Explainer : Why Women's Reservation Bill Didn't Require Ratification By State Assemblies?

Yesterday, the President of India signed into law the women’s reservation bill that passed both houses of parliament with broad bipartisan support earlier this month. The Constitution (One Hundred and Sixth Amendment) Act, 2023 seeks to reserve one-third of seats for women in the Lok Sabha, the upper houses of the state legislatures, and the Delhi legislative assembly. Not only this, the act also introduces horizontal reservation for women from scheduled castes (SC) and scheduled tribes (ST) within the women’s quota. As per the Act, women's reservation will come into effect after a delimitation exercise is conducted following the next census and will be in operation for a period of fifteen years.One might wonder why the requirement of ratification by at least one-half of the states was not necessary in this case. After all, in 2019, the Constitution (One Hundred and Fourth Amendment) Act, which extended reservation for scheduled castes and scheduled tribes in the Lok Sabha and state assemblies for an additional ten years and eliminated the Anglo-Indian quota, was enacted into law only after obtaining ratification from more than half of the states' legislatures through resolutions. This practice dates back to 1959 when the first constitutional amendment aimed at extending the period of reservation for members from scheduled castes, scheduled tribes, and the Anglo-Indian community, initially set at ten years from the Constitution’s commencement, was enacted. Subsequently, state ratification was sought under the proviso to Article 368(2) in 1969, 1980, 1989, 1999, 2009, and 2019 before extending this duration.However, these are examples of constitutional amendments that did not require ratification by states, but where the government nevertheless elected to follow the procedure laid down under the proviso to Section 368(2) out of an abundance of caution, with a view to ensure that they do not fail on the ground of the absence of ratification.The procedural limitation on the parliament’s constituent power contained in the proviso to Article 368(2) is attracted only when an amendment directly affects Articles 54 (election of president), 55 (manner of election of president), 73 (executive powers of the Union), 162 (executive powers of states), 241 (high courts for union territories), or any of the articles contained in Chapter IV of Part V (union judiciary), Chapter V of Part VI (high courts in states), and Chapter I of Part XI (distribution of legislative powers). Similarly, before modifying any of the lists in the Seventh Schedule, altering the representation of states in the parliament, or amending the provisions of Article 368 itself, the concurrence of at least one-half of the states is required.Notably, this proviso, introduced in the constitutional framework with the objective of protecting its federal structure, can bar the parliament from exercising its constituent power even when none of the articles mentioned above are sought to be directly amended, but where the amendment so proposed would directly – and not incidentally – affect any of them. This is how the Supreme Court purposively interpreted the provision in both Sajjan Singh (1965) and Kihoto Hollohan (1992). Using this principle, the Supreme Court in the famous anti-defection case struck down Paragraph 7 of the Tenth Schedule on grounds of the absence of state ratification, even while upholding the constitutionality of the schedule as a whole. In this case, a majority of the five-judge bench held that while Articles 136, 226, and 227 (the powers relating to the Supreme Court and High Courts for judicial review) were not directly amended, a change was brought about ‘in terms and effect’, therefore attracting the proviso to Article 368(2). It was also held that the non-compliance with this procedure would not render the entire bill ‘vitiated’, and only the offending portion could be set aside by applying the doctrine of severability.Therefore, to answer the question posed at the outset: The women’s reservation bill was signed into law yesterday without following the procedure laid down under the proviso to Article 368(2) requiring state ratification because it neither sought to amend any of the provisions specifically mentioned in the provision, nor does it directly – in terms and effect – impact them.

Explainer : Why Women's Reservation Bill Didn't Require Ratification By State Assemblies?

Awstika Das

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