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 NJACIn 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: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". 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". 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 tribunalsPart 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...

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

Ashok Kini

While the NJAC amendment was struck down wholly by the Supreme Court, the other listed amendments were struck down in part.

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