Article 368 of the Constitution provides for the procedure by which the Constitution may be amended. Clause (2) of Article 368 is extracted below:
“Power of Parliament to amend the Constitution and procedure therefor.—
…
(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, Article 241 or Article 279-A, 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 Legislature 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.”
Clause (2) of Article 368 provides that the Constitution may be amended when a Bill for the purpose is passed in each House of Parliament 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.
However, an amendment which seeks to make any “change” to certain specified provisions is required to be ratified by the legislatures of not less than one-half of the States in the manner provided, before the Bill is presented to the President for assent.
A long line of cases concerning Article 368 of the Constitution have prioritised the substance or effect of an amendment while testing whether the proviso to Article 368 would be attracted.
In Shankari Prasad Singh Deo v. Union of India,[1] the Court adjudicated whether the Constitution (First Amendment) Act 1951, by which Articles 31-A and 31-B were inserted in the Constitution of India was ultra vires. One of the arguments advanced by the petitioners in this case was that the concerned Bill ought to have been ratified in terms of the procedure contemplated by the proviso to Article 368(2) because the impugned articles curtailed the powers of the High Courts under Article 226 and of this Court under Articles 132 and 136.
Rejecting this argument, the Court held that the impugned articles did not make any change to Articles 226, 132 or 136:
“17. It will be seen that these Articles do not either in terms or in effect seek to make any change in Article 226 or in Articles 132 and 136. …”
In Sajjan Singh v. State of Rajasthan[2] the Court adjudicated the validity of the Constitution (Seventeenth Amendment) Act 1964 by which Article 31- A was amended and forty-four statutes were added to the Ninth Schedule to the Constitution. Here too, one of the questions was whether the procedure prescribed by the proviso to Article 368 ought to have been followed. This Court rejected the challenge:
“14. … The impugned Act does not purport to change the provisions of Article 226 and it cannot be said even to have that effect directly or in any appreciable measure. That is why we think that the argument that the impugned Act falls under the proviso, cannot be sustained. It is an Act the object of which is to amend the relevant Articles in Part III which confer fundamental rights on citizens and as such it falls under the substantive part of Article 368 and does not attract the provisions of clause (b) of the proviso.
If the effect of the amendment made in the fundamental rights on Article 226 is direct and not incidental and is of a very significant order, different considerations may perhaps arise. But in the present case, there is no occasion to entertain or weigh the said considerations.”
Although the court relied on the object of the impugned statute, it placed equal emphasis on its effect. Its reasoning indicates that the effect must be of an appreciable or significant degree.
This line of precedent was consolidated in Kihoto Hollohan v. Zachillhu[3], where a Constitution Bench of the Court was called upon to determine the constitutional validity of the Tenth Schedule to the Constitution. One of the grounds of challenge was that paragraph 7 of the Tenth Schedule brought about a change in the operation of Articles 136, 226 and 227 of the Constitution and that the concerned Bill ought to have been passed in compliance with the procedure laid down by the proviso to clause (2) of Article 368.
Paragraph 7 of the Tenth Schedule is extracted below:
“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 a member of a House under this Schedule.”
Articles 136, 226 and 227 concern the jurisdiction of the Court and the High Courts respectively and the power of judicial review. Article 136 finds a place in Chapter IV of Part V and Articles 226 and 227 are present in Chapter V of Part VI. The proviso to clause (2) of Article 368 stipulates that a constitutional amendment which seeks to make a change to these chapters must be ratified in the manner provided, before the Bill which seeks to make such amendments is presented to the President for assent.
The petitioners argued that the Bill inserting the Tenth Schedule attracted the proviso to Article 368(2) because it curtailed the power of judicial review and therefore, ought to have been ratified by the prescribed number of States before it was presented to the President for assent.
The majority, speaking through M N Venkatachaliah, J., rejected the challenge to the Tenth Schedule. However, it held that paragraph 7 had the effect of changing the application of Articles 136, 226, and 227, thereby attracting the proviso to Article 368(2). It found that paragraph 7 was severable from the other provisions of the Tenth Schedule and struck down paragraph 7 alone.
The observations of the Court on the effect of paragraph 7 on the provisions which concerned judicial review are instructive and are extracted below:
“61. … The changes in Chapter IV of Part V and Chapter V of Part VI envisaged by the proviso need not be direct. The change could be either “in terms of or in effect”. It is not necessary to change the language of Articles 136 and 226 of the Constitution to attract the proviso. If in effect these articles are rendered ineffective and made inapplicable where these articles could otherwise have been invoked or would, but for Paragraph 7, have operated there is ‘in effect’ a change in those provisions attracting the proviso. …
62. In the present case, 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. …”
The Court determined the validity of paragraph 7 by considering whether it changed Articles 136, 226 and 227 “in terms of or in effect.” It found that while the language of these provisions was not directly amended, the effect of paragraph 7 was to change the operation of these provisions. This approach indicates that the Court was concerned more with the substance of the constitutional amendment as opposed to its form.
The minority judgment in Kihoto Hollohan (supra) concurred with the ruling of the majority on the constitutional validity of paragraph 7 but differed on the question of the validity of the entire Tenth Schedule, holding that it was constitutionally infirm in its entirety. Its approach to the interpretation of the issue concerning paragraph 7 was similar to that of the majority.
Finally, in Union of India v. Rajendra N. Shah,[4] the Court adjudicated the vires of the Constitution (Ninety Seventh Amendment) Act 2011 which inter alia introduced Part IXB under a chapter titled ‘The Co-operative Societies.’ In particular, the Court dealt with the question of whether Part IXB was non est for want of ratification by half of the States under the proviso to Article 368(2). Answering the question in the affirmative, this Court held that:
“56. A reading of the aforesaid judgments would indicate that the “change” spoken about by Article 368(2) proviso in any provision of the Constitution need not be direct in the sense of adding, subtracting, or modifying the language of the particular Article or provision spoken of in the proviso.
The judgments above referred to speak of a ‘change-in effect’ which would mean a change which, though not in the language of any provision of the Constitution, would yet be a change which would impact a particular article and the principle contained therein in some significant way.
…
61. It is always important to remember that in matters affecting the Constitution of India, form always gives way to substance.”
Summary
From the above discussion, it emerges that the following aspects are of significance when assessing whether a change has been made to a provision of the Constitution:
a. A change may be either in terms of or in its effect;
b. A change can be said to have been made even if the language of the concerned provision is not directly amended, by adding, subtracting or modifying the language. This is a change in effect;
c. If the effect of an amendment is to change a provision, such effect must be significant or appreciable; and
d. The substance of a change is more important than its form.
[1] 1951 SCC 966
[2] 1964 SCC OnLine SC 25
[3] 1992 Supp (2) SCC 651
[4] 2021 SCC OnLine SC 474