THE TWO QUESTIONS SHOULD BE KEPT SEPRATEN i.e.

THE AMENDABILITY
AND THE APPLICATION OF THE SPECIAL PROCEDURE UNDER THE PROVISO
[A] 97th Constitutional Amendment is violative of Art. 368(2) of the Constitution
It is humbly submitted before this Hon’ble Court that if the subject falls exclusively in List II,
and in no other list, then the power to legislate exclusively vests in the State Legislature.1
There are certain constitutional provisions relating to the federal character, which may be
characterised as the ‘entrenched provisions’, which along with their special majority would
require the ratification of one half of the state legislatures, before being presented to the president
for his assent.
The various entries in the three lists are not powers but are fields of legislations. The power to
legislate is given by Art. 246. The entries demarcate the area over which the concerned
legislature can operate.2
The Doctrine of pith and substance saves the incidental encroachment if only the law in pith and
substance falls within an entry within the legislative field of the particular legislature which has
enacted it.
The Substantive part of Art. 368 which provides for the resultant amendment is the consequence
of strict compliance with the mandatory special procedure prescribed for the exercise of the
constituent power and that result does not ensure except in the manner prescribed.3 The
requirement of prior ratification by state legislature is not only a condition precedent forming a
part of special mandatory procedure for the exercise of constituent power, but also a requirement
carving out an exception to the general rule of automatic amendment.
The Doctrine of colourable legislation is based on the maxim that what cannot be done directly
cannot also be done indirectly. The Doctrine thus refers to the question of competency of the
legislature to enact a particular law. If the legislature lacks the competency, the question of
motive does not arise at all; the legislation will be invalid even if it is enacted with the best of the
motives.4

1
MP Jain, Pp. 590, “Indian Constitutional Law”, 8th edn.
2
Premchand Jain v. Chhabra, AIR 1984 SC 981; JK Bharat v. State of Maharashtra, AIR 1984 SC 1542; Goodyear
India Ltd. v. State of Haryana, AIR 1990 SC 781.
3
Kihoto Hollohan v. Zachillhu, AIR 1993 SC 412; J & K Housing Board v. Kunwar Sanjay Krishan Kaul, (2011) 10
SCC 714.
4
RS Joshi v. Ajit Mills, Ahmedabad, (1977) 4 SCC 98.
In respect of a particular legislation, the question may arise whether the legislation has
transgressed the limits imposed on it by the constitution. Such transgression may be patent,
manifest, direct, or may be disguised, covert or indirect. It is the latter class of cases that the
expression “colourable legislation” is applied. The underlying idea is that although, a legislature
while passing a statute purports to act within the limits of its powers, yet in substance and reality,
it has transgressed these limits on its powers by taking mere pretence or disguise. If that is so, the
legislation in question is invalid.5
It is only when a legislature having no power to legislate frames a legislation so camouflaging
the same as to make it appear to fall within its competence; the legislation enacted may be
regarded as colourable legislation. The extent of encroachment in the field reserved for the other
legislature is an element for determining whether the impugned act is a colourable piece of
legislation.
A legislature cannot overstep the field of competence indirectly. It is also characterised as a fraud
on the Constitution because no legislature can violate the constitution by employing an indirect
method.6 Fraud on the Constitution, are expressions which merely mean that the legislature is
incompetent to enact a particular law.
If a legislation, apparently enacted under one Entry in the List, falls in plain truth and fact, within
the content, not of that entry but of one assigned to another legislature, it can be struck down as
colourable even if the motives were most commendable. 7 The Doctrine of colourable legislation
has reference to the competence of the legislature.8 Therefore, the motives of a legislature in
making a law are irrelevant. If a statute is found to be invalid on the ground of legislative
competence, it does not permanently inhibit the legislature from re-enacting the same if the
power to do so is properly traced and established.
It is submitted before this Hon’ble Court that a Constitutional authority cannot do indirectly what
it is not permitted to do directly.9 If a Constitutional provision inhibiting the constitutional
authority from doing an act10, such provision cannot be allowed to be defeated by adoption of
5
MP Jain, Pp. 594, “Indian Constitutional Law”, 8th edn.
6
KC Gajapati Narayana Deo v. State of Orissa, AIR 1953 SC 375. See also, Jabalpur Bus Operators Association v.
UoI, AIR 1994 MP 62; Jalan Trading Company v. Mill Mazdoor Sabha, AIR 1967 SC 691; Jayavantsinghji v. State
of Gujarat, AIR 1962 SC 821; K. Kunhikoman v. State of Kerala, AIR 1962 SC 723; Gullapalli Nageswara Rao v.
AP State RTC , AIR 1959 SC 308.
7
RS Joshi v. Ajit Mills, Ahmedabad, (1977) 4 SCC 98.
8
SS Bola v. BD Sardana, (1997) 8 SCC 522.
9
DC Wadhwa v. State of Bihar, (1987) 1 SCC 378.
10
Proviso of Art. 368(2) of Indian Constitution.
Subterfuge. The object of the 97th amendment is to overcome the provision contained in Art.
368(2) and therefore the said provision should be striked down.
The doctrine of colourable Legislation does not involve any question of bona fides or mala fides
on the part of the legislature. The whole doctrine resolves itself into the question of competency
of a part of legislature to enact a particular law. If the legislature is competent to pass a particular
law the motives which impelled to it are really irrelevant.11
Constitution Amendment Act is liable to be invalidated by the court on the ground that it is ultra
vires Art. 368 or that it damages or destroys some basic feature of the Constitution. 12 Hence,
Parliament cannot, directly or indirectly, abdicate or delegate the power to some other body; if it
does, the court would strike down that Constitutional amendment Act as invalid.
The power to ‘amend’ conferred by Art. 368 of the Indian Const. is a ‘limited’ amending power.
Parliament while exercising this amending power cannot convert this limited power into
unlimited power.13 A limited amending power is indeed one of the basic features of the
constitution. Parliament, cannot expand its amending power so as to acquire for itself the right to
repeal or abrogate the constitution or to destroy its basic and essential features.
In exercise of this power, Parliament could not destroy the Const. or its identity or its essential
features. This amendment represents an abuse of amending power and laid the bare dangers of an
unlimited and uninhibited power to amend the constitution.
An amendment of the constitution can take place only when national consensus emerges. A
constitution is a national heritage and not the property of one single party howsoever might it
may be and no single party thus has a right to institute amendments in the constitution merely in
the party interests, rather than the national interest. The constitution is not a party manifesto
which can be amended by the party at its will suit political expediency, but a national heritage
which ought to be amended only when there is broad national consensus favouring a specific
amendment.
It is submitted before this Hon’ble Court that Federalism envisaged in the constitution of India is
a basic structure.14 A power to abrogate the federal structure and substitute a unitary system
would defeat the objectives of the framers of the constitution in harmonizing regional interest
and national unity.
11
State of Kerela v. People Union of Civil Liberies, (2009) 8 SCC 46.
12
Kesavananda v. State of Kerala, AIR 1973 SC 1461.
13
Minerva Mills v. UoI, AIR 1980 SC 1798.
14
S.R. Bommai v. UoI, (1994) 3 SCC 1.
Federalism adds a new dimension to the significance of the judicial rule of constitutional
interpretation. The distribution of legislative powers between the centre and the regions is the
most important characteristic of a federal constitution. The whole structure of the federal system
revolves around this central point.15
Apart from procedural limitation expressly laid down in Art. 368, substantive limitation founded
on the doctrine of Basic Feature, has been introduced into our constitution by judicial
innovation.16 The Parliament cannot abrogate these principles so as to rewrite the Constitution.
The Parliament cannot under Art. 368 amend Const. to destroy its basic structure. 17 The
amendment of the constitution is only for the purpose of making the constitution more perfect,
effective and meaningful. An amendment should not result in “abrogation or destruction of its
basic structure or loss of its original identity and render the constitution unworkable.
Prima Facie, it is evident that the ratification mentioned in the proviso shall be required if an
amendment bill seeks to make any ‘change’ in any of the provisions of the constitution which are
specified in any of the cls. (a) to (e) of the proviso. In Kihoto Hollohan,18 case it was held that the
change could be either in terms or effect. It is not necessary to ‘change’ the language to attract
the proviso of Art. 368(2). Further, ‘change in’ does not mean abrogation or appeal of the
matters contained in cls. (a) to (e) of the proviso.19
Accordingly, under Art. 368(2),20 the constitutional amendment ought to have been approved by
one half of the state legislatures before being presented to the President for his assent. It is
submitted that in the instant case, this essential formality had not been followed.
The Constituent power, therefore, cannot be exercised in any other manner and non-compliance
with the special procedure so prescribed in Art. 368(2) cannot bring about the result of the
constitution stand amended in the terms of the bill. 21 The procedure prescribed by Cl. (2)22 is
mandatory so that any amendment of the constitution which did not comply with its requirements
would be held invalid.23

15
Dharam Dutt v. UoI, (2004) 1 SCC 712.
16
Glanrock Estate Ltd. V. State of Tamil Nadu, (2010) 10 SCC 96.
17
Waman Rao v. UoI, AIR 1981 SC 271.
18
Kihoto Hollohan v. Zachillhu, AIR 1993 SC 412.
19
H.M Seervai.
20
Kihoto Hollohan v. Zachillhu, AIR 1993 SC 412.
21
Kihoto Hollohan v. Zachillhu, AIR 1993 SC 412; Prakash Singh Badal v. UoI, AIR 1987 P&H 263.
22
Proviso of Art. 368(2) of Indian Constitution.
23
Minerva Mills v. UoI, AIR 1980 SC 1789.
[B] The whole 97th Constitutional Amendment is invalid and the Doctrine of Severability
would not be applicable
It is submitted before this Hon’ble Court that Art. 368(2) provides for the prescribed procedure,
i.e., only after ratification by one half of the states the bill can be sent to the president, 24 and
when the same is not ratified, the very assent of the president is non-est and consequently the
entire amendment is invalid.25
The Constitutional bill could not have been presented to the President for his assent unless the
bill has been approved by one half of the state legislature. Therefore, the presidential assent to
the bill non-est and the while constitutional amendment was still born. The rule of severability
could not apply as whole of the Act was un-constitutional.

USE THIS QUOTE TO SHOW THAT THERE 97 TH AMENDMENT IS HINDERED BY

PROCEDURAL LIMITATION EVEN THOUGH NO SUBSTANTIVE LIMITATION IS
IMPOSED UPON THE PARLIAMENT TO PASS A LAW ON CO-OPERATIVE
SOCIETIES
This extract is taken from Kihoto Hollohan v. Zachillhu, 1992 Supp (2) SCC 651 at page 692
65. The amending power under Article 368 is subject to the substantive limitation in that the
basic structure cannot be altered or the basic features of the Constitution destroyed. The
limitation requiring a special majority is a procedural one. Both these limitations impose a fetter
on the competence of Parliament to amend the Constitution and any amendment made in
disregard of these limitations would go beyond the amending power.26
WHY DOCTRINE OF SEVERABILITY WOULD NOT BE APPLICABLE
This extract is taken from Kihoto Hollohan v. Zachillhu, 1992 Supp (2) SCC 651 at page 694
This extract is taken from Kihoto Hollohan v. Zachillhu, 1992 Supp (2) SCC 651 at page 694
68. The doctrine of severability has been applied by this Court in cases of challenge to the validity of
an amendment on the ground of disregard of the substantive limitations on the amending power,
namely, alteration of the basic structure. But only the offending part of the amendment which had the

24
Proviso of Art. 368(2) of Indian Constitution.
25
Kihoto Hollohan v. Zachillhu, AIR 1993 SC 412 (Minority); Ashok Kumar Thakur v. UoI, (2008) 6 SCC; Rooplal
(Sub- Inspector) v. Lt. Governer through Chief secretary, AIR 1993 SC 412.
26
Kihoto Hollohan v. Zachillhu, AIR 1993 SC 412.
effect of altering the basic structure was struck down while the rest of the amendment was upheld.
[See Kesavananda Bharati v. State of Kerala [(1973) 4 SCC 225 : 1973 Supp SCR 1] , Minerva Mills
Ltd. v. Union of India [(1980) 3 SCC 625 : (1981) 1 SCR 206] , P. Sambamurthy v. State of A.P. [(1987) 1 SCC
362 : (1987) 2 ATC 502 : (1987) 1 SCR 879] ].
68. The doctrine of severability has been applied by this Court in cases of challenge to the validity of an
amendment on the ground of disregard of the substantive limitations on the amending power, namely,
alteration of the basic structure. But only the offending part of the amendment which had the effect of
altering the basic structure was struck down while the rest of the amendment was upheld.
[See Kesavananda Bharati v. State of Kerala [(1973) 4 SCC 225 : 1973 Supp SCR 1] , Minerva Mills Ltd. v. Union of
India [(1980) 3 SCC 625 : (1981) 1 SCR 206] , P. Sambamurthy v. State of A.P. [(1987) 1 SCC 362 : (1987) 2 ATC 502 :
(1987) 1 SCR 879] ].
This extract is taken from Kihoto Hollohan v. Zachillhu, 1992 Supp (2) SCC 651 at page 696
72. During the arguments reliance was placed on the words “before the Bill making provision for such
amendment is presented to the President for assent” to sustain the argument that these words imply that the
ratification of the Bill by not less than one-half of the States is a condition precedent for the presentation of the
Bill for the assent of the President. It is further argued that a Bill which seeks to make a change in the
provisions referred to in clauses (a) to (e) of the proviso cannot be presented before the President for his assent
without such ratification and if assent is given by the President in the absence of such ratification, the
amending Act would be void and ineffective in its entirety.
This extract is taken from Kihoto Hollohan v. Zachillhu, 1992 Supp (2) SCC 651 at page 719
130. Before proceeding to give our detailed reasons, we reproduce the operative conclusions pronounced
by us on November 12, 1991 [Kihota Hollohon v. Zachilhu, (1992) 1 SCC 309] in the minority opinion (Lalit Mohan
Sharma and J.S. Verma, JJ.) as under: (SCC pp. 313-14, para 6)
“For the reasons to be given in our detailed judgment to follow, our operative conclusions in the
minority opinion on the various constitutional issues are as follows:
(3) In view of Paragraph 7 in the Bill resulting in the Constitution (Fifty-second Amendment) Act, 1985,
it was required to be ratified by the legislatures of not less than one-half of the States as a
condition precedent before the Bill could be presented to the President for assent, in accordance
with the mandatory special procedure prescribed in the proviso to clause (2) of Article 368 for
exercise of the constituent power. Without ratification by the specified number of State
legislatures, the stage for presenting the Bill for assent of the President did not reach and,
therefore, the so-called assent of the President was non est and did not result in the Constitution
standing amended in accordance with the terms of the Bill.
(4) In the absence of ratification by the specified number of State legislatures before presentation of
the Bill to the President for his assent, as required by the proviso to clause (2) of Article 368, it is
not merely Paragraph 7 but, the entire Constitution (Fifty-second Amendment) Act, 1985 which is
rendered unconstitutional, since the constituent power was not exercised as prescribed in Article
368, and therefore, the Constitution did not stand amended in accordance with the terms of the
Bill providing for the amendment.
(5) Doctrine of Severability cannot be applied to a Bill making a constitutional amendment where any
part thereof attracts the proviso to clause (2) of Article 368.
(6) Doctrine of Severability is not applicable to permit striking down Paragraph 7 alone saving the
remaining provisions of the Bill making the constitutional amendment on the ground that
Paragraph 7 alone attracts the proviso to clause (2) of Article 368.
(7) Even otherwise, having regard to the provisions of the Tenth Schedule of the Constitution inserted
by the Constitution (Fifty-second Amendment) Act, 1985, the Doctrine of Severability does not
apply to it.
(9) Consequently, the entire Constitution (Fifty-second Amendment) Act, 1985 which inserted the
Tenth Schedule together with clause (2) in Articles 102 and 191, must be declared unconstitutional
or an abortive attempt to so amend the Constitution.
This extract is taken from Kihoto Hollohan v. Zachillhu, 1992 Supp (2) SCC 651 at page 734
 163. The constituent power for amending the Constitution conferred by Article 368 also prescribes the
mandatory procedure in clause (2) including its proviso, for its exercise. The constituent power cannot,
therefore, be exercised in any other manner and non-compliance of the special procedure so prescribed
in Article 368(2) cannot bring about the result of the Constitution standing amended in accordance with
the terms of the Bill since that result ensues only at the end of the prescribed mandatory procedure
and not otherwise. The substantive part of Article 368 which provides for the resultant amendment is the
consequence of strict compliance of the mandatory special procedure prescribed for exercise of the constituent
power and that result does not ensue except in the manner prescribed.

This extract is taken from Kihoto Hollohan v. Zachillhu, 1992 Supp (2) SCC 651 at page 735
165.  The proviso then carves out the exception in case of Bills seeking to make any change in the
specified articles of the Constitution prescribing that in the case of those Bills, prior ratification by the
Legislatures of not less than one-half of the States is also required before the Bill is presented to the
President for assent. If this be the correct construction of Article 368(2) with the proviso as we think it is,
then there is no escape from the logical conclusion that a Bill to which the proviso applies does not result
in amending the Constitution in accordance with its terms on assent of the President if it was presented
to the President for his assent and the President gave his assent to the Bill without prior ratification by
the specified number of the State Legislatures. This is the situation in the present case.
167. In other words, clause (2) with the proviso therein itself lays down that the President's assent does not
result in automatic amendment of the Constitution in case of such a Bill if it was not duly ratified before
presentation to the President for his assent. Nothing more is needed to show that not only Paragraph 7 of the
Tenth Schedule but the entire Constitution (Fifty-second Amendment) Act, 1985 is still-born or an abortive
attempt to amend the Constitution for want of prior ratification by the State Legislatures of the Bill before its
presentation to the President for his assent.
This extract is taken from Kihoto Hollohan v. Zachillhu, 1992 Supp (2) SCC 651 at page 737

Point ‘E’ — Severability of Paragraph 7 of Tenth Schedule

170. The effect of absence of ratification indicated above suggests inapplicability of the Doctrine of
Severability. It is the entire Bill and not merely Paragraph 7 of the Tenth Schedule therein which required prior
ratification by the State Legislatures before its presentation to the President for his assent, it being a joint
exercise by the Parliament and State Legislatures. The stage for presentation of Bill to the President for his
assent not having reached, the President's assent was non est and it could not result in amendment of the
Constitution in accordance with the terms of the Bill for the reasons given earlier. Severance of Paragraph 7 of
the Tenth Schedule could not be made for the purpose of ratification or the President's assent and, therefore,
no such severance can be made even for the ensuing result. If the President's assent cannot validate Paragraph
7 in the absence of prior ratification, the same assent cannot be accepted to bring about a different result with
regard to the remaining part of the Bill.
{USE THIS ANALOGY}
172. The Doctrine of Severability applies in a case where an otherwise validly enacted legislation contains a
provision suffering from a defect of lack of legislative competence and the invalid provision is severable leaving
the remaining valid provisions a viable whole. This doctrine has no application where the legislation is not
validly enacted due to non-compliance of the mandatory legislative procedure such as the mandatory special
procedure prescribed for exercise of the constituent power. It is not possible to infuse life in a still-born by any
miracle of deft surgery even though it may be possible to continue life by removing a congenitally defective part
by surgical skill. Even the highest degree of surgical skill can help only to continue life but it cannot infuse life in
the case of still birth.
This extract is taken from Kihoto Hollohan v. Zachillhu, 1992 Supp (2) SCC 651 at page 740
177. Doctrine of Severability to ordinary legislation as summarised in R.M.D. Chamarbaughwalla v. Union of
India [1957 SCR 930 : AIR 1957 SC 628] indicates that Paragraph 7 alone is not severable to permit retention of
the remaining part of the Tenth Schedule as valid legislation. The settled test whether the enactment would
have been made without Paragraph 7 indicates that the legislative intent was to make the enactment only with
Paragraph 7 therein and not without it. This intention is manifest throughout and evident from the fact that but
for Paragraph 7 the enactment did not require the discipline of Article 368 and exercise of the constituent
power. The entire exercise, as reiterated time and again in the debates, particularly the speech of the Law
Minister while piloting the Bill in the Lok Sabha and that of the Prime Minister in the Rajya Sabha, was to
emphasise that total exclusion of judicial review of the speaker's decision by all courts including the Supreme
Court, was the prime object of enacting the Tenth Schedule. The entire legislative history shows this . How can
the Doctrine of Severability be applied in such a situation to retain the Tenth Schedule striking down
Paragraph 7 alone? This is a further reason for inapplicability of this doctrine.
Point (G) — Other contentions
186.  The entire Tenth Schedule is constitutionally invalid in the absence of prior ratification in accordance
with the proviso to clause (2) of Article 368; that the Doctrine of Severability does not apply in the present case
of a constitutional amendment which suffers from the defect of absence of ratification as required by the
proviso to clause (2) of Article 368; and that the entire Tenth Schedule is, therefore, constitutionally invalid
rendering the Constitution (Fifty-second Amendment) Act, 1985 still-born and an abortive attempt to amend the
Constitution.

WHETHER JUDGEMENT OF ONE HC IS BINDING ON OTHERS

All of the judges that I write here about think that a lone judgment of the Supreme Court tells
them that a decision of one High Court is binding on another High Court if that decision had
struck down any central legislation or regulation on the ground of contravention of our
constitution. The Supreme Court judgment is Kusum Ingots and Alloys Ltd. v. Union of
India [2004 (6) SCC 254] 

(GOOD QUOTE)
It is settled law that a constitutional authority cannot do something indirectly which it is not
permitted to do directly and if there is a constitutional provision inhibiting the constitutional
authority from doing an act, such provision cannot be allowed to be defeated by adopting a
subterfuge. By the impugned constitutional amendment, according to the petitioner, the
Parliament, a creature of the Constitution, and not vice-a-versa, has violated the basic structure
of the Constitution by not complying with the requirements of Article 368(2) of the Constitution.

Builders Association of India v. Union of India, reported in AIR 1989 SC 1371, a Constitutional Bench [five
judges] of the Supreme Court was considering whether the Constitution [46 th Amendment] Act, 1982 was
passed after proper ratification as required under Article 368(2).  In the said case, in Schedule VII List II Entry
No. 54, the scope was expanded. The plenary power of the State government was expanded by interfering with
its exclusive power under Article 246 by the said amendment. The Supreme Court, for the purpose of
considering the question inquired whether ratification process of Article 368(2) was complied with and

thereafter, upheld the validity. (By relying upon the aforesaid decision, Mr. Shah impressed upon us
that whenever even the case of expansion of scope of a particular entry in the list is taken up for
consideration, it is the duty of the Constitution Court to see that the constitutional procedures
for ratification in Article 368[2] are complied with) 

Kihoto Holohan v. Zachillhu, reported in 1992 Supp (2) SCC 651, a five-judge-bench of the
Supreme Court was considering whether Schedule X introduced by Constitution [52 nd Amendment] Act, 1985
was constitutionally valid or not, inasmuch as para-7 of the Schedule X took away the powers of judicial
review. Tenth Schedule, Paragraph 7 thereof in terms and in effect, brought about a change in the operation
and effect of Articles 136, 226 and 227 of the Constitution of India and, therefore, the Bill introducing the
amendment attracted the proviso to Article 368[2] of the Constitution and would require to be ratified by the
Legislature of the States before the Bill is presented for Presidential assent.
“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.” {By relying upon the aforesaid decision, Mr. Shah rightly submitted before us that
although in the said case, in effect, there was no change in the language of the articles
mentioned in Clauses [a] to [e], even then, ratification envisaged under Article 368[2] proviso
was required to be complied with.} 

S.R. Bommai v. Union of India, reported in (1994) 3 SCC 1, a nine-judge-bench of the Supreme Court was
considering whether the presidential proclamation under Article 356 of the Constitution was subject to judicial
review and if the answer was in affirmative, then, to what extent. It appears that six different judgments were

delivered. {By relying upon the above decision, Mr. Shah, in our opinion, was justified in
contending that we should interfere in these cases as the basic structure of federalism which was
the subject matter in the case of  S.R. Bommai (supra), was ignored.}

M. Nagaraj v. Union of India, reported in (2006) 8 SCC 212, challenge was whether Constitution
[85th Amendment] Act, 2011 inserting Article 16[4A] was constitutionally valid. It appears that the Supreme
Court upheld the constitutional validity on the ground that it complied with Width Test and the Test of Identity.

{By relying upon the said decision, Mr. Shah, in our opinion, was right in submitting that
constitutional amendment is to be tested on its width and one has to examine
the identity.}
In the case of I.R. Coelho [dead] by L.Rs. v. State of T.N., reported in (2007) 2 SCC 1, a nine-judge-bench
of the Supreme Court, returned its unanimous verdict through Sabharwal, CJI. In the said case, the question
was whether the Laws placed under Schedule IX inserted by Article 31B were immuned from the judicial
review. Sabharwal, CJI, answered the question by holding that it is not immuned and was subject to judicial
review. The observations made in para-151 at page 111 are quoted below:

“151. In conclusion, we hold that:

[i] A law that abrogates or abridges rights guaranteed by Part III of the Constitution may violate the basic
structure doctrine or it may not If former is the consequence of the law, whether by amendment of any article of
Part III or by an insertion in the Ninth Schedule, such law will have to be invalidated in exercise of judicial
review power of the Court The validity or invalidity would be tested on the principles laid down in this judgment.

[ii] The majority judgment in Kesavananda Bharati case read with Indira Gandhi case requires the validity of
each new constitutional amendment to be judged on its own merits. The actual effect and impact of the law on
the rights guaranteed under Part III has to be taken into account for determining whether or not it destroys
basic structure. The impact test would determine the validity of the challenge.

[iii] All amendments to the Constitution made on or after 24-4-1973 by which the Ninth Schedule is amended by
inclusion of various laws therein shall have to be tested on the touchstone of the basic or essential features of
the Constitution as reflected in Article 21 read with Article 14, Article 19, and the principles underlying them. To
put it differently even though an Act is put in the Ninth Schedule by a constitutional amendment, its provisions
would be open to attack on the ground that they destroy or damage the basic structure if the fundamental right
or rights taken away or abrogated pertains or pertain to the basic structure.

[iv] Justification for conferring protection, not blanket protection, on the laws included in the Ninth Schedule by
constitutional amendments shall be a matter of constitutional adjudication by examining the nature and extent
of infraction of a fundamental right by a statute, sought to be constitutionally protected, and on the touchstone
of the basic structure doctrine as reflected in Article 21 read with Article 14 and Article 19 by application of the
“rights test” and the “essence of the right” test taking the synoptic view of the articles in Part III as held in Indira
Gandhi case. Applying the above tests to the Ninth Schedule laws, if the infraction affects the basic structure
then such law[s] will not get the protection of the Ninth Schedule.

This is our answer to the question referred to us vide order dated 14-9-1999 in I.R. Coelho v. State of T.N.

[v] If the validity of any Ninth Schedule law was already been upheld by this Court, it would not be open to
challenge such law again on the principles declared by this judgment. However, if a law held to be violative of
any rights in Part III is subsequently incorporated in the Ninth Schedule after 24-4-1973, such a
violation/infraction] shall be open to challenge on the ground that it destroys or damages the basic structure as
indicated in Article 21 read with Article 14, Article 19 and the principles underlying thereunder.

[vi] Action taken and transaction finalized as a result of the impugned Acts shall not be open to challenge.”

18.1{By relying upon the said decision, Mr. Shah, in our view, was right in submitting that the
contention of Mr. Champaneri or Mr. Jani that we cannot look into the question whether
formalities of ratification have been complied with or not or whether basic structure of the
Constitution has been hit is not tenable.}

Supreme Court in the case of D.C. Wadhwa v. State of Bihar, reported in (1987) 1 SCC 378. In the said
decision, the question was whether by promulgating the ordinances from time to time on a massive scale in a
routine manner under Article 213 by Governor and without replacing them by Act of Legislature, the
constitutional provisions were infringed. Para-7 at page 393 of the said decision, wherein, it was observed by
Bhagawati, CJI that a constitutional authority cannot do indirectly what it is not permitted to directly. If there is a
constitutional provision inhibiting the constitutional authority from doing an act, His Lordship proceeded, such
provision cannot be allowed to be defeated by adoption of any subterfuge and that it would be clearly a fraud
{By relying upon the said decision, Mr. Shah strenuously contended
on the constitutional provision.
that the object of the amendment before us is to overcome the provision contained in Article
368[2] by taking ratification of majority of the State Legislatures and thus, we should strike
down the said provision.}
  ARGUMENTS
 The power under Article 368 of the Constitution of India itself is the basic structure of the Constitution
of India and the fact that by the impugned constitutional amendment, the procedure prescribed in the
article 368(2) of the Constitution, which recognizes the federal structure of the Constitution as one of
the basic structures, has not been followed, is violative of the Constitution. The petitioner contends that
the subject-matter “Co-operative Societies” does not fall in the 7 th Schedule Entry 45 of List I of the
Constitution and those are specifically excluded from entry no. 43 of List 1. Therefore, according to the
petitioner, the State legislature is the only competent authority in law to enact the laws for the co-
operative societies and on that ground, the proposed amendment should be set aside as violative of
the Constitution of India as the consent of the majority of the State Legislatures was not received
before presenting the Bill proposing the amendment to the President of India.

 It is settled law that a constitutional authority cannot do something indirectly which it is not permitted to
do directly and if there is a constitutional provision inhibiting the constitutional authority from doing an
act, such provision cannot be allowed to be defeated by adopting a subterfuge. By the impugned
constitutional amendment, according to the petitioner, the Parliament, a creature of the Constitution,
and not vice-a-versa, has violated the basic structure of the Constitution by not complying with the
requirements of Article 368(2) of the Constitution.

 Only the State Legislature is authorized to enact law relating to “Co-Operative Societies” as would
appear from the fact that it is placed at item No. 32 in List II-STATE LIST in the Seventh Schedule of
the Constitution.

 Article 243.ZG to Article 243ZT introduced by way of the impugned amendment that though there is no
amendment of List-II of the Constitution by taking aid of Article 368(2) of the Constitution, by
incorporating Chapter IXB starting from Article 243.ZG and ending with Article 243ZT, various
restrictions have been imposed upon the State Legislatures while enacting law relating to Co-
Operative Societies which was earlier unfettered prior to the incorporation of Chapter IXB.
{For instance, in Article 243ZI, it is said that the Legislature of a State may, by law,
make provisions with respect to the incorporation, regulation and winding-up of co-
operative societies based on the principles of voluntary formation, democratic member-
control, member-economic participation and autonomous functioning but such law must
be subject to the provisions of Part IXB. In Article 243ZJ, a definite restriction has been
imposed upon the State Legislatures regarding fixation of maximum number of Directors
of a Co-Operative Society which shall not exceed twenty-one. Further, the State
Legislatures have been asked to provide for reservation of one seat for the Scheduled
Castes or the Scheduled Tribes and two seats for women on board of every co-operative
society consisting of individuals as members and having members from such class or
 category of persons. Similarly, in sub-Article [2] of Article 243ZJ, the duration of the
term of office of the elected members of the board and its office bearers has been fixed to
be five years and in sub-Article (3) thereof, a further direction has been given upon State
Legislatures in the matter of enacting law relating to Co-Operative Societies regarding
co-option of the member in the board of director and further provisions regarding the
rights of such co-opted members have also been made. Similarly in Article 243ZK, a
further condition has been imposed that the election of a board shall be conducted before
the expiry of the term of the board so as to ensure that the newly elected members of the
board assume office immediately on the expiry of the term of the office of members of the
outgoing board. In Article 243ZL, a further condition has been imposed that no board
shall be suspended or kept under suspension for a period exceeding six months and has
also provided various conditions under which a Board may be superseded or kept under
suspension. In Article 243ZM, it is mandatorily prescribed that the account of every
society should be audited within six months from the close of the financial year to which
the accounts relate. Article 243ZP casts a duty upon the society to file return within the
period fixed there in and there is no scope of ignoring the same. Article 243ZQ
prescribes the acts which would be the offences relating to the co-operative societies and
the State Legislature cannot deviate from those mandates.}
 If this Part IXB was not incorporated, the State Legislatures would have the absolute right to enact law
on the above subjects according to the decision of such Legislatures whereas after the amendment,
no option is given to the State Legislature to deviate from or ignore those provisions.

 In spite of the fact that the law relating to Co-Operative Societies is still in the List II of the 7 th Schedule,
without bringing the subject of Co-Operative Societies either into List I or List III, by way of this
amendment, the Parliament has controlled the said power without complying with the provisions of
Article 368(2) of the Constitution by taking ratification of the majority of the State Legislatures.

 Instead of taking consent of the majority of the State Legislatures, by merely taking consent of the
Ministers of the State, the purpose has been sought to be achieved.

 The principles of federalism has been affected. There is no dispute that federalism is one of the
basic structure of our Constitution. Once the subject of Co-Operative Societies is in the List II of
the 7th Schedule, by depriving the State Legislatures of their free exercise of right to enact on the
said subject and by curtailment of their right over the subject matter to abide by the newly
enacted provision of the Constitution without following the requirement of ratification as provided
 in Article 368(2), the doctrine of federalism which is one of the basic features of the Constitution
has been infringed.
 I.R. Coelho [dead] by L.Rs. v. State of T.N (2007) 2 SCC 1 By addition of the words ‘constituent
power’ in Article 368, the amending body, namely, Parliament does not become the original
Constituent Assembly. It remains a Parliament under a controlled Constitution. Even after the words
‘constituent power’ are inserted in Article 368, the limitations of doctrine of basic structure would
continue to apply to the Parliament It is on this premise that clauses 4 and 5 inserted in Article 368 by

42nd Amendment were struck down in Minerva Mills case . {The amendment is violating the basic
structure of the Constitution so long as the subject of “Co-Operative Societies” is in the
List II of the 7th Schedule and at the same time, the provisions of Article 368(2) has not
been complied with. The Constitution has not permitted curtailment of the power of the
State Legislatures over the subject mentioned in List II without taking recourse to Article
368(2).}
 Constitution (Third amendment) Bill was passed by parliament in October, 1954. Under
Art. 368, it needed the ratification of one half of the state legislatures before obtaining the
assent of the president. The bill was circulated to all states and president gave its
ratification after the same was ratified by one half of the state legislatures.
 HOW TO USE FEDERALISM
Ganclock Estate Ltd. v. State of Tami Nadu [(2010) 10 SCC 96 (100)]: Apart from procedural
obligation as imposed under Art. 368, substantive obligation has founded under on the doctrines of
basic features as the same has been introduced into our constitution, by judicial innovation. The
Parliament cannot amend the constitution to abrogate these principles so as to rewrite the constitution.

 If the law inconsistent with the constitution were not to be declared void, then the written
constitution loses all its value and significance. When the law is in opposition to the
constitution, it is the duty of the courts to follow the constitution and not the law.

This extract is taken from Kihoto Hollohan v. Zachillhu, 1992 Supp (2) SCC 651 at page 674
24. On the contentions raised and urged at the hearing the questions that fall for consideration are
the following:
(A) The Constitution (Fifty-second Amendment) Act, 1985, insofar as it seeks to introduce the
Tenth Schedule is destructive of the basic structure of the Constitution as it is violative of the
fundamental principles of Parliamentary democracy, a basic feature of the Indian
constitutionalism
(B) Having regard to the legislative history and evolution of the principles underlying the Tenth
Schedule, Paragraph 7 thereof in terms and in effect, brings about a change in the operation and
effect of Articles 136, 226 and 227 of the Constitution of India and, therefore, the Bill
introducing the amendment attracts the proviso to Article 368(2) of the Constitution and would
require to be ratified by the Legislature of the States before the Bill is presented for Presidential
assent.
(C) In view of the admitted non-compliance with the proviso to Article 368(2) not only
Paragraph 7 of the Tenth Schedule, but also the entire Bill resulting in the Constitution (Fifty-
second Amendment) Act, 1985, stands vitiated and the purported amendment is abortive and
does not in law bring about a valid amendment.
Or whether, the effect of such non-compliance invalidates Paragraph 7 alone and the other
provisions which, by themselves, do not attract the proviso do not become invalid.
(D) That even if the effect of non-ratification by the Legislature of the States is to invalidate
Paragraph 7 alone, the whole of the Tenth Schedule fails for non-severability. Doctrine of
severability, as applied to ordinary statutes to promote their constitutionality, is inapplicable to
constitutional amendments.
(E) That even if Paragraph 7 erecting a bar on the jurisdiction of Courts is held inoperative, the
Courts' jurisdiction is, in any event, barred as Paragraph 6(1) which imparts a constitutional
‘finality’ to the decision of the Speaker or the Chairman, as the case may be, and that such
concept of ‘finality’ bars examination of the matter by the Courts.
(H) That even if Paragraph 7 of the Tenth Schedule is held not to bring about a change or affect
Articles 136, 226 and 227 of the Constitution, the amendment is unconstitutional as it erodes and
destroys judicial review which is one of the basic features of the Constitution.

This extract is taken from Kihoto Hollohan v. Zachillhu, 1992 Supp (2) SCC 651 at page 676
27. Cooley on Constitutional Limitations (8th edn., Vol. I, p. 129) says:
“Upon the adoption of an amendment to a Constitution, the amendment becomes a part thereof; as
much so as if it had been originally incorporated in the Constitution; and it is to be construed accordingly.”

HOW SAJJAN SINGH IS NOT APPLICABLE IN OUR PRESENT CASE

This extract is taken from Kihoto Hollohan v. Zachillhu, 1992 Supp (2) SCC 651 at page 691
61. The propositions that fell for consideration in  Sajjan Singh cases [(1965) 1 SCR 933 : AIR 1965 SC 845]
are indeed different. There the jurisdiction and power of the courts under Articles 136 and 226 were not sought
to be taken away nor was there any change brought about in those provisions either “in terms or in effect”,
since the very rights which could be adjudicated under and enforced by the courts were themselves taken away
by the Constitution. The result was that there was no area for the jurisdiction of the courts to operate upon.
Matters are entirely different in the context of Paragraph 7. Indeed the aforesaid cases, by necessary
implication support the point urged for the petitioners. 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. Indeed this position was recognised in Sajjan Singh case [(1965) 1 SCR 933 : AIR 1965 SC
845] where it was observed: (SCR p. 944)
“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.”

However, Madan Lokur J, in the NJAC judgment, correctly clarified that the Kesavananda

Bharati case did not propound the abrogation test, but rather propounded the ‘alteration test’. He
observed, “the Bench that decided Kesavananda Bharati were of the opinion that it is enough to
declare a constitutional amendment as violating the basic structure if it alters the basic
structure. Undoubtedly, some of the learned judges, have used very strong words in the course of
their judgment, etc.  But when it came to stating what is the law actually laid down, the
majority decided that “Article 368 does not enable Parliament to alter the basic structure
or framework of the Constitution” (Paragraph 797). The reading down of the NJAC
amendment was primarily because of the substitution of alteration test in place of the abrogation
test.