Alteration Of Content Of State Legislative Power In An Oblique & Peripheral Manner Would Not Constitute A Violation Of Basic Structure: Supreme Court

To uphold the 102nd Constitutional Amendment, the Supreme Court held that alteration of the content of state legislative power in an oblique and peripheral manner would not constitute a violation of the concept of federalism or basic structure of the Constitution.The majority judgment authored by Justice S. Ravindra Bhat ( with whom Justices L. Nageswara Rao and Hemant Gupta agreed with on this aspect) observed that it is only if the amendment takes away the very essence of federalism or effectively divests the federal content of the constitution, and denudes the states of their effective power to legislate or frame executive policies (co-extensive with legislative power) that the amendment would take away an essential feature or violate the basic structure of the Constitution.One of the issues considered by the Constitution Bench which heard the challenge against Maratha Quota was whether, Article 342A of the Constitution abrogates States power to legislate or classify in respect of "any backward class of citizens" and thereby affects the federal policy / structure of the Constitution of India? This issue was considered since a writ petition filed by by Shiv Sangram, a political party based in Maharashtra was heard by the Constitution Bench along with Maratha Quota cases. The petitioner's contention was that the the power to identify and make suitable provisions in favour of SEBCs has always been that of the States. But, through the impugned provisions, the President has now been conferred exclusive power to undertake the task of identification of SEBCs for the purposes of the Constitution. It was submitted that this strikes at the root of the federal structure because it is the people who elect the members of the State legislatures, who frame policies suitable for their peculiarly situated needs, having regard to the demands of the region and its people.Defending the amendment, the Centre (through Attorney General) contended that the intention of Constitutional Amendment was not to take away the State's power to identify the Backward Class, and that the State Government identification of Backward Class/Socially and Educationally Backward Classes is not touched by Article 342A. As per the majority judgment (authored by Justice Ravindra Bhat), the 102nd Constitution Amendment abrogated the power of states to identify "Socially and Educationally Backward Classes(SEBCs)". However, the minority judgment (authored by Justice Ashok Bhushan), held that the 102nd Constitutional amendment does not take away the power of the State to identify backward class in the State and therefore not unconstitutional. In effect, both these judgments upholds the 102nd Constitutional amendment, but for different reasons. The majority, upheld the Constitutional Amendment, despite holding that the it takes away power of States to identify EBCs.The majority judgment noticed that there are two issues raised by the petitioners (1) Whether without following the procedure indicated in the proviso to Article 368(2), i.e. seeking approval or ratification of atleast one half of the legislative assemblies of all the States, the amendment is void 2) Whether the amendment has the effect of violating the basic or essential features so far as it impacts the federal structure of the Constitution is concerned."In this regard what is noticeable is that direct amendments to any of the legislative entries in the three lists of the Seventh Schedule to the Constitution requires ratification. Thus, the insertion of substantive provisions that might impact future legislation by the State in an indirect or oblique manner would not necessarily fall afoul of the Constitution for not complying with the procedure spelt out in the proviso to Article 368(2).", the Court held answering the first issue against the petitioner.To answer the second issue, the court referred to two judgments [Raghunathrao Ganpatrao v. Union of India 1994 Supp (1) SCC 191, Maharao Sahib Shri Bhim Singhji v. Union of India (1981) 1 SCC 166] and observed thus:"By these parameters, the alteration of the content of state legislative power in an oblique and peripheral manner would not constitute a violation of the concept of federalism. It is only if the amendment takes away the very essence of federalism or effectively divests the federal content of the constitution, and denudes the states of their effective power to legislate or frame executive policies (co-extensive with legislative power) that the amendment would take away an essential feature or violate the basic structure of the Constitution. Applying such a benchmark, this court is of the opinion that the power of identification of SEBCs hitherto exercised by the states and now shifted to the domain of the President (and for its modification, to Parliament) by virtue of Article 342A does not in any manner violate the essential features or basic structure of the Constitution. The 102nd Amendment is also not contrary to or violative...

Alteration Of Content Of State Legislative Power In An Oblique & Peripheral Manner Would Not Constitute A Violation Of Basic Structure: Supreme Court

Ashok Kini

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