During the Lok Sabha debate on the Constitution amendment Bill to provide a quota in jobs and education for the “economically weaker sections”, Congress’s K V Thomas said “this Bill has to be passed by a two-thirds majority, and then, 50 per cent of the states have to approve it”.
Intervening in the debate, Finance Minister Arun Jaitley said that to amend part 3 of Article 368 of the Constitution (which describes the “Power of Parliament to amend the Constitution and procedure therefor”), which concerns the Fundamental Rights, there is no need to go to the state legislatures. Even the amendment that added Article 15(5) to the Constitution had been approved only by the two Houses of Parliament.
Former Lok Sabha Secretary-General PDT Achary, when reached for a comment, told The Indian Express: “The Constitution (124th Amendment) Bill, 2019 is not required to be ratified by half the state assemblies. The Bill will be through once both Lok Sabha and Rajya Sabha pass it in accordance with the laid-down procedure.”
How and why do procedures for the passage of Constitution amendment Bills vary?
Amendment of Constitution
Part XX of the Constitution deals with its amendment. Under Article 368(2), Parliament can amend the Constitution by passing a Bill 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”. Thereafter, the Bill “shall be presented to the President who shall give his assent… and thereupon the Constitution shall stand amended”.
However, if the amendment seeks to make a change in certain specific provisions, including Articles 54, 55, 73, “Chapter IV of Part V, Chapter V of Part VI, or Chapter I of Part XI, or any of the Lists in the Seventh Schedule, or the representation of States in Parliament,” etc., “the amendment shall also require to be ratified by the Legislatures of not less than one-half of the States…”.
Parliament cannot amend those provisions which form the “basic structure of the Constitution”, according to the Supreme Court ruling in the landmark 1973 Kesavananda Bharati case.
Fundamental Rights and Directive Principles are the two most important provisions that can be amended by the special majority. All provisions that do not require ratification by states, and those that come directly under the purview of Article 368, have to be amended by the special majority.
Any of the amendments proposed in Articles 4,169, and 239-A, and paras 7 and 21 of the Fifth and Sixth Schedules respectively, are excluded from the purview of Article 368. The Bill is passed with a majority required for the passage of an ordinary Bill.
Provisions related to the federal structure enshrined in the Constitution can be amended only by a special majority and with the consent of the states. The important provisions that require ratification by the states include the election of President; Supreme Court and High Courts; representation of states in Parliament; distribution of legislative powers between the Union and the states; and the extent of executive power of the Union and the states.
Most importantly, any amendment to Article 368 itself, requires ratification by the states.
Article 15(5) of Constitution
Article 15 guarantees the Fundamental Right of prohibition of discrimination on grounds of religion, race, caste, sex, or place of birth. Articles 15(1) and (2) broadly state that the “State” shall not discriminate “any citizen” on grounds only of religion, race, caste, sex, place of birth or any of them; and there shall be no restriction on any person to access and use the public places and places of public resort maintained wholly or partly by the state or dedicated to the use of the general public.
Article 15(3) onward, the Constitution lays down provisions relating to protective discrimination — the policy of granting special privileges to underprivileged sections. Articles 15(3) and 15(4) are the foundation for reservations in education and employment in the country. Article 15(3) empowers the state to make special provisions for women and children; Article 15(4) empowers the state to make special provisions for advancement of socially and educationally backwards, and SC/STs.
Article 15(5) was introduced by The Constitution (Ninety-Third Amendment) Act, 2005. It is an enabling clause that empowers the state to make such provision for the advancement of SC, ST and Socially and Educationally Backward Classes (SEBC) of citizens in relation to a specific subject, namely, admission to educational institutions including private educational institutions whether aided or unaided by the State notwithstanding the provisions of Article 19(1)(g).
After the Constitution was amended, Parliament passed The Central Educational Institutions (Reservation in Admission) Act. It is to be noted that these provisions are not applicable to minority institutions.
The Ninety Third Amendment
The amendment was challenged on two major issues: whether it violated the “basic structure”, and whether Articles 15(4) and 15(5) were mutually contradictory — and hence, Article 15(5) was ultra vires of the Constitution.
In March 2008, a five-judge Constitution Bench headed by the then CJI K G Balakrishnan upheld the law providing 27 per cent quota for OBCs in IITs, IIMs and other central educational institutions, but said it would not apply to the “creamy layer”. The court, in Ashoka Kumar Thakur versus Union of India, held that the “creamy layer” must be excluded from the SEBCs and continuance of quota under the Central Educational Institutions (Reservation in Admission) Act, 2006, should be periodically reviewed after five years. The Bench upheld the validity of the Constitution (93rd Amendment) Act, 2005, empowering the Centre to come out with the special law for OBC quota in higher educational institutions. It also held that the amendment does not violate the “basic structure” of the Constitution in so far as it relates to state-maintained institutions and aided educational institutions. It rejected the contention that Article 15(5) was contradictory to Article 15(4), and upheld the exclusion of minority educational institutions from the purview of Article 15(5).