State Ratification In Constitutional Amendments - The Definitional Ambiguities Of ‘State’
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Category: Constitutional & Human Rights
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STATE RATIFICATION IN CONSTITUTIONAL
AMENDMENTS: THE DEFINITIONAL AMBIGUITIES OF ‘STATE’
Pratham Baliga, School of Law, Christ (Deemed to be University)
ABSTRACT
Article 368 of the Indian Constitution states that for constitutional amendments affecting federalism, a ratification is required by the legislative assemblies of one-half of the State legislative assemblies. The Indian Constitution makes a distinction between two categories of federating units- States and Union territories. However, with subsequent amendments, certain Union Territories have started to exhibit characteristics of States. The primary question that emerges is with regard to who can ratify constitutional amendments under Article 368 of the Constitution. The term ‘State’ as it occurs in the proviso to Article 368 may either be interpreted expansively to include all federating units capable of expressing assent to an Amendment Bill, or narrowly to include only those federal units classified as States in the First Schedule of the Constitution.
The latter interpretation would be anomalous, and contravene the principles of federalism, in furtherance of which the requirement for State ratification was incorporated into Article
368. This paper seeks to analyse the definitional ambiguities associated with
the definition of ‘State’ in context of ratification of constitutional amendments, and whether the latter category of Union territories fall within the definition of 'States' as it occurs in State ratification. Keywords: expansive interpretation, definitional ambiguities, ratification, federalism, constitutional amendments I.
Introduction
The procedure for amendment of the Constitution is laid out in Article 368 of the Constitution. The Constitution may be amended by either simple majority of the Parliament, special majority, or a special majority accompanied with a ratification by at least one-half of the state legislatures. 1 The third type is necessary for any amendment that brings about a change in the federal division of powers.
The specific subject matters of a constitutional amendment that would warrant State ratification have been enumerated in the proviso to Article 368(2), which reads as follows: “Provided that if such amendment seeks to make any change in— (a) article 54, article 55, article 73, article 162 or article 241, or (b) Chapter IV of Part V, Chapter V of Part VI, or Chapter I of Part XI, or (c) any of the Lists in the Seventh Schedule, or (d) the representation of States in Parliament, or (e) the provisions of this article, the amendment shall also require to be ratified by the Legislatures of not less than one-half of the States.
”2 This entails matters such as the election of the President, any change affecting the Union or State executive, the Goods and Services Tax Council, any change in the functioning of either the Union or the State Judiciary, or the Legislative relations between the Centre and the State, any change brought to the Lists in the Seventh Schedule, any change made with regard to the representation of states in the Parliament, and any change to Article 368 itself. These matters have a direct bearing upon the constitutional relationship between the Union and the States, and thus warrant an additional layer of safeguard, to uphold the ethos of federalism. Any change affecting any of these matters are required to fulfil the requirement of State ratification, failing which the amendment can be declared unconstitutional. In Kihoto
1 INDIA CONST. art 368.
2 INDIA CONST. art 368(2).
Hollohan v. Zachillhu,3 paragraph 7 of the Tenth Schedule was struck down because it was inserted through a Constitution Amendment Bill, and paragraph 7 in terms and effect brought a change in Article 136 in Chapter IV of Part V and Articles 226 and 227 in Chapter V of Part VI, attracting proviso (b) to Article 368(2), requiring ratification by the States. Similarly, the Constitution (Ninety-Seventh Amendment) Act, which added the term ‘co-operative societies’ to Article 19(1)(c) of the Constitution in order to promote the formation of co-operative societies, was struck down in Union of India v. Rajendra N. Shah,4 on the grounds that it was not ratified by the legislative assemblies of the States, as it interfered with the exclusive legislative domain of the States. Thus, failure to fulfil this requirement is sufficient grounds to strike down a legislative enactment of the Union.
The intricacies of the process of ratification had been explored in the thesis “The Amending Process of the Indian Constitution” done by author Hari Chand for the University of London. 5 Among various findings were that ratification by the State is the sole prerogative of the legislative assembly, and the assent of a State cannot be invalidated when the Governor of a State withholds his assent, as laid down by the Supreme Court in State of Bihar v Kameshwar Singh. 6 This exhibits the primacy of the State legislature over the Executive in matters of State ratification. Additionally, it was also found that in the Indian context, there exists no time limit on ratification, but other democracies have certain time limits.
For instance, in the United States of America, it is required that all States must have ratified the amendment in the same time period, and scattered ratifications would not suffice. 7 Having established the nature of State ratification in Constitutional Amendments, an ambiguity arises with regard to who can ratify a constitutional amendment. The proviso to Article 368(2) implies that the legislature of a State has the power to ratify, but the term ‘State’ for the purposes of Article 368(2) has not been defined. This raises the question of whether all federating units capable of expressing assent can be included in the purview of ‘State’, or whether a formalistic understanding of ‘State’ has to be adopted to interpret it as only those enumerated in the First Schedule. This paper shall seek to analyse the same in light of the changing dimensions of the
3 Kihoto Hollohan v. Zachillhu, 1992 Supp (2) SCC 651.
4 Union of India v. Rajendra N. Shah, 2021 SCC OnLine SC 474.
5 Hari Chand, THE AMENDING PROCESS IN THE INDIAN CONSTITUTION, 131 (Ph.D., University of London,
1969).
6 State of Bihar v. Kameshwar Singh, AIR 1952 SC 252.
7 Supra note 5, 133-135.
definition of ‘States’ in the Indian legal context. II.
Constitutional Distinction Between States and Union territories The Constitution makes a distinction between States and Union territories. Article 1(3) of the Constitution states that “the territory of India shall comprise the territories of the States and the Union territories specified in the First Schedule. ”8 The First Schedule to the Indian Constitution lists out all of the territories classified as States and Union territories. 9 Thus, the Constitution itself makes a difference in classification between States and Union territories. The Constitution also vests different administrative mechanisms in States and Union territories. The States enumerated in the First Schedule are administered by the Council of Ministers of the State,10 which is directly accountable to the State legislative assembly elected by direct election.
11 Thus, States are administered by a representative government that enjoys the confidence of the people. The mode of administration of Union territories is laid out in Article 239, which states that every Union territory shall be administered by the President acting through an administrator, who is appointed by him. 12 The mode of administration is thus not a representative government, but direct administration by the Union Executive. However, there are three Union territories at present which are an exception to this, and are governed by a representative government accountable to an elected legislative assembly- the Union territories of Delhi, Jammu and Kashmir, and Puducherry. Thus, the administrative and constitutional machinery is distinct in States and Union territories.
However, the institution of a legislative assembly in the Union territories of Delhi, Puducherry and Jammu and Kashmir blur the constitutional distinction that has been made between States and Union territories. Additionally, the term ‘States’ has not been defined in the Constitution. It has been defined in section 3(58) of the General Clauses Act to include not just the States enumerated in the First Schedule, but also Union territories. 13 Thus, despite the constitutional
8 INDIA CONST. art 1(3).
9 INDIA CONST. Sch 1.
10 INDIA CONST. art 163.
11 INDIA CONST. art 168.
12 INDIA CONST. art 239.
13 General Clauses Act of 1897 §3(58), Acts of Parliament, 1897.
distinction made, the term ‘States’ can be interpreted expansively in Constitutional provisions to include even Union territories. III.
History Of Union Territories As Federating Units At the time of framing the Constitution, the states in India were divided into 4 categories- Part A, B, C, and D states. It was only after the enactment of the States Reorganisation Act in 1956 that these states were reorganised into States and Union Territories. Thus, at the time of framing the Constitution, the term ‘States’ was used to refer to all federating units, as there existed no concept of Union territories. When Union territories were established in 1956, amending Article 239 of the Constitution, the scheme of administration instituted was by the President through an administrator.
14 The Union Territories of Goa, Daman and Diu and Puducherry were the first Union Territories to have a direct representative government by the institution of a legislative assembly, by the Constitution (Fourteenth Amendment) Act, 1962, which inserted Article 239A into the Constitution. 15 Subsequently, the Goa, Daman and Diu Reorganisation Act, 1987, omitted these territories from Article 239A. 16 In 1991, the Constitution (Sixty-Ninth Amendment Act) inserted Article 239AA, which altered the administrative scheme in the Union territory of Delhi to administration by an administrator designated as the Lieutenant Governor, and by a Legislative assembly,17 wherein the legislative assembly has the power to make laws on any subject except public order, police, and land.
18 In 2019, the Jammu and Kashmir Reorganisation Act instituted a legislative assembly for the union territories of Jammu and Kashmir. 19 There are presently three union territories that have legislative assemblies- Puducherry, Delhi, and Jammu and Kashmir. The existence of a legislative assembly in these Union territories is a deviation from the scheme of administration of other Union territories, and not something foreseen while enacting the Constitution.
14 INDIA CONST. art 239.
15 Constitution (Fourteenth Amendment) Act of 1962, Acts of Parliament, 1962.
16 Goa, Daman and Diu Reorganisation Act of 1987, Acts of Parliament, 1987.
17 INDIA CONST. art 239AA.
18 INDIA CONST. art 239AA(3)(a).
19 Jammu and Kashmir Reorganisation Act of 2019 § 4, Acts of Parliament, 2019.
IV.
Legislative Precedents Of State Ratification In order to determine whether Union territories with legislative assemblies can ratify constitutional amendments, it becomes necessary to analyse instances of state ratification where such Union territories had ratified Constitutional amendments. The legislative history of the Constitution Amendment Acts from the First to the Ninety- Fourth was traced initially by RC Bharadwaj in “Constitutional Amendment in India” for the Lok Sabha Secretariat. 20 The Amendment Acts from the Ninety-fifth to the One hundred and sixth was traced through various Lok Sabha Secretariat reports and newspaper reports. Till date, there have been 40 constitutional amendments that have been passed with State ratification. 21 Of these, only one amendment has been ratified by the legislative assembly of a Union territory.
The Constitution (One Hundred and First Amendment) Act, passed in 2016 was ratified by the Union territories of Delhi22 and Puducherry. 23 However, since this amendment act was ratified with overwhelming majority, the ratification by Puducherry and Delhi was never challenged. Thus, this remains an isolated legislative precedent, which leaves the question pending as to whether the legislative assemblies of Union territories can be equated to the same pedestal as that of a State in the context of State ratification under the proviso to Article 368(2). V.
The Need For An Expansive Definition
A possible argument against the expanded definition of ‘States’ under Article 368(2) is that if such an expansion were to be made, it would defeat the legislative intent of the Parliament. If the Parliament, after incorporating various categories of federating units distinct of States, had felt the need to expand the applicability of a provision, it would have explicitly done so. This is evidenced by various amendments passed subsequent to the creation of Union territories. After the introduction of Union territories and the amendment of the First Schedule, in order
20 RC Bharadwaj, CONSTITUTIONAL AMENDMENT IN INDIA, (Lok Sabha Secretariat, 6th edn)
21 Id.
22 Delhi Assembly Passes GST Bill, The Hindu, (New Delhi, 25 August 2016)
accessed
19 October 2024.
23 Puducherry ratifies GST Bill amid Opposition protest, The Hindu, (Puducherry, 4 December 2021)
accessed 19 October 2024. to mitigate any ambiguity, a number of amendments were passed to include the term ‘Union territories’ wherever the term ‘States’ occurred in a provision, so as to widen the scope to include all federating units for the purpose of that provision. For instance, Art. 3 of the Constitution, which gives the Parliament the power to form new states and alter existing states,24 inserted Explanation I by the Constitution (Eighteenth Amendment) Act, 1966, which extended the power to form and alter states to Union territories. 25 Similarly, when the Tenth Schedule was incorporated through the Constitution (Fifty-second Amendment) Act, 1985, the wordings are ambiguous on the applicability of the Tenth Schedule to the legislative assemblies of Union territories.
Section 1(a) of the Tenth Schedule defines “House” for the purposes of the Tenth Schedule as “either House of the Parliament or the Legislative Assembly, or, as the case may be, either House of the Legislative Assembly of a State. ”26 To clarify the same, the Government of Union Territories Act, 1963, was amended to insert section 14A, which extended the applicability of the Tenth Schedule to the legislative assemblies of Union Territories. 27 Thus, in the same line of reasoning, had the legislature deemed it necessary to include Union territories within the purview of ‘State’ under Article 368(2), it would have explicitly done so by means of an amendment. This is further backed by the decision of the Supreme Court in Goa Sampling Employees' Assn. v. General Superintendence Co.
, where the Court held that the Constitution itself made a distinction between States and Union territories, and unless otherwise clearly enacted for the purposes of that provision, ‘State’ would not include Union territories. 28 However, such an interpretation would be fallacious, as it disregards the purpose for which State ratification in Article 368(2) was enacted. The purpose behind including state ratification in constitutional amendments is evident from Vol. VII of the Constituent Assembly Debates, which indicate the purpose to be retaining the federal character of the Constitution in those matters that affect the federal division of powers. 29 Dr B. R Ambedkar had stated in the
24 INDIA CONST. art 3.
25 Constitution (Eighteenth Amendment) Act of 1966, Acts of Parliament, 1966.
26 INDIA CONST. Sch. 10 para 1(a).
27 Government of Union Territories Act of 1963 §14A, Acts of Parliament, 1963.
28 Goa Sampling Employees' Assn. v. General Superintendence Co., (1985) 1 SCC 206.
29 Vol. VII, CONST. ASSEMBLY DEBATES (1948).
Constituent Assembly that this adds a layer of safeguard to those amendments directly affecting the constitutional relationship between the States and the Union. He stated as follows: “The provisions of the Constitution relating to the amendment of the Constitution divide the Articles of the Constitution into two groups. In the one group are placed Articles relating to (a) the distribution of legislative powers between the Centre and the States, (b) the representation of the States in Parliament, and (c) the powers of the Courts. All other Articles are placed in another group. Articles placed in the second group cover a very large part of the Constitution and can be amended by Parliament by a double majority, namely, a majority of not less than two thirds of the members of each House present and voting and by a majority of the total membership of each House.
It is only in those Articles which are placed in group one that an additional safeguard of ratification by the States is introduced. ”30 Thus, if ‘State’ were to be interpreted as only those listed as States in the First Schedule of the Constitution, very anomalous and absurd outcomes would follow, as other federating units of the Indian Constitution, capable of ratifying Constitutional amendments, namely the legislative assemblies of Delhi, Puducherry, and Jammu and Kashmir, would be denied representation in matters affecting their federal autonomy. This would defeat the purpose of setting up a representative government in these territories. In State (NCT of Delhi) v.
Union of India, the Court stated: “The real purpose behind the Constitution (Sixty-ninth Amendment) Act, 1991, as we perceive, is to establish a democratic set-up and representative form of Government wherein the majority has a right to embody their opinion in laws and policies pertaining to NCT of Delhi subject to the limitations imposed by the Constitution. For paving the way to realise this real purpose, it is necessary that we give a purposive interpretation to Article 239-AA so that the principles of democracy and federalism which are part of the basic structure of our Constitution are reinforced in NCT of Delhi in their truest sense”31 The legislative assemblies of Delhi, Puducherry and Jammu and Kashmir are directly elected,
30 Id.
31 State (NCT of Delhi) v. Union of India, (2018) 8 SCC 501.
and enjoy the confidence of the people of these territories.32 Denying these legislative assemblies’ representation in ratification would defeat the principles of democracy and federalism. Thus, the term ‘State’ for the purposes of state ratification in Article 368(2) must be interpreted expansively, so as to uphold the principles of federalism, to include even Union territories with legislative assemblies. VI.
Conclusion
The purpose of State Ratification is to grant the federating units of India a say in matters affecting their constitutional relationship with the Union, and uphold the principles of federalism. The exclusion of Union territories that have directly elected legislative assemblies, that enjoy the confidence of the people, from this exercise, would be absurd, and hinder this objective. In order to fully realise the goal envisaged by the framers of the Constitution while inserting the proviso to Article 368(2), it becomes necessary to go beyond the formalistic view of ‘States’, and interpret it expansively so as to include not just States, but also all those Union territories that have elected legislative assemblies.
Thus, the term ‘State’ for the purposes of ratification of Constitutional amendments needs to be interpreted in a manner that includes Union territories with legislative assemblies.
32 Id.