AMONG Justice Rohinton Fali Nariman’s last opinions for the Supreme Court of India (SCI) before his superannuation recently (with Justices BR Gavai and KM Joseph, the latter partly dissenting), was the brave reiteration of the basic structure and essential features (BSEF) doctrine.
The learned bench (on July 30, 2021) decided the 97th Amendment as constitutionally invalid for having trespassed Article 368(2) of the Constitution providing for ratification by the majority of state legislatures. The view that the decision was only about the interpretation of Article 368(2) and not about the meaning of the BSEF doctrine is wrong because the Court is at elaborate pains to deal with the question concerning adverse effects of consensual political action superseding the well-recognised exclusive legislative powers of the state (Entry 32, List 11, 7th Schedule).
Article 368(2) was always understood, by Parliament, the SCI and the citizens of India, as unproblematic— an essential aspect protecting the principle and detail of federalism. Division of legislative powers among the Union and states was elaborately blueprinted by the Constitution. And an amendment can only be valid if the majority of state legislative assemblies endorsed the change in the Constitution, which authorised a further sharing of powers.
Esta historia es de la edición September 06, 2021 de India Legal.
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