Constitutional Amendments Struck Down By Supreme Court : 7 Partially & 1 Wholly So Far

The Supreme Court, on 20th July 2021, in Union of India vs. Rajendra N.Shah, struck down most parts of 97th Constitutional Amendment. The court unanimously held that the 97th Constitutional Amendment required ratification by at least one-half of the state legislatures as per Article 368(2) of the Constitution, since it dealt with a entry which was an exclusive state subject (co-operative societies). Since such ratification was not done in the case of the 97th Constitutional amendment, Part IXB of the Constitution inserted by the said amendment was struck down. The majority judgment invoked doctrine of severability to make Part IXB operative only insofar as it concerns multi-State cooperative societies both within the various States and in the Union territories of India.

The Supreme Court, in the past, has also, struck down amendments made to the Constitution. This article examines 7 other judgments of the Supreme Court which struck down(wholly or partly) Constitutional Amendments passed by the Parliament.  While the NJAC amendment was struck down wholly by the Supreme Court, the other listed amendments were struck down in part.

1. Supreme Court Advocates-on-Record -Association vs. Union of India(2015) and Constitution 99th Amendment Act on NJAC

In 2015, the Constitution Bench (4:1 Majority) of the Supreme Court declared the 99th Constitutional Amendment and National Judicial Commission (NJAC) unconstitutional on the ground that it violates Basic Structure of Constitution of India.

The 99th Amendment changed Article 124 and 217 of the Constitution which deals with establishment and constitution of Supreme Court and High Courts respectively. As per the Amendment which introduced various other provisions including Article 124A, a Judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal on the recommendation of the National Judicial Appointments Commission referred. A new six member body called the National Judicial Appointments Commission was to be constituted under Article 124A. The CJI had to be its ex-officio Chairperson. Two senior Judges of the Supreme Court next to the CJI and the Union Law Minister are also ex-officio members, apart from two eminent persons to be nominated by a Committee contemplated in Article 124A (1)(d). 

The majority judgment authored by the then CJI JS Khehar held as follows:

1. Causes (a) and (b) of Article 124A(1) do not provide an adequate representation, to the judicial component in the NJAC, clauses (a) and (b) of Article 124A(1) are insufficient to preserve the primacy of the judiciary, in the matter of selection and appointment of Judges, to the higher judiciary (as also transfer of Chief Justices and Judges, from one High Court to another). The same are accordingly, violative of the principle of "independence of the judiciary".
2. Clause (c) of Article 124A(1) is ultra vires the provisions of the Constitution, because of the inclusion of the Union Minister in charge of Law and Justice as an ex officio Member of the NJAC. Clause (c) of Article 124A(1), in my view, impinges upon the principles of "independence of the judiciary", as well as, "separation of powers". 
3. Clause (d) of Article 124A(1) which provides for the inclusion of two "eminent persons" as Members of the NJAC is ultra vires the provisions of the Constitution, for a variety of reasons. The same has also been held as violative of the "basic structure" of the Constitution. In the above view of the matter, I am of the considered view, that all the clauses (a) to (d) of Article 124A(1) are liable to be set aside. The same are, accordingly struck down. In view of the striking down of Article 124A(1), the entire Constitution (99th Amendment) Act, 2014 is liable to be set aside.

2. L Chandra Kumar vs Union of India (1997) - Parts of Constitution  (42nd Amendment) Act, 1976 relating to administrative tribunals

Part XIVA of the Constitution was inserted through Section 46 of the Constitution (42nd Amendment) Act, 1976 with effect from March 1,1977. It comprised of two provisions, Articles 323A and 323B.

The question before the Constitution bench in this was whether the power conferred upon Parliament or the Stale Legislatures, as the case may be, by Sub-clause (d) of Clause (2) of Article 323A or by Sub-clause (d) of Clause (3) of Article 323B of the Constitution, totally exclude the jurisdiction of 'all courts', except that of the Supreme Court under Article 136, in respect of disputes and complaints referred to in Clause (1) of Article 323A or with regard to all or any of the matters specified in Clause (2) of Article 323B?

The court held that Clause 2(d) of Article 323A and Clause 3(d) of Article 323B, to the extent they exclude the jurisdiction of the High Courts and the Supreme Court under Articles 226/227 and 32 of the Constitution, are unconstitutional. "Section 28 of the Act and the "exclusion of jurisdiction" clauses in all other legislations enacted under the aegis of Articles 323A and 323B would, to the same extent, be unconstitutional. The jurisdiction conferred upon the High Courts under Articles 226/227 and upon the Supreme Court under Article 32 of the Constitution is part of the inviolable basic structure of our Constitution. While this jurisdiction cannot be ousted, other courts and Tribunals may perform a supplemental role in discharging the powers conferred by Articles 226/227 and 32 of the Constitution. The Tribunals created under Article 323A and Article 323B of the Constitution are possessed of the competence to test the constitutional validity of statutory provisions and rules.", it was held.

3. Kihoto Hollohon Vs. Zachilhu  and Constitution (52nd Amendment) Act on anti-defection law

In this case, the Court dealt with a challenge to the Tenth Schedule to the Constitution inserted by the Constitution (Fifty-Second amendment) Act 1985. Though the Tenth Schedule was to deal with the evil of defection, it also purported to oust the jurisdiction of all courts by virtue of paragraph-7, which reads as follow:

"7. Bar of jurisdiction of courts: Notwithstanding anything in this Constitution, no court shall have any jurisdiction in respect of any matter connected with the disqualification of the Member of a House under this Schedule."

The court struck down Para 7, and invoked doctrine of severability to uphold the rest of the paragraphs of Tenth Schedule. "The ouster of jurisdiction of courts under Paragraph 7 was incidental to and to lend strength to the main purpose which was to curb the evil of defection. It cannot be said that the constituent body would not have enacted the other provisions in the Tenth Schedule if it had known that Paragraph 7 was not valid. Nor can it be said that the rest of the provisions of the Tenth Schedule cannot stand on their own even if Paragraph 7 is found to be unconstitutional. The provisions of Paragraph 7 can, therefore, be held to be severable from the rest of the provisions.", the Court held.

4. P. Sambamurthy  Vs. State of Andhra Pradesh(1986)  and Constitution (32nd Amendment) Act 1973 - limitations of judicial review

The Supreme Court declared cl. (5) of art. 371D [introduced in the Constitution by the Constitution (Thirty-Second Amendment) Act 1973] along with the proviso to be unconstitutional and void. Clause (5) of Art. 371-D provided that the order of the Administrative Tribunal finally disposing of a case shall become effective only upon its confirmation by the State Government or on the expiry of three months from the date on which the order is made, whichever is earlier. 

"If the power of judicial review conferred on the Administrative Tribunal is, by reason of the Proviso to Cl. (5) of Art. 371-D, subject to the veto of the State Government and it is not at all effective or efficacious because the State Government can defeat its exercise by just passing an order modifying or nullifying the decision of the Administrative Tribunal. The Proviso to Cl. (5) has the effect of emasculating the striking power of the Administrative Tribunal and the State Government can make the decision of the Administrative Tribunal impotent and sterile.", the Court held.

5. Minerva Mills Ltd. and others Vs. Union of India(1980) and Constitution (42nd Amendment) Act ,1976 - Limitations on judicial review

In this case, the constitutionality of sections 4 and 55 of the Constitution (Forty Second Amendment) Act, 1976 was challenged on the ratio of the majority judgment in Kesavananda Bharati's case that the Parliament cannot destroy the basic structure of the Constitution through its power to amend,

Article 31C. as amended by Section 4 of the 42nd Amendment Act reads thus: "31C. Notwithstanding anything contained in article 13. no law giving effect to the policy of the State towards securing all or any of the principles laid down in Part IV shall be deemed to be void on the ground that it is inconsistent with, or takes away or abridges any of the rights conferred by article 14, article 19 or article 31; and no law containing a declaration that it is for giving effect to such policy shall be called in question in any court on the ground that it does not give effect to such policy: Provided that where such law is made by the Legislature of a State, the provisions of this article shall not apply thereto unless such law, having been reserved for the consideration of the President, has received his assent."

Section 55 amended Article 368 to include these clauses:

"(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".

The Constitution bench held that the Section 4 of the Constitution 42nd Amendment Act is beyond the amending power of the Parliament and is void since it damages the basic or essential features of the Constitution and destroys its basic structure by a total exclusion of challenge to any law on the ground that it is inconsistent with, or takes away or abridges any of the rights conferred by Article 14 or Article 19 of the Constitution, if the law is for giving effect to the policy of the State towards securing all or any of the principles laid down in Part IV of the Constitution. Section 55 of the Constitution 42nd Amendment Act is beyond the amending power of the Parliament and is void since it removes all limitations on the power of the Parliament to amend the Constitution and confers power upon it to amend the Constitution so as to damage or destroy its basic or essential features or its basic structure, the court held.

6. Indira Gandhi vs Raj Narain(1975)  and Constitution (39th Amendment) Act, 1975 which barred judicial review over Prime Minister's election

In this case, the challenge was against Clause 4 of Article 329A introduced by the Constitution (Thirty-ninth Amendment) Act, 1975.

The said clause provided that 'no law made by Parliament before the commencement of the Constitution (Thirty-ninth Amendment) Act, 1975, in so far as it relates to election petitions and matters connected therewith, shall apply or shall be deemed ever to have applied to or in relation to the election of any such person as is referred to in clause (1), to either House of Parliament and such election shall not be deemed to be void or ever to have become void on any ground on which such election could be declared to be void under any such law and notwithstanding any order made by any court, before such commencement, declaring such election to be void, such election to be void, such election continue to be valid in all respect and any such order and any finding on which such order is based shall be and shall be deemed always to have been void and of no effect.'

The Constitution Bench struck down Clause 4 of Article 329A of the Constitution.  Article 329A(4) was held to be beyond the amending competence of the Parliament since, by making separate and special provisions as to elections to Parliament of the Prime Minister and the Speaker, it destroyed the basic structure of the Constitution. 

7. Kesavananda Bharati Vs. the State of Kerala(1973)  and Constitution ( 25th  Amendment) Act, 1971

Constitution (Twenty-fifth Amendment) Act, 1971 Article 31C inserted by the 25th Amendment read thus: "31C. Saving of laws giving effect to certain directive principles.- Notwithstanding anything contained in article 13, no law giving effect to the policy of the State towards securing the principles specified in clause (b) or clause (c) of article 39 shall be deemed to be void on the ground that it is inconsistent with, or takes away or abridges any of the rights conferred by article 14, article 19 or article 31; and no law containing a declaration that it is for giving effect to such policy shall be called in question in any court on the ground that it does not give effect to such policy: Provided that where such law is made by the Legislature of a State, the provisions of this article shall not apply thereto unless such law, having been reserved for the consideration of the President, has received his assent."

The Supreme Court considered the challenge against the constitutional validity of the 25th Amendment in Kesavananda Bharathi case. The underlined part namely "and no law containing a declaration that it is for giving effect to such policy shall be called in question in any Court on the ground that it does not give effect to such policy," was declared invalid.