Apartments
(No 36), I.P. Extension
Near AVB Public School
New Delhi 110 092
Mobile: 09902909390
dhananjaylegal@gmail.com

Dear Sir

Sub: Information sought under Sections 5 and 6 of the Central Right to Information Act, 2005

I am an advocate in practice across several High Courts and the Supreme Court of India.

In relation to the disastrous Air India Express Flight IX-812 [BOEING 737-800 Aircraft that departed from Dubai International Airport (IATA-DXB) to arrive at Mangalore International Airport, Mangalore, Karnataka (IATA-IXE)] that crash-landed on the Runway at the Mangalore International Airport at Bajpe, Mangalore, Karnataka around 06-30 Hrs [Indian Standard Time (IST)] on Saturday, 22-May-2010, the following information is sought:

I. Complete and unedited audio recording (on an appropriate media), of all human communication and interaction, captured by the cockpit voice recorder or any similar device pre-installed inside the aforesaid aircraft [including the Digital Flight Data Recorder (DFDR)] and retrieved thereafter from the aforesaid aircraft;

II. Complete and unedited audio recording (on an appropriate media) of all communication that occurred inside the Air Traffic Control Room in relation to the landing of the aforesaid aircraft on the Runway at the Mangalore International Airport at Bajpe, Mangalore, Karnataka.

III. Copies of all instruction or directions, if any, (published on or after 01-Jan-2006) issued by the Director General of Civil Aviation under Section 5A of 'The Aircraft Act, 1934' (Act No.XXII) in respect of additional precaution mandated for flights that take off or descend upon the Runway at the Mangalore International Airport (formerly, Bajpe Airport) Bajpe, Mangalore, Karnataka.

A Demand Draft for a sum of Rs.500 drawn on ING Vysya Bank, Karnataka High Court Branch, Bangalore, bearing the Number 320214 and dated 24-May-2010 is attached herewith.

I further assert that the information sought herein is not exempted from disclosure in terms of Section 8 or 9 of the Right to Information Act, 2005 and your office is under a positive legal duty to furnish information sought herein.

I undertake to pay the balance costs upon due intimation, immediately thereafter.

I would prefer to receive information by Post at the address above mentioned.

SINCERELY

(K.V.DHANANJAY)

Advocate

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The explanation for the RTI (not provided to the DGCA) is:

The RTI application has been made by me.

The Mangalore International Airport is thoroughly defective in design and this airport should never have been approved for use as a passenger airport. A series of PILs were instituted by other lawyers at the Karnataka High Court and the nature of mishap that took place on Saturday was foretold in those petitions. As such, the statutory authorities that were responsible for the design and operation of this airport were clearly forewarned and could therefore become criminally liable for the disaster that struck the airport on Saturday morning.

The purpose of the RTI is to establish, primarily, if the pilots in charge of the fateful aircraft did say anything to suggest that they 'dreaded' the Runway at the Mangalore airport. Because the DGCA has already maintained, publicly, that the pilots in question were highly competent, any evidence of those pilots expressing 'fear' of landing at the Mangalore Airport Runway could clearly establish that the design of the airport was inherently defective and that such defective design could not have been overcome or mitigated by subsequent and special training.

The other provision -Section 5A of the Aircraft Act, 1934 grants wide powers to the DGCA to issue any instruction as may be deemed necessary by the DGCA to ensure 'safety of aircraft operations'. Any person who fails to comply with such direction could become liable to pay a penalty of a sum of Rs.10 Lakhs and suffer imprisonment for a term upto 2 years. We are keen to note the extent of precaution and care exercised by the DGCA in relation to the operation of the Table-Top Runway at the Mangalore International Airport. Whether the DGCA took special steps to mitigate the possibility of a disaster at this airport can be ascertained with reference to the directions that were issued by it in relation to this airport, under Section 5A of the Aircraft Act, 1934.

Further, the reason why I state that the design of the Runway was inherently dangerous is because, any aircraft that commits an error and makes a less-than-perfect landing was imposed with a foreseeable risk of dropping off the cliff, unless the aircraft came under immediate control of the pilot. Such a design should never have been approved for a passenger airport in the first place.

Notwithstanding the DGCA or its loyalists' claim that the Mangalore International Airport was the safest airport in India, Saturday's incident puts the burden on the DGCA to prove that the airport was not defective in design.

Regards,

K.V. Dhananjay.
Advocate, Supreme Court of India
+91-99029-09390

Fake 'FAST UNTO DEATH' & how to effortlessly detect it

Dear Friends

The recent increase in the number of agitations in the name of ‘fast unto death’ is certainly a cause for concern for the Government.

There can be no doubt that the sacrifice of oneself for a cause is the highest human ideal. Satyagraha is therefore, the greatest form of protest available to an individual. The fact remains that India, our country, secured its political freedom from the British by a stead fasted adherence to the principle of Satyagraha.

Now, career politicians are increasingly threatening to ‘fast unto death’ for purposes that are not necessarily in anybody's interest except theirs. When a career politician sets out to ‘fast unto death’, the truthfulness behind such an agitation is rarely known to the world except to his close associates.

Yet, I am of the view that a Government should strive to ascertain if such agitations are ‘truthful’ at all. The Government ought to ask, ‘Has a fasting politician truly contemplated ‘death’?’

There is no greater dishonour for a country to witness an individual pretend to ‘fast unto death’ and compel his Government to accede to his demand in the absence of a moral foundation to the episode; the willingness of an individual to commit himself for a cause and the willingness of a Government to accede to his proposal on moral grounds.

A person who lives with a family and has secured material prosperity may not contemplate death with any degree of certainty. If he did, he would most definitely write a ‘will’ and execute it so as to meet his obligation to the members of his family.

Less than 1/10th of 1% of the population of India bothers to write and execute a ‘will’. The mainstream media is never tired of disclosing new episodes narrating the misfortune of the mighty and the wealthy who are driven to squabble on the streets largely because the family patriarch left no will or disclosed none to his family and a dubious will emerged from a stranger’s camp.

A career politician with substantial assets and a thriving dynasty who seeks to sacrifice himself to a cause will most likely write and execute a ‘will’ if only he is willing to move closer to ‘death’. As such, a career politician who threatens a ‘fast unto death’ may never need to be taken seriously unless he takes steps to write and execute a ‘will’.

Remember what U.G.Krishnamurthy, J.K.Krishnamurthi and Osho emphasised all of their life – the people of India aren’t spiritual at all; at least not as much as they claim. If they had no fear of death at all, they would never have surrendered to any power and yet, look to history and you will see that people were always willing and waiting to surrender to somebody or the other.

If you notice a career politician threatening to ‘fast unto death’, please do this country a favour. Ask that individual for a copy of his will. After all, if he has contemplated death with any degree of certainty, he should have authored and executed a ‘will’.

People with massive amounts of money in India rarely write a ‘will’. Why would they, anyway? It is easier to extract love and support from your loved ones by getting them to hope for a bigger reward in return for their love and support to you. Once you write and execute a ‘will’, your family members clearly learn how much they will receive upon your death and will therefore, see no need to disproportionately gratify you. If you are a career politician and have lots of ill-gotten wealth and plenty of family members who have their eye on your purses, the last thing you would want to do in your lifetime is to write a will and distance everybody from your life.

So, the next time a politician tells you that he will ‘fast unto death’, ask him for his will. If he has none, please publicise such absence to the world. You will be doing this country, a favour.

--
Regards,

K.V. Dhananjay.
Advocate, Supreme Court of India
+91-99029-09390

Is India, a marriage democracy?

Dear Friends
First came Shashi Tharoor. Now comes Jairam Ramesh. Should we all think that our Government should be administered as if it were a grand Indian marriage ceremony? That everybody will smile at everyone else and that, nobody will say anything to displease another?

Unfortunately, India seems to be moving towards a marriage democracy. Why should it matter at all that one minister does not have very nice words to say about his cabinet colleague? In saying what was said, did Jairam Ramesh physically prevent Chidambaram from transacting his business? Chidambaram has been in the Government for more than a decade and is a decade worth of valuable work vulnerable to some comment by another?

Obviously, No. Then, why cannot we be a democracy in which, each person will speak his mind and nobody will bother about what another says. After all, these are public offices and shall be remitted at the appointed hour. And space is very infinite and can hold unlimited opinions of each and every individual on this planet.

After having said all of the above, somebody should also be asking me - why should I bother in the first place? Can't I simply shut up and let the Government be run in any way that the netas please?

Good question and my answer would be, it takes one thorn to weed out another. Btw, I have no connection whatsoever to Jairam Ramesh. Have never met or spoken to him.
- Hide quoted text -



--
Regards,

K.V. Dhananjay.
Advocate, Supreme Court of India
+91-99029-09390

The President may only say 'YES' or 'NO'. Not 'CAN'T SAY' or 'DON'T KNOW'.

Dear Friends
It is somewhat expected that KASAB will be sentenced to Death by Hanging. Thereafter, the High Court of Bombay will hear his appeal on a mandatory REFERENCE. Thereafter, the Supreme Court is bound to hear him on an appeal whether preferred by him or by the State.

So, what about the President's current backlog of clemency petitions?

The President or the Governor, as the case may be, are not to disrupt the judicial power of the Government. When a Court of Law imposes a death penalty upon a convict, it becomes the duty of the Executive Government to execute such punishment except upon the intervention of the President or the Governor, upon a properly instituted clemency petition.

For the past two decades, what we are seeing in India is that the decision making by the President is wholly botched up by indecisiveness and political considerations. The President is required to answer, either 'YES' or 'NO'. Our Founding Fathers were not foolish enough to entrust to the President of India, a power to indefinitely hold up judicial orders by receiving clemency petitions first and by refusing thereafter to say, either 'YES' or 'NO'.

Over the past two decades, successive Presidents have instead been content to say 'CAN'T SAY' or 'DON'T KNOW', after they receive clemency petitions. What kind of Governance is this? This is utter mockery of our Constitutional jurisprudence.

Are the people of India opposed to the death penalty? Then, nothing is more simpler for the Parliament of India than to merely create a law, by a simple majority, to abolish all forms of 'death' penalty. Problem solved!

Is the President of India opposed to death penalty? Simple, indeed. Accept the clemency petition and grant 'pardon'.

But what on earth is it, to sleep over files like it is being done?

It is not like India alone is populated with people and the rest of the world is populated with monkeys. If 'death penalty' is abhorrent to many here, simply 'abolish' it. If not, keep it on the books. The President can still grant 'clemency' to whoever he/she pleases.

I think, the President's indecisiveness is making a mockery of our criminal justice system. And it may take KASAB to clean up this rot in the President's decision making. Is it too much to say 'YES' or 'NO'? Then, do not become the President of India - there are too many alternative avenues or job opportunities open in India. And the President of India should be the last person in the country to engage in political procrastination.

--
Regards,

K.V. Dhananjay.
Advocate, Supreme Court of India
+91-99029-09390

The US Government is richer by millions; thanks to IPL expose.

Dear Friends

The United States Department of Justice ought to be thanking the media here for its relentless expose of the IPL washroom contents. The United States Congress passed in 1977, a law called 'Foreign Corrupt Practices Act'. Under President Obama, there has been an unprecedented and a highly aggressive enforcement of this law.

What does this law say?

Any American national and every business incorporated in the United States in any form, be it a Company, Partnership or other, is forbidden from bribing any person or official of any foreign Government for the purpose of securing or keeping business. This law follows every American national and American business wherever they go.

Penalty is twice the value of the benefit that the bribe was intended to secure. Fine extends to all monies paid as bribes. And Punishment is '5 years' in jail.

So, if that facilitation fee was 400 Crore Rupees in order to secure a telecast contract worth Rs.900 crores, here is the math:
Fine - Rs.400 Crores
Penalty - Rs.900 * 2 = Rs.1800 Crores
And punishment = 5 years.

By the way, American nationals and businesses operating in India are greatly concerned about the aggressive enforcement of that law. And India is considered very corrupt by the US authorities.


Remember another thing here, if a US based company did indeed pay bribes in relation to IPL and any receiver of that bribe took that bribe or benefit on American soil, the US law applies to the receiver as well. The punishment in that case is well above '5 years' because other laws too kick in. If you wish to expose corrupt politicians in India to prosecution in the United States, you should expose on who are the politicians who benefited from the kick back and if so, if any part of that kickback occured in the US.

--
Regards,

K.V. Dhananjay.
Advocate, Supreme Court of India
+91-99029-09390

Abolish IPL. Now.

Dear Friends

I do not love cricket and never pay attention to it. In fact, I must have watched less than 5 minutes of IPL-3. But now, thanks to relentless media reporting (to the exclusion of everything else), I was forced to learn a few things about the IPL and I am quite concerned to note ‘why on earth does anybody think that IPL’s conduct and transaction is legal here?’

BCCI is not merely regulated by the Government but is in receipt of facilities and infrastructure belonging to the Government. BCCI is also in receipt of exclusive rights to represent the nation in approved sports and tournaments. This much has been held, by Courts, to restrain BCCI from acting arbitrarily, on prior occasions.

And the IPL is merely a committee within the BCCI. So, how could IPL covenant with anybody at all to grant them confidentiality in the matter of dealing with IPL, BCCI or in the matter of use of facilities leased to BCCI by the Government? It is out of question, for an agency of the Government to offer facilities entrusted to it by the Government to another person who refuses to identify himself and seeks confidentiality. This is because, as a recipient of Government largesse, the public does have a right to know about the person who is conferred with public such public privileges.

So, the reasonable thing for the BCCI here would be to wind up IPL altogether. Of course, all monies received by IPL will have to be refunded to the contributors to the extent not already spent in proportion to the contribution by individual IPL owners and others.

Can those losing money here sue IPL or the BCCI for recovery of their complete money spent on it? Well, if IPL is abolished, IPL cannot be sued at all as it would have become a ‘non-existent’ entity in the eyes of the law. The BCCI could be sued but, unsuccessfully. BCCI could take the claim of ‘mistake of law’. A ‘mistake of law’ is a good ground to void (close and cancel out) contracts. At any rate, now that the cat is out of the bag, be prepared to see one of two things – if the confidentiality clause is central to the IPL and that owners would choose to forsake IPL than to reveal their identity, then, IPL will have to be disbanded because the central theme of the IPL agreement has become frustrated. On the other hand, should all parties try to bury this controversy right today and wish to carry on, the fact that too much dirt is now open, IPL could be stranded with numerous legal claims and find the future difficult, if not altogether impossible.

Regards

K.V.Dhananjay

Advocate

Supreme Court of India

WOMEN'S RESERVATION BILL DOES NOT REQUIRE RATIFICATION BY STATES

Date: 19-Mar-2010

To

Sri Manmohan Singhji

Hon’ble Prime Minister

Government of India

New Delhi

Sub: The Constitution (One Hundred And Eighth Amendment) Bill, 2008 (also known as the Women’s Reservation Bill) does not require ratification by States.

Respected Sir

I am an advocate in practice across several High Courts and the Supreme Court of India.

Before I begin, I would like to express my heartfelt congratulations for your tireless efforts to secure approval by 2/3^rd of the Council of States (Rajya Sabha) to the Constitution (One Hundred And Eighth Amendment) Bill, 2008 (referred to hereinafter as the 'Women's Reservation Bill' or simply, ‘Bill’).

The Parliament appears to be thoroughly convinced that the Women’s Reservation Bill requires ratification by States as enjoined by Article 368 of our Constitution. Thereafter, this very conviction has been reflected in every newspaper of our country. Foreign newspapers, as only expected, have similarly reported on the ratification requirement.

I write here, respectfully, to state for your valuable consideration, that the Women's Reservation Bill neither requires nor merits ratification by the States.

I recognise that my competence to discuss a topic of profound relevance to the business of our Parliament may very well come in for doubt in your mind - I welcome it. Without intending to dispel such doubt, I would like to make a small reference to a few of my cases that involve questions of law that have a profound bearing upon the interpretation of the Constitution of India. For instance:

Whether the Government of a State possesses a competence derived from the Constitution to mandate that the official language of that State shall become the compulsory medium of instruction for primary education in that State? And, whether in doing so, the State is entitled to discount scientific opinion by resorting to the teachings of Mahatma Gandhi?[1]

Whether a State of our Union possesses the competence under the Constitution to disfavor and impose a higher rate of entertainment tax upon films produced in languages other than the official or dominant language of that State? Whether, in order to circumvent a decision of the Supreme Court, a State is entitled to adopt as criterion, ‘region of production’ instead of ‘language’ for the sole purpose of perpetuating such discrimination?[2]

Whether a Housing Authority of a State is required, even in the absence of a direction by its charter, to prescribe and to insist on ‘domicile’ in the matter of administering scarce housing? Whether a Union Territory, deluged by migration, is free to disregard Article 341 of the Constitution and to administer scarce housing to ‘Scheduled castes’ in relation to the entire country instead of ‘Scheduled castes’ in relation to that Union Territory as mandated by our Constitution?[3]

Whether the jurisprudence evolved by foreign courts that a certiorari court ought to direct a petitioner who comes before it to instead pursue a appellate remedy provided by statute has been erroneously adopted by High Courts in India under circumstances where a High Court, acting as a certiorari court under Article 227 of the Constitution, is also the appellate court under the relevant statute? Whether it is competent for a petitioner to jointly invoke Article 227 of the Constitution and a statutory appeal provision – say a petition to the High Court described as ‘a Article 227 petition read with Section 10F of the Companies Act, 1956’?[4]

Whether a High Court may, under Article 226 jurisdiction, resort to a sheer declaratory relief so as to hold a citizen immune from consequences of non-compliance of a Statute where the non-compliance is primarily caused by the Government refusing to abide by Orders of the Court; so as to protect educational rights of the citizens?[5]

Whether a judicial Order made under Article 226 of the Constitution is valid to the extent it proposes to accomplish an objective other than the extinguishment of a cause of action? Whether a High Court is competent to issue a gratuitous Order, in discharge of its judicial function under Article 226, specifically when such Order results in the levy of a tax upon citizens under circumstances where neither party sought such Order?[6]

Whether a High Court of State B is constitutionally competent to determine the linguistic relations between the Government of India and States A and C? Whether the High Court of Madras may enquire into the justification for the Government of India to accord ‘classical language status’ to Kannada and Telugu in response to representation by the States of Karnataka and Andhra Pradesh respectively?[7]

Whether the Delhi High Court, in choosing to not provide for audio recording of oral arguments, despite spending more than 42 crores annually on itself, is under a legal duty to recognise that a litigant is injured by the failure of the court to reform itself? Whether the Court should therefore allow a petitioner to compensate for the failure of the Court by facilitating recording when sought by the petitioner?[8]

So, how do we determine whether the Women's Reservation Bill is required to be ratified by the States in terms of our Constitution?

The procedure for amendment of our Constitution is stated in Article 368. The said article occurs in Part XX of our Constitution that is titled as ‘Amendment of the Constitution’.

Article 368 provides that:

1) Notwithstanding anything in this Constitution, Parliament may in exercise of its constituent power amend by way of addition, variation or repeal any provision of this Constitution in accordance with the procedure laid down in this article.

2) An amendment of this Constitution may be initiated only by the introduction of a Bill for the purpose in either House of Parliament, and when the Bill is passed in each House by a majority of the total membership of that House and by a majority of not less than two-thirds of the members of that House present and voting, it shall be presented to the President who shall give his assent to the Bill and thereupon the Constitution shall stand amended in accordance with the terms of the Bill:

Provided that if such amendment seeks to make any change in -

a) article 54, article 55, article 73, article 162 or article 241, or

b) Chapter IV of Part V, Chapter V of Part VI, or Chapter I of Part XI, or

c) any of the Lists in the Seventh Schedule, or

d) the representation of States in Parliament, or

e) the provisions of this article,

the amendment shall also require to be ratified by the Legislatures of not less than one-half of the States by resolutions to that effect passed by those Legislatures before the Bill making provision for such amendment is presented to the President for assent.

3) Nothing in article 13 shall apply to any amendment made under this article.

4) No amendment of this Constitution (including the provisions of Part III) made or purporting to have been made under this article whether before or after the commencement of section 55 of the Constitution (Forty Second Amendment) Act, 1976] shall be called in question in any court on any ground.

5) For the removal of doubts, it is hereby declared that there shall be no limitation whatever on the constituent power of Parliament to amend by way of addition, variation or repeal the provisions of this Constitution under this article.

As is evident from a bare reading of the above provision, the essential function of Article 368 is to specify the procedure for the amendment of the Constitution.

The procedure involved in the amendment of the Constitution was extensively described in the decision of the Hon'ble Supreme Court in Shankari Prasad Singh Deo v. Union of India[9] a short while after the issue of our Constitution (05-Oct-1951). The Court said:

17. Now, the Constitution provides for three classes of amendments of its provisions. First, those that can be effected by a bare majority such as that required for the passing of any ordinary law. The amendments contemplated in articles 4, 169 and 240 fall within this class, and they are specifically excluded from the purview of article 368. Secondly, those that can be effected by a special majority as laid down in article 368. All constitutional amendments other than those referred to above come within this category and must be effected by a majority of the total membership of each House as well as by a majority of not less than two thirds of the members of that House present and voting; and thirdly, those that require, in addition to the special majority above-mentioned, ratification by resolutions passed by not less than one-half of the State specified in Parts A and B of the First Schedule[10]. This class comprises amendments which seek to make any change in the provisions referred to in the proviso to article 368…

Therefore, an amendment to the Constitution is required to adhere to the procedure stipulated under Article 368 and no further. And, an amendment is required to be ratified by half of the constituent States only where the amendment affects the subject matter of sub-clause (a) to (e) to the proviso to clause (2) of Article 368.

Essentially, our enquiry here is to determine ‘whether the provisions of the Women’s Reservation Bill affect the subject matter of sub-clause (a) to (e) of the proviso to clause (2) of Article 368?’

Now, let us examine the provisions of the Bill in order to ascertain what provisions of our Constitution are sought to be amended or modified by this Bill.

Section 2 of the Bill amends sub-clause (b) to clause (2) of Article 239AA. Article 239AA speaks of a Legislative Assembly to the National Capital Territory (NCT) of Delhi. As you certainly are aware, the NCT of Delhi is one the 7 Union Territories of our Union. Because Article 239AA makes a special provision enabling a Legislative Assembly to the NCT of Delhi, Section 2 of the Bill accordingly amends sub-clause (b) to clause (2) of Article 239AA so as to substitute for the words ‘Scheduled Castes’, the words ‘Scheduled Castes and the Women’.

Section 3 of the Women's Reservation Bill is the substantial part of that Bill. It inserts a new Article 330A into the Constitution. Primarily, this new article 330A stipulates that there shall be reservation for women in the House of the People and provides for the extent and manner of such reservation - you are certainly aware of the extent of reservation for women. It is secured at 1/3rd.

It may be noted that Part XVI of our Constitution deals with ‘Special Provisions Relating to Certain Classes’.

Article 330 deals with ‘Reservation of Seats for Scheduled Castes and Scheduled Tribes in the House of the People.’ The Bill makes reservation for women in the existing reservation for Scheduled Castes and Scheduled Tribes in the House of the People.

Further, Article 331 deals with ‘Representation of the Anglo Indian community in the House of the People’. Section 4 of the Bill modifies Article 331 by providing for reservation for women within the existing reservation for the Anglo Indian Community.

Article 332 deals with ‘Reservation of Seats for Scheduled Castes and Scheduled Tribes in the Legislative Assemblies of the States’. Article 333 provides for ‘Reservation of seats for the Anglo Indian Community in the Legislative Assemblies of the States.’ By inserting a new Article 332A, the Bill provides for reservation for women in the Legislative Assemblies of States and modifies Article 332 and 333 so as to incorporate reservation for women also into the existing reservation for the Scheduled Castes, Scheduled Tribes and the Anglo Indian Community.

Article 334 stipulates that all reservation of seats under Part XVI shall expire upon a period of Seventy years from the Commencement of the Constitution (the 95^th Amendment to the Constitution extends reservation under this part to ‘seventy years’ from the previous stipulation of ‘sixty years’). The Women’s Reservation Bill provides that reservation assured by this new Bill shall lapse upon expiry of 15 years from the commencement of such reservation for women.

The essential question to be asked today is – Which part of the Women’s Reservation Bill affects sub-clauses (a) to (e) of proviso to clause (2) of Article 368?

A simple and a straight answer is – The Bill makes no change whatsoever to provisions covered by sub-clauses (a) to (e) of the proviso to clause (2) of Article 368.

Well, then, why are so many people talking about ratification by States in the first place? Or rather, is ratification of this Bill by the States necessary at all under our Constitution?

The answer is - ‘NO’.

Let us take a closer look at sub-clauses (a) to (e) of the proviso to clause (2) of Article 368. Let us examine whether the Bill affects anything stated there.

a) Articles 54, 55, 73, 162 or 241

Articles 54 and 55 speak of election to the President and of the manner of election to the President. The Bill makes no change in the constituents who elect the President or to the manner of election of the President.

Articles 73 and 162 speak of the extent of executive power of the Union and of the States. The Bill makes no change whatsoever to the extent of executive power either of the Union or of the States.

Article 241 deals with High Courts for Union Territories. The Bill makes no change in this regard.

(b) Chapter IV of Part V, Chapter V of Part VI or Chapter I of Part XI.

Part V deals with the ‘Union’. Chapter IV of Part V deals with the ‘Union Judiciary.’ Essentially, this chapter deals with matters relating to the Supreme Court. Chapter IV comprises of Articles 124 to 147. The Bill makes no change whatsoever to any of the provisions contained in Articles 124 to 147.

Part VI deals with the ‘States’. Chapter V of Part VI deals with the ‘High Courts in the States’. Chapter V comprises of Articles 214 to 232. The Bill makes no change whatsoever to any of the provision contained in Articles 214 to 232.

Part XI deals with ‘Relations between the Union and the States’. Chapter I deals with legislative relations or what is generally known as the ‘distribution of legislative powers’ Chapter I comprises of Articles 245 to 255. The Bill makes no change whatsoever to any of the provisions contained in Articles 245 to 255.

(c) any of the Lists in the Seventh Schedule.

As you certainly are aware, the Seventh Schedule comprises of three distinct Lists:

· List I – Union List

· List II – State List

· List III – Concurrent List

Each of the above lists contains entries specifying the fields of legislation reserved exclusively to the ‘Union’ or to the ‘States’ or reserved concurrently to ‘both’.

The Bill makes no change whatsoever to any of the Lists in the Seventh Schedule.

(d) Representation of States in Parliament.

Now, there is no provision of our Constitution that carries the heading ‘Representation of States in Parliament’. So, what then is the meaning of ‘Representation of States in Parliament’?

Obviously, the Council of the States or what is generally known as the Rajya Sabha is the division of our Parliament where a State may be said to be represented.

Article 79 of our Constitution stipulates that there shall be a Parliament for the Union and that the same shall consist of the President and the two Houses thereof to be known respectively as the Council of States and the House of the People.

Article 80 speaks of the composition of the Council of States. It says:

80. (1) The Council of States shall consist of—

(a) twelve members to be nominated by the President in accordance with the provisions of clause (3); and

(b) not more than two hundred and thirty-eight representatives of the States and of the Union territories.

(2) The allocation of seats in the Council of States to be filled by representatives of the States and of the Union territories shall be in accordance with the provisions in that behalf contained in the Fourth Schedule.

(3) The members to be nominated by the President under sub-clause (a) of clause (1) shall consist of persons having special knowledge or practical experience in respect of such matters as the following, namely:-

Literature, science, art and social service.

(4) The representatives of each State in the Council of States shall be elected by the elected members of the Legislative Assembly of the State in accordance with the system of proportional representation by means of the single transferable vote.

(5) The representatives of the Union territories in the Council of States shall be chosen in such manner as Parliament may by law prescribe.

The reference to ‘Representatives of States’ has been highlighted in the provision above. So, the phraseology used in Article 80 to describe elected members of the Council is that these members are ‘Representatives of States’. The natural inference that one draws when the proviso to Article 368 speaks of ‘Representation of States in Parliament’ is to recall a reference to ‘Representatives of States’. And where are these ‘Representatives of States’ seated in the Parliament? Article 80 furnishes the answer - in the Council of States.

Now, is the Women’ Reservation Bill making any change whatsoever to the Council of States or to the provisions of Article 80?

The obvious answer is – ‘NO’.

Further, is the Women’s Reservation Bill making any change howsoever to any other provision of the Constitution that has a bearing upon the election of members to the Council of States?

None howsoever.

Therefore, it may be seen that the Women’s Reservation Bill does not affect ‘Representation of States in Parliament’. Neither directly or even by implication.

In fact, the understanding reached by the framers of the Women's Reservation Bill suggests that the framers held no belief whatsoever that the 'Representation of States in the Council of States' was even remotely affected by the draft of the Bill. Section 8 of the Bill states:

8. The amendments made to the Constitution by the Constitution (One Hundred and Eighth Amendment) Act, 2008 shall not affect any representation in the House of the People, the Legislative Assembly of a State or the Legislative Assembly of the National Capital Territory of Delhi until the dissolution of the House, the Legislative Assembly of a State or the Legislative Assembly of the National Capital Territory of Delhi, as the case may be, in existence at the commencement of the said Act.

As is evident from the above, the framers of the Bill took great pain to dispel future controversy over whether the passage of the Bill should result in the dissolution of the House of the People or the Legislative Assemblies of States so as to reconstitute the same in accordance with terms of the Amendment. If only the drafting committee thought that the amendment was to also act upon the Council of States in any manner howsoever, it would have been expected of the drafting committee to express its reservation in like manner. The fact that the drafting committee has not done so simply proves that the notion that the Bill should be dispatched to the States for ratification is not traceable to any exercise of the drafting committee.

(e) the provisions of this article

Does the Women’s Reservation Bill affect the provision in Article 368?

Not at all. That is, the Women's Reservation Bill is not about modifying the procedure for the amendment of the Constitution.

Therefore, in view of what has been observed above, the Women’s Reservation Bill, as it is passed by the Council of States, steers clear of the proviso to clause (2) of Article 368. As such, the question of dispatching the Bill for ratification does not arise at all.

The above statement may also be presented in a table form:

Provision of the Constitution sought to be amended by the Women's Reservation Bill.	Whether the Women’s Reservation Bill affects the proviso to clause (2) of Article 368? That is, whether any of the following articles are sought to be affected? Articles 54, 55, 73, 162, 241; Articles 124, 125, 126, 127, 128, 129, 130, 132, 133, 134, 134A, 134A, 135, 136, 137, 138, 139, 139A, 140, 141, 142, 143, 144, 145, 146, 147; Articles 214, 215, 216, 217, 218, 219, 220, 221, 222, 223, 224, 224A, 225, 226, 227, 228, 229, 230, 231; Articles 245, 246, 247, 248, 249, 250, 251, 252, 253, 254, 255; Schedule VII, Lists I, II and III Representation of States in Parliament Article 368
Article 239AA. Sub-clause (b) to clause (2)	NO
Insertion of Article 330A	NO.
Insertion of proviso to Article 331	NO.
Insertion of Article 332A	NO.
Insertion of proviso to Article 333	NO.
Insertion of Article 334A	NO.

Further, from an examination of the jurisprudence surrounding the 'ratification clauses' in other Constitutions of the world, I must state here, in my own words, that:

A Constitutional amendment is not to be ratified merely because the Parliament wishes to do so. Nor is a ratification sought merely for the purpose of pre-empting a judicial challenge to the amendment. A Parliament is not expected to invoke its procedure for the sole purpose of pre-empting a future judicial challenge – the invoking of its procedure must accomplish a substantial business for the Parliament. If the Women’s Reservation Bill were to be dispatched to the States for no better reason than to ensure that it will not invite a judicial challenge before a Court of law on the ground that the ‘ratification clause’ was not complied with, the dignity of the Parliament is bound to be breached because its business came to be directed by unfounded apprehension instead of being guided by an unimpeachable understanding of the Constitution.

And a Constitutional amendment is not to be dispatched for ratification merely because States wish to participate in the process of ratification. Nor is a ratification required merely because constitutional scholars propose as such.

A constitutional amendment merits ratification only where the Constitution itself so provides for. And a constitutional provision that mandates ratification should always be strictly construed.

A constitutional compulsion for ratification is always expressed in a plain and clear language. If ratification cannot be inferred in a situation except by elaborate and extensive reasoning, the requirement for ratification must be held to be mired in doubt. And, when in doubt over the applicability of a ratification clause, every doubt should be resolved by holding against ‘ratification’.

An amendment of the Constitution is almost always considered a difficult business for a Parliament in a federal constitution. Because an amendment to a Constitution carries with it, profound consequences to all people governed by that Constitution, the procedure for amendment is always expected to be expressed in a plain and simple language. All constitutional scholars agree that a written constitution should and indeed exhibit simplicity and clarity in relation to procedure for amendment. Our founding fathers were clearly aware of these frontier principles of Constitutional law.

The scope of power available to the Parliament to amend the Constitution in terms of Article 368 has been frequently discussed by our Supreme Court. That is, Article 368 has become the subject of extensive discussion by our Supreme Court in relation to ‘how much power does the Parliament, in its constituent capacity, possess in the matter of amendment of the Constitution in terms of Article 368 of the Constitution’. I would like to submit, however, that the judgments of our Supreme Court that are rendered in relation to ‘how much power does the Parliament possess, in its constituent capacity, in the matter of amendment of the Constitution in terms of Article 368 of the Constitution’ are not materially relevant to the topic of this communication.

Because we wish to discuss here, ‘not the scope or extent, but the procedure prescribed under Article 368’, a small number of judgments of our Supreme Court that shed light on the procedure prescribed under Article 368 become relevant to the topic of this communication and are reproduced below to the relevant extent.

An apt summary by the eminent scholar, Sri H.M.Seervai on the history of litigation concerning Article 368 in the first few decades of our republican nation may be noted:

It may be said at the outset that in Shankari Prasad Singh Deo v. Union of India[11], the Supreme Court unanimously held that an amendment of the Constitution under Article 368 was not ‘law’ within the meaning of Article 13(3)(a). The Court distinguished between a ‘law’ made in the exercise of legislative power and a law made in the exercise of constituent power and held that Article 13(3)(a) applied only to a law made in the exercise of legislative power. This distinction was affirmed by a majority of 3 to 2 in Sajjan Singh v. Rajasthan[12]; Hidayatullah and Mudholkar JJ observing that they wished to consider the matter further before accepting it. These cases were overruled in I.C.Golak Nath v. State of Punjab[13] but Golak Nath was decisively overruled in Kesavananda v. Kerala[14] and the view that ‘law’ did not include an amendment of the Constitution was reaffirmed. However, the matter was set at rest by the Constitution (24^th Amendment) Act, 1972, which inserted a new sub-Article (4) in Article 13 which expressly excluded an amendment of the Constitution from Article 13[15].

Article 368 is an original provision of our Constitution. The changes effected to article 368 by the Constitution Amendment Acts, over the years may be noted:

Amending Act	Before Amendment	After Amendment
Constitution (Twenty Fourth Amendment) Act, 1971	Article Heading read as – Procedure for amendment of the Constitution	Article Heading was changed to read – Power of Parliament to amend the Constitution and procedure thereof
Constitution (Twenty Fourth Amendment) Act, 1971	None	Clause (1) was renumbered as Clause (2). A fresh Clause (1) was inserted to say: (1) Notwithstanding anything in this Constitution, Parliament may in exercise of its constituent power amend by way of addition, variation or repeal any provision of this Constitution in accordance with the procedure laid down in this article.
Constitution (Twenty Fourth Amendment) Act, 1971	Clause (1) said: (1)An amendment of this Constitution may be initiated only by the introduction of a Bill for the purpose in either House of Parliament, and when the Bill is passed in each House by a majority of the total membership of that House and by a majority of not less than two-thirds of the members of that House present and voting, it shall be presented to the President for his assent and upon such assent being given to the Bill, the Constitution shall stand amended in accordance with the terms of the Bill. (the part deleted by amendment is struck off as shown above)	Clause (1) renumbered and slightly modified as Clause (2) says: 6) (2)An amendment of this Constitution may be initiated only by the introduction of a Bill for the purpose in either House of Parliament, and when the Bill is passed in each House by a majority of the total membership of that House and by a majority of not less than two-thirds of the members of that House present and voting, it shall be presented to the President who shall give his assent to the Bill and thereupon the Constitution shall stand amended in accordance with the terms of the Bill. 7) (the part inserted is highlighted in Bold)
Constitution (Twenty Fourth Amendment) Act, 1971	The concluding part of the proviso to clause (2) said: …States specified in Parts A and B of the First Schedule by resolutions …	Consequent to abolition of distinction between States as to Part A or Part B States, the change was effected as under: …States by resolutions…
Constitution (Twenty Fourth Amendment) Act, 1971	Clause (3) did not exist earlier	8) Clause (3) was inserted to say: 9) (3) Nothing in article 13 shall apply to any amendment made under this article.
Constitution (Forty Second Amendment) Act, 1976	10) Clause (4) did not exist earlier	11) Clause (4) was inserted to say: 12) (4) No amendment of this Constitution (including the provisions of Part III) made or purporting to have been made under this article whether before or after the commencement of section 55 of the Constitution (Forty Second Amendment) Act, 1976 shall be called in question in any court on any ground.
Constitution (Forty Second Amendment) Act, 1976	Clause (5) did not exist earlier	13) Clause (5) was inserted to say: 14) (5) For the removal of doubts, it is hereby declared that there shall be no limitation whatever on the constituent power of Parliament to amend by way of addition, variation or repeal the provisions of this Constitution under this article.

It would be immensely profitable to look at some of the momentous decisions of our Supreme Court to ascertain the procedure described in Article 368.

The Hon’ble Supreme Court has held that 'Parliament is free to adopt any normal procedure consistent with its own statutory requirement’ when acting under article 368'. In Shankari Prasad Singh Deo v. Union of India[16], the Court held:

20. Somewhat closely allied to the point discussed above is the objection based on the bill in the present case having been passed in an amended form, and not as originally introduced. It is not correct to say that article 368 is a 'complete code' in respect of the procedure provided by it. There are gaps in the procedure as to how and after what notice a bill is to be introduced, how it is to be passed by each House and how the President's assent is to be obtained. Evidently, the rules made by each House under article 118 for regulating its procedure and the conduct of its business were intended, so far as may be, to be applicable. There was some discussion at the Bar as to whether the process of amending the Constitution was a legislative process. Petitioners' counsel insisted that it was not, and that, therefore, the 'legislative procedure' prescribed in article 107, which specifically provides for a bill being passed with amendments, was not applicable to a bill for amending the Constitution under article 368. The argument was further supported by pointing out that if amendment of such a bill were permissible, it must be open to either House to propose and pass amendments, and in case the two Houses failed to agree, the whole machinery of article 368 would be thrown out of gear, for the joint sitting of both Houses passing the bill by a simple majority provided for in article 108 in the case of ordinary bills would be inapplicable in view of the special majority required in article 368. The argument proceeds on a misconception. Assuming that amendment of the Constitution is not legislation even where it is carried out by the ordinary legislature by passing a bill introduced for the purpose and that article 107 to 111 cannot in terms apply when Parliament is dealing with a bill under article 368, there is no obvious reason why Parliament should not adopt, on such occasions, its own normal procedure, so far as that procedure can be followed consistently with statutory requirements….

21. These observations have application here. Having provided for the constitution of a Parliament and prescribed a certain procedure for the conduct of its ordinary legislative business to be supplemented by rules made by each House (article 118), the makers of the Constitution must be taken to have intended parliament to follow that procedure, so far as it may be applicable, consistently with the express provisions of article 368, when they entrusted to it the power of amending the Constitution.

In Golak Nath v. State of Punjab[17], the Hon’ble Supreme Court declared that Article 368 should receive ‘strict interpretation’. That is, ‘in matters specifically dealt with by Article 368, one has to look to Article 368 itself and not beyond.’ The Court held:

108. It is urged in this connection on behalf of the Union of India that even though the assent of the President is required under Art. 368, the President must assent thereto and cannot withhold his assent as is possible in the case of ordinary law in view of Art. 111 of the Constitution, for the word 'that he withholds assent therefrom' found in Art. 111 are not to be found in Art. 368. It is however difficult to accept the argument on behalf of the Union that the President cannot withhold his assent when a Bill for amendment of the Constitution is presented to him. Article 368 provides that a Bill for the amendment of the Constitution shall be presented to the President for his assent. It further provides that upon such assent by the President, the Constitution shall stand amended. That in our opinion postulates that if assent is not given, the Constitution cannot be amended. Whether a President will ever withhold his assent in our form of Government is a different matter altogether, but as we read Art. 368 we cannot hold that the President is bound to assent and cannot withhold his assent when a Bill for amendment of the Constitution is presented to him. We are of opinion that the President can refuse to give his assent when a Bill for amendment of the Constitution is presented to him, the result being that the Bill altogether falls, for there is no specific provision for anything further to be done about the Bill in Art. 368 as there is in Art. 111. We may in this connection refer to the different language used in clause 5 of Art. 46 of the Irish Constitution which says that ‘a Bill containing a proposal for the amendment of this Constitution shall be signed by the President forthwith upon his being satisfied that the provisions of this Article have been complied with in respect thereof’. It will be seen therefore that if the intention under Art. 368 had been that the President cannot withhold his assent, we would have found language similar in terms to that in clause 5 of Art. 46 of the Irish Constitution.

109. We thus see that in one respect at any rate Art. 368 even on its present terms differs from the power of the President in connection with ordinary legislation under the Constitution and that is if the President withholds his assent the Bill for amendment of the Constitution immediately falls. We cannot accept that the procedure provided under the proviso to Art. 111 can apply in such a case, for this much cannot be disputed that so far as the procedure provided for amendment of the Constitution is concerned we must look to Art. 368 only and nothing else…

Consequent to the above judgment, Article 368 was amended by the Parliament to supply the omission pointed out by the Court. The Constitution (Twenty Fourth Amendment) Act, 1971 removed from Article 368, the words 'for his assent and upon such assent being given to the Bill' and substituted in its place, 'who shall give his assent to the Bill and thereupon'.

In Kuldip Nayar v. Union of India[18] a change to a Parliamentary statute, the Representation of People Act, 1951 was challenged before the Supreme Court on diverse grounds; one such ground was that, in order to reach such a result, the Parliament should have amended the Constitution itself (and not an ordinary statute) in terms of Article 368 and that such amendment ought to have been ratified by no less than half of the States as stipulated by the proviso to Article 368(2). In this case, the Parliament had principally sought to dispense with the domicile clause in the Representation of People Act, 1951 so as to provide that a person need not reside in State A in order to be elected by the MLAs of State A to the Council of States (Rajya Sabha). It was urged before the Court that such change affects the 'Representation of States in Parliament' and that, in terms of sub-clause (d) to proviso to clause (2) of Article 368, such change was neither approved by 2/3rd of both Houses of Parliament nor thereafter ratified by one-half of the States and that the change should therefore, be struck down by the Court.

The Hon’ble Supreme Court did not agree. It held:

1. By this writ petition under Article 32 of the Constitution of India, petitioner seeks to challenge amendments made in the Representation of People Act, 1951 (for short, 'the RP Act', 1951') through Representation of People (Amendment) Act 40 of 2003 which came into force from 28th August, 2003. By the said Amendment Act 2003, the requirement of ‘domicile’ in the State Concerned for getting elected to the Council of States is deleted

Restrictions under Article 368

60. It has been submitted that Section 3 of RP Act, 1951, as it stood before amendment, read with Article 80, had ensured the ‘representation of States’ in Parliament. Referring to proviso (d) in Article 368, it has been argued that even a Constitutional amendment making any change in representation of States in Parliament cannot be effectuated without the ratification by one half of the States Legislatures. On this premise, it has been submitted that it should follow, as a necessary corollary, that the change made in Section 3, RP Act, 1951 is one that no longer ensures, by Parliamentary law, the representation of States in Parliament, or in any case one that makes a change in the existing law, and thus an amendment that could not be effectuated simply by amending Section 3 of the RP Act, 1951.

61. Article 368 relates to power of Parliament to amend the Constitution and the procedure therefore. The Proviso in question puts limits on the power of Parliament to amend the Constitution…

67. Article 80 prescribes the manner of voting and election of the representatives of States for Council of States in the following terms:

The representatives of each state in the Council of states shall be elected by the elected members of the Legislative Assembly of the State in accordance with the system of proportional representation by means of the single transferable vote.

If the above-mentioned prescribed manner of voting and election is sought to be changed, for example, by including members of Legislative Councils in such States as have legislative Councils or by change in the system of proportional representation, that would also have the effect of changing the representation of the States.

Article 83(1) provides as under:

The Council of States shall not be subject to dissolution, but as nearly as possible one-third of the members thereof shall retire as soon as may be on the expiration of every second year in accordance with the provisions made in that behalf by Parliament by law.

If the duration of Council of States as provided in Article 83 is sought to be changed such amendment would also affect the representation of the States.

68. Fourth Schedule to the Constitution lays down the number of persons who would represent each State in the Council of States. This balance between the various States is not at all affected by way of the legislation impugned in the writ petitions at hand. In the instant case, the amendments made by the impugned Act relates only to the residential qualification of the 'representatives' and is not concerned with the ‘representation of the States’ in Parliament. The argument that the impugned amendment affects the ‘representation’ of the States in the Council of States is not correct. The States still elect their representatives to the Council of States through the elected members of their respective legislative assemblies as provided in the Constitution. There was, therefore, no need for a constitutional amendment as has been contended.

As may be seen from the above, a legal scholar is bound to incur an impossible burden to discharge should he set out to prove that 'the Women's Reservation Bill somehow affects 'Representation of States in Parliament' in terms of Article 368 and that, the Bill therefore requires ratification by one-half of the States.'

Further, the Hon’ble Supreme Court has held that 'where two interpretations are reasonably available in relation to an amendment made under Article 368, the Court will adopt that interpretation by which the amendment could be saved and will reject the other interpretation that would have shelved the amendment'. In Kihota Hollohon v. Zachillu[19], the Court held:

1. In these petitions the constitutional validity of the Tenth Schedule of the Constitution introduced by the Constitution (Fifty-Second Amendment) Act, 1985, is assailed…

11. On the contentions raised and urged at the hearing the questions that fall for consideration are the following:

(A)…

(B) Having regard to the legislative history and evolution of the principles underlying the Tenth Schedule, Paragraph 7 thereof in terms and in effect, brings about a change in the operation and effect of Articles 136, 226 and 227 of the Constitution of India and, therefore, the Bill introducing the amendment attracts the proviso to Article 368(2) of the Constitution and would require to be ratified by the legislative of the States before the Bill is presented for Presidential assent.

24…In the present cases, though the amendment does not bring in any change directly in the language of Articles 136, 226 and 227 of the Constitution, however, in effect paragraph 7 curtails the operation of those Articles respecting matters falling under the Tenth Schedule. There is a change in the effect in Articles 136, 226 and 227 within the meaning of Clause (b) of the proviso to Article 368(2). Paragraph 7, therefore, attracts the proviso and ratification was necessary.

Accordingly on Point B, we hold:

That having regard to the background and evolution of the principles underlying the Constitution (52nd Amendment) Act, 1985, in so far as it seeks to introduce the Tenth Schedule in the Constitution of India, the provisions of Paragraph 7 of the Tenth Schedule of the Constitution in terms and in effect bring about a change in the operation and effect of Articles 136, 226 and 227 of the Constitution of India and, therefore, the amendment would require to be ratified in accordance with the proviso to sub-Article (2) of Article 368 of the Constitution of India.

28. Is there anything in the procedural limitations imposed by sub-Article (2) of Article 368 which excludes the doctrine of severability in respect of a law which violates the said limitations? Such a violation may arise when there is a composite Bill or what is in statutory context or jargon called a 'Rag-Bag' measure seeking amendments to several statutes under one amending measure which seeks to amend various provisions of the Constitution some of which may attract Clauses (a) to (e) of the proviso to Article 368(2) and the Bill, though passed by the requisite majority in both the Houses of Parliament has received the assent of the President without it being sent to States for ratification or having been so sent fails to receive such ratification from not less than half the States before the Bill is presented for assent. Such an Amendment Act is within the competence of Parliament in so far as it relates to provisions other than those mentioned in Clauses (a) to (e) of proviso to Article 368(2) but in respect of the amendments introduced in provisions referred to in Clauses (a) to (e) of proviso to Article 368(2), Parliament alone is not competent to make such amendments on account of some constitutionally recognised federal principle being invoked. If the doctrine of severability can be applied it can be upheld as valid in respect of the amendments within the competence of Parliament and only the amendments which Parliament alone was not competent to make could be declared invalid.

29. Is there anything compelling in the proviso to Article 368(2) requiring it to be construed as excluding the doctrine of severability to such an amendment? It is settled rule of statutory construction that 'the proper function of a proviso is to except and deal with a case which would otherwise fall within the general language of the main enactment, and its effect is confined to that case' and that where 'the language of the main enactment is clear and unambiguous, a proviso can have no repercussion on the interpretation of the main enactment, so as to exclude from it by implication what clearly falls within its express terms'. [See Madras & Southern Mahratta Railway Co. v. Bezwada Municipality (1944) 71 I.A. 113 ; Commissioner of Income Tax, Mysore v. Indo-Mercantile Bank Ltd. 1959 Supp. (2) SCR 256 ].

The proviso to Article 368(2) appears to have been introduced with a view to giving effect to the federal principle. In the matter of amendment of provisions specified in Clauses (a) to (e) relating to legislative and executive powers of the States vis-a-vis the Union, the Judiciary, the election of the President and the amending power itself, which have a bearing on the States, the proviso imposes an additional requirement of ratification of the amendment which seeks to effect a change in those provisions before the Bill is presented for the assent of the President. It is salutary that the scope of the proviso is confined to the limits prescribed therein and is not construed so as to take away the power in the main part of Article 368(2). An amendment which otherwise fulfils the requirements of Article 368(2) and is outside the specified cases which require ratification cannot be denied legitimacy on the ground alone of the company it keeps. The main part of Article 368(2) directs that when a Bill which has been passed by the requisite special majority by both the Houses has received the assent of the President 'the Constitution shall stand amended in accordance with the terms of the Bill'. The proviso cannot have the effect of interdicting this constitutional declaration and mandate to mean that in a case where the proviso has not been complied -- even the amendments which do not fall within the ambit of the proviso also become abortive. The words 'the amendment shall also require to be ratified by the legislature' indicate that what is required to be ratified by the legislatures of the States is the amendment seeking to make the change in the provisions referred to in Clauses (a) to (e) of the proviso. The need for and the requirement of the ratification is confined to that particular amendment alone and not in respect of amendments outside the ambit of the proviso. The proviso can have, therefore, no bearing on the validity of the amendments which do not fall within its ambit….

30. During the arguments reliance was placed on the words 'before the Bill making provision for such amendment is presented to the President for assent' to sustain the argument that these words imply that the ratification of the Bill by not less than one-half of the States is a condition-precedent for the presentation of the Bill for the assent of the President. It is further argued that a Bill which seeks to make a change in the provisions referred to in Clauses (a) to (e) of the proviso cannot be presented before the President for his assent without such ratification and if assent is given by the President in the absence of such ratification, the amending Act would be void and ineffective in its entirety.

A similar situation can arise in the context of the main part of Article 368(2) which provides: 'when the Bill is passed in each House by a majority of the total membership of that House and by a majority of not less than two-thirds of the Members of that House present and voting, it shall be presented to the President’. Here also a condition is imposed that the Bill shall be presented to the President for his assent only after it has been passed in each House by the prescribed special majority. An amendment in the First and Fourth Schedules referable to Article 4 can be introduced by Parliament by an ordinary law passed by simple majority. There may be a Bill which may contain amendments made in the First and Fourth Schedules as well as amendments in other provisions of the Constitution excluding those referred to in the proviso which can be amended only by a special majority under Article 368(2) and the Bill after having been passed only by an ordinary majority instead of a special majority has received the assent of the President. The amendments which are made in the First and Fourth Schedules by the said amendment Act were validly made in view of Article 4 but the amendments in other provisions were in disregard to Article 368(2) which requires a special majority. Is not the doctrine of severability applicable to such an amendment so that amendments made in the First and Fourth Schedules may be upheld while declaring the amendments in the other provisions as ineffective? A contrary view excluding the doctrine of severability would result in elevating a procedural limitation on the amending power to a level higher than the substantive limitations.

32…We accordingly hold on contentions 'C and 'D':

That there is nothing in the said proviso to Article 368(2) which detracts from the severability of a provision on account of the inclusion of which the Bill containing the Amendment requires ratification from the rest of the provisions of such Bill which do not attract and require such ratification. Having regard to the mandatory language of Article 368(2) that ‘thereupon the Constitution shall stand amended’ the operation of the proviso should not be extended to constitutional amendments in a Bill which can stand by themselves without such ratification.

That, accordingly, the Constitution (52nd Amendment) Act, 1985, in so far as it seeks to introduce the Tenth Schedule in the Constitution of India, to the extent of its provisions which are amenable to the legal-sovereign of the amending process of the Union Parliament cannot be overborne by the proviso which cannot operate in that area. There is no justification for the view that even the rest of the provisions of the Constitution (52nd Amendment) Act, 1985, excluding Paragraph 7 of the Tenth Schedule become constitutionally infirm by reason alone of the fact that one of its severable provisions which attracted and required ratification under the proviso to Article 368(2) was not so ratified. That Paragraph 7 of the Tenth Schedule contains a provision which is independent of, and stands apart from, the main provisions of the Tenth Schedule which are intended to provide a remedy for the evil of unprincipled and unethical political defections and, therefore, is a severable part. The remaining provisions of the Tenth Schedule can and do stand independently of Paragraph 7 and are complete in themselves workable and are not truncated by the excision of Paragraph 7.

At this juncture, it becomes necessary to point out and to lament at the inadequacies that one faces when engaging in a study of 'what Bills were previously dispatched to the States for ratification and what became the outcome thereafter'. Even the Hon’ble Supreme Court of India has had to, at times, labour with incomplete information. In Builders Association of India v. Union of India[20], the Court said:

28. The first contention raised before us regarding the constitutionality of the 46th Amendment need not detain us long. This contention was based on the assumption that the Legislatures of not less than one-half of the States which were in existence during the relevant period had not ratified the Bill which ultimately became the 46th Amendment before the President gave his assent. It was argued that such ratification was necessary since the provisions contained in the 46th Amendment had the effect of enlarging the scope of Entry 54 of List II of the Seventh Schedule to the Constitution by empowering the Legislatures of States to levy sales-tax on the turnover relating to the transactions referred to in Sub-clauses (a) to (f) of Clause (29A) of Article 366 of the Constitution which they could not have done before the 46th Amendment. It was contended that irrespective of the fact whether the amendment of an entry in any of the lists of the Seventh Schedule to the Constitution had the effect of either curtailing or enlarging the powers of Parliament or the Legislatures of States, a Bill making provision for such amendment had to be ratified by Legislatures of not less than one-half of the States by resolutions passed to that effect before such a Bill was presented to the President for assent in view of the express provisions contained in Clause (c) of the proviso to Article 368(2) of the Constitution.

29. At the hearing of the above case the learned Attorney-General for India produced before us the Memorandum dated the 31st January, 1982 signed by the Secretary-General of the Rajya Sabha which reads thus:

Rajya Sabha Secretariat Parliament House, New Delhi. No. Rs. 1/21/81-B Dated the 31st January, 1982 Memorandum

In pursuance of Article 368 of the Constitution of India, the assent copy of the Constitution (Forty-sixth Amendment) Bill, is presented to the President. This Bill has been passed by the Houses of Parliament and has been also ratified by the Legislatures of not less than one-half of the States in accordance with the provision of the proviso to Clause (2) of Article 368 of the Constitution. Legislatures of the following States have passed resolutions ratifying the amendments: -

1. Haryana 2. Himachal Pradesh 3. Karnataka 4. Madhya Pradesh 5. Maharashtra 6. Manipur 7. Meghalaya 8. Orissa 9. Punjab 10. Rajasthan 11. Sikkim 12. Tamil Nadu

A copy each of the letters received from these Legislatures is placed below.

Sd/-

(Sudarshan Agarwal) Secretary-General

To The Secretary to the President, Through the Secretary, Ministry of Law)

The Attorney-General has also produced before us the file containing the resolutions passed by the Legislatures of the 12 States referred to in the Memorandum, set out above. We are satisfied that there has been due compliance of the provisions contained in the proviso to Article 368(2) of the Constitution. We, therefore, reject the first contention. Before proceeding further, we should observe that there would have been no occasion for an argument of this type being urged in Court if at the commencement of the Act it had been stated that the Bill in question had been presented to the President for his assent after it had been duly ratified by the required number of Legislatures of States. We hope that this suggestion will be followed by the Central Secretariat hereafter since we found that even the Attorney-General was not quite sure till the case was taken up for hearing that the Bill which had become the 46th Amendment had been duly ratified by the required number of States.

Finally, I summarise below, in my own words, the conclusion made in this communication - that the Women's Reservation Bill neither requires nor merits ratification by States.

A constitution should inform on ratification by a plain and simple language. It should be noted that federal constitutions always propose onerous procedure for effecting a constitutional amendment. Where a federal constitution mandates that a proposed amendment to the Constitution should be ratified by some or all of the constituent States, it must be presumed that there can arise no doubt over the circumstances that call for such ratification. And in a case of doubt, it must be presumed that the ratification clause is inapplicable. Article 368 provides for the amendment of the Constitution and prescribes two distinct procedures – the first procedure involves the approval of the proposed amendment by not less than 2/3^rd of the strength separately of both Houses of Parliament. The other procedure involves the completion of the first procedure and thereafter, the dispatch of the Bill to the States for ratification by one-half of the States of our Union. As is clearly evident, of the two onerous procedures stipulated by Article 368, the procedure stipulated by the proviso is more onerous than the first. Further, for the proper appreciation of any provision of a constitution, due regard should be had to the original set of circumstances that prevailed at the introduction of the provision. Some constitutional scholars are inclined to suggest that a ratification by one half of the States is not particularly onerous in view of the fact that voting in the State Legislatures or Parliament is controlled by 'whip' or 'direction' issued by political parties to its members and that grave consequences attend disobedience to such direction. But the essential consideration that these constitutional scholars omit to note is that, when Article 368 was originally introduced into the Constitution, the Tenth Schedule was not even conceived and that, voting in the State Legislature or Parliament before the advent of the Constitution (Fifty Second Amendment) Act, 1985, that brought in the Tenth Schedule, was subject to conscience and prone to dissent. As such, in evaluating a ‘ratification clause' in a written constitution, regard must be necessarily had to the original circumstances under which the ratification was required to be effected.

Therefore, where the provision governing a Constitutional amendment prescribes two procedures of which, the less onerous procedure is also incorporated into the more onerous procedure, the more onerous procedure cannot begin unless the language of the more onerous procedure is clear and unambiguous. There is nothing in Article 368 of our Constitution to suggest that any of the sub-clauses (a) to (e) to the proviso to clause (2) are even remotely affected by the Women’s Reservation Bill.

As such, any decision of the Parliament to dispatch the Women’s Reservation Bill to the States for ratification would be a decision that detracts from the essential business of Parliament of India unless the Parliament itself is aware of a direct necessity gathered by its own reading of the Constitution of India.

In the final analysis, I wish to state that, should the Hon'ble Parliament of India reach a satisfaction, hereafter, that the Women's Reservation Bill does not require ratification by States as mandated by the proviso to clause (2) of Article 368, the world would decisively expect the Hon'ble Parliament of India to proceed to transact the balance of its business at the House of People in relation to the Women's Reservation Bill.

Should only the Parliament of India choose to demonstrate its solemn’ will to the people of the world, the Women's Reservation Bill could become the law in India in less than three weeks from today.

Sincerely

K.V.DHANANJAY

Advocate

No.296, Kamakshipalya

Magadi Main Road

Bangalore 560 079

No.43, Ajantha Apartments

(No 36), I.P. Extension

Near AVB Public School

New Delhi 110 092

Mobile: 09902909390

dhananjaylegal@gmail.com

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[1] Special Leave Petition Nos.18139-63 of 2008 before the Supreme Court of India – State of Karnataka v. Associated Managements of Primary And Secondary Schools, argue for 1100+ or more than 65% of the affected educational institutions from Karnataka.

[2] Writ Petition No.484 of 2009 at the Supreme Court – Aashirvad Films v. Union of India; argue for the petitioner – Respondents are the Union of India and the States of Rajasthan, Gujarat, Maharashtra, Karnataka, Kerala, Tamil Nadu, Andhra Pradesh, Orissa, West Bengal.

[3] Writ Petition No.112 of 2009 at the Delhi High Court – Prem Chand v. Delhi Development Authority; argue for the petitioner

[4] Company Appeal No.26 of 2008 at the Delhi High Court – Deepak Khosla v. Union of India; argue for the petitioner

[5] Writ Petition No.14458 of 2009 at the Karnataka High Court – Karnataka Unaided Schools Management’s Association v. State of Karnataka; argue for the petitioners

[6] Writ Appeal No.1631 of 2008 and 555 of 2009 at the Karnataka High Court – Cauvery Theatre v. State of Karnataka; argue for the petitioners

[7] Writ Petition No.18810 of 2008 at the Madras High Court – R.Gandhi v. Union of India; argue for the Andhra Pradesh Official Language Commission- Respondent No.16.

[8] Writ Petition No.12787 of 2009 at the Delhi High Court – Deepak Khosla v. Union of India; argue for the petitioner.

[9] 1952 (1) SCR 89

[10] (The earlier distinction as to Part A or Part B States came to be abolished by the passing of the States Reorganisation Act, 1956)

[11] 1952 (1) SCR 89

[12] AIR 1965 SC 845 : 1965 (1) SCR 933

[13] AIR 1967 SC 1643 : 1967 (2) SCR 762

[14] AIR 1973 SC 1461 : 1973 (4) SCC 225

[15] Constitutional Law of India – H.M.Seervai. 4^th Edition. Pg.408. Volume 1 (Universal Publishing, India)

[16] 1952 (1) SCR 89

[17] AIR 1967 SC 1643 : 1967 (2) SCR 762

[18] AIR 2006 SC 3127 : 2006 (7) SCC 1

[19] AIR 1993 SC 412 : 1992 (2) Supp 2 651

[20] AIR 1989 SC 1371 : 1989 (2) SCC 645