Indian Kanoon - Search engine for Indian Law

(2) Whether the 103rd Constitution Amendment can be said to breach the basic structure of the Constitution by permitting the State to make special provisions in relation to admission to private unaided institutions?

(3) Whether the 103rd Constitution Amendment can be said to breach the basic structure of the Constitution in excluding the SEBCs/OBCs/SCs/STs from the scope of EWS reservation?

(4) Whether the cap of 50% referred to in earlier decisions of the Supreme Court can be considered to be a part of the basic structure of the Constitution? if so, can the 103rd Constitution Amendment be said to breach the basic structure of the Constitution?” 5.1. Having taken note of the relevant facets of the matter, this Court found that the first three issues suggested by the learned Attorney General were the main issues arising in the matter while the other issues were essentially in the nature of supplementing and substantiating the propositions emerging from the said three issues. Accordingly, this Court proceeded with the hearing with respect to the first three issues aforesaid, while leaving it open to the learned counsel appearing for the respective parties to advance their submissions touching upon other facets in aid of the said three issues.

and it was held that power of judicial review under Articles 226/227 and Article 32 of the Constitution is an integral and essential feature of the Constitution, constituting its basic structure. The Constitution Bench held invalid the provisions of clause 2(d) of Article 323-A and clause 3(d) of Article 323-B, inserted by the Constitution (Forty-second Amendment) Act, which excluded the jurisdiction of the High Court while observing as under: -

“99. In view of the reasoning adopted by us, we hold that clause 2(d) of Article 323-A and clause 3(d) of Article 323-B, to the extent they exclude the jurisdiction of the High Courts and the Supreme Court under Articles 226/227 and 32 of the Constitution, are unconstitutional. Section 28 of the Act and the “exclusion of jurisdiction” clauses in all other legislations enacted under the aegis of Articles 323-A and 323-B would, to the same extent, be unconstitutional. The jurisdiction conferred upon the High Courts under Articles 226/227 and upon the Supreme Court under Article 32 of the Constitution is a part of the inviolable basic structure of our Constitution. While this jurisdiction cannot be ousted, other courts and Tribunals may perform a supplemental role in discharging the powers conferred by Articles 226/227 and 32 of the Constitution…….” (emphasis supplied) 37.9. In M. Nagaraj, the Constitution Bench validated the Constitution (Seventy-seventh Amendment) Act, 1995 which inserted Article 16(4-A);

Khehar, J.

Hereinafter also referred to as ‘NJAC Judgment’.

 “308. Articles 124-A(1)(a) and (b) do not provide for an adequate representation in the matter to the judicial component to ensure primacy of the judiciary in the matter of selection and appointment of Judges to the higher judiciary, and therefore, the same are liable to be set aside and struck down as being violative of the “basic structure” of the Constitution of India. Thus viewed, we are satisfied that the “basic structure” of the Constitution would be clearly violated if the process of selection of Judges to the higher judiciary was to be conducted in the manner contemplated through NJAC. The impugned constitutional amendment being ultra vires the “basic structure” of the Constitution is liable to be set aside.

1196.7. The abrogation of any one of the basic features results normally in the destruction of the basic structure of the Constitution subject to some exceptions.

1196.8. As to when the abrogation of a particular basic feature can be said to destroy the basic structure of the Constitution depends upon the nature of the basic feature sought to be amended and the context of the amendment. There is no universally applicable test vis-à-vis all the basic features.” (emphasis supplied) 37.15. Lastly, in the decision in Dr. Jaishri Patil to which one of us (S. Ravindra Bhat, J.) was a party, this Court considered the validity of the Constitution (One Hundred and Second Amendment) Act, 2018 which, inter alia, inserted Articles 366(26-C) and 342-A. As a result of this amendment, the President alone, to the exclusion of all other authorities, is empowered to identify socially and educationally backward classes and include them in a list to be published under Article 342-A (1), which shall be deemed to include SEBCs in relation to each State and Union territory for the purposes of the Constitution. The said amendment was challenged, inter alia, on the ground that the same was not ratified by at least half of the States and that it was striking at the federal structure of the Constitution. While rejecting the challenge, this Court held that there was no breach of the basic structure of the Constitution. Some of the relevant questions formulated in that case and the opinions expressed could be usefully reproduced as under: -