India, Law and Courts: April 2010

Date: 19-Mar-2010

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

[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

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WOMEN'S RESERVATION BILL DOES NOT REQUIRE RATIFICATION BY STATES