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6 constitutional amendments the SC part-struck-down (but NJAC was the first ever wholesale quash)

As Justice Khehar-led Constitution Bench reassembles today (3 November) to hear proposals for reforming the revived collegium to select judges of the higher judiciary, it cannot help listening to the echoes of its momentous decision to strike down the 99th Amendment Act and the NJAC Act in their entirety, even two weeks after it was delivered on 16 October.

Amidst the excitement caused by the split verdict by the bench, observers have missed the fact that it was the first striking down of an entire Amendment Act by the court on the ground of violation of the basic structure doctrine, enunciated by the court in the Kesavananda Bharati case in 1973. In the previous strike-downs by the court, only some provisions of the Amendment Acts were declared as unconstitutional on the ground of violation of the basic structure doctrine.

Here is a list of previous Constitutional Amendments, which were partly struck down by the Supreme Court on the ground that basic structure was damaged or destroyed:

1. 39th Amendment Act 1975: Clause 4 of this Act inserted Articles 71(2) and 329A which provided that disputes regarding the election of four high officials, namely, the President, Vice-President, the Prime Minister and Speaker of the Lok Sabha, should be adjudicated by whatever authority and procedure was provided by law, and that any court order, made before its commencement, declaring such an election to be void, should be deemed null and void. This was struck down as unconstitutional in Indira Gandhi vs Raj Narain (1975). The 39th Amendment also extended immunity to a number of statutes from judicial purview on the ground of infringement of Fundamental Rights by including them in the Ninth Schedule. But only clause 4 was challenged in Indira Gandhi.

2. S 55 of the 42nd Amendment Act, 1976: It added clauses (4) and (5) to Article 368, providing respectively that ‘no amendment of the Constitution shall be called in question in any court on any ground’ , and that ‘there shall be no limitation whatever on the constituent power of Parliament to amend by way of addition, variation or repeal the provisions of this Constitution’. Cl.(5) was struck down, while cl.(4) was read down in Minerva Mills vs Union of India (1980).

3. 25th Amendment Act, 1971. This Act inserted Article 31-C to confer immunity on laws pursuant to Directive Principles from being held void on the ground of inconsistency with Articles 14, 19 and 31. The court declared a sub-clause of this Act that conferred finality on the President’s certificate that the law in question was made pursuant to those Directive Principles, unconstitutional in Minerva Mills.

4. 32nd Amendment Act, 1973: It inserted Article 371D of the Constitution, which excluded High Court’s power of judicial review. In P Samba Murthy vs State of Andhra Pradesh, (1986), the court struck down Clause (5) of Article 371D along with the Proviso, as unconstitutional and void. This proviso conferred power on the State Government to modify or annul the final order of the Administrative Tribunal.

5. S 46 of 42nd Amendment Act, 1976 inserted Articles 323A and 323B Clause 2(d) of Article 323A and Clause 3(d) of Article 323B were declared unconstitutional in L Chandra Kumar vs Union of India (1997) because they excluded judicial review by High Courts.

6. 52nd Amendment Act, 1985: Paragraph 7 of the 10th Schedule to the Constitution, inserted by this Act, to disqualify elected members of Parliament and state legislatures on the ground of defection, was declared unconstitutional in Kihoto Hollohan vs. Zachillhu (1992), because it barred jurisdiction of Courts in connection with the disqualification of a member under this Act.

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