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Indian Constitutional Law and Philosophy

Category: Federalism

Guest Post: In Re Article 370 and Problems of Federalism

JULY 13, 2023GAUTAM BHATIALEAVE A COMMENT

[This is a guest post by Jai Brunner.]

[Editorial Note: The present editor represents some of the petitioners in the In Re:
Article 370 case, which is set down for hearing from August 2, 2023.]
In In Re: Article 370, the Supreme Court will have the opportunity to not only rule on the
amendments to Article 370, but also determine the constitutionality of the Jammu and
Kashmir Reorganisation Act, 2019. Much has already been written about whether the
Centre’s indirect abrogation of Article 370 is constitutional (see the excellent pieces on
this blog here, here, here and here). Less attention has been paid to the
Reorganisation Act. Whether the Union Parliament has the power to abolish a State and
divide it into two Union Territories, has crucial implications for India’s federal
arrangement. Article 1(1) of the Constitution states that “India, that is Bharat, shall be
a Union of States”. If Parliament has the unrestricted power to destroy any State, then
we might ask, can it simply convert India into a unitary state (i.e., on the lines of this
case, a “union of union territories”)?

In this brief blogpost, I would like to tackle this issue by asking: is there any implied
restriction in Article 3 on the Union Parliament’s power to alter the boundaries of
existing States? Does this power extend to abolishing States entirely? The plain text of
Article 3 never expressly uses words such as abolish, destroy, or extinguish. Article 3(a)
does say that Parliament “may by law…form a new State by…uniting two or more
States”, which implies that these two former States would be destroyed. Thus, a literal
reading of Article 3 suggests that Parliament is vested with some power to enact laws
that abolish States. Whether this power is unfettered is the contentious question. If there
are no restrictions, then the Union Parliament could simply abolish India’s federal
structure without even passing a constitutional amendment. Parliament could pass a
law under Article 3 abolishing all States and, as per Article 4(2), this would not amount
to a constitutional amendment. Surely this is impermissible, given that the Supreme
Court has held that federalism is a basic feature of our Constitution (e.g. see SR
Bommai), implying Parliament can never reduce India to a unitary state, not even via a
constitutional amendment.

It is highly unlikely that the Supreme Court would uphold a law passed under Article 3
that abolishes all States. However, we are still left with the question of whether
Parliament can destroy a single State, such as Jammu and Kashmir (“J&K”). In what
follows I will examine the landmark case West Bengal v. Union of India (1963), which
appears to advance a case for upholding the 2019 Reorganisation Act. I will attempt to
show that West Bengal has, in truth, very little bearing on the present controversy.
Turning to the Supreme Court’s jurisprudence on federalism, I will show how the
petitioners in In Re: Article 370 could challenge the constitutionality of the 2019 Act.

Contextualising West Bengal v. Union of India

In the landmark judgment on Union-State relations in West Bengal v. Union of India

(1963), the Supreme Court observed that Parliament has “wide power” to “alter the
boundaries of States, and even to extinguish the existence of a State”. Authoring the
majority opinion, Chief Justice BP Sinha observed that Parliament has the power under
Article 3 to “alter the boundaries of any State”, including diminishing “its area so even to
destroy [it]”. Nevertheless, writing in 2016, eminent jurist MP Singh concluded that “it
does not even seem to be a theoretical possibility” that Parliament could “put out of
existence” a State (Mahendra Pal Singh, “The Federal Scheme” in The Oxford
Handbook of the Indian Constitution [OUP 2016]). So, why does West Bengal set such
a weak precedent for arguing that Parliament can freely abolish States?

Firstly, it is crucial to recognize that CJI BP Sinha did not make these observations
while ruling on the correct interpretation of Article 3. The controversy in West Bengal
had nothing to do with diminishing West Bengal’s boundaries. The Court was deciding if
the Union could unilaterally acquire coal bearing areas owned by West Bengal. CJI BP
Sinha made his observation that Parliament may “extinguish the existence of a State” in
the context of rejecting West Bengal’s argument that it enjoyed absolute sovereignty
over its property. Thus, we should view CJI BP Singh’s observations on Article 3 as
obiter, i.e. non-binding (as Jahnavi Sindhu and Vikram Aditya Narayan have argued
here).
Furthermore, a careful reading of Chief Justice BP Sinha’s observations, reveals that he
never expressly states that there cannot be implied restrictions on Parliament’s power to
destroy states. He merely observes that States enjoy “no constitutional guarantee
against alteration of the boundaries of States”. He never goes on to say that this lack of
constitutional guarantee extends to instances where a State is abolished.

Finally, one cannot apply West Bengal to the context of J&K, without acknowledging the
(former) special status of the State. In his majority opinion, CJI BP Sinha largely ignores
the asymmetric features of Indian federalism. CJI Sinha generalizes that India lacks the
features of a “truly federal form of Government”. To demonstrate this, he says that the
Indian Constitution is not an “agreement between independent and sovereign units to
surrender partially their authority in their common interest and vesting it in a Union” –
instead, the Indian Union was formed when sub-units “constituting a unitary State [in
British India] which were non-sovereign were transformed by abdication of power into a
Union”. To buttress this further, he says that in a truly federal arrangement “each
constituent unit [ordinarily] has its separate Constitution by which it is governed in all
matters except those surrendered to the Union” – Indian States of course do not have
their own constitutions. While CJI Sinha is broadly correct, he ignores the exception
created by the former State of Jammu & Kashmir. Not only did it have its own
Constitution, but it was also a sovereign and independent State that partially
surrendered its authority to join the Union, as is evidenced by the Instrument of
Accession. Article 370 of the Indian Constitution expressly recognized this special
status of J&K. What CJI Sinha ignores is that Indian federalism is asymmetric. The
“Indian Constitution grants differential rights to certain States” (Louise Tillin,
“Asymmetric Federalism” in The Oxford Handbook of the Indian Constitution [OUP
2016] chpt. 30). Thus, we cannot blindly apply CJI Sinha’s observations in West Bengal
to J&K, given that J&K enjoyed special federal status.

Federalism restricts Parliament?

As is well-known, Parliament cannot enact any law that abrogates the basic structure of
the Constitution (see Kesavananda Bharati). The Supreme Court has repeatedly
recognized that federalism is a basic feature of the Indian Constitution, most famously in
SR Bommai. Federalism necessarily requires that sovereign powers be distributed
between the Union and the States. What this implies is that Parliament cannot enact
laws that entirely abolish the sovereignty of States. Let us examine whether it follows
that there ought to be an implied restriction on Parliament’s powers under Article 3.

Recently, in Gov’t of NCT Delhi v. Union of India, the Supreme Court clarified the
nature of Indian federalism, while holding that the NCT Government has control over
Delhi’s civil servants, rather than the Union. Authoring the judgment, Chief Justice DY
Chandrachud observed that “any federal Constitution, at a minimum”, requires “two sets
of government operate”. Such a model vests a minimum amount of sovereignty in the
States. This is reflected in Dr. B.R. Ambedkar’s observations in the Constituent
Assembly Debates, cited by CJI Chandrachud: “…Dual Polity under the proposed
Constitution will consist of the Union at the Centre and the States at the periphery
each endowed with sovereign powers…” (CAD 4 Nov 1948, 7.48.202). Inherently, if
States enjoy sovereignty vested in them by the People, then the Union cannot have
absolute power to extinguish them.

The State of J&K enjoyed even more autonomy than other States. The Instrument of
Accession, whereby J&K acceded to the Union of India, specifies that J&K does not
accept to be entirely subject to the Constitution of India. Further, the Schedule to the
Instrument clearly delineates the limited domains in which the Union Parliament is
competent to make laws for J&K – defence, external affairs, communications, and
certain ancillary matters – which is further cemented by (unamended) Article 370(1)
(b). Since the State of J&K entered the Union on the condition that it retain a minimum
amount of sovereign autonomy, it follows that the Union Parliament cannot enact an
ordinary law under Article 3 that entirely strips J&K of this sovereign autonomy.
Canvassing other case-law

In my view, the petitioners in In Re: Article 370 have a strong case to argue that
federalism imposes an implied restriction on Parliament’s power to alter States under
Article 3, preventing Parliament from destroying States entirely. However, they may
have to work hard to convince the Court, as the existing case-law on Article 3 grants
very expansive powers to the Union Parliament under Article 3. They will have to show
that while Parliament may have expansive powers, these powers are nevertheless not
absolute.

I have already addressed the six-judge bench ruling in West Bengal. While the Court did
observe that Parliament may abolish States, this observation was arguably obiter.
Further, the observation does not necessarily commit CJI BP Sinha to the view that
there are no restrictions on Parliament’s power to abolish. Lastly, West Bengal cannot
be blindly applied to J&K, given its (former) special constitutional status.

The other landmark judgment on Article 3 is Babulal Parate v. State of Bombay,

delivered by a three-judge bench of the Supreme Court. Babulal Parate merely
confirms the vast power of the Union Parliament under Article 3 and offers no specific
ruling on the abolishment of States. The Bench clarified the meaning of the Proviso to
Article 3. While the Union must give the State Legislature an opportunity for “expressing
its views” on any alteration to the area/boundary/name of the State, the Parliament is
not legally bound by this advice. The Court has re-affirmed this position in Pradeep
Choudhary. Hence, we may conclude that merely because a State objects to being
abolished, this objection will not restrict Parliament’s law-making powers. However, it
does not follow that there are no other restrictions on Parliament’s powers under Article
3 – and, as I have argued above, the basic feature of federalism ought to impose one
such restriction.

Finally, the petitioner may have to address the precedent set by Mullaperiyar
Environmental Protection Forum. In Mullaperiyar, a three-judge Supreme Court
bench held that “law-making power under Articles 3 and 4…is not subjected to or
fettered by Article 246 and Lists II and III of the Seventh Schedule”. In short, one cannot
challenge the legislative competence of Parliament to enact a law under Article 3 with
reference to the Seventh Schedule. The respondents in In Re: Article 370 may seek to
use this precedent to buttress the view that other provisions of the Constitution cannot
restrict Parliament’s power under Article 3. It should be relatively easy for the petitioners
to counter. Firstly, the argument that the basic feature of federalism restricts
Parliament’s power under Article 3, does not stem from any specific constitutional
provision, but rather emerges from the structure of the Constitution as a whole.
Parliament cannot enact any law that abrogates this basic structure of the Constitution.
Secondly, Mullaperiyar is a weak precedent, which may need to be revisited – it has
been contradicted by the two-judge bench judgment in Himachal Pradesh v. Union of
India (2011): “under Article 3, Parliament cannot take away the powers of the State…in
respect of matters enumerated in List II”.

The Supreme Court will hopefully resolve many of these issues when it delivers its
judgment In Re: Article 370. It will have the opportunity to delineate the boundaries of
Parliament’s powers under Article 3 and, in doing so, would clarify the nature of Indian
federalism. This would have far reaching consequences not only for J&K, but also for
the future of Centre-State relations for years to come.
The Unconstitutionality of the 2023 Delhi Services Ordinance – II

JUNE 27, 2023GAUTAM BHATIALEAVE A COMMENT

In a previous guest post, Ashwin Vardrajan has argued that the 2023 Delhi Services
Ordinance [“the Ordinance”] – which effectively denudes the Delhi government (and the
Delhi Legislative Assembly) from exercising control over services within the National
Capital Territory – amounts to an “atypical constitutional amendment”, and should
therefore be subject to basic structure scrutiny. While I do not disagree with this
argument, in my view, one does not need to travel as far as the basic structure in order
to challenge the Ordinance. I believe the Ordinance is unconstitutional on two grounds:
implied limitations, and manifest arbitrariness.

Implied Limitations

Recall that the the Ordinance was enacted as a response to the Supreme Court’s May
2023 judgment (discussed here), which had held that Entry 41 of List II of the Seventh
Schedule [“Services”] did apply to the NCT of Delhi. In other words, the Delhi legislative
assembly had the competence to legislate on services (and, by extension, the Delhi
government had executive power over services). The Ordinance seeks to undo this
position by stating that the ‘Legislative Assembly [of NCTD] shall have the power to
make laws as per Article 239AA except with respect to any matter enumerated in Entry
41.’

Now, one line of argument – advanced by Manu Sebastian, among others – has
been that the Ordinance is unconstitutional because it directly overrules the Supreme
Court’s judgment, and thus violates the separation of powers. Sebastian’s piece sets
out the argument in its most comprehensive form, and I do not intend to traverse that
territory again. Let us assume for the purposes of argument, however, that that
argument fails, on the basis that – as the Supreme Court itself held – under Article
239AA, Parliament does have the competence to legislate under Entry 41 of List II, and
parliamentary legislation will override any law that the Delhi legislative assembly might
pass, to the extent of inconsistency. On this argument – which is likely to be the Union’s
main argument when – inevitably – this Ordinance is challenged – Parliament has
simply exercised its parallel – and superior – legislative competence under Entry 41 of
List II, to validly exclude the Delhi assembly and government from control over services.

In my opinion, the reason why this argument fails is because of a subtle – but crucial –
distinction between a law that Parliament might make with respect to matters under
Entry 41 in exercise of its own competence (the language of Article 239AA), and a law
that takes away wholesale the Delhi legislative assembly’s competence under Entry 41.
To understand why, consider the design of Article 239AA: it explicitly takes away three
fields of legislation from Delhi under List II: public order, land, and police. For these
three entries, Parliament has exclusive competence to legislate. With respect to matters
under other entries under List II, both Delhi and the union have power to legislate. Now
what the Ordinance does – in effect – is that, through legislation, it adds a whole other
field to the three (public order, land, and police) that have been explicitly excluded – that
is, Entry 41 of List II. In other words, the Ordinance tries to accomplish through ordinary
law-making what was explicitly denied to it by Article 239AA. To repeat: the Ordinance
is not a law passed “with respect to any matter under Entry 41″ (the wording of Article
239AA). The Ordinance is a law that takes away the Delhi Assembly’s competence to
legislate under Entry 41.
It is at this point that the Supreme Court’s rationale underlying its May 2023 judgment
becomes important. Recall that the Court based its interpretation of Articles 239AA and
Entry 41 on the constitutional principles of asymmetric federalism and the “triple chain of
accountability” within representative democracy (civil servants — cabinet —- legislature
— electorate). Insofar as the Delhi assembly’s competence to legislate under Entry 41
flows from these constitutional principles, it places an implied limitation upon
Parliament’s competence to legislate under the same Entry. Of course, Parliament’s
power also flows from a constitutional principle – in this case, the principle of preserving
national interests in the national capital. The question then arises: how are the two to be
balanced? An answer was provided in the landmark UK Supreme Court case of R vs
Miller: namely, when two or more constitutional principles are in conflict, the Court must
interpret their operation so as to ensure that neither destroys the other. In the specific
case before us, if Parliament’s powers to legislate with respect to Entry 41 were held to
extend to denuding the Delhi assembly altogether, then it would violate the
constitutional principles of asymmetric federalism and sever the triple chain of
accountability that is integral to representative governance. If, on the other hand – as
Vardrajan suggests in his blog post – if Parliament’s power was to be limited to passing
specific laws dealing with specific situations under Entry 41 (which, in turn, could be
traced back to the reason why Parliament is granted this power in the first place – i.e.,
preserving the national interest within the capital) – then this reading would reconcile
both constitutional principles, without destroying either.

Manifest Arbitrariness

This leads me to the second argument. If you read through the Ordinance, there is only
one stated rationale for its passage: the need to “balance” the interests of the elected
government of Delhi with national interests in the national capital. What this justification
misses, however, is that this balance has been expressly encoded into the design of
Article 239AA. Article 239AA recognises the need for this balancing. To achieve this – in
the legislative domain – it does two things. With respect to three fields – public order,
land, and police – it takes the fields away from the Delhi assembly wholesale. For all
other fields (and this has now been formally upheld by the Supreme Court), it preserves
the competence of the Delhi Assembly, while also authorising Parliament to pass
legislation under those entries. The rationale for this is obvious: Parliament’s
competence is retained because it may not be possible to foresee all possible situations
that might arise under any of the other entries that might – in concrete terms – implicate
national interests in the national capital.

The Ordinance, however, eviscerates this balance by – as noted above – adding a

fourth field to the three already excluded. Now, whatever the justification for this might
be, what it cannot be is “balancing the interests of the elected government and national
interests in the national capital.” This is because those particular interests have already
been balanced in the constitutional provision itself, by the two-pronged device of
excluding three named fields (and services is not one of them), and preserving parallel
competence in all other unnamed fields. Thus, the exclusion of one of the unnamed
fields (services) is not in aid of the constitutional balance, but rather, undermines it.

One of the circumstances under which a law can be struck down on grounds of manifest
arbitrariness is if it lacks a “determining principle.” The above discussion should make
clear that the Ordinance suffers from precisely this defect. For reasons already
discussed, the determining principle cannot be “balancing of interests.” However, what
is the determining principle then? The Ordinance makes no mention of any other
possible alternative. Indeed, it is quite difficult to see what principle would justify such a
wholesale transfer of power from Delhi to the Union: what national interest is served by
taking control of services wholesale in the national capital? It is submitted that in the
absence of any other possible alternative, the Ordinance must therefore be struck down
on grounds of manifest arbitrariness.

Conclusion
While at first glance the Ordinance seems to trace its legality to Article 239AA, Entry 41
of List II, and the Supreme Court’s 2023 judgment, once you scratch the surface, its
unconstitutionality is evidence. First, the Ordinance is unconstitutional as it traverses
beyond the implied limitations upon the scope of Parliament’s powers under Article
239AA read with Entry 41 of List II, relative to the NCT of Delhi: while Parliament is
competent to pass specific legislation dealing with matters arising out of Entry 41 (which
must, in turn, be traceable to the purpose of preserving national interests in the national
capital, as in doing so, Parliament is overriding the principle of asymmetric federalism
and the triple chain of accountability), it cannot pass a law effectively denuding the Delhi
assembly of its competence to legislate under Entry 41. And secondly, the Ordinance is
manifestly arbitrary: it lacks a determining principle, and the principle it does invoke –
that of balancing interests under Article 239AA – is self-evidently flawed, as the
balancing it seeks to achieve already exists internal to Article 239AA. It ought to be
struck down.

Guest Post: The 2023 Delhi Ordinance, Services, and the Basic Structure
–I

JUNE 9, 2023GAUTAM BHATIA1 COMMENT

[This is a guest post by Ashwin Vardrajan.]

Introduction

On May 11, 2023, the Supreme Court (“SC”) released its decision in Government of
NCT of Delhi v. Union of India [Civil Appeal No. 2357 of 2017] (“May 11 Judgment”).
In this judgment, the SC effectively struck down a notification from 2015 of the Union
Government, which barred the Legislative Assembly and Government of the National
Capital Territory of Delhi (“NCTD”) from exercising control over ‘[state] public services’
under Entry 41, List II of Schedule VII (“Entry 41”) of the Constitution. As summarised
elsewhere, the SC did so because Article 239AA(3)(a) of the Constitution, through its
wording, by default granted the Legislative Assembly and Government of the NCTD to
exercise control over administrative services in its jurisdiction. Additionally, the SC also
justified its reasoning for why Part XIV of the Constitution – dealing with administrative
and civil services in the Union, States and Union Territories (“UTs”) – should apply to
the NCTD by relying on the ‘intrinsic link between government accountability and the
principle of collective responsibility.’ Simply put, civil servants are accountable to the
NCTD Government Ministers, who are in-turn responsible to the NCTD Assembly, and
the Assembly is responsible to the electorate. This chain of accountability is necessary
for the effective operation of the principle of representative democracy manifested in
Article 239AA.
Soon after the May 11 Judgment was pronounced, the Union Government promulgated
the Government of National Capital Territory of Delhi (Amendment) Ordinance,
2023 (“Ordinance”), amending the Government of NCTD Act, 1991 (“Act”), on May 19,
2023. Among other things, the Ordinance has added Section 3A to the Act (“Section
3A”), which states that the ‘Legislative Assembly [of NCTD] shall have the power to
make laws as per Article 239AA except with respect to any matter enumerated in Entry
41’. As has been argued on several fora, the Ordinance seemingly countermands the
May 11 Judgment, and is constitutionally impeachable for that reason (here, here, here
and here) – there exist opposing views as well (here and here).

Broadly, the arguments against the Ordinance are that it overrules the May 11
Judgment, which is otherwise not permissible in our constitutional scheme. But the
defect with this argument is that the SC was only able to allow the NCTD to exercise
authority over Entry 41 because ‘“services” (that is, Entry 41) is not expressly excluded
in Article 239AA(3)(a).’ Moreover, the SC also noted that the ‘intent and purpose of
Article 239AA(3)(b) and Article 239AA(7) is to confer an expanded legislative
competence upon Parliament, when it comes to [Government of NCTD] clearly since it
is the capital of the country and therefore, must be dealt with different considerations.’

To simply argue the unconstitutionality of Section 3A on the grounds that it

countermands the May 11 Judgment fails to sufficiently address the unique
constitutional problem it poses. To this end, this essay demonstrates that Section 3A is
actually an amendment to Article 239AA, and makes a case for why it must be
assessed in accordance with the basic structure doctrine (“BSD”). A caveat here is that
this essay is limited only to the assessment of Section 3A, and no other parts of the
Ordinance.
Amendments other than Article 368 and the BSD

Article 368 is not the only provision dealing with the power and process for amending
the Constitution. Other provisions – such as Articles 4(2), 169(3), 243M(2)(b), 312(4)
etc. – state that a law passed by the Parliament to amend such parts of the Constitution
shall not ‘be deemed to be an amendment under Article 368.’ In this essay, we shall call
them ‘Atypical Amendments’.

The most obvious consequence of stipulations allowing Atypical Amendments is that the
process under Article 368 need not be followed for amending parts of the Constitution
exempted thus. Parliament can pass Atypical Amendments through a simple majority in
both Houses. However, it is not immediately clear whether Atypical Amendments can be
equated with ‘amendments’ under Article 368, as the BSD is otherwise applicable to
‘amendments’ passed under Article 368.

Mangal Singh v. UOI [(1967) 2 SCR 109] is perhaps the first case to opine on this
point. Here, the issue was whether the Punjab Reorganisation Act, 1996 – enacted in
accordance with Articles 2-4 – violated the Constitution for bypassing requirements in
Article 170. In this regard, the SC observed in passing that a law enacted under Article
4(2) ‘is undoubtedly an amendment of the Constitution, [although] no such law which
amends the First and the Fourth Schedule or which makes supplemental, incidental and
consequential provisions is to be deemed an amendment of the Constitution for the
purposes of Article 368.’
However, in Kesavananda Bharati v. State of Kerala [(1973) 4 SCC 225], several
judges arrived at differing opinions on whether Atypical Amendments are substantively
the same as ‘amendments’ under Article 368, thereby being subject to the BSD. The
issues before the SC did not directly deal with whether Atypical Amendments are
subject to the BSD. However, while reasoning what constitutes an ‘amendment’ to the
Constitution, at least eight justices spoke on the nature of Atypical Amendments vis-à-
vis Article 368. Justices Beg (para. 1830), Mathew (paras. 1565-70), Shelat and Grover
(paras. 498, 500(v), 502, 628), Khanna (para. 1439), and Ray (paras. 790, 793 and
842) opined that the difference between ‘amendments’ under Article 368 and Atypical
Amendments is simply one of form and not substance – i.e., all are constitutional
amendments, and only the method of enacting them is different.

On the other hand, Justices Hegde and Mukherjea (paras. 627-28) opined that Atypical
Amendments are passed like any other ordinary law (i.e., with a simple majority in the
Parliament), and that they have been consciously distinguished from ‘amendments’
under Article 368. Therefore, ‘[once] this position is accepted, any law made under
those provisions takes the character of an ordinary law and that law becomes subject to
the other provisions of the Constitution including Article 13(2).’ In other words, for them,
Atypical Amendments are not subject to the BSD, and must be treated like ordinary
laws subject to the provisions of the Constitution.

While Kesavananda suffers from the confusions caused by polyvocality of opinions,

clarity was brought on this point by the Patna High Court (“HC”) in Amendra Nath v.
State of Bihar [AIR 1983 Pat 151]. Among other things, it was argued before the HC
that the Fifth Schedule to the Constitution (Amendment) Act, 1976 – enacted under
Paragraph 7 of the Fifth Schedule (comprising an Atypical Amendment clause) –
violated Article 14 of the Constitution. Rejecting this argument, the HC relied on this
opinion of Shelat and Grover JJ. in Kesavananda:
It appears that the statement in the articles and provisions containing the amending
power other than Article 368 that any amendment made under those articles would not
amount to an amendment under Article 368 merely embodied the distinction
emphasised by Dr B.R. Ambedkar that one category could be amended by the
Parliament by a bare majority and all the other articles could be amended by the said
body but only by following the form and manner prescribed by Article 368.

According to the HC, these were ‘not […] mere incidental and casual observations
which are not binding.’ Moreover, the HC pointed out that notwithstanding
Kesavananda, the observations in Mangal Singh still hold good. The HC eventually
ruled that an Atypical Amendment is substantively the same as ‘amendments’ under
Article 368, and proceeded to decide on merits whether the 1976 Amendment violated
the BSD.

A combined reading of Mangal Singh, Kesavananda and Amendra Nath leads to the
conclusion that Atypical Amendments can be equated to ‘amendments’ under Article
368, and, thus, are subject to the BSD.

Section 3A as an Atypical Amendment

Under Article 239AA(7) the Parliament is empowered to amend any part of Article
239AA. Such a law, as per Article 239A(7)(a), must be of a nature ‘giving effect to, or
supplementing the provisions contained [Article 239AA] and for all matters incidental or
consequential thereto’. Article 239AA(7)(b) deems any law passed under Article
239AA(7)(a) as an Atypical Amendment.

To this end, one of the recitals of the Ordinance reads as follows:

AND WHEREAS for the purpose giving effect to Article 239(1) read with Article 239AA
and in exercise of powers of Article 239(1), Article 239AA[3][b] and Article 239AA[7] of
the Constitution of India, which includes the power to supplementing the provisions
under Article 239AA including the power to make suitable amendments thereof, an
Ordinance namely the Government of National Capital Territory of Delhi (Amendment)
Ordinance, 2023 is proposed…

A ‘supplement’ may be defined as ‘a thing added to something else to…complete it’, or

which supplies ‘something additional’.* Article 239AA(3)(a) defines the legislative
competence of the NCTD Assembly, and explicitly excludes, inter alia, Entries 1, 2 and
18 of List II thereof. What Section 3A also does is change the scope of the NCTD
Assembly’s competence by further excluding Entry 41 from its fold, as opposed to
simply overriding existing laws application in the region (in which case, the rule of
repugnancy under Article 239AA(3)(c) would apply). Thus, Section 3A acts as a
‘supplementing’ provision to the authority (i.e., legislative competence) of the NCTD
Assembly defined under Article 239AA(3)(a), albeit in a negative sense.

At this juncture we must note that the Ordinance is an ordinary law, and not a
constitutional amendment passed like an ordinary law. Article 239AA(7)(b), however,
includes within its fold Atypical Amendments which have the ‘effect of amending’ Article
239AA. To buttress how Section 3A has the ‘effect of amending’ Section 239AA, the
SC’s decision in UOI v. Rajendra Shah [2021 SCC OnLine SC 474] is useful. Here, the
SC decided on whether Part IX-B of Constitution violated the mandatory process of
ratification enumerated in the proviso to Article 368(2). Interpreting the term ‘change’
appearing in the said proviso, the SC opined that sometimes amendments to one part of
the Constitution have a colourable effect on other parts. Such ‘changes’ were termed as
‘changes-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…in some significant way.’ As opposed to an explicit alteration, any law
which has the ‘effect of amending’ Article 239AA too must be construed as an Atypical
Amendment under Article 239AA(7)(b). In any case, Atypical Amendments can be
passed as ordinary laws (such as laws to reorganise Indian States under Article 4).
Given that the competence of the NCTD Assembly should ordinarily be altered via an
actual constitutional amendment to Article 239AA(3)(a), the Ordinance uses Article
239AA(7) by inserting Section 3A into the Act to cause the ‘effect of amending’ Article
239AA(3)(a) (as shown above).

For such reasons, Section 3A is an Atypical Amendment under Article 239AA(7). As

opposed to an ordinary law, thus, it can only be challenged for being in violation of the
BSD.
Conclusion

What, then, would be the most appropriate grounds for challenging Section 3A? Recall
that in the May 11 Judgment, the SC had used the principle of ‘triple chain of
accountability’ to justify why the Government of NCTD be allowed to exercise control
over ‘services’ in accordance with Part XIV of the Constitution. According to the SC, ‘[in]
order to ensure that the functioning of the government reflects the preferences of the
elected ministers, and through them the will of the people, it is essential to scrutinize the
link of accountability between the civil service professionals and the elected ministers
who oversee them.’ In the absence of a link between the two, there arises a ‘possibility
that the permanent executive, consisting of unelected civil service officers, who play a
decisive role in the implementation of government policy, may act in ways that
disregard the will of the electorate’.

Moreover, Article 239AA(2) states that there ‘shall’ be a Legislative Assembly in the
NCTD, as opposed to other UTs which ‘may’ or may not have Assemblies (see, Articles
239 and 239A). This makes NCTD a sui generis federal unit, similar to Indian States,
whereby the Government of NCTD is to be treated ‘as a representative form of
Government.’ By completely discounting the need of the Government and Assembly of
NCTD for possessing control over Entry 41, the principle of ‘republican and democratic
form of Government’, which forms a part of the BSD, stands prima facie violated.

But by way of this conclusion, does it mean the Union Government and Parliament –
which at any rate possess constitutional authority to override the Government of NCTD
under Article 239AA – are completely barred from exercising control over Entry 41? Any
blanket restriction on either the Union or the NCTD (as Section 3A does) is going to
help neither. The most appropriate way, therefore, will be that the Government and
Assembly of NCTD exercise control over Entry 41 by default, and the Union utilise
Articles 239AA(3)(b)-(c) (which govern repugnancy between Union and NCTD laws) to
override NCTD laws in such matters in appropriate cases. That way, the interests of the
Union in the national capital, and that of the Government of NCTD as a ‘representative
form of Government’, will be balanced and safeguarded.

* Black’s Law Dictionary (Bryan Garner Ed., 2009), p. 1577; Pocket Oxford English
Dictionary (2013), p. 922.

At the Third Time of Asking: Federalism, the Centralising Drift, and the
Supreme Court’s Judgment in NCT of Delhi vs Union of India (2023)
MAY 11, 2023GAUTAM BHATIA4 COMMENTS

In 2015, a notification issued by the Union Government sparked an eight-year-long

legal battle between the national capital territory of Delhi and the Union of India.
Through this notification, the union government sought to take control over the question
of ‘services’ (i.e., the administrative and civil services) with respect to the governance of
Delhi. The basic rationale of this notification was that Article 239AA of the Constitution
granted to the legislative assembly of Delhi the power to make laws with respect to the
legislative fields under Lists II and III of the Seventh Schedule “in so far as any such
matter is applicable to Union territories“, and specifically excluding entries 1, 2, and 18
of the State List (i.e., public order, police, and land). Entry 41 of List II (“the State List”)
refers to “State public services” and “State public service commission.” The Notification
argued, however, that Entry 41 was inapplicable to Delhi, as there was no such thing as
a Delhi Public Services Commission, and that in any event, service cadres for union
territories were under the control of the central government. On this basis, it justified
explicitly placing Delhi’s administrative and civil service officers under the control of the
union government.

The Delhi government challenged this – and another notification – before the Delhi High
Court, and lost. It went up in appeal to the Supreme Court, where a two-judge bench –
while hearing the case – decided that a larger bench was required to lay down the
constitutional principles with respect to the relationship between the NCT of Delhi and
the Union of India (for an analysis of the issues, see this three-part series by Vasudev
Devadasan, here, here, and here). A five-judge bench was constituted, and delivered
judgment (in 2018), effectively holding that Article 239AA of the Constitution
guaranteed legislative and executive power to the NCT of Delhi in certain specified
domains, and with respect to those domains, the Lieutenant-Governor (i.e., the centre’s
appointee) was ordinarily bound by the “aid and advice” of the Delhi cabinet (for an
analysis of the judgment, see here and here). However, in a bizarre turn of events,
when the matter was sent back to the two-judge bench to decide the concrete issues
(such as control over services), the two judges – who had been part of the five-judge
bench – split, and delivered conflicting judgments on the issue of services (in 2019).
This was then sent to a three-judge bench to resolve. Before the three-judge bench, the
Union of India argued – among other things – that the 2018 five-judge bench had not
interpreted the meaning of the phrase “in so far as any such matter is applicable to
Union Territories”, when specifying the legislative competence of Delhi with respect to
fields under List II of the Seventh Schedule. The resolution of this question then led to
the constitution of another five-judge bench which – finally – heard the case in late
2022, and delivered its judgment today. In a unanimous opinion – authored by Chief
Justice Chandrachud – the Constitution Bench decided in favour of the NCT of Delhi,
holding – quite categorically – that the Delhi government did have the competence to
legislate on “services” under Entry 41 of List II, and therefore – by extension – executive
control over services.

Before we examine the Constitution Bench’s judgment, it is worth noting one thing: the
Constitution Bench observed – and in my view, correctly – that the issues agitated
before it had already been settled by the 2018 judgment. This, however, raises the
following question: why then did it need another Constitution Bench to reiterate what
had already been decided just five years ago, in a case on the same issue between the
same parties? What does this say, in particular, about the judgment of the (now-retired)
Justice Ashok Bhushan, who purported to write a concurring opinion while sitting in the
Constitution Bench in 2018, but then – according to today’s judgment – when sitting in a
two-judge bench only a few months later, misinterpreted not only the majority 2018
opinion, but even his own concurring opinion, to deny control over services to the Delhi
government? In a piece on this issue, I have pointed out (a) that what Justice Bhushan
effectively did in 2018 was to write a dissent masquerading as a concurrence; (b) that
the majority opinion – authored by the-then Chief Justice Dipak Misra – was written in
such a fuzzy way, that it left open wide gaps that allowed Justice Bhushan to effectively
further entrench his disguised dissent and write his split 2019 opinion, all the while
appearing to only “interpret” the 2018 judgment; and (c) that the effective result of all of
this was five years of limbo that benefited one party – the union government – who was
able to continue effectively controlling the services while the case rumbled on in court
(see “Judicial Evasion, Judicial Vagueness, and Judicial Revisionism: A Study of
the NCT of Delhi vs Union of India Judgment(s)“). Understandably, today’s judgment
does not dwell on Justice Bhushan’s 2019 opinion; and – to its credit – today’s judgment
is written clearly and categorically enough to preclude further litigation, at least on this
point. The 2018-2023 period now belongs to the history books, but it is still worth asking
how the union government was able to drag on a case in the Supreme Court for five
long years, even after it had – evidently – “lost” the first time around.
Be that as it may, today’s judgment repays close study. At the heart of the dispute lay a
set of constitutional silences and ambiguities. Textually, there are two ways to
understand the phrase “in so far as any such matter is applicable to Union Territories”
that is found in Article 239AA(3). The first is that Lists II and III have certain matters that
are applicable to Union Territories, and certain matters that are not. Whether a
particular entry applies to a UT or not depends on a case-by-case analysis, looking at
factors such as the union government’s interest, and so on (the “exclusionary reading”).
But the second reading – the “inclusionary reading” – is that the phrase presumptively
makes available to the Union Territory all the entries in the Lists (other than those
expressly excluded – public order, police, land, and parts of certain related entries), and
is needed in order to avoid the cumbersome exercise of amending all the entries in the
Lists that presently use the word “state”, in order to make them apply to the NCT of
Delhi.

It will be seen that purely textually, the phrase is open to both readings. Which reading
is to be preferred, therefore, depends on the interpretive principles brought to bear by
the Court. Chandrachud CJI articulates two such principles: asymmetric federalism
(para 40) and representative democracy (para 63). Asymmetric federalism refers to the
principle that in a diverse and heterogenous country, different federal units can have
different forms of relationship with the centre. Chandrachud CJI invokes the principle of
asymmetric federalism for two purposes: first, to clarify that not all union territories are
the same, and to justify Delhi’s sui generis status; and secondly, to nest this within the
broader idea of federalism, where – despite the Indian Constitution’s “centralising
drift“, the sovereign powers of the states in their own domains are to be respected.
Representative democracy refers, of course, to the principle that legislators ought to be
(effectively) accountable to their electors, and – correspondingly – that electors ought to
have an (effective) say in who governs them. Chandrachud CJI thus holds that where
there is a constitutional silence or ambiguity – where, in other words, a provision (such
as Entry 41) can have two possible interpretations – the reading that advances the
principles of federalism and representative democracy is to be preferred. In the case of
the phrase “in so far as any such matter is applicable to Union Territories”, this is clearly
served by the inclusionary reading over the exclusionary reading.
An important corollary follows. The union argued that the exclusionary reading was to
be preferred as the central governments had vital interests in the national capital. The
use of the interpretive principles referred to above allows the Court to hold, however,
that that balancing of interests has already been provided for under Article 239AA, and
does not further require the Court to interpret a constitutional silence in favour of the
union government. Some of the elements of this balance include, for example, that in
the case of Delhi, the Parliament has overriding powers to legislate with respect to both
Lists II and Lists III; the power of the LG to refer disagreements to the President, and so
on. In other words, the Court holds that the carefully-crafted scheme of Article 239AA
already reflects a balance of interests, and that therefore, when interpreting the text, the
centre’s interests do not need to be – in a sense – “double-counted”. Rather, the
constitutional values of federalism and representative democracy drive at the opposite
reading.

This interpretive approach then returns in the second, crucial part of the judgment.
Services under the Constitution are dealt with under Part XIV. Part XIV refers to
“services under the Union and the states”, and once again, the union government
jumped upon the linguistic ambiguity to argue that, in the context of Part XIV, ‘states’ did
not include ‘union territories.’

Chandrachud CJI resolves this ambiguity by referring to another constitutional principle:

the ‘triple chain of accountability’, and the role of civil servants in a cabinet form of
government. This triple-chain goes: civil servants are accountable to the cabinet, the
cabinet is accountable to the legislature, and the legislature is accountable to the
electorate (paragraph 106). An interpretation of the Constitution that severs this chain
is to be rejected: and indeed, depriving the elected Delhi government of control over the
services would amount to exactly such a severance – because – to come back to the
principles of federalism and representative democracy – the NCT of Delhi is a federal
unit within the whole (paragraph 108). The severance, thus, flows from the fact that
granting the union government control over Delhi’s service cadres would be granting
control at the wrong level of authority (central, not federal), and therefore distorting the
flow of accountability (paragraph 111). What we have, therefore, is a seamless a
analytical web, where the strands of federalism, asymmetric federalism, representative
government, and chains of accountability mutually reinforce each other, and constitute
the interpretive framework within which the Court provides concrete readings of
constitutional provisions such as Part XIV and Entry 41 of List II (in particular, granting
an inclusive meaning to “state”, based on the General Clauses Act) (see paras 122 –
137).

The Court therefore concludes by holding categorically that:

The legislative and executive power over services such as Indian Administrative
Services, or Joint Cadre services, which are relevant for the implementation of policies
and vision of NCTD in terms of day-to-day administration of the region shall lie with
NCTD. Officers thereunder may be serving in NCTD, even if they were not recruited by
NCTD. In such a scenario, it would be relevant to refer, as an example, to some of the
Rules, which clearly demarcate the control of All India or Joint-Cadre services between
the Union and the States. NCTD, similar to other States, also represents the
representative form of government. The involvement of the Union of India in the
administration of NCTD is limited by constitutional provisions, and any further
expansion would be contrary to the constitutional scheme of governance … we
accordingly hold that references to “State Government” in relevant Rules of All India
Services or Joint Cadre Services, of which NCTD is a part or which are in relation to
NCTD, shall mean the Government of NCTD. (paragraphs 160 – 161)
The judgment, thus, is a valuable case study of how constitutional principles can be
deployed in concrete cases. It is also important for another reason: as I have argued
elsewhere, cases on federalism can be grouped into two categories. Many cases
espouse what a “centralising approach”, where the existence of a “skew” within the
Constitution in favour of the centre is taken as justification for interpreting constitutional
silences further in favour of the centre (State of West Bengal vs Union of India is a
classic example of this). But there is also a line of cases that espouse a “federalising
reading”, where the existence of explicit provisions favouring the centre is taken as
ground for refraining to allow any further, unwritten encroachment. I have argued that
the federalising approach is far more preferable, as it avoids excessive centralisation of
power – the “centralising drift” (a term also used by CJI Chandrachud in the judgment)
in a Constitution that is already unbalanced. Today’s well-reasoned judgment adds to
that valuable tradition of Indian constitutional jurisprudence, and provides a platform to
build from.

As for the long-suffering government of the NCT of Delhi: it happened at the third time
of asking – but it did happen at last!

Guest Post: Judicial Review of Governors’ Delay in Assenting to Bills –

a Response

MARCH 11, 2023GAUTAM BHATIA2 COMMENTS

[This is a guest post by Paras Khetan.]

One of the most crucial functions of the Governor is to give his assent to state Bills. This
power is derivable from Article 200 of the Constitution. Recently, the governors of
different states such as Kerala, Tamil Nadu, and Chhattisgarh have withheld their
assent to their state’s bills. This was also followed by the Chhattisgarh HC seeking the
Governor’s reply over the delay in passing a Bill. This was later stayed by the Court
itself. The Telangana government has also moved the Supreme Court over the delay in
the governor’s assent to Bills. These recent events indicate the high stakes involved in
the Governor’s withholding of assent.

Various Commissions like the National Commission to Review the Working of the
Constitution and the Puncchi Commission have called for constitutional amendments
to prescribe a time limit by which the Governor has to give his assent. However, no
action has been taken in furtherance of these recommendations. The failure of
legislative intervention necessitates judicial intervention by laying down standards to
ensure that the Governor assents to the Bill.
This essay argues for the need to lay down judicially manageable standards of review
for the Governor’s power to withhold assent. It suggests the possible standard for
review that can be used by the judiciary. It also tackles the presence of Article 361
(personal immunity of the Governor) as a barrier to judicial review.

Article 200: Power to Withhold Assent and the Need for Judicial Review

Article 200 of the Constitution envisages four different options available to the Governor
when presented with a Bill for his assent. The governor could assent to the Bill, withhold
assent to the Bill, reserve the Bill for the consideration of the President, or return the Bill
to the State Legislature for reconsideration. The provision does not indicate any time
restraint within which the governor should choose either one of the options. The only
guidance provided to the governor is to return the Bill to the State Legislature for
reconsideration “as soon as possible”. The Court in Purshothaman v State of Kerala
expressed the view that the phrase “as soon as possible” is limited to returning the Bill
and cannot be interpreted as applying to the other three options (including withholding
assent). Therefore, there is absolutely no limitation to the power of the Governor to
withhold assent.

Additionally, the power to withhold assent has been classified as the governor’s
discretionary power in Nabam Rebia v Deputy Speaker. This implies that the governor
is not bound by the aid and advice of the council of ministers under Article 163 of the
Constitution. In a previous blog post, the ambiguity in this proposition is brought to
light where various high court decisions have conflated the powers of the president and
the governor to hold that governor’s discretionary powers are limited in the same
manner as the President’s. However, it is respectfully argued here that there remains no
ambiguity with respect to the power to withhold assent due to the decision of the
Supreme Court in Nabam Rebia. The Court, here, relied on the Puncchi Commission
Report and held that:

….The Governor’s discretionary powers are the following: to give assent or withhold or
refer a Bill for Presidential assent under Article 200;…… We are of the considered view,
that the inferences drawn in the Justice M.M. Punchhi Commission report extracted
hereinabove, are in consonance with the scheme of the functions and powers assigned
to the Governor, with reference to the executive and legislative functioning of the State,
and more particularly with reference to the interpretation of Article 163. We endorse and
adopt the same, as a correct expression of the constitutional interpretation, with
reference to the issue under consideration. (Emphasis mine)

Thus, the power to withhold assent falls under the discretionary powers of the governor.

Therefore, the above indicates that the governor (a non-democratic authority) has
unbridled power to withhold assent and can stifle crucial state legislations. This offends
the principles of parliamentary democracy and responsible government which have
been held as the guiding lodestars while interpreting the provisions of the Constitution
by various judicial pronouncements such as Samsher Singh v State of Punjab and
UNR Rao v Indira Gandhi respectively. This is also a part of the larger paradigm of
legislative-executive tussle (state legislature vs governor) and executive
aggrandizement (increasing power with the executive branch of the government).

Accordingly, there is a pressing need for judicial review of the governor’s power of
withholding assent. Judicial review would help in alleviating the problems identified
above by restricting the unbridled powers of the governor.

Possible Barriers to Judicial Review

There are two possible barriers to the possibility of judicial review of the governor’s
power to withhold assent. One is the personal immunity of the governor under Article
361 and the second is the absence of any “judicially discoverable and manageable
standards”.

Article 361: Personal Immunity of the Governor

Article 361 of the Constitution provides personal immunity to the governor from being
answerable to any court for the exercise of his powers and duties. The Court in
Rameshwar Prasad v Union of India has unequivocally held that A.361 provides
absolute personal immunity to the governor. The Court emphasised that even a notice
cannot be issued to the governor to act in a particular way. In fact, the Chhattisgarh HC
recently stayed its order seeking a reply from the governor over the delay in assent due
to the presence of Article 361.

However, this immunity to the governor should not act as a bar to judicial review of the
governor’s power to withhold assent. The Court in Rameshwar Prasad brought in an
important distinction between judicial review of the “actions” of the governor as opposed
to holding the governor himself liable. The Court held that:

The personal immunity from answerability provided in Article 361 does not bar the
challenge that may be made to their actions. Under law, such actions including those
actions where the challenge may be based on the allegations of malafides are required
to be defended by Union of India or the State, as the case may be. (Emphasis mine)

The withholding of assent can be construed as an “action” by the governor or “actions”

can be extended to include “inaction” of the governor. Either way will allow the court to
judicially review the power to withhold assent. This may materialize in the form of a
deemed assent since the court cannot direct the governor to act in a particular manner.
Absence of Judicially Manageable Standards

There has been little attempt to define the term “judicially manageable standards”.
However, essentially, they are understood as those standards that the courts can
legitimately employ to achieve a particular legal outcome that is closely related to the
constitutional norm itself. The absence of judicially manageable standards is used to
term the issue as a “political question” and hence outside the scope of judicial review.
RH Fallon observes that judicial manageability is largely dependent on whether the
future courts can consistently and predictably apply the particular standard. As will be
seen later in the piece, the standard proposed for judicial review would fulfil this
requirement for being termed as a “judicially manageable standard”.

Additionally, the Court in RC Poudyal v Union of India held that the mere fact that a
particular provision of the Constitution may not allow for judicially manageable
standards is not sufficient to bar judicial review. Recently, in Shivraj Singh Chouhan v.
M.P. Legislative Assembly, the Court rejected the argument that the Court “should be
wary of entering the ‘realm of politics’ where no ‘judicially manageable standards’ can
be maintained”. Therefore, even if the proposed standard for judicial review is not
judicially manageable, it would not act as a bar to judicial review.

The conclusion that there is no bar to judicial review of the governor’s power to withhold
assent also flows directly from other judicial pronouncements as well. The Court in
Samsher Singh v State of Punjab held that the refusal of assent by the President and
the Governor would be unconstitutional. It observed:
We have no doubt that de Smith’s statement (1) regarding royal assent holds good for
the President and Governor in India: “Refusal of the royal assent on the ground that the
monarch strongly disapproved of a bill or that it was intensely controversial would
nevertheless be unconstitutional… “. (Emphasis mine)

In Nabam Rebia, the Court held that the discretionary powers of the governor are
amenable to judicial review. It also observed that the power to withhold assent is a
discretionary power of the governor. This implies that the power to withhold assent is
subject to judicial review. Therefore, by necessary implication, this implies that it is
possible to lay down a judicially manageable standard for judicial review regarding the
same.

Standard of Judicial Review

After having established that it is possible to lay down a standard for judicial review, this
section would lay down the standard of review that should be adopted by the Court.
In a recent Madras High Court case of S. Ramakrishnan v State of Tamil Nadu, the
Court tried to hold the governor accountable for withholding his assent to a medical
admissions Bill. The Court laid down a ‘public interest test’ to hold that the governor
may be compelled to provide his assent in certain situations. The Court completely side-
lines the issue of gubernatorial immunity under A.361 and holds that:

When situation changes and present kind of situation arises, a different approach has to
be taken by the Courts in the interest of the Public. It is well settled law that
“Extraordinary situation requires extraordinary remedies”. When public interest requires,
this Court has to do its constitutional duties and to address the situation.

Even though the Court ultimately holds that such a situation did not arise in the present
case, it has set up a dangerous precedent which might open up a pandora’s box of
judicial problems. The Court’s intent to judicially review the governor’s power to withhold
assent was laudable. However, the judgment suffers from two major defects. First, it
does not provide any reasoning to deal with Article 361. It merely holds that
“extraordinary situations require extraordinary remedies.” Second, the standard laid
down by the Court, that is the ‘public interest test’ is not judicially sound. This standard
is very vague in its conception and might fail the test of “judicial manageability”. The
standard is also quite narrow in its conception. This is understood from the application
of the test in the Ramakrishnan case where the future admissions of 400 to 500
students were not considered in ‘public interest’.
A better and far more superior and judicially sound standard would be the ‘arbitrary and
the mala fides’ test. The standard prohibits the use of constitutional power in an
‘arbitrary’ or ‘mala fides’ manner. The use of the power should not be based on
‘irrelevant or extraneous considerations’ and should be guided by ‘good reason’. This is
the dominant standard used while judicially reviewing the powers of the executive
functionaries under the Constitution. This is the standard used for limiting the
president’s power to dismiss the governor under Article 156(1) (See BP Singhal v
Union of India) and the power to grant pardons under Article 72 and Article 161 of the
Constitution (See Maru Ram v Union of India). This standard has also been used to
enquire into the validity of a proclamation under Article 356 of the Constitution (See SR
Bommai v Union of India).

This standard of judicial review also flows from the judgment in Nabam Rebia. The
Court, here, affirmed Puncchi Commission’s remarks on the governor’s discretionary
powers. The Commission noted that: –

…. [T]he area for the exercise of discretion is limited and even in this limited area, his
choice of action should not be nor appear to be arbitrary or fanciful. It must be a choice
dictated by reason, activated by good faith and tempered by caution. (Emphasis mine)

These remarks, in essence, represent the ‘arbitrary and the mala fides’ test. Therefore,
the Court in Nabam Rebia accepted the proposed standard to be used while exercising
judicial review over the governor’s discretionary power (including the power to withhold
assent). The use of this standard would help in limiting the delay in assent to bills since
most governors’ decision to withhold assent is based on arbitrary reasons. This is
precisely the claim made in the petitions challenging the governor’s delay in assent to
bills. To determine when the delay turns into an ‘arbitrary or malafide’ delay, the Court
would have to look at the particular facts and circumstances of each case. The relevant
factors to be assessed should be guided by the principle that there should be minimum
delay in the assent to bills. The Court could look at a range of circumstances such as
the workload of the governor, the amount of time since the bill is pending before the
governor, and the reasons given by the governor for not assenting to the bill.

Conclusion

This essay has proposed a sound standard of judicial review for the governor’s power to
withhold assent. It identifies the need for judicial review and addresses the possible
barriers to the exercise of judicial review of this power. The judicial review of the
governor’s powers would help in alleviating executive aggrandizement and legislative-
executive tussle. It is important to note that the institution of the governor, which was
once understood as an institution of a high constitutional functionary, has been
penetrated with politics. This is also evident from the recent appointments of governors
where most of them have close connections with the ruling party. This compels one to
reconsider the width of the power conferred upon the governor and how much trust can
one repose in this functionary.

Separating Power: The Kenyan Supreme Court’s Judgment on

Constituency Development Funds
AUGUST 8, 2022GAUTAM BHATIA3 COMMENTS

The separation of powers is assumed to be an integral element of contemporary

democratic constitutionalism. However, mapping the ideal of the separation of powers
onto the complex reality of the modern administrative State is a challenging task.
Enforce separation too rigidly, and governance will become impossible. Allow for too
much leeway, and you risk a drift towards concentration and centralisation of power.
How and where to draw the line has been a vexed question, which constitutional courts
across the world have been forced to grapple with.

Introduction

In this context, the judgment of the Supreme Court of Kenya in The Institute for Social
Accountability vs The National Assembly (8th August 2022) is a landmark judicial
contribution to this global conversation. At issue before the Supreme Court was the
constitutionality of the Constituency Development Fund Act of 2013 (as amended by
Act No. 36 of 2013) [the “CDF Act”]. In short, the CDF Act created a fund [the
“Constituency Development Fund”, or “CDF”], with money up to 2.5% of national
government revenue collected in the financial year. The CDF would be used to fund
various “community-based projects”, for the benefit of “a widespread cross-section of
the inhabitants of a particular area” (s. 22(1)). The implementation of these projects
would be monitored by the Constituency Development Fund Committee of the particular
constituency (s. 31(3)). Importantly, eight out of ten members of the CDF Committee
were to be appointed by the local member of parliament (who was, himself, an ex officio
member of the Committee) (s. 24(3)).
The Issues

If we take a step back, therefore, we can see that in simple terms the CDF was (a) a
national fund, (b) to be deployed for developmental projects on a constituency-wise
basis, and (c) the implementation of the projects was under the effective control of the
local MP. To Indian readers, this will be rather familiar: it is quite similar to the MPLAD
scheme.

The CDF Act was challenged before the High Court of Kenya, which found it to be
unconstitutional. The High Court’s judgment was partially upheld and partially
reversed by the Court of Appeal. The case then traveled to the Supreme Court of
Kenya, which – by its judgment on 8 August 2022 – also found the CDF Act to be
unconstitutional in its entirety.

The gravamen of the substantive challenge before the Kenyan courts can be summed
up through the following two propositions: first, the CDF Act undermined the devolved
system of government under the Kenyan Constitution, by setting up a parallel, third
level of government (at the constituency level), in addition to the national and the county
levels, without constitutional sanction (this is essentially a federalism challenge,
although – as we shall see – the Court did not analyse it in federal terms); and
secondly, the CDF Act violated the separation of powers by granting MPs – who are
part of the legislature – essentially executive powers of administration and
implementation of developmental projects. There were other – procedural – challenges
as well: for instance, it was argued that the CDF Act substantially affected the
functioning of county governments. This required it to be scrutinised by the Kenyan
Senate (the “Second Chamber”), which – under Article 96 of the Constitution – is
tasked with representing the Counties, and safeguarding their interests. This, however,
had not been done.

The Involvement of the Senate

On the procedural issue, the Supreme Court found that the 2013 amendment to the
CDF Act had transferred the constitutional basis of the CDF from Article 202(2) of the
Constitution (which authorises the national government to make “additional allocations”
to county governments) to Article 206(2) of the Constitution (which authorises
withdrawal of money from the Consolidated Fund). The Court found that this alteration
of the constitutional basis of the CDF “had an effect on the functioning of country
governments” (paragraph 64). In particular, the CDF Act contemplated that projects
would pertain to infrastructural development, such as roads, health, agriculture, and
trade, which were within the domain of county governments (paragraph 71). For this
reason, the Senate’s involvement was a constitutional pre-requisite, before the CDF Act
could have been validly passed (paragraph 72).

While this finding is logical enough, there are two interesting aspects. The first is that in
this case, the Speakers of the National Assembly and of the Senate had resolved that
the CDF (Amendment) Bill – as it then was – did not concern counties, and therefore,
did not need to be tabled before the Senate. The Supreme Court’s response to this was
straightforward: it upheld the High Court’s finding that while the decision of the
Speaker(s) merited due deference, it did not oust the power of the Court to answer a
“question regarding the true nature of legislation.” (paragraph 75) In other words,
therefore, despite the Speaker’s position as the leader of the House, their decision on
the character of legislation would be subject to judicial review. Naturally, this would
apply to other situations as well, such as – for example – classification of bills as Money
Bills. The importance of this finding lies in the fact that it allows the judiciary to act as a
safeguard against partisan speakers, who can help the ruling party in the First Chamber
circumvent the participation of the Second Chamber simply by mis-classifying bills as
Money Bills (or, as in this case, as not involving county governments). This is
particularly significant, as the Kenyan Constitution does not explicitly guarantee or
protect the independence of Speakers. And once again, Indian readers will recall that
the exact same issue has been pending before the Supreme Court of India for the last
four years.

Secondly, it was argued that the CDF Act offended constitutional design by violating
federal principles. The Supreme Court rejected this argument by noting that the Kenyan
Constitution was not federal, but a “unitary system of government that decentralises key
functions and services to the county unit.” (paragraph 80) It is submitted, with respect,
that the distinction between a federal system, and a unitary system with devolution is
not an iron-clad one, and there are cases where terminology might obscure more than it
reveals. Indeed, if we look at the Supreme Court’s actual analysis on the devolution
question (which we shall turn to in a moment), we find that is actually far more
respectful of core federal principles than many other “formally” federal polities.

On Devolution

As indicated above, the first core substantive argument before the Court was whether
the CDF Act offended the division of functions between national and county
governments (see Article 6 of the Constitution). In simpler terms, the issue was
whether the CDF Act basically undermined the decentralisation of power guaranteed
under the Constitution of Kenya. The Court noted that under Article 95 of the
Constitution, the powers of the National Assembly included legislation, oversight over
national revenue and its expenditure, and allocation of national revenue between levels
of government, but not “the power to implement projects as a service delivery unit at the
county level” (paragraph 83). The service delivery mandate was essentially an
executive function at the county level, and was therefore meant to be exercised by
County Executive Committees which, under Article 179 of the Constitution, were meant
to exercise the “executive authority of the County.” Thus, according to the Court:

…where a Member of the National Assembly is allowed to play a role related to

functions vested in devolved units, then this will compromise the vertical division of
powers between the national and county governments. (paragraph 85)

And in particular:

Subsidiarity is the broad presumption that sub-national governments ought to be

assigned those functions and powers which vitally affect the life of the inhabitants and
allow the development of the country in accordance with local conditions of sub-national
units, while matters of national importance concerning the country as a whole and
overarching policy formulation are assigned to the national government. (paragraph
88)
The Supreme Court thus held that the Constitution did not authorise the “national
government to … usurp the mandate of the county governments.” (paragraph 90) Nor
did it authorise a “third level” of governance, tied to the constituency. Crucially, the
Court noted that this was because the constituency – in an electoral system – was tied
to the idea of political representation, and not service delivery: in essence the
constituency is an electoral unit, with its function tied to the functions vested in an MP;
and that role, essentially, is a legislative role. (paragraph 92) For this reason, the CDF
Act could not be saved by tying it to the unit of the constituency, as the whole purpose
of having “constituencies” in the first place was entirely different. I would respectfully
submit that this is a very important finding: a clear separation between the constituency
as a unit for political representation, and as a unit of service delivery, provides the
conceptual foundation for preventing the concentration of power at the level of the MP: it
prevents a situation where MPs serve both as legislators, but also as dispensers of
project-linked patronage in their constituencies, and – arguably – prevents the
incumbency bias that comes along with placing MPs in charge of disbursal of funds for
project development within the constituency.

On the Separation of Powers

Indeed, this last bit was an important feature of the Supreme Court’s separation of
powers analysis. Arguments before the Court on this point followed a familiar theme,
with the Appellants arguing that the CDF Act violated the separation of powers by
vesting executive functions with legislators, and the Respondents arguing that there
was no such thing as “pure separation of powers.” However, the Court’s response to
this is of particular significance. The Court accepted that the Kenyan Constitution did
not follow a “pure” separation of powers model, where the branches of government
were hermetically sealed off from one another (indeed, which Constitution does?).
However, that did not resolve the question in favour of the Respondents. The crucial
question that needed to be asked was what purpose separation of powers was meant to
serve in a particular constitutional system, and to derive its content from that analysis.
Here, the Court then found that the purpose of the separation of powers was essentially
to prevent concentration:

Kenyans having witnessed excesses of absolute power vested in the Executive branch
which operated with abandon and riding roughshod over other state institutions sought
to constrain and temper the exercise of public power. Citizens during the pre-2010
dispensation chose to respond to excesses of that legacy by explicitly dividing state
power into three branches of government to preclude the exercise of arbitrary power.
(paragraph 116)

Keeping this in mind, the Supreme Court proposed a two-pronged test for determining
when, in a given case, the separation of powers had been violated: first, ask whether a
state agency was straying into the “nucleus, core functions, or pre-eminent domain” of
another branch of government, from a functional point of view (as discussed in the
previous paragraph); and secondly, ask whether the exercise of the impugned power
would threaten the values and principles articulated in the Constitution. (paragraph
118) Applying this two-pronged test, the Supreme Court then found, first, that the
Constitution was clear about what legislative power entailed: it was representation,
legislation, and oversight over the government (paragraph 120). Under the CDF Act,
however, through the Constituency Development Fund Committee, MPs were “in
effective control [of the Committee] and that means that he/she influences the selection,
prioritization of projects, allocation of funds and also monitors the implementation of the
projects.” (paragraph 124) Therefore:
This means that the Fund, as conceived under the CDF Act 2013, vested in the
Legislature and its personnel – being the Members of the National Assembly, functions
that typically fall within the nucleus, core function, or pre-eminent domain of the
Executive branch. (paragraph 124)

What of the separation of powers in terms of constitutional values and principles? Here,
the Court found that a core function of the separation of powers was to bring about a
system of checks and balances, leading to accountability and good governance. At the
heart of this was the avoidance of conflict of interest. However, the CDF Act created an
open conflict of interest by giving to MPs a personal stake in the determination and
implementation of projects out of the National Assembly’s CDF fund. In other words,
MPs could not effectively perform their oversight functions over the use of the Fund, if
they themselves stood to benefit politically from decisions about its implementation
(paragraph 127). Thus, the Court summed up by holding that:

We, therefore, find that a Fund operating outside the strictures of separation of powers
and the system of checks and balances would not be constrained given the absence of
legislative oversight and therefore would be prone to be abused. In effect, a Fund that
allows personnel from the Legislative branch to exercise executive powers is
problematic from a constitutional lens. In the context of this case, we adopt the view
that the constitutional scheme on separation of powers should be upheld given its
implication for underlying constitutional values; that is, the maintenance of
accountability and good governance. Were we to adopt a contrary approach, as urged
by the respondents, even for the best of policy reasons, these constitutional values and
principles will be eroded. (paragraph 129)
Comparing Institute for Social Accountability and Bhim Singh

The rigorous and in-depth analysis of the Supreme Court of Kenya stands out
particularly starkly when we compare it with the judgment of the Indian Supreme Court
in Bhim Singh, where the constitutionality of the MPLAD scheme was challenged (I
have briefly analysed this case here). On the issue of the separation of powers, the
Supreme Court repeated the mantra of there being no “strict” separation of powers, that
“each one of the arms at times perform other functions as well“, and that “it is quite
logical for the Member of Parliament to carry out developmental activities to the
constituencies they represent” (needless to say, there was no explanation forthcoming
for why this proposition is “quite logical”, because – unlike the Supreme Court of Kenya,
there was no analysis of the role played by the “constituency” in the political process).

The Supreme Court also repelled the separation of powers challenge by noting that
under the scheme the power of the MP was a “recommendatory” power, with the
decision about which projects to implement lying with the district authority. Once again,
though, the judgment of the Kenyan Supreme Court shows us how a Court need not
equate form with substance: even under the CDF Act, the relevant MP was not directly
implementing projects, as though he or she was a personal administrator. Rather, what
the Court found was that the scheme, as a whole, gave to an MP a measure of effective
control over how projects were selected and implemented. It is abundantly clear that
MPLAD – in slightly different ways – has the same effect.

The federalism challenge was dealt with by the Supreme Court in similarly superficial
fashion, by noting that India is a “quasi-federation”; indeed, it is particularly ironic that
the Supreme Court of India used the mantra of the “quasi-federation” to avoid any
serious analysis of whether the MPLAD scheme violated the Constitution, while on the
other hand, the Supreme Court of Kenya – even while insisting that the Constitution of
Kenya is unitary – engaged in a much more detailed consideration of whether the CDF
Fund violated the devolved scheme of powers between national and county
governments set up under the Constitution of Kenya. One can only wonder what the
outcome of Bhim Singh would have been, had the Indian Supreme Court taken a
principled approach towards the separation of powers and federalism under the
Constitution, rather than a box-checking exercise.

Conclusion

In my view, the judgment of the Supreme Court of Kenya in Institute for Social
Accountability vs The National Assembly is a landmark judgment, that makes many
significant contributions to the global conversation around constitutional democracy.
Among the highlights are: (a) the Supreme Court’s finding that the Speaker’s
classification of bills is subject to judicial review, especially in situations where the
participation of the Second Chamber turns upon how a bill is classified; (b) the Supreme
Court’s clear analysis of the role of the constituency as a unity of political
representation, and not of service delivery – and the consequences this has for the
powers of MPs; (c) the Court’s principled, two-pronged test for when functional
separation of powers is violated, and – in particular – its emphasis on preventing
concentration of power and enabling accountability as the basis of the doctrine; and (d)
its application of the principle to the case at hand, including the articulation of the
distinction between legislative functions and executive functions.
Indeed, if we read the judgment as a whole, what comes through most clearly is the
Supreme Court’s pushback against a blurring of legislative and executive functions in a
way that makes the constitutional terrain the site of a centralising drift. Although the
Court doesn’t say so in as many words, its insistence on articulating the doctrine of
separation of powers in a way that gives it “analytical bite” shows a clear preoccupation
with preserving the Constitution as a check upon the centralisation of power. In this,
there are lessons for all of us, around the world.

[My thanks to Joshua Malidzo Nyawa for giving this piece a once-over.]

Guest Post: Fiscal Federalism and the Centralising Drift – The Supreme
Court’s GST Judgment
MAY 23, 2022GAUTAM BHATIA4 COMMENTS

[This is a guest post by Suhrith Parthasarathy.]

In July 2017, the Government of India heralded a goods and services tax regime by
bringing forth the 101st amendment to the Constitution through an unusual midnight
session of Parliament. The government claimed the new tax would unify the Indian
market. Any fears that the tax would disrupt Indian federalism were sought to be eased
by describing the effort as an example in cooperation between the states and the Union.
The then chief economic adviser to the government of India, Arvind Subramanian,
described the move as a “voluntary pooling of sovereignty”.
The phrase “pooled sovereignty” owes its origins to the creation of the European Union,
where member states agreed to delegate some of their decision-making powers to the
council. In the case of the GST, the idea was that both Parliament and the state
legislatures would delegate some of their power to a newly formed GST Council that
would help make a unified law for the nation. All along, it was believed that the Council’s
decision would be binding on each of the states and that any dispute that a state
wanted to raise would have to be resolved within the structures built into the system.

This idea, seen as foundational to the functioning of the GST, has come under threat
from a judgment of the Supreme Court, in Union of India v. Mohit Minerals, where a
3-judge bench, presided by Justice DY Chandrachud, has held that the GST Council’s
decisions are not binding on legislative bodies and that both Parliament and the state
legislatures possess plenary powers to make laws as they deem fit. How states react to
this finding and to what extent they choose to amend their respective GST legislations
might come to have a deep bearing on the future of Indian federalism.

In framing the Constitution, the Constituent Assembly was conscious of making careful
divisions of power between the Union and the state governments. Although there were
certain areas in which the Union was accorded pre-eminence, when it came to taxation,
the framers were keen to vest in the States substantial responsibility. The
compartments that were drawn out ensured that the powers of taxation were not
mutually exclusive. Income tax (excepting tax on agricultural income) was offered to the
Union, along with some indirect taxes such as customs and excise duties. State
governments, on the other hand, were given the exclusive authority to tax both sale of
goods and the entry of goods into a state. This division was made by inserting these
subjects respectively into Lists I and II of Schedule VII of the Constitution. Critically, the
concurrent list, that is List III, did not contain any taxing subject. Therefore, on a reading
of Articles 245 and 246 and the entries in Lists I and II of Schedule VII, a clear division
of power between the Union and the states could be gleaned out.
The 101st amendment toppled this arrangement. It removed from List II a slew of
subjects over which hitherto the state government had enjoyed absolute power. These
included, for example, entry 52, which was “taxes on the entry of goods into a local area
for consumption, use or sale therein”; and entry 55, which dealt with taxes on
advertisements. Entry 54 was substituted by a new entry, which had the effect of
removing the power to tax on sale or purchase of goods excepting certain categories of
products, such as fuel, natural gas, and liquor. The amendment also introduced a new
provision, Article 246A, which would, as a stand-alone clause, provide a power to tax
goods and services. Article 246A reads as follows:

“(1) Notwithstanding anything contained in articles 246 and 254, Parliament, and,
subject to clause (2), the Legislature of every State, have power to make laws with
respect to goods and services tax imposed by the Union or by such State.

(2) Parliament has exclusive power to make laws with respect to goods and services
tax where the supply of goods, or of services, or both takes place in the course of inter-
State trade or commerce.
Explanation.—The provisions of this article, shall, in respect of goods and services tax
referred to in clause (5) of article 279A, take effect from the date recommended by the
Goods and Services Tax Council.]”

As we can see, Article 246A begins with a non-obstante clause. It overrides the general
power to legislate vested in Parliament and the state legislatures through Article 246. It
also overrides Article 254, which deals with inconsistencies—including repugnancy—
between laws made by Parliament and a state legislature. To give effect to the
proposed exercise of unification the 101st amendment introduced a Goods and
Services Tax Council through Article 279A. The GST Council comprises the Union
Finance Minister (who shall act as a chairperson), the Union Minister of State in charge
of Revenue or Finance and the Minister in charge of Finance or Taxation or any other
Minister nominated by each State Government.

Article 279A(4) stipulates that the GST Council “shall make recommendations to the
Union and the States on (a) The taxes, cesses and surcharges levied by the Union, the
states and the local bodies which may be subsumed in the Goods and Services tax; (b)
The goods and services that may be subjected to, or exempted from the GST; (c)
Model GST Laws, principles of levy, apportionment of Goods and Services tax levied on
supplies in the course of inter-state trade or commerce under Article 269A and the
principles that govern the place of supply; (d) The threshold limit of turnover below
which goods and services may be exempted from GST; (e) The rates including floor
rates for specified period, to raise additional resources during any natural calamities or
disaster; (f) Special provision with respect to the states of Arunachal Pradesh, Assam,
Jammu and Kashmir, Manipur, Meghalaya, Mizoram, Nagaland, Sikkim, Tripura,
Uttarakhand and Himachal Pradesh (Referred as Special Category States (g) Any other
matter relating to the goods and services tax, as the council may decide.” [Emphasis is
mine].

Article 279A(9) states that “Every decision of the Goods and Services Tax Council
shall be taken at a meeting, by a majority of not less than three-fourths of the weighted
votes of the members present and voting, in accordance with the following principles,
namely:— (a) the vote of the Central Government shall have a weightage of one-third of
the total votes cast, and (b) the votes of all the State Governments taken together shall
have a weightage of two-thirds of the total votes cast, in that meeting.” [Emphasis
supplied].

Article 279A(10) and (11) read as follows:

“(10) No act or proceedings of the Goods and Services Tax Council shall be invalid
merely by reason of— (a) any vacancy in, or any defect in, the constitution of the
Council; or (b) any defect in the appointment of a person as a Member of the Council;
or (c) any procedural irregularity of the Council not affecting the merits of the case. (11)
The Goods and Services Tax Council shall establish a mechanism to adjudicate any
dispute— (a) between the Government of India and one or more States; or (b) between
the Government of India and any State or States on one side and one or more other
States on the other side; or (c) between two or more States, arising out of the
recommendations of the Council or implementation thereof.]”
The language used in Article 279A is somewhat puzzling. The provision uses the word
“recommendation” to refer to the GST Council’s advice (which includes advice on a
model law) but it also terms the results of the Council’s deliberations as decisions. What
is more, it establishes a mechanism to adjudicate disputes that might arise between
governments on any decision taken by the council. If one thinks of the GST as a unitary
tax, and if the GST has to work in the manner in which it was conceived by the Union
government, any advice proffered by the GST Council would necessarily have to be
binding on the states—there is no question of allowing a variation in laws, as that would
defeat the idea of having a single tax and a single market. This would, of course, mean
that the 101st amendment will have to be seen as dismantling the nature of fiscal
federalism that the Constitution in its original form established.

But perhaps because there was no other way the government’s idea could be workable,
almost right from its inception, the GST Council’s decisions were viewed as binding on
the states. Even when states seriously contested a piece of advice that had been
offered, they nonetheless acted on such advice. And for this reason, many states also
believed that the Council and its workings impinged on powers vested in the states by
the Constitution. In other words, it was thought that the 101 st amendment violated the
federal arrangement in a manner that had the effect of effacing one of the basic features
of the Constitution.

The judgment now delivered in Mohit Minerals does not concern itself directly with any
of these questions. The case arose out of an appeal filed by the Union government
against a judgment of the Gujarat High Court. The High Court had declared a levy of
Integrated Goods and Services Tax [IGST] imposed on importers, on ocean freight
charges paid by foreign sellers to foreign shipping lines. The court had found that the
importers were already paying a tax on the composite supply that was made and that to
impose an additional levy on just the ocean freight would be tantamount to a form of
double taxation. Moreover, in the case of CIF contracts (Cost, Insurance and Freight
contracts), both the service provider and the service recipient were outside the territory
of India, and the tax itself was being cast on an importer, who, in the first place, was not
the recipient of the service.
During arguments in the Supreme Court, the Union government argued that this
decision to levy tax on ocean freight had been made by the GST Council and that the
government was, as such, bound by it. In examining this question, the Supreme Court
considered the purport of Article 279A and made a series of findings, which could
potentially dismantle the idea of GST, as understood through the 101 st amendment. The
court did not explicitly premise these findings on the Constitution’s basic structure—its
analysis was largely predicated on the text of the Constitution and on what it regarded
as Parliament’s intention behind the 101st amendment. But the underlying philosophy of
the basic structure doctrine was nonetheless at play. The court found that to hold the
GST Council’s recommendations as binding would have the effect of impinging on
legislative powers granted by the Constitution, and would, in the process, alter “fiscal
federalism”.

The court recognised that there were two chief arguments in favour of seeing the GST
Council’s recommendations as binding. First, if one sees the recommendations as just
that, the “GST will collapse as each State would then levy a conflict tax and collection
mechanism”; second, if the recommendations are non-binding there would be no
dispute to resolve under Article 279(11) as the States would be free to disregard the
recommendations. In the same vein, the court also recognised the two chief arguments
against seeing the GST Council’s recommendations as binding. First, it would violate
the supremacy of Parliament and the state legislatures since both have been afforded
“simultaneous” legislative power on GST; second, the virtual veto given to the Union in
the GST Council would lead to a violation of fiscal federalism.

Having recognised these arguments, the court proceeded to analyse and lay down the
broad contours of India’s federal structure. It cited, among others, HM Seervai who in
arguing that India was a federal state, pointed to important powers that had been vested
exclusively in the state governments. “The view that unimportant matters were assigned
to the States cannot be sustained in face of the very important subjects assigned to the
States in List II, and the same applies to taxing powers of the States which are made
mutually exclusive of the taxing powers of the Union so that ordinarily the States have
independent source of revenue of their own,” wrote Seervai. “The legislative entries
relating to taxes in List II show that the sources of revenue available to the States are
substantial and would increasingly become more substantial. In addition to the exclusive
taxing powers of the States, the States become entitled either to appropriate taxes
collected by the Union or to a share in the taxes collected by the Union.”

The Court then proceeded to examine the language used in Article 246A. It saw that the
provision granted to both Parliament and the state legislature co-equal power. That is,
the legislative bodies were given simultaneous authority to legislate on GST within their
respective jurisdictions. This was, the court said, a sui generis provision, containing
“unique features” of federalism. “Article 246A treats the Centre and States as equal
units by conferring a simultaneous power of enacting law on GST. Article 279A in
constituting the GST Council envisions that neither the Centre nor the States can act
independent of the other.” The court said that it was aware that there are certain areas
in the Constitution where the division of power is lopsided, where the arrangement
provides for a centralising drift. But that such provisions exist cannot take away from the
fact that there might be other areas where the central and state governments are given
equal power. The court also noted that the Constitution, after the 101 st amendment,
does not provide for a mechanism to resolve any repugnancy or inconsistency between
a parliamentary and state law. This would mean that the GST Council would have to
strive to work in a harmonised manner, but at the same time this cannot mean that the
GST Council’s decisions will override the basic legislative power vested in the state
governments.

Contrary to the much vaunted idea of cooperative federalism that was seen as
underlying the GST, the court held—cited scholarship by Jessica Bulman-Pozen and
Heather K. Gerken—that what the regime in fact promotes is a form of “uncooperative
federalism.” This contestation, Justice Chandrachud wrote, is “valuable since ‘it is
desirable to have some level of friction, some amount of state contestation, some
deliberation-generating froth in our democratic system.’ Therefore, the States can use
various forms of contestation if they disagree with the decision of the Centre. Such
forms of contestation are also within the framework of Indian federalism. The GST
Council is not merely a constitutional body restricted to the indirect tax system in India
but is also an important focal point to foster federalism and democracy.” If the GST
Council works not merely through cooperation but also through contestation, and arrives
at decisions in a democratic manner, there will be, the court believed, no need for any
fears that the taxing regime will crumble as a whole.

To augment this holding the court referred to the bare language used in Article 279A.
The word “recommendation”, the judgment found, is used in an array of different
constitutional provisions. And the meaning ascribed to it is invariably contextual. In this
case, it was impossible to see the word “recommendation” as meaning “binding
recommendation” because if that was Parliament’s intention behind the 101 st
amendment, a qualification to that express account would have been included in
Articles 246A or 279A. “Neither does Article 279A begin with a non-obstante clause nor
does Article 246A provide that the legislative power is ‘subject to’ Article 279A,” the
court held. But the Union also claimed that the legislatures, both Parliament and the
states’, had effectively ceded their power. An analysis of many of the provisions of the
Central Goods and Services Tax Act, and, for that matter, the state GST legislations,
expressly stipulate that the rule-making power delegated to the Government will be
exercised on the recommendations of the GST Council. As examples, the Supreme
Court cited Section 5 of the IGST Act, which provides that the taxable event, taxable
rate, and taxable value shall be notified by the government on the “recommendations of
the Council”. Similarly, the power of the Central Government to exempt goods or
services or both from levy of tax shall be exercised on the recommendations of the GST
Council under Section 6 of the IGST Act. Section 22 provides that the Government may
exercise its rule making power on the recommendations of the GST Council. The CGST
Act also provides for similar provisions in Sections 9, 11 and 164. Apart from these, a
look at the state GST legislations also showed that similar mandates were made by
state legislatures. For instance, Section 9(1) of the Tamil Nadu GST Act reads as
follows: “Subject to the provisions of sub-section (2), there shall be levied a tax called
the Tamil Nadu goods and services tax on all intra-State supplies of goods or services
or both, except on the supply of alcoholic liquor for human consumption, on the value
determined under section 15 and at such rates, not exceeding twenty per cent., as may
be notified by the Government on the recommendations of the Council and collected in
such manner as may be prescribed and shall be paid by the taxable person.”
A reading of this clause would indicate that the state government is bound by the advice
of the Council. For that matter, this clause and each of the provisions of the State GST
Act was incorporated on the basis of the model law prescribed by the Council. But what
if the legislature amends Section 9(1) and allows the government to deviate from the
recommendation made by the council? According to the Supreme Court, the scheme of
the 101st amendment does indeed allow for such amendments to be made, because the
GST Council’s recommendations can never constrain the basic legislative power
prescribed in Article 246A. A reading of Paragraph 59 of the Supreme Court’s judgment
is instructive:

“59. The provisions of the IGST Act and CGST Act which provide that the Union
Government is to act on the recommendations of the GST Council must be interpreted
with reference to the purpose of the enactment, which is to create a uniform taxation
system. The GST was introduced since different States could earlier provide different
tax slabs and different exemptions. The recommendations of the GST Council are
made binding on the Government when it exercises its power to notify secondary
legislation to give effect to the uniform taxation system. The Council under Article 279A
has wide recommendatory powers on matters related to GST where it has the power to
make recommendations on subject matters that fall outside the purview of the rule-
making power under the provisions of the IGST and CGST Act. Merely because a few
of the recommendations of the GST Council are binding on the Government
under the provisions of the CGST Act and IGST Act, it cannot be argued that all of
the GST Council’s recommendations are binding. As a matter of first principle,
the provisions of the Constitution, which is the grundnorm of the nation, cannot
be interpreted based on the provisions of a primary legislation. It is only the
provisions of a primary legislation that can be interpreted with reference to the
Constitution. The legislature amends the Constitution by exercising its
constituent power and legislates by exercising its legislative power. The
constituent power of the legislature is of a higher constitutional order as
compared to its legislative power. Even if it is Parliament that has enacted laws
making the recommendations of the GST Council binding on the Central Government
for the purpose of notifying secondary legislations, it would not mean that all the
recommendations of the Council made by virtue of its power under Article 279A have a
binding force on the legislature.”

It is my submission that this finding by the Supreme Court in paragraph 59, which has a
potentially far-reaching effect, is correct and laudable. Critics of the judgment may well
point to the fact that in allowing the state legislatures plenary power to legislate beyond
the Council’s recommendations the court has potentially allowed a pathway for a
collapse of the GST regime. But the court’s interpretation is predicated on two things:
one, the bare text of the Constitution, in that Article 279A uses the word
“recommendation” and in that Article 246A does not limit in any manner the equal power
granted both to the Parliament and the state legislatures; two, that any other
interpretation would allow the federal compact, as originally conceived by the framers,
to collapse. In other words, what is at stake here is the Constitution’s basic structure.
Upholding that structure requires us to see both the Union and the state governments
as equal partners.

The judgment in Mohit Minerals is not a comment on fiscal policy or on the merits of a
unified taxing regime. If such a regime is desirable, then it is up to the Union and the
state governments to arrive at a consensus through democratic deliberation, whether
within the confines of the GST Council or outside of it. But if a state government
believes that it must disregard some decision or the other of the Council, its basic
legislative power to do so cannot be arrogated. To ascribe any other meaning to the
101st amendment would only render it a nullity.
Guest Post: Compulsory “Borrowing” of State Administrative Officers
by the Central Government – Impact Upon the Federal Structure

FEBRUARY 18, 2022GAUTAM BHATIALEAVE A COMMENT

[This is a guest post by Yash Sinha.]

The central government has recently proposed amendments to the Indian

Administrative Service (Cadre) Rules, 1954 (‘the 1954 Rules’). Succinctly, they enable
the Central Government to compulsorily “borrow” an officer from the Indian
Administrative Service (‘IAS’) serving a state government. This article argues that the
probable impact will be damaging to two ideas underlying Indian federalism. Firstly,
there is a breach of ‘centripetal federalism’, which is specific to the provisions on civil
services. Secondly, there is an assault on the principles of quasi-federalism as found in
the remaining Constitutional text.

As necessary preface to the argument advanced, Part I describes the present

framework to contextualise the amendment’s implications. It maps the present degree of
administrative control possessed by both the Centre and the states over such officers. It
demonstrates that the framework provides for a titular inclination towards central
discretion. Simultaneously, the density of the states’ weightage in power is shown to be
residing in the concerned rule. Part II explains the Constitutional intent behind the
distribution of such controls. It argues that the intent was to favour the states’ interests
by having the centre supervise manpower. It links this to the Constitutional desire of
having a centripetal force for enhanced cohesion and better functioning of the state
executive. This centripetal force is shown to come from a titular, as opposed to an
actual, central preponderance. Eventually, Part III discusses relevance of quasi-
federalism as revealed by other parts of the Constitution. It argues that centripetal
federalism fits perfectly in Ambedkar’s model of quasi-federalism, and is meant to have
a cumulative effect of prioritising state interests in its IAS officers. Consequently, the
amendments are shown to be (impermissibly) re-arranging Constitutional allocation of
power.

The framework and the amendment

The All India Services Act, 1951 (‘AIS’) requires direct recruitment of freshly minted IAS
officers to state governments. This recruitment is made in the President’s name, with
the Department of Personnel and Training as its controlling authority.
The centre has conclusive discretion in more substantial aspects of the process as well.
These illustratively include allocating recruits to each state cadre, determining those
numbers, reserving a few for itself, imparting training to them, and exercising the power
to selectively extend career-durations.

Furthermore, it has unequivocal priority in matters pertaining to suspension. The

centre’s will is binding in spite of a state’s differing opinion on the same. The same
arrangement governs disagreements about disciplinary proceedings, except that the
state needs prior permission from the centre to initiate those. The centre also has the
sole discretion in compulsorily and prematurely retiring IAS officers in state or central
cadres.

The states, however, have a wide array of incentives/disincentives with which they
govern the behaviour of their IAS officers. The officers’ transfers, reallocation of
territorial units for administration and elevation to coveted posts, are the primary tools of
control. Pertinently, the states have a sufficient deterrent in initiating an interim
suspension till the centre’s final decision. To compete with the centre’s power of career-
extensions, the states have devised their own workaround: the civil servant may
choose to wait till the organic expiry of her tenure comes about, and subsequently
function as an aide/advisory to the state government.

Regardless, it is seen that the centre has greater say till the stage of allocation to the
state government, and then directly in ending the careers of IAS officers. However, the
centre faced one significant handicap. The number of officers drawn by way of the
present version of rule 6 was low in quanta. Therefore, it introduced the Central Staffing
Scheme (‘CSS’). This ‘scheme’ was brought in through a government resolution,
bypassing the All India Services Act (‘AIS’). Sec. 3 of this enactment requires that every
amendatory rule be first scrutinised by the Parliament. Since the scheme was not a
‘rule’, it was considered to be an exercise of residuary executive power.

Under this scheme, the centre may choose to declare certain officers as fit to work
directly under its administration. This process is referred to as ‘empanelment’, and
earmarks possible candidates for future/immediate deputation. Regardless of the intent
behind CSS, it serves favourably for the states. The state officers eluding empanelment
are given the more strategic posts, minimising the possibility of disruption in
functioning.

Simultaneously, the centre continues to face a handicap. Migration of empanelled

officers is still contingent on the satisfaction of rule 6(1) of the 1954 Rules. By virtue of
this, the centre cannot forcibly borrow a recruited state officer, regardless of
empanelment. In 1969, a proviso was introduced to tweak this arrangement. It states
that any differences regarding central deputation will see the centre’s view as binding.
However, this does not denote the centre’s will as ‘overriding by default’. Rather, it was
stated to be suggesting a dispute resolution mechanism, with the centre as an
independent arbiter.

This proposed amendment is to negate the current rule 6(1) and forcibly recruit
empanelled/non-empanelled IAS officers in states. This is ensured through two key
changes. Firstly¸ the pre-requisite of the states’ consent is sought to be done away
with. Secondly, the centre will have complete discretion to determine the number of
such officers it may so wrest away.
Thus, this amendment effectively entitles the centre to expropriate members of the state
administration. Combined with the significant power to additionally determine the
numbers, the dispossessing impact renders it Constitutionally offensive.

Striking at the edifice of civil services: centripetal federalism

Given that IAS recruitment happens largely for the states, the centre’s role of a manager
seems incongruous. This feature, however, is laden with Constitutional purpose.

Alongside other articles pertaining to the civil services, Art. 311 was formulated by
Sardar Patel. Essentially, it compels pause and deliberation in the removal of Indian
bureaucrats. Cl. 1 ensures that IAS officers are removed only by the centre. Art. 310(1)
requires the centre to have strong reasons before affecting such removals.
Simultaneously, Art. 311(2) mandates that the states follow a proper inquiry procedure
before initiating a request for removal. Succinctly put, the design ensures that the states
have the power to initiate penalties, without attaching it with any finality. It is these
bounds that the statutory framework discussed in Part I are adhering to.
The underlying reasoning is present in the Constituent Assembly Debates. Few
members were opposed to the state’s say in removal of officers, given certain
provinces’ past loyalty to the British. Simultaneously and regardless, another set of
members nurtured the very same suspicion about the bureaucracy itself. Both the
groups demanded that there be no constitutional mention for the officers’ ‘removal’. By
specifying a singular and tortuous procedure in the Constitution, Patel was accused of
giving them a certain amount of protection. Patel refused to budge, citing the IAS’
potential to protect the Constitution. The bureaucracy, he stated, remains rooted in
governance even if the political domain goes through severe flux. Officers unfailingly
abiding by executive orders suggested to him institutional strength, and not moral
vacuity. The bureaucracy-conduced stability during the crises thrown by the Partition
and transition to independent governance were cited as footnotes to this assertion.
More significantly, accession of some provinces was secured entirely on the assurance
of preserving their internal freedom. Patel argued that this essentially denoted
preserving their bureaucratic structure.

The grist of his argument, however, is packed in one significant portion of his rebuttal:

“This Constitution is meant to be worked by a ring of Service which will keep the country
intact […] we shall have this model wherein the ring of Service will be such that will
keep the country under control.”

Evidently, Patel envisaged the centre’s say on states’ officers as a source of national
cohesion. This design seems further consolidated in light of another vital aspect of
Indian Constitutional history. When the Government of India Act, 1935 introduced
federalism to British India, it created an administrative office to singularly oversee and
manage bureaucratic recruitments to the provinces. Termed as the ‘Establishment
Officer’ and now within the DoPT, it is additionally tasked with handling the CSS.

Hence, Patel envisaged ‘centripetal federalism’: a counterintuitive concept wherein the

centre has an overriding say, but in order to achieve effective decentralisation. The
centre’s role in managing IAS officers of the states was to preserve and further federal
cohesion. The limited preponderance it enjoys is only cosmetic and essentially bestows
greater power on the states. But contrary to this, the amendments are aimed at creating
an actual tilt towards the centre and at the states’ expense.

Quasi-federalism’s overlap with centripetal federalism

Ambedkar was distrustful of a liberal approach towards decentralisation in India. So

while Patel argued for enhanced federalism, Ambedkar disagreed, and favoured a
pseudo-unitary system of governance. The eventual Constitutional inclination towards
the centre across different parameters has come to be identified – by the decisions in
State of Karnataka, Shamsher Singh, Kuldip Nayar and Bhim Singh – as quasi-
federalism.
It stands on a different footing than centripetal federalism, in the following manner. The
latter weaves vertical federal units into one single thread of cohesion, whilst retaining
the vital powers of the states. It brings in an effective central discretion to the fore, while
still prioritising state-interests in the federal-vertical. On the other hand, the quasi-
federal model is best understood as a bundle of different federal arrangements. It
encompasses federal collaboration, unit-exclusive functioning, and permissible
circumstances for the centre’s domination.

According to Ambedkar, this dominance denoted ‘circumscribing’ the states’ power in

legislative and executive concerns. In elaboration, he asserted that the overriding power
of the centre was to be kept strong in intensity, yet minimal in occurrence. Accordingly,
the centre was conferred with legislative preponderance only in disagreements
pertaining to concurrent and residuary subjects. However, as espoused in V. Hariharan
and consolidated in GNCTD, it is the states which have executive preponderance in
concurrent subjects, except where Constitutional or parliamentary law specify
exceptions.

It is at this point where flanks of both the models of federalism confluence. Centripetal
provisions on civil services are cocooned by Ambedkar’s exemptions from central
dominance for a cumulative impact.

It is to be noted that IAS officers in a state are bound to execute and handle laws under
List II. These officers, insofar as they constitute the state executive, are not tasked with
implementing central laws due to Ambedkar’s ‘exclusive priority’. Art. 256 and 257
reservedly ask state officers to neither hinder such laws’ implementation, nor the
centre’s functioning. This indicates mutual exclusivity between the functioning of state
and central executives. Additionally, the Constitutional text also bears out his intention
to minimise the hijacking of state executives. At present, only under Art. 352 and 356
can the state executive machinery be taken control over by the centre. That apart, Art.
324(6) has been judicially interpreted as the only other provision that permits a
temporary and non-consensual expropriation of a state’s executive machinery.

Thus, the cumulative impact of both the models is to impart states’ executive with a high
degree of exclusivity. Central preponderance therein would be a fickle proposition,
except when permitted by the Constitution. Presently, its text suggests the contrary.

Conclusion

In its present form, rule 6(1) embodies a Constitutional allocation. It encapsulates the
core of decentralisation by granting states a decisive hold over their in-service civil
servants. In parallel and by intelligent design, the Constitution protects these officers
from politically motivated state-level reprimands.

Both the safeguards exist due to two different ideas of federalism. The centripetal
model stresses on unity to advance greater decentralisation. It exists to generate a
unifying factor, but prioritises states in doing so. Contrarily, the pseudo-unitary model
prioritises the centre, and goes beyond merely supplying an appellation of unity. It is
best viewed as a wide spectrum of federal arrangements, with slight inclination to the
centre and complete substitution of state powers as the two extreme ends. The crux of
both, however, is the asymmetry in the federal-vertical.

As far as civil services within the states is concerned, the two versions reinforce each
other to have a curious constitutional impact: both cement plenary powers of the state
executive. The cohesive intent ensures that no state is dispossessed of its
administrative instruments. Simultaneously, the specificity in areas for central
dominance makes it rare for the centre to interfere with the everyday functioning of state
executives. Combined, they make states’ consent all the more indispensable.

Without rule 6(1) in its present form, the country shall move closer to a unitary operation
under the facade of an operative quasi-federal system.

Guest Post: A Critique of the Supreme Court’s Maratha Reservation

Judgment – III: The Constitutionality of the 102nd Amendment
MAY 26, 2021GAUTAM BHATIALEAVE A COMMENT

[This is a guest post by Vrishank Singhania.]

In the previous two posts (Part I and Part II), Bhatia discussed the Supreme Court’s
holding on the 50% cap and the interpretation of the 102nd Amendment, in the Maratha
Reservation judgement. With regard the interpretation of clause 4 of the 102 nd
Amendment, the Supreme Court held that the power to identify socially and
educationally backward classes [“SEBCs”] vested solely with the centre, to the
exclusion of the states. While Bhatia argues this is an incorrect interpretation, Bhardwaj
in response argues that it is correct. In this post, I take as a given the Majority’s
interpretation. The next issue that the Supreme Court (specifically the majority) then had
to decide was whether, on this interpretation, the 102 nd Amendment was constitutional
or not.
There were two arguments advanced on the issue of the constitutionality of the
Amendment. First, given that the Amendment takes away the power of the states to
identify SEBCs, it should have been passed in accordance with the proviso to Article
368(2) i.e. it should have been ratified by at least one half of the legislative assemblies
of all states. Since this procedure was not followed, the Amendment is unconstitutional.
Second, that the Amendment is contrary to the basic feature of federalism. Justice Bhat
rejected both of these arguments and upheld the constitutionality of the Amendment. I
agree that the Amendment does not fall foul of the Constitution’s basic structure.
However, I argue that the Supreme Court erred in its decision on Article 368(2).
Assuming the Supreme Court’s interpretation of the 102nd Amendment is correct, the
Amendment is unconstitutional qua Article 368(2).

This essay has five sections. In the first section, I look at J. Bhat’s reasoning on the
applicability of the proviso to Article 368(2). In the second and third sections, I draw out
the test for the applicability of the proviso from its purpose and past Supreme Court
precedent. In the fourth section, I apply the test determined in the previous sections to
the 102nd Amendment. In the fifth section, I provide a brief analysis of J. Bhat’s
reasoning on the basic structure argument.

I. Bhat J.’s interpretation of Article 368(2)

The power of the Parliament to amend the Constitution is derived from Article 368.
Article 368(2) states that –
(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 279A 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 Legislatures 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.

Article 368(2) thus provides for two different types of amendments –

 1. Amendments to the Constitution pertaining to the parts specified in Article
368(2) sub-sections (a) to (e); and
2. Amendments to all other parts of the Constitution.

The second type of amendment has to be passed by a majority in each House of the
Parliament. However, the first type of amendment, in addition, also needs to be ratified
by the legislatures of not less than one half of the states [as per the Proviso to Article
368(2)]. Thus, Article 368(2) limits the powers of the Parliament to bring about certain
types of amendments, and if such procedure is not followed, then the amendment would
be unconstitutional.

As mentioned above, the proviso to Article 368(2) [hereinafter referred to as “the

proviso”] applies only when any of the parts or provisions specified in sub-sections (a) to
(e) [hereinafter referred to as “specified provisions”] are amended. In the present case,
the 102nd Amendment had not directly amended any of the specified provisions. There
are two questions that then arise. First, whether the applicability of the proviso, requires
a direct amendment to the specified provisions, or would an indirect amendment, that in
effect amends the specified provisions also qualify. Second, if an indirect amendment
qualifies, would an incidental effect on the specified provisions also suffice to trigger the
proviso.

J. Bhat does not consider this complexity, and consequently his decision on Article
368(2) is lacking in its reasoning. It is unclear as to what the test for the applicability of
the proviso is according to him. However, from my reading of his judgement, the
following paragraphs indicate his holding on this issue –

181. 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).

182. The majority judgment [in Sajjan Singh], therefore decisively held that an
interpretation which hinges on indirect impact of a provision, the amendment of which
needs ratification of the states, does not violate the Constitution and that unless the
amendment actually deletes or alters any of the Entries in the three lists of the Seventh
Schedule, or directly amends an Article for which ratification is necessary, recourse to
the proviso to Article 368 (2) was not necessary.

It would seem that according to J. Bhat, the proviso is triggered only when there is an
actual or direct amendment to the specified provisions. However, in paragraph 181
above, he also looks at the impact (or in other words the effect) of the Amendment on
the specified provisions. A harmonious reading of these would suggest that according to
J. Bhat, unless there is an actual or direct amendment, the impact on the specified
provisions would be considered incidental, and thus, the proviso would not apply. This
formalist interpretation of Article 368(2), in my opinion, is incorrect.

In the next two sections, I shall look at the purpose of the proviso and Supreme Court
precedent on its interpretation to argue that – first, a direct amendment is not necessary
i.e. that an in effect amendment is sufficient; and second, that the effect cannot be
merely incidental. I will then apply the test to the 102 nd Amendment to argue that the
proviso is applicable in the present case.

II. Nature of the Amendment – Direct or In Effect?

The first question to be determined is whether the applicability of the proviso requires a
direct amendment to the specified provisions, or would an indirect amendment, that in
effect amends the specified provisions also suffice. I argue, that based on both the
purpose of the proviso and Supreme Court precedent, an in effect amendment would
also suffice to trigger the proviso.
According to Dr. Ambedkar, the purpose of the proviso was as follows –

If Members of the House who are interested in this matter are to examine the articles
that have been put under the proviso, they will find that they refer not merely to the
Centre but to the relations between the Centre and the Provinces. We cannot forget the
fact that while we have in a large number of cases invaded provincial autonomy, we still
intend and have as a matter of fact seen to it that the federal structure of the
Constitution remains fundamentally unaltered. We have by our laws given certain rights
to provinces, and reserved certain rights to the Centre. We have distributed legislative
authority; we have distributed executive authority and we have distributed
administrative authority. Obviously to say that even those articles of the Constitution
which pertain to the administrative, legislative, financial and other powers, such as the
executive powers of the provinces should be made liable to alteration by the Central
Parliament…without permitting the provinces or the States to have any voice, is in my
judgment altogether nullifying the fundamentals of the Constitution.

As Dr. Ambedkar mentions, the proviso includes provisions that have a bearing on the
federal structure of the Constitution, such as the elections of the President, the
representation of States in the Parliament, the executive and legislative powers of the
States vis-à-vis the Union, and the amending power itself. The purpose of the proviso is
to ensure that the Parliament cannot unilaterally amend the federal structure of the
Constitution, without the consent of the States.
A formalist interpretation, such as the one suggested by J. Bhat, would allow the
Parliament to in effect alter the federal structure, without directly amending any of the
specified provisions. This would defeat the purpose of the proviso. It would also negate
the well-established doctrine of colourable legislation – what cannot be done directly
cannot also be done indirectly. A purposive interpretation to Article 368(2) has been
upheld by the Supreme Court in Sajjan Singh and Kihoto Hollohan – cases which J.
Bhat incorrectly relies upon to justify his formalist interpretation.

Sajjan Singh dealt with the validity of the 17 th Constitutional Amendment which had
amended Part III of the Constitution and had taken away the Supreme Court’s and High
Court’s power of judicial review with respect to legislations included in the Ninth
Schedule. The petitioners argued that this amounted to modifying the High Court’s
powers under Article 226 [a specified provision under Article 368(2)(b)] and thus the
amendment required ratification by the states. Similar to the present case, the
constitutional amendment did not directly amend any of the specified provisions. While
the Supreme Court held that the proviso did not apply, it did not confine itself to looking
merely at whether the specified provisions had been directly amended. Instead it
formulated the test as follows –

The proviso would apply where the amendment in question seeks to make any change,
inter alia, in Article 226, and the question in such a case would be: does the
amendment seek to make a change in the provisions of Article 226? The answer to this
question would depend upon the effect of the amendment made in the fundamental
rights. (Paragraph 8, Gajendragadkar C.J.)
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.” (Paragraph 14, Gajendragadkar C.J.)

Thus, the Supreme Court was concerned with the “effect” of the amendment and not
merely the formal provision it amended.

A similar issue was at stake in Kihoto Hollohan – the Supreme Court had to decide
upon the validity of the 52nd Constitutional Amendment, which had introduced the Tenth
Schedule, and in paragraph 7, had taken away the Courts’ power of judicial review in
matters of disqualification of a Member of a House. The test formulated by the Supreme
Court was as follows –

The test applied was whether the impugned provisions inserted by the constitutional
amendment did ‘either in terms or in effect seek to make any change in Article 226 or in
Articles 132 and 136’. Thus the change may be either in terms i.e. explicit or in effect in
these articles to require ratification. (Paragraph 158, Verma J.).
In this case, similar to the Maratha Reservation case, Article 226 had not been directly
amended by the 52nd Amendment. Nevertheless, the Supreme Court held that
paragraph 7 of the Tenth Schedule was unconstitutional because in effect it amended
Article 226, but without following the procedure in the proviso.

It is unclear then as to how J. Bhat arrived at the conclusion that Sajjan Singh and
Kihoto Hollohan require a direct or actual amendment, when they clearly held to the
contrary. Thus, a direct amendment is not necessary – an in effect amendment can also
trigger the proviso.

III. Effect of the Amendment – Does it include incidental effects?

Having established that an in effect amendment can trigger the proviso, the next
question, is whether any effect, including incidental effects, are sufficient to trigger the
proviso. The Supreme Court in both Sajjan Singh and Kihoto Hollohan held that an
incidental effect on a specified provision would not trigger the proviso. The Court
justified this decision on the basis of the purpose and structure of Article 368(2). In
Sajjan Singh, it held that –
It is urged that any amendment of the fundamental rights contained in Part III would
inevitably affect the powers of the High Court, prescribed by Article 226, and as such,
the bill proposing the said amendment cannot fall under the proviso; otherwise the very
object of not including Part III under the proviso would be defeated.

Given that the Constitutional provisions do not operate in silos, it is likely that an
amendment to a non-specified provision will effect a specified provision, thereby
triggering the proviso if every effect was considered sufficient. Thus, a harmonious
interpretation of the two parts of Article 368(2) requires that amendments which in their
true effect seek to amend non-specified provisions, do not trigger the proviso, merely
because of an incidental effect on a specified provision.

It was this question of incidentality, that distinguishes Sajjan Singh and Kihoto
Hollohan. In the former, the Court held that the effect on Article 226 was incidental,
whereas in the latter it was held that the effect was not incidental. The determination of
whether an effect is incidental is based on which provision the amendment truly
purports to effect a change in. As mentioned above, if its true effect is on a non-
specified provision, then a mere incidental effect on a specified provision, would not
trigger the proviso.

The Court in Kihoto Hollohan used this test to draw a distinction with the facts of
Sajjan Singh –
159. Distinction has to be drawn between the abridgement or extinction of a right and
restriction of the remedy for enforcement of the right. If there is an abridgement or
extinction of the right which results in the disappearance of the cause of action…in the
absence of which there is no occasion to make a grievance and invoke the subsisting
remedy, then the change brought about is in the right and not the remedy. To this
situation, Sankari Prasad and Sajjan Singh apply. On the other hand, if the right
remains untouched…and, therefore, the cause of action subsists, but the remedy is
curtailed or extinguished…then the change made is in the remedy and not in the
subsisting right.

According to the Court, in Sajjan Singh, the 17th Constitutional Amendment’s objective
was to amend the fundamental rights in Part III – that is where its true effect was. Its
purpose was not to amend the remedy i.e. Article 226 and thus the effect on Article 226
was merely incidental. On the other hand, according to the Court, in Kihoto Hollohan,
the true effect of paragraph 7 of the 52 nd Constitutional Amendment was to remove the
power of judicial review, and not to change the underlying cause of action itself. The
true effect was on the remedy i.e. Article 226 and the thus the effect was not incidental.

Therefore, the determination of incidental effect is not based on the degree of change to
the specified provision, but rather on the true effect of the amendment.
IV. Evaluation of the 102nd Constitutional Amendment

As mentioned earlier, according to J. Bhat, clause 4 of the 102 nd Constitutional

Amendment grants exclusive power to the Centre to identify SEBCs, taking away the
power that the States have enjoyed for over seven decades. Applying the two-pronged
test for the application of the proviso to Article 368(2), there are two questions that arise
– first, whether the Amendment has the effect of amending any of the specified
provisions; and second, if it does, is the effect merely incidental.

In respect of the first prong, I argue that the Amendment has the effect of amending the
specified provisions – specifically, the States’ legislative powers under Article 246 and
the Seventh Schedule [as specified in sub-clauses (b) and (c) of the proviso] and their
executive powers under Article 162 [specified in sub-clause (a) of the proviso].

Articles 15(4) and 16(4), authorize the “State” to make reservations for SEBCs.
According to the Supreme Court in Indra Sawhney, this includes both the Parliament
and the State Legislature, as well as the Executive (both Centre and State). However,
the question of which authority is competent to provide for reservations in a specific
context, is dependent on the legislative competence of the Parliament/Legislature per
Article 246. For instance, the regulation of State public services, as per Entry 41, List II,
is within the State Legislature’s domain. Thus, the a provision of reservations for SEBCs
in the context of State public services, would come within the competence of the State
Legislature and not the Parliament. Further, according to Article 162, the State’s
executive powers are co-extensive with the State Legislature’s powers. Since the power
to regulate State public services belongs to the State Legislature, in the context of
executive power, it belongs to the State.

However, the Amendment takes away both the legislative and executive power of the
States to provide for reservations in contexts such as State public services, which
before the Amendment had been in their domain as per Article 246 and 162. Thus, even
if the Amendment does not directly amend the specified provisions, it does have an
effect on them.

The second prong then is whether this effect is incidental or not. As mentioned above,
this requires a determination of which provisions clause 4 of the Amendment truly seeks
to effect a change in. To evaluate this, it is useful to compare the 102 nd Amendment to
the 93rd Constitutional Amendment, which inserted Article 15(5), authorizing the “State”
to make reservations for SEBCs even in private educational institutions. The 93 rd
amendment does have an effect on the powers of States. However, its true purpose
was to effect a change in Article 15, and the effect on the states’ powers was merely
incidental.

On the other hand, according to J. Bhat, the true purpose of clause 4 of the 102 nd
Amendment could not merely have been to continue status quo and grant constitutional
authority to the National Commission for Backward Classes. Instead, per his
interpretation the true effect and purpose of clause 4 was to shift the power that hitherto
States exercised to the Centre (paragraphs 147-152). Unlike the 93rd Amendment, the
102nd Amendment did not seek to effect change in the right in Article 15(4) and 16(4),
but sought to effect change in the distribution of powers between the Centre and the
States to enforce that right. Thus, the effect on the distribution of legislative and
executive powers between the Centre and the States was the main purpose of the
Amendment. Therefore, it cannot be said that the Amendment’s effect on Articles 162
and 246 was merely incidental.

Thus, both prongs of the test are satisfied, and the proviso to Article 368(2) is
applicable. However, this does not make the 102nd Constitutional Amendment
unconstitutional as a whole. As was held in Kihoto Hollohan, an amendment is invalid
only in so far as it would have required ratification by States under the proviso. In that
case for instance, applying the doctrine of severability, the Court held that only
paragraph 7 of the Tenth Schedule was unconstitutional. Similarly, in the present case,
only clause 4 of the 102nd Amendment would be unconstitutional. Alternatively, the
Supreme Court could, as it does when exercising its powers of judicial review under
Article 13, read-down clause 4 and interpret it in a manner that does not trigger the
proviso i.e. interpret the Amendment as not taking away the powers of States to identify
SEBCs.

V. Basic Structure Argument

It was argued that the 102nd Amendment falls foul of the basic structure of the
Constitutions in so far as it seeks to change the federal division of powers. However, J.
Bhat rejected this argument, holding that –
187. …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… that the amendment would take away an essential
feature or violate the basic structure of the Constitution.

In my opinion, J. Bhat was correct to hold that the 102 nd Amendment could not have
been struck down on the grounds of a basic structure challenge. As Bhatia notes, the
threshold for a basic structure challenge is quite high. As held in Nagaraj, a basic
structure challenge stands only when the constitutional amendment makes the
Constitution unrecognizable – not merely when there has been a change in the
Constitution.

Further, the Constitution itself tolerates changes in the distribution of powers between
the Centre and States. This has been explicitly provided for in Article 368(2). Thus, even
if the Amendment takes away the power of the States to identify SEBCs, this would not
be enough to meet the threshold of a basic structure challenge.

Conclusion
The proviso to Article 368(2) is a fundamental protection against the unilateral
usurpation of power by the Parliament. It goes to heart of the federal structure of our
Constitution. It is unfortunate, then, that this issue was treated somewhat cavalierly by
the Majority judgement, even though it held that a power hitherto exercised by States for
seven decades, had been exclusively taken over by the Centre. According to J. Bhat,
the ratification of States per the proviso to Article 368(2) is necessary only when there is
a direct amendment to the specified provisions. This is in my opinion is a dangerous
precedent – it allows the Parliament to amend the federal structure of the Constitution
by stealth, while seeking shelter in the fact that no direct amendments have been made
to the provisions specified in the proviso.This formalist interpretation, is yet another
instance of what Bhatia calls the Supreme Court’s anti-federal tradition.

A Critique of the Supreme Court’s Maratha Reservation Judgment – II:

Federalism

MAY 7, 2021GAUTAM BHATIA2 COMMENTS

[Editor’s Note: Justice is an indivisible concept. We cannot, therefore, discuss

contemporary Supreme Court judgments without also acknowledging the Court’s failure
– at an institutional level – to do justice in the case involving sexual harassment
allegations (link) against a former Chief Justice. This editorial caveat will remain in place
for all future posts on this blog dealing with the Supreme Court, until there is a material
change in circumstances (e.g., the introduction of structural mechanisms to ensure
accountability)].
In the previous post, we discussed the Supreme Court’s holding on the 50% cap in the
Maratha Reservation judgment. In this post, we shall discuss the second set of issues
that came before the Court, i.e., the interpretation of the 102nd Amendment to the
Constitution, and whether the power to identify socially and educationally backward
classes [“SEBCs”] was vested only with the centre, or with both the centre and the
states. By a 3:2 majority, the Supreme Court held in favour of the former view, and thus
denuded the states of their power to identify SEBCs for the purposes of reservation,
going forward.

The 102nd Constitutional Amendment made three significant changes to the

Constitution. First, through a new Article 338B, it created a National Commission for
Backward Classes with constitutional status. Article 338B largely followed the scheme
of Article 338 (National Commission for Scheduled Castes) and 338A (National
Commission for Scheduled Tribes). Secondly, through a new Article 342A, it specified a
process for the identification of SEBCs that closely followed the process of identification
set out in Articles 341 (Scheduled Castes) and 342 (Scheduled Tribes) – albeit, with
one significant difference, to which we will come to in a moment. Thirdly, it added a new
sub-clause (26C) to the Constitution’s definitions clause (Article 366), which stated that
the term “SEBC” means “such backward classes as are so deemed under Article 342A
for the purposes of this Constitution.”
There were two competing interpretations of these changes. According to the first
interpretation, the new constitutional provisions did not substantively alter the status
quo, according to which the centre and the states exercised joint and separate powers
to identify SEBCs (a central list and several state lists), for their own purposes
(educational institutions and public employment). According to the second
interpretation, however, these provisions created a new structure that was identical to
the situation of Scheduled Castes and Scheduled Tribes (SCs and STs): the power to
identify beneficiaries now lay solely with the centre, and no longer with the states.

At the outset, there were two textual reasons in support of the first proposition. First,
unlike in the case of SCs and STs, the existing arrangement – i.e., state and centre
exercising powers separately – had been in existence since the beginning of the
Constitution. It was therefore implicit that if a constitutional amendment intended to
change that to a drastic degree, it would do so in express terms, and not by implication.
Notably, at no point did Article 338B or 342A state that the process it was codifying was
the sole process of identifying SEBCs. Secondly, there was one notable difference
between Articles 341 and 342 on the one hand, and Article 342A on the other. All three
articles, in their first sub-clause, authorised the President to notify the list of
beneficiaries (SC, ST, or SEBC). In their second sub-clause, Articles 341 and 342
clarified that a Presidential notification could only be amended by Parliament. Article
342A(2), however, used the following language: “Parliament may by law include in or
exclude from the Central List of socially and educationally backward classes specified
in a notification issued under clause (1) any socially and educationally backward
class…“

The reference to the Central List is new, and strongly indicates that the new
constitutional arrangement was limited in its operation to the existing process only at
the central level, i.e., with respect to the Central List of SEBCs (and not the state lists).
If the intention of the new scheme was to do away with state lists altogether, then Article
342A(2) would have followed the wording of 341(2) and 342(2), which only used the
terms “list of Scheduled Castes” and “list of Scheduled Tribes.” The phrase “Central
List” made sense only in a context in which there existed state lists to start with.
As we have seen, however, by a 3:2 majority, the Supreme Court disagreed with this
reading. Let us first examine the judgment of Justice Bhat, with which Justices Gupta
and Rao agreed. As Bhat J. insisted that the wording of the amendments was
unambiguous, and a literal reading pointed to only one possible interpretation, I will – for
the moment – set aside the extensive references to Parliamentary Committee reports
and to policy reasons underlying the constitutional changes, and focus on textual and
structural arguments. A close examination of Justice Bhat’s judgment reveals the
following reasons for disagreement: first, Article 366(26C) defined SEBCs by referring to
Article 342A, “for the purposes of this Constitution.” The phrase “for the purposes of this
Constitution” was to be interpreted broadly, and – following precedent on the
interpretation of Articles 341 and 342 – read to include the entirety of the Indian
Constitution, which therefore also included Articles 15(4) and 16(4) (the reservation
provisions). Consequently, Article 342A now exclusively governed the field with respect
to the identification of SEBCs. Secondly, previous amendments to the definitions clause
had been given effect to “in their broadest manner”, including in situations where this
would cut down the powers of the several states. Thirdly, given that, under the National
Commission for Backward Classes [“NCBC”] Act, the central government already had
the power for publishing lists of SEBCs for union employment and central PSU posts,
there was no reason to amend the Constitution and provide for a power that already
existed; fourthly, the word “central” was used at various places in the Constitution, and
therefore only signified a list prepared by the President at the behest of the central
government, and not a list for employment under the central government; fifthly,
Parliament intended, through the 102nd Amendment to replicated the regime for
identification of SCs and STs, for SEBCs as well, and that is why Article 338B was a
“mirror image” of Articles 338 and 338A. The “total alignment” between the three
processes was then achieved by Article 342A.

With respect, each of these arguments is flawed.

The problems begin with the first argument (“for the purposes of this Constitution”),
which was – indeed – the lynchpin of Bhat J.’s interpretation (and therefore reiterated by
him throughout the judgment). The problem is a simple one: in essence, Bhat J.’s
reading puts the cart before the horse. Article 366(26(C)) states that SEBCs, for the
purposes of this Constitution, mean the backward classes deemed so under Article
342A. But it is the interpretation of Article 342A itself that is under dispute, because of
the use of the term “Central List”. If, for the purposes of argument, we assume that the
correct interpretation of “Central List” is, indeed, the list that refers to union employment
and central PSUs, and not the list prepared by the centre, then Article 342A itself
contemplates separate powers for the centre and the state, in identifying SEBCs.
Justice Bhat’s argument might have been correct if Article 366(26(C)) had referred back
only to Article 342A(1) – which is about the Presidential notification of SEBCs. But
Article 342A contains two sub-clauses – (1) and (2), (2) refers to the “Central List”, and
366(26(C)) refers to both 342A(1) and (2). It therefore follows that the implication of the
term “for the purposes of this Constitution” under Article 366(26(C)) will change
depending upon how you first interpret Article 342A, on its own terms. Instead, Bhat J.
used Article 366(2C)) to settle the issue of the interpretation of Article 342A. This, then,
would have a knock-on effect on a lot of other arguments deployed by him, such as, for
example, giving an exhaustive meaning to the word “means” under Article 366(26(C))
as well. And if Bhat J.’s first argument falls, then the second argument – giving
amendments to the definition clause their “full impact” falls as well, because we don’t
know what the definitions clause actually refers to until we have first interpreted Article
342A, autonomously.

The third argument works no better. It is equally plausible to argue that Parliament
wanted to provide constitutional status to what had hitherto been only a statutory
procedure under the NCBC Act. Constitutional bodies exercise greater prestige than
statutory bodies (recall the whole debate about the necessity of having a putative NJAC
under the Constitution, and not left to statute). Without further evidence of Parliamentary
intent, neither interpretation can be favoured over the other.

Justice Bhat’s fourth and fifth arguments can be taken together, as they both pertain to
the phrase “central list.” On his fourth argument, the fact that the Constitution uses the
word “central” at various points does not help the case: the issue is not with the word
“central”, but with the term “central list”, and with the fact that Articles 341(2) and 342(2)
do not use that phrase, and instead, use the phrase “lists of…” If, indeed, the term
“central list” meant a list prepared by the central government (through the President),
then the exact same phrase should have been used in Articles 341(2) and 342(2) as
well – because the list of SCs and STs is also prepared by the central government. This
also addresses Justice Bhat’s fifth argument, about the “mirror image” and “total
alignment”: this argument is simply belied by the textual differences between 341(2),
342(2), and 342A(2): the moment Article 342A(2) uses the phrase “central list” – a
conscious departure from “lists of…”, there is evidently no “total alignment.”

In my view, these arguments demonstrate that the textual evidence is clear for the other
interpretation of these provisions: that they were not meant to disturb the status quo and
denude the states of their powers to identify SEBCs. At the very least, however, these
arguments reveal that the provisions are ambiguous, and therefore require extrinsic aids
to interpretation. In this context, I do not have much to add to Bhushan J.’s discussion of
the Parliamentary debates and reports that led up to the 102nd Amendment, as I find it
both persuasive and compelling. In brief, objections were raised as to how the
Amendment, in its presently worded form, might take away the states’ powers, and the
minister piloting the amendment made it clear that the purpose was not to take away
states’ powers, but to codify central powers. Bhat J. points to the fact that proposed
amendments aiming to set this out in express terms were rejected. The rejection of an
amendment, however, can be motivated by two reasons: on the one hand, it could be
because Parliament did not agree with the substance of the amendment. On the other
hand, it could be because Parliament was of the view that the amendments did not alter
or add to anything that was already there – and obviously so – in the original text.
Repeated assurances by government ministers that the Bill was not altering the status
quo suggests the latter reading. Bhat J. also draws a distinction between assurances
that states’ powers would not be diluted, and states’ interests would be taken care of. A
look at the legislative history makes it clear, however, that both sets of assurances (not
just one) were made.

One could argue, of course, that the parliamentary history – like the text – is
inconclusive. A final point then remains: that of federalism. Let us say, for the purposes
of argument, that the text of the provisions admitted of no definite interpretation, and
neither did parliamentary history. In such a context, faced with two equally plausible
interpretations of the text, it was at least abundantly clear that one interpretation would
advance federalism (a part of the basic structure of the Constitution), while the other
would undermine it. As in the famous UK Supreme Court judgment in Miller II,
constitutional principles can – and often do – serve as implied limitations upon
constitutional power, where more than one reading of a text is possible. It is my
submission that as long as Article 342A could bear a plausible interpretation that would
support federalism, it was the Court’s duty to give effect to that interpretation.

Unfortunately, however, not only did Bhat J.’s judgment not do this, but also found this
to be a policy reason in support of his anti-federal reading. Bhat J. made references to
how a single, central list would help to prevent politicisation of the process, and ensure
objectivity in identifying beneficiaries. Not only are these claims evidence-free, however,
they are also quite bizarre: why would one think that taking power away from state
governments and giving it to the central government would remove politicisation,
instead of just shifting its locus from point A to point B (there is, furthermore, a latent
prejudice here against the idea of politics, and in favour of an apolitical, technocratic
process, but let us leave that discussion for another day)? Justice Bhat’s arguments
reveal an unfortunate bias that has long been part of Indian judicial discourse: the
assumption that state governments are prone to corruption, rent-seeking, and
institutional capture, while the central government stands aloof and objective. There is,
however, no historical basis to this claim, and indeed, in the case of SEBCs, there are
powerful arguments to be made that local governments are best positioned for the
purposes of identification.

Whatever the final reasons, however, the Marathe Reservation judgment only adds to
what is now a fairly long anti-federal judicial tradition of interpreting constitutional
ambiguities so as to transfer power from the states to the centre. In the long run, this
belies our courts’ rhetorical commitment to the principle of federalism and is, in my view,
an unfortunate part of our constitutional jurisprudence.
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