The story so far: The Union government on September 2 set up a committee under the leadership of former President of India Ram Nath Kovind to look into the feasibility of simultaneous polls to State Assemblies and the Lok Sabha. The eight-member High-Level Committee is set to examine the ‘one nation, one election’ idea and make recommendations for holding simultaneous elections in the country.
The members of the committee include Union Home Minister Amit Shah, former Leader of Opposition in the Rajya Sabha Ghulam Nabi Azad, former Chairperson of the 15th Finance Commission NK Singh, former Lok Sabha Secretary General Subhash C Kashyap, senior advocate Harish Salve, and former Chief Vigilance Commissioner Sanjay Kothari. Union Minister of Law and Justice Arjun Ram Meghwal shall attend the committee’s meetings as a ‘special invitee’.
Indian National Congress leader in the Lok Sabha Adhir Ranjan Chowdhury has however declined to be a part of the committee, calling the exercise a ‘total eyewash’ and saying that the committee’s terms of reference were prepared in a manner so as to guarantee its conclusions.
The Law Ministry has outlined seven terms of reference for the panel; one of them is to examine and recommend if the constitutional amendments required to facilitate simultaneous elections would require ratification by the States.
This has raised concerns since the implementation of such a proposal only through a vote in the Parliament where the union government is in majority, without the consent of the States would have an adverse impact on federalism.
In light of this development, a key question arises— how is the Constitution amended and do States get a say in the process?
How is the Constitution amended?
The Constitution was envisioned as a living document capable of morphing with the needs of the times. Notably, Jawaharlal Nehru observed in the Constituent Assembly— “While we want this Constitution to be as solid and as permanent a structure as we can make it, nevertheless, there is no permanence in Constitutions. There should be a certain flexibility. If you make anything rigid and permanent, you stop a nation’s growth, the growth of a living, vital, organic people.”
Article 368 of the Indian Constitution governs the process of amending the Constitution. Constitutional amendments can take place through three different procedures.
Some provisions in the Constitution can be amended in the same way ordinary legislations are passed— through a simple majority of those present and voting in each House of the Parliament; it does not require a specific quorum. Throughout the Constitution, such provisions are excluded from the purview of Article 368, thereby creating a separate category. Some examples include amendments contemplated in Article 4 (changes related to the organisation of States), Article 169 (abolition or creation of Legislative Councils in States), and para 21(2)13 of Schedule VI (provisions for the administration of Tribal Areas in the States of Assam, Meghalaya, Tripura and Mizoram), among others.
For amending provisions not within the first category, Article 368 stipulates that they can be effected by a prescribed ‘special majority,’ i.e., not less than two-thirds of the members present and voting in each House of the Parliament as well as by a majority of the total membership of each House. Although this requirement may be deemed as applicable only to the final voting stage, the Lok Sabha Rules prescribe adherence to it at all effective stages of the Bill— for adoption of the motion that the Bill be taken into consideration; that the Bill as reported by the Select/Joint Committee be taken into consideration, in case a Bill has been referred to a Committee; for adoption of each clause or schedule, or clause or schedule as amended, of a Bill; or that the Bill or the Bill as amended, as the case may be, be passed.
A third category requires both a ‘special majority’ and ratification by at least one-half of the State legislatures. No specific time limit for ratification by the State legislatures has been specified but resolutions ratifying the proposed amendment should, however, be passed before the amending Bill is presented to the President for his assent.
Which constitutional amendments require ratification by States?
The Constitutional provisions that require ratification in order to be amended are specifically listed in the proviso to Article 368(2) and pertain to the federal structure of the Constitution. They are commonly referred to as ‘entrenched provisions’ and are as follows—
a. If there is a change in the provisions regarding elections to the post of the President of India (Article 54 and 55).
b. If there is a change in the extent of the executive power of the Union or the State governments (Article 73 and 162).
c. If there is any change in the provisions regarding the Union judiciary or the High Courts. (Articles 124–147 and 214–231).
d. If the distribution of legislative and administrative powers between the Union and the States is affected (Article 245 to 255).
e. If any of the Lists in the Seventh Schedule is affected.
f. If the representation of the States in the Parliament is changed (Article 82).
g. If Article 368 itself is amended.
For instance, the Constitution (Ninety-ninth Amendment) Act, which established the National Judicial Appointments Commission (NJAC) for the appointment of Supreme Court judges, was ratified by sixteen State legislatures before it got the President’s assent on December 31, 2014. The amendment introduced three key Articles— 124 A, B, and C, and amended clause 2 of Article 124. Article 124A constituted the NJAC; Article 124B conferred upon the NJAC the power to make appointments to both the Supreme Court and various high courts; and Article 124C gave Parliament the power to make laws regulating the NJAC’s functioning.
However, the Supreme Court on October 16, 2015, by a 4-1 majority struck down the amendment on the grounds that it was unconstitutional and violated the basic structure of the Constitution. It accordingly restored the collegium system of appointment of judges to the higher judiciary.
Similarly, the Constitution (One Hundred and First Amendment) Act, 2016, which introduced the Goods and Services Tax regime was ratified by by more than half of the State Legislatures before recieving the President’s assent on September 8, 2016.
Constituent Assembly debates — preservation of federal structure
The Constituent Assembly debates show that Dr. B.R Ambedkar was in favour of ratification by States for the amendment of certain constitutional provisions to ensure 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 by two-thirds majority, without permitting the provinces or the States to have any voice, is in my judgment altogether nullifying the fundamentals of the Constitution,” he said.
Dr. Ambedkar cautioned that permitting all constitutional amendments to take place by a simple majority would defeat the principle of separation of powers among the three organs of the State. He reasoned — “...the purpose of a Constitution is not merely to create the organs of the State but to limit their authority because if no limitation was imposed upon the authority of the organs, there will be complete tyranny and complete oppression. The legislature may be free to frame any law; the executive may be free to take any decision; and the Supreme Court may be free to give any interpretation of the law. It would result in utter chaos.”
Can a constitutional amendment be struck down for want of ratification?
In Kihoto Hollohan v. Zachillu (1992) popularly known as the Anti-Defection case, the constitutional validity of the Tenth Schedule of the Constitution inserted by the Constitution (Fifty-second Amendment) Act, 1985 was challenged on the ground that the amendment was not ratified by the States. Though the 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. The amendment brought about changes with respect to the jurisdiction of the Supreme Court and the High Courts — one of the provisions that require ratification by half of the States. A Constitution Bench of the Supreme Court upheld the validity of the Tenth Schedule but declared Paragraph 7 of the Schedule invalid for want of ratification by treating Paragraph 7 as severable from the rest of the Schedule.
On July 20, 2021, the Supreme Court in Union of India v. Rajendra N. Shah struck down provisions of the Constitution (97th Amendment) Act, 2011 to the extent that it introduced Part IX B in the Constitution to deal with co-operative societies. The Court unanimously held that the 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 exclusive State subject — per Entry 32 in List II of the Seventh Schedule. The majority judgment invoked the doctrine of severability to make Part IXB operative only insofar as it concerns multi-State cooperative societies, while the minority judgment struck down the entire amendment.
Is there a time-limit prescibed for ratification?
The Indian Constitution does not prescribe any specific time limit within which State legislatures have to ratify a constitutional amendment. Article V, the corresponding provision in the U.S. Constitution, similarly does not specify any such time period. However, the U.S. Supreme Court in Dilllon v. Gloss (1921) held that such ratification must take place within a ‘reasonable time’ period after the proposed amendment.
The U.S. Supreme Court in Coleman v. Miller (1939) however refrained from determining what would constitute such a reasonable time period and instead observed that this should be regarded as a political question bestleft to the wisdom of the Congress. It pointed out that social, political, economic, and other factors would have to be taken into account to determine what constitutes a ‘reasonable time.’
If a similar scenario is to arise in India, the apex Court is likely to examine such precedents.
Can a State rescind its ratification?
There is no definite answer— neither is there any specific mention in the Constitution nor have courts in India dealt with this before. Moreover, since the prevailing constitutional practice makes ratification by at least half of all the States sufficient for compliance without requiring all States to consent, such a situation is unlikely to arise. Experts argue that permitting the rescinding of a ratification not only creates confusion but also makes the amending process more rigid.
In the U.S., Article V has been interpreted to mean that once a State has agreed to an amendment and communicated it to the Secretary of State, it cannot rescind its ratification. However, the US Supreme Court in Chandler v. Wise (1939) held that a State can ratify an amendment even if it has rejected it previously. It also underscored that it could not rule on a rescinded ratification and instead left the issue to Congress, which has clear plenary power to overrule the States.
Report of the Law Commission
In August 2018, the Law Commission of India, chaired by Justice B. S. Chauhan, released a draft report stipulating that simultaneous elections are not feasible within the existing framework of the Constitution. It suggested that appropriate amendments have to be brought about in the Constitution, the Representation of the People’s Act 1951, and the Rules of Procedure of Lok Sabha and State Assemblies before such a poll is conducted. Notably, the Commission highlighted that a constitutional amendment to this effect must receive ratification from at least 50% of the States. The Commission in 1999 under the leadership of B.P. Jeevan Reddy, similarly advocated for holding Lok Sabha and Assembly elections together.
Experts have however cautioned that implementing the recommendations of the Law Commission is not possible without infringing upon the federal structure of the Constitution. According to P.D.T Achary, Former Secretary General of Lok Sabha, in order for simultaneous polls to take place all existing State Assemblies have to be dissolved, which currently have different tenures.
This can be done in two ways— either the ruling government in the State recommends this voluntarily and the Governor gives assent, or there is a breakdown of Constitutional machinery and the President gets involved through a recommendation of the central government. However, since the latter is hardly likely for every State simultaneously, the only option left is for the Union government to amend Article 172 which stipulates that every legislative Assembly of every State, unless sooner dissolved, shall continue for five years from the date appointed for its first meeting.
Achary explains that such an amendment cannot be brought about without violating the federal structure— particularly in States ruled by Opposition parties, “If you want to amend that provision so that State elections can be synchronised with Lok Sabha polls, Parliament cannot do so as it will be infringing on the federal structure of the Constitution. The Union government/ Parliament cannot impose its will on States. The Union government can otherwise only get the States ruled by the BJP to voluntarily recommend the dissolution of the State Assemblies. But States ruled by the Opposition will not agree.”
