Supreme Court Upholds A Citizen's Right To Challenge A Constitutional Amendment Affecting States' Power

When a citizen of India challenges a constitutional amendment as being procedurally infirm, it is the duty of the court to examine such challenge on merits." , the Supreme Court observed while answering the Centre's submission that there is no challenge against Constitution 97th Amendment by States.

The bench comprising Justices RF Nariman, KM Joseph and BR Gavai observed that the Constitution of India is 'a national charter of governance affecting persons, citizens and institutions alike'.

The Constitution [97th amendment] Act, 2011 was passed by the Lok Sabha on 22nd December 2011 and the same was passed by the Rajya Sabha on 28th December 2011. The President of India gave his assent to that amendment on 12th January 2012 and the said notification was published in the gazette of India of 13th January 2012 and the amendment came into force on 15th February 2012.

Mr. Rajendra N. Shah (PIL Petitioner Before Gujarat HC)

A few months later, Mr. Rajendra N. Shah, an activist associated with NGO Consumer Protection Analytic Committee [CPAC], in September 2012, filed a Public Interest Litigation before the Gujarat High Court seeking quashing of the Constitution (97th Amendment) Act, 2011, as ultra vires the Constitution of India, 1950. On 22nd April 2013, the High Court bench of the then Chief Justice Bhaskar Bhattacharya and Justice JB Pardiwala allowed his writ petition by declaring that the Constitution [97th amendment] Act, 2011 inserting part IXB containing Articles 243ZH to 243ZT is ultra vires the Constitution of India for not taking recourse to Article 368(2) of the Constitution. 

Thereafter, the Union filed appeals before the Supreme Court challenging the High Court judgment. Though in September 2014, the court granted leave in the SLP, it refused to stay the High Court judgment. Later, the court also allowed a few other persons, who unsuccessfully challenged the amendment before some other High Courts, to intervene in the case.

On Tuesday (20th July 2021), the Supreme Court, disposing the appeals filed by Union of India and others, upheld the High Court judgment except to the extent that it strikes down the entirety of Part IXB of the Constitution of India. The Court clarified that the Amendment is operative only insofar as it concerns multi-State cooperative societies both within the various States and in the Union territories of India.

During hearing, the Attorney General had pointed out that as many as 17 out of 28 States have, after the 97th Amendment, already enacted legislative measures in conformity with Part IXB and that therefore more than half of the States had, in effect, accepted and applied the provisions of Part IXB. According to it, the Amendment was preceded by a detailed consultation with the State Governments and that is the reason why no State Government came forward to challenge it.

"72. Shri Venugopal then argued that 17 out of 28 States had enacted legislations incorporating provisions of Part IXB, and that, therefore, they had impliedly accepted the restrictions laid down in the said Part. This argument need not detain us inasmuch as the procedure laid down in Article 368(2) proviso requires ratification of legislatures of one half of the States by resolutions to that effect. This has admittedly not been done in the present case. Also, the argument that no State has come forward to challenge the 97th Constitution Amendment does not take the matter any further. When a citizen of India challenges a constitutional amendment as being procedurally infirm, it is the duty of the court to examine such challenge on merits as the Constitution of India is a national charter of governance affecting persons, citizens and institutions alike.", the bench observed.

Before the High Court, Advocates KI Shah, Vishwas K. Shah and Masoom K.Shah appeared for the Rajendra Shah. In Supreme Court, he was represented by Advocate Masoom K.Shah.  Intervenors were represented by Advocates Anup Jain, Anjani Aiyagari and VK Monga. 

Also from the judgment: