97th constitutional amendment

Union of india
versus
Rajendra n shah(LL 2021 SC 312)
 This judgement struck down most part of 97th constitutional amendment regarding the
cooperative societies.
 Quorum
 1)justice rohinton nariman
 2) justice km joseph
 3)justice BR gavai
 97th constitutional amendment
 It introduced part 9B of the constitution defining powers of state legislatures and centre
to regulate corporations elections and governing cooperative societies.
 Acc to ILO(international labour organization
 a cooperative society is an autonomous association of persons united voluntarily to meet
their common , social and cultural needs
 Types of cooperatives
 1)consumer cooperative society
 2)credit cooperative society
 3)Housing cooperative society
 4)marketing cooperative society
Issues in the 97th amendment
1) Part 9B introduced into the constitution through the 97th amendment dictated
the terms for running cooperative societies
2) It went into the extent of determining the number of directors a society should
have or their length of tenure and even the necessary expertise to become the
member of the society.
Argument of central government
1) Government injecting professionalism and autonomy into the functioning of
the societies
2) Lack of accountability by the members led to the poor services and low
productivity
3) Even elections are not held on time .cooperatives need to run on well
established democratic principles
 Supreme courts ruling
 1) The constitution has been described as quasi federal
 Quasi federal means an intermediate form of a state between a unitary state
and a fedaration.
 2) States have exclusive power to legislate on topics reserved exclusively to
them
 3)Part 9B which consists of 243ZH TO 243ZT has significantly and substantially
impacted state legislatures exclusive legislative power over its cooperative
sector under entry 32 of the state list
 4)The court pointed out that article 243ZI makes it clear that a state may only
make law on the corporation regulation and winding up of a society.
 Not ratified by states
 it was held that 97th constitutional amendment required ratification by at least
one half of the state legislatures as per article 368(2) of the constitution since it
dealt with an entry which was an exclusive state subject.
 Under article 368(2) parliament can amend the constitution by passing a bill
with special majority
 Since such ratification was not done in case of 97th amendment it was liable to
be struck down.
 Honourable supreme court upheld the validity of provisions related to
multi state cooperative societies
 When it comes to MSCS with objects not confined to one state the legislative
power would be that of union of india which is contained in entry 44. so the
court declares that the part 9B constitution is operative only in so far as it
concerns multi state cooperative societies both within various states and in
union territories.
 Doctrine of severebility
 The doctrine of severability means that when some particular provision of a
statute offends or is against a constitutional limitation but that provision is
severable from the rest of the statute only that offending provision will be
declared void by the court and not the entire statute .
Supreme court advocates record association
versus
union of india
 Constitutional 99th amendment act on NJAC i.e national judicial appointment
commission
 NJAC was a proposed body which would have been responsible for the
recruitment,appointment and transfer of judges and legal specialists in india.
 A new article 124 A has been inserted into the constitution
 Composition
1) Chief justice of india ( chairperson ex officio )
2) Two other senior judges of SC next to chief justice of india
3) Union minister of law and justice
4) Two emminent persons will be appointed by committee consists of
a)Chief justice of india
b)Prime minister of india
c)Leader of opposition
 QUORUM
 1) justice J.S kehar
 2)justice Madan lokur
 3)justice Kurian joseph
 4)justice Adarsh kumar goyal
 5)justice Chelameswar
 Out of above 5 judges justice chelameswar upheld the amendment
 Majority judgement authored by CJI js kehar held
 A) clause (a) and (b) of article 124 A(1) do not provide an adequate representation to
judicial component in NJAC. The same are accordingly violative of principle of
independence of judiciary.
 B) it is ultra vires of the provisions of the constitution because of the inclusion
of the union minister in charge of law and justice as an ex officio member of NJAC
 C)Article 124(1) which provides for inclusion of two eminent persons as members of
NJAC is ultra vires the provisions of constitution.
 The same has been held as the violative of the basic structure of the
constitution because the body ( national judicial appointment commission)
sought to be created does not have the salient features of the body(collegium)
substituted .
 L chandra kumar
versus
union of india (1997(2) SCR 1186)
(part of constitution 42nd amendment act 1976)
Relating to administrative triunals
was inserted through section 46 of the constitution (42nd amendment act) 1976
Comprised of two provisions article 323 A and 323 B
Question before the court
Whether the power conferred upon parliament or the state legislature as the case
may be by sub clause (d) of clause (2) of article 323A or sub clause (d) of clause
(3) of article 323 B of the constitution totally exclude the jurisdiction of all
courts Except that of supreme court under article 136 in respect of disputes
referred in 323 A and 323 B.
ARTICLE 323 A-deals with the administrative tribunals
ARTICLE 323 B -deals with tribunals for other matters like
a) Taxation
b) Foreign exchange,import and export
c) Industrial and labour
 4) land reforms
 5) Food stuff
 Court held that the said articles 323 A and 323 B to the extent exclude the
jurisdiction of HC and SC under article 226/227 and 32 of constitution are
unconstitutional.
 The jusrisdiction conferred upon HCs and SC under article 226/227 and SC
upon article 32 of the constitution is basic structure of the constitution.other
courts and tribunals may perform a supplemental role in discharging the
powers conferred by article 226/227 and 32 of the constitution.
 What is tribunal
 Tribunal is a quasi judicial institution that is set up to deal with problems such
as resolving administrative or tax related disputes.
 Need of tribunal
 1) to overcome the situation that arose due to pendency of cases in various
courts
2) To reduce the workloads of the courts and to expedite decisions.
 Kihoto hollohan
versus
zachilhu(1992 SCR (1) 686
(52nd amendment act)
 This was on anti defection law
 In this case the court dealt with a challenge to tenth schedule to the
constitution inserted by constitution 52nd amendment act 1985
 Tenth schedule was to deal with the evil of defection it also purported to oust
the jurisdiction of all courts by virtue of paragraph 7
 Which read as follows
 Bar of jurisdiction of courts notwithstanding anything in this constitution no
court shall have any jusrisdiction in respect of any matter connected with
disqualification of the member of a house under this schedule
 The court struck down para 7 and invoked doctrine of severability to uphold
the rest of paragraphs of tenth schedule .
 Anti defection law
 The background of kihoto hollohan case can be traced back to affected
functioning of the legislature
 Introduction of new jargon of aaya ram , gaya ram sundrome in political
parlance
 There were large scale defections . The constitution (fifty second amendment)n
act 1985 which is known as anti defection law came into force on march 1985.it
inserted a new schedule tenth schedule to the constitution setting out various
provisions detailing disqualification on the ground of defection.
 New member of parliament or state legislature will be considered defected if he
eiether voluntary resigns from his party or disobeys the ordersof the party
leadership on any situation which involves voting.
 The members are thus prevented from voting against direction issued by partys
whip.
 Issues raised
 The tenth schedule to the constitution inserted by the( fifty second
amendment ) act 1985 seeking to penalise and disqualify elected
representatives is violative of fundamental principles of parliamentary
democracy and is destructive of basic feature of the constitution.
 Paragraph 7 of the tenth schedule in terms and effects brings about a change in
operation and effect of article 136 ,226 and 227 of the constitution. Therefore
the bill introducing the amendment would require ratification as envisaged by
article 368(2).
 The non compliance with proviso to 368(2) would render the entire bill vitiated
and an abortive attempt to bring about a valid amendment or would para 7
alone be invalidated with application of doctrine of severability.
 The court struck down para 7 and invoked doctrine of severability to uphold
the rest of paragraphs of tenth schedule.
 Doctrine of severebility
 The doctrine of severability means that when some particular provision of a
statute offends or is against a constitutional limitation but that provision is
severable from the rest of the statute only that offending provision will be
declared void by the court and not the entire statute.
P sambamurthy
versus
state of andhra pradesh(1987 AIR 663)
constitution(32nd amendment)act

 clause (5) of article 371 D(introduced in the constitution by constitution 32nd

amendment act 1973)
 It provides that the order of administrative tribunal finally disposing of a case
shall become effective only upon its confirmation by the state government or
on the expiry of three months from the date on which the order is made.
 Court held that if the power of judicial review conferred on the administrative
tribunal is by reason of proviso to clause (5) of article 371 D subject to veto of
the state government and it is not all effective or efficacious because the state
government can defeat its exercise by just passing an order modifying or
nullifying the decision of the administrative tribunal.
 The proviso to clause (5) has the effect of emasculating the striking power of
administrative tribunal and the state government can make the decision of
administrative tribunal impotent and sterile.
 Introduction
 Genesis of the amendment made in the constitution by introduction of article
371 is in the formation of state of andhra pradesh on 1 november 1956. the state
of andhra pradesh was constituted of portions of territories drawn from erst
while state of andhra pradesh and hyderabad
 The territories from the erstwwhile state of hyderabad which were included in
state of andhra pradesh were commonly known as telangana area. Before the
territories of telangana area were amalgamated with other territories to from
the state of A.P there was set of rules known as mulki rules in operation in
telangana area under the regime of nizam of hyderabad and these rules
provided for residential clarification for all public employment.
 It remains in force even after challenging them in the court of law
 Two big agitations takes place in telangana area and andhra pradesh region
which paralyze the administration of the state.
 As a result six point formula was evolved by the political leaders to provide a
uniform approach.
 so the article 371 was introduced in the constitution to give it effect .
 The effect of the proviso to clause(5) is that the state government which is party
to the proceeding beforethe administrative tribunal and which contests the
claim of the public servant who comes before the administrative tribunal
seeking redress of his grievance against the state government would have the
ultimate authority to uphold or reject the determination of the administrative
tribunal it would be open to the state goverment after it has lost before the
administrative tribunal to set at naught the decision given by the
administrative tribunal against it such a provision is to say the least shocking
and is clearly subversive of principal of justice. .
 The rule of law would cease to have any meaning because then it would be
open to the state government to defy the law and yet to get away with it . Clause
(5) of article 371 D is violative of basic structure doctrine.
 The constitutional amendment authorising exclusion of the jurisdiction of
high court and vesting of such jurisdiction in the administrative tribunal
postulates for its validity that the administrative tribunal must be as effective
an institutional mechanism or authority for judicial review as HC .If by the
provisions administrative tribunal is less effective and efficacious than the HC
in the matter of judicial review in respect of specified service matters the
constitutional amendment would fall foul of basic structure doctrine.
Minerva mills
versus
union of india (AIR 1789 1980)
(42nd amendment act 1976)
 The judgement in this case was a verdict which majestically and proudly reaffirmed
the supremacy of basic structure of our constitution
 Chronology of power tussle between supreme court and the parliament
 During prime minister indira gandhis tenure from 1966-1977 the constitution was
amended record number of 25 instances .
 I c golaknath versus state of punjab
 By 6:5 majority SC had dealt a striking blow to the parliament by ruling that
fundamental rights were unamenable and could not be meddled with by
parliament.
 In a attempt to nullify the golaknath verdict parliament was quick to pass the 24th
amendment to constitution in 1971.
 Another attempt was made by parliament to nationalize the 14 banks by passing
banking companies (acquisition and transfer of undertakings ordinance
1969).
 In rustom carasjee cooper versus union of india sc invalidated this attempt by
striking down the act.
 There was also an attempt made by parliament to abolish privy purses. This
move again triggered the formation of 11 judge bench which proceeded to strike
down this attempt in madhav rao sciendia versus union of india..
 However these verdicts were subsequently dilluted by 25th and 26th amendment
to the constitution of india thus shifting the scales of power towards the
parliament once again.
 Then came the watershed moment when a 13 judge bench of supreme court in
case of hh kesavananda bharti versus state of kerala evolved the doctrine of
basic structure while recognizing the power of parliament to amend the
constituton the bench passed an injunction against it from altering the basic
structure which in turn remained undefined and only to be interperated on
case to case basis.
Kesava nanda bharati
versus
union of india
 24th constitutional amendment act 1971
 Parliament had aslo given itself the power to amend any part of the constitution
 25th constitutional amendment act 1972
 The right to property removed as a fundamental right
 Held that

 WIth majority OF 7:6 wherein the majority held that any provision of india
constitution can be amended by the parliament in order to full fill its socio
economic obligations that were guranteed to the citizens as given in the preamble
provided that such amendment did not change the basic structure of the
constitution.
 On the other hand court held that 24th amendment was entirely valid but found the
25th amendment to be ultravires.
 The supreme court declared article 31 C as unconstitutional and invalid on the
ground that judicial review is basic structure and cannot be taken away.
Indira nehru gandhi
versus
shri raj narain
 It was the first case where the apex court applied the doctrine of basic structure.
 The 39th amendment had inserted article 329 A in the constitutuon and clauses (4)
and (5) of this article barred the judicial review of elections for president,prime
minister, vice president and speaker of lok sabha .
 These clauses were struck down for being in flagrant violation of basic structure.in
an attempt to shift the scales back in favour of parliament and an act of vengeance
as it corroded the basic structure by pouring the venomous acid of 42nd
amendment.
 Now in the case of Minerva mills
 versus
 union of india
 The gravamen of the challenge in minerva mills were section 4 and section 55 of the
42nd amendment act 1976.
 Minerva mills was a texttile company which had been nationalized and taken over
by the government on account of being grossly mismanaged.
 Section 55 of the amendment act had amended article 368 of the constitution by
inserting clauses (4) and(5) to provide unbridled power to the parliament to amend
the constitution.
 Section 4 amended article 31 c to shield laws which aimed at advancing the directive
principles from being challenged in court for violating article 14 , 19 or 21.
 This essentially tranlsated situation where DPSP were placed at higher pedestal
than the fundamental rights and judicial review was blocked.so the amendment
had effectively nullified the decision in kesavanada bharati.
 Indian constitutional maverick nani palkivala lead the challenge and government
was defended by its attorney general L N sinha and ASG KK venugopal.
 5 judge bench delivered a thumping 4 : 1 verdict and declared scetion 4 and section
55 of the 42nd amendment act 1976 to the ultra vires the constitution of india.
 To give absolute primary to part 4 over part 3 is to disturb the harmony of the
constitution
 Thus following the ration in kesavananda bharti it was held that parliament
could not assume itself to posses absolute and unlimited power to amend the
constitution.
THANK YOU •