May Parliament Act as a Constituent Assembly?

The apex court and the Gujarat High Court have stressed that federalism is an integral aspect of the BSEF doctrine and thereby saved it from the excesses of the amending power

- Prof Upendra Baxi

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.