By Inder Jit

(Released on 26 October 1976)

A good, close look is currently being given to crucial clauses of the Constitution (Forty-fourth Amendment) Bill in the light of some thought-provoking and incisive comments received thus far. Of particular interest in this context is Clause 55 of the Bill. This seeks to amend Article 368 of the Constitution to clarify once and for all the supremacy of Parliament and to provide that no amendment of the Constitution will hereafter “be called in question in any court.” Some shrewd Constitutional lawyers, including leading Congressmen, have discovered that future amendments of the Constitution might nevertheless get challenged in various courts because of the last twenty words of the proposed amendment. The amendment no doubt states that no amendment of the Constitution shall be called in question by any court. But it carries the proviso “except upon the ground that it has not been made in accordance with the procedure laid down by this Article.”

These exports concede that compliance with the procedure prescribed in article 368 for amendment of the Constitution is an essential precondition. Article 368(2) states: “In 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 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 for his assent and upon such assent being given to the Bill, the Constitution shall stand amended in accordance with the terms of the Bill.” The article further states, among other things, that in case the amendment seeks to make any change in 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.”

But the question asked is: Who is to decide ultimately whether the condition precedent, namely the procedure, has been complied with or not? Parliament or the Courts? As far back as 1849, the Supreme Court of the USA in a dictum in the famous case Luther vs Borden stated that the question of the procedural validity of a constitutional amendment was a “political question” and was not justifiable. After considerable debate, this doctrine of political question received lucid exposition in 1939 when an amendment to the Federal Constitution (Child Labour Amendment) was challenged on the ground that the ratification by the State of Kansas was not valid inasmuch as the Lt. Governor of the State had no right to cast the deciding vote and that the ratification had also not been done within a reasonable time. But the U.S. Supreme Court held that the Congress had the sole and complete control over the amending process and that this “political process” was not subject to any judicial review whatsoever.

Under our Constitution, Parliament enjoys an inherent right to conduct its affairs without interference from any outside body. It is the sole judge of its own procedure and, according to a point made by a top Constitutional expert, Mr Alladi Krishnaswami Ayyar, in the Constituent Assembly, “even procedural lapses do not vitiate its proceedings.” (C. debate Vol IX). The overall position is made abundantly clear in Article 122 of the Constitution which states: “(1) The validity of any proceedings in Parliament shall not be called in question on the ground of any alleged irregularity of procedure. (2) No officer or Member of Parliament in whom powers are vested by or under this Constitution for regulating procedure or the conduct of business, or for maintaining order, in Parliament shall be subject to the jurisdiction of any court in respect of the exercise by him of those powers.”

The inclusion of the exception in Article 368(4), it in argued, amounts to an unwitting surrender in advance of the doctrine of “politcal question” in favour of judicial review. The exception, it is further argued, is inconsistent with and will override article 122 of the Constitution since it does not confine justifiability to “illegality” in procedure. The exception will be attracted even if there is any irregularity in the procedure. Article 122 will be of no avail in as much as Article 122 is general in nature and the exception is specific according to the well-established principle of statutory interpretation, a special provision prevails over the general provision. Moreover, the term “procedure” cannot be confined only to the number of votes cast or ratifications by the State Legislatures according to the view expressed by the Supreme Court in 1958 while considering the term “procedure” occurring in Article 368.

This seeks to amend Article 368 of the Constitution to clarify once and for all the supremacy of Parliament and to provide that no amendment of the Constitution will hereafter "be called in question in any court."

The Supreme Court held: “It is not correct to say that Article 368 is a “complete code” in respect of the procedure provided by it. There are gaps in the procedure as to how and after what notice a bill is to be introduced, how it is to be passed by each House and how the President’s assent is to be obtained. Evidently, the rules made by each House under Article 118, for regulating its procedure and the conduct of its business were intended, so far as may be, to be applicable… Assuming that amendment of the Constitution is not legislation even where it is carried out by the ordinary legislature by passing a bill introduced for the purpose and that Arts. 107 to 111 cannot in terms apply when Parliament is dealing with a bill under Article 368, there is no obvious reason why Parliament should not adopt, on such occasions, its own normal procedure, so far as that procedure can be followed consistently with statutory requirements”.

The inclusion of the exception will, it is argued, mean justifiability of every procedural step taken towards the final adoption of the amendment. Indeed, the term “procedure” in the exception may find itself interpreted more widely than contemplated by the framers of the Amendment Bill. The procedures for voting in legislative assemblies could be understood to include who are the members, how and when they should vote, what is the requisite number of votes for different phase of legislative activity, what votes were cast and how they were counted. The term “procedure” also occurs in Article 21 (relating to protection of life and personal liberty) of the Constitution and was interpreted by the Supreme Court on A.K. Gopalan’s case as follows. Mr Justice Mukherjee held that the expression procedure meant “the manner and form of enforcing the law.” Mr Justice Fazl Ali in his dissenting judgment observed: “Procedure means certain definite rules of proceeding and not something which is a mere pretence for procedure.”

The Supreme Court held: "It is not correct to say that Article 368 is a "complete code" in respect of the procedure provided by it. There are gaps in the procedure as to how and after what notice a bill is to be introduced, how it is to be passed by each House and how the President's assent is to be obtained.

If the term “procedure” in the proposed exception is given the wide meaning as implied in the two judicial observations, one could run into serious difficulties. The interpretation could possibly be stretched to even determining the validity of Parliament which adopts the Amendment Act. It could, moreover, raise the question of the right of various members to vote on the amendment, reasonableness of time for discussion or for ratification by the State Legislatures and the effect of non-submission of the Bill for ratification to those state legislatures which stand superseded by President’s rule. Of interest in this context is the fact that it was once argued before the Calcutta High Court that the 15th Constitution Amendment was bad because a State Legislature was not given reasonable time to consider ratification and that it was not placed before all the States. In the American case mentioned earlier, one of the questions involved was whether the State Legislature had ratified the amendment within a reasonable time.

If all such challenges are raised, these experts fear, the courts will be turned into “platforms for political propaganda with scant regard for the ultimate judicial verdict.” What seems to make matters worse is that the exception does not confine the forum of the “procedure” to any particular court. The amendment can be called in question “in any Court’. It will be no answer to say that as a result of the Amendment Act the Central Act can be challenged only in the Supreme Court since the validity of that Act itself would be under challenge. “If this is so,” sums up one expert, “the country may face the dismal spectacle of scores of cases filed in the courts of subordinate judges and High Court judges at different places challenging the validity of the Constitutional Act notwithstanding the supremacy of Parliament.”— INFA